from the Vanderburgh Circuit Court. The Honorable Kelli E.
Fink, Magistrate. Trial Court Cause No. 82C01-1606-F5-3289
ATTORNEY FOR APPELLANT Yvette M. LaPlante Keating &
LaPlante, LLP Evansville, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Laura R. Anderson Deputy Attorney General
Darden, Senior Judge.
of the Case
Jonathan Kent Roy appeals the trial court's denial of his
Petition for Return of Property, in which he asked the court
to order the State to return a handgun to his mother. We
reverse and remand.
Roy raises one issue, which we restate as: whether the trial
court erred in denying Roy's petition.
and Procedural History
On June 4, 2016, police officers were dispatched to
investigate a reported break-in at a commercial building. One
of the officers looked in a window and saw Roy sitting on an
air mattress, tending to a cut on his leg. As the officer
watched, Roy picked up and then hid a handgun. When another
officer knocked on the door, Roy grabbed the gun and ran to
another part of the building before returning to his original
location. The officers entered the building and took Roy into
custody. They found the handgun, a .357 magnum silver Colt
Trooper Mark III revolver bearing serial number L6744, in a
backpack. Later, an officer searched for information about
the handgun in an online database, which indicated that a
handgun bearing serial number L6744 had been reported stolen
in Texas in 1991.
The State charged Roy with burglary, a Level 5 felony; theft
of a firearm, a Level 6 felony; and carrying a handgun
without a license, a Class A misdemeanor. Roy and the State
executed a plea agreement, pursuant to which Roy pleaded
guilty to criminal trespass, a Class A misdemeanor, and
carrying a handgun without a license, a Class A misdemeanor.
The court accepted the plea agreement and imposed a sentence
of time served.
On September 15, 2016, Roy filed a Petition for Return of
Property, requesting the court to order the return of the
handgun to him or his designee. The court held an evidentiary
hearing on December 15, 2016. During the hearing, Roy
requested the court to order the return of the handgun to his
mother, asserting she was the rightful owner and had loaned
the handgun to him. He further claimed the handgun had
originally belonged to his father since the 1980s, and his
father had died approximately seven years earlier. The court
concluded that Roy's mother was not the rightful owner
and denied Roy's petition. This appeal followed.
Roy argues the court's decision is unsupported by the
evidence and should be reversed. A person seeking the return
of property seized by the State during an investigation must
prove by a preponderance of the evidence that he or she is
the rightful owner of the property. Tracy v. State,
655 N.E.2d 1232, 1236 (Ind.Ct.App. 1995), trans.
denied. Upon review of the denial of a motion for return
of property, we will affirm unless the decision is clearly
erroneous and cannot be sustained on any legal theory
supported by the evidence. Barany v. State, 54
N.E.3d 386, 387 (Ind.Ct.App. 2016), trans. denied, cert.
denied. Statutes that relate to search and seizure must
be strictly construed in favor of the constitutional right of
the people. Williams v. State, 952 N.E.2d 317, 319
(Ind.Ct.App. 2011) (quotation omitted).
The parties agree that this case is governed by Indiana Code
section 35-47-3-2 (2014). That statute provides, in relevant
(b) Firearms shall be returned to the rightful owner at once
following final disposition of the cause if a return has not
already occurred under the terms of IC 35-33-5. If the
rightful ownership is not known the law enforcement agency
holding the firearm shall make a reasonable attempt to
ascertain the rightful ownership and cause the return of the
firearm. However, nothing in this chapter shall be construed
as requiring the return of firearms to rightful owners who
have been convicted for the misuse of firearms. ...