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Date: 05-16-2021
Case Style:
Jeffery Wayne Moore v. State of Indiana
Case Number: 20A-CR-01941
Judge: Leanna K. Weissmann
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Jeffrey Moore with a carrying a handgun in a vehicle without a license charge.
On December 16, 2018, at approximately 4:30 a.m., Boone County Sheriff’s
Officer Christopher Helmer initiated a traffic stop of a vehicle he observed
traveling well under the posted speed limit and making unsafe lane movements. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 3 of 9
Moore was in the front passenger seat. The driver was the vehicle’s only other
occupant.
[5] While speaking with the driver and Moore, Officer Helmer detected the odor of
marijuana coming from inside the vehicle. His subsequent search of the vehicle
revealed a gun inside the pocket of a jacket located behind the front passenger
seat. The gun did not have a magazine or any ammunition in its chamber, and
none were found in the vehicle.
[6] Officer Helmer detained Moore upon finding the gun, and Moore asked to
speak with the officer “[a]lmost immediately.” Tr. Vol. II, p. 12. After being
read his Miranda rights, Moore admitted to Officer Helmer that he did not have
a license to carry a handgun but had placed the gun in the vehicle. Moore
further advised that “he had taken the gun from his sister in Gary and was
bringing it back to Indianapolis.” Id.
[7] Moore was charged with Class A misdemeanor carrying a handgun in a vehicle
without a license. At a bench trial, Moore’s defense counsel stated, “No
objection,” when the State offered the gun into evidence. Tr. Vol. II, p. 14.
Defense counsel also lodged no objections to Officer Helmer’s testimony
concerning the traffic stop, the vehicle search, or Moore’s statements about the
gun. Moore was found guilty and sentenced to two days in jail, already served.
He now appeals his conviction.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 4 of 9
Discussion and Decision
I. Fundamental Error
[8] Moore argues that the trial court erred in admitting the gun into evidence
because Officer Helmer lacked probable cause to search the vehicle in which the
gun was found. We normally review the trial court’s admission of evidence for
abuse of discretion. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). But “[a]
contemporaneous objection at the time the evidence is introduced at trial is
required to preserve the issue for appeal[.]” Brown v. State, 929 N.E.2d 204, 207
(Ind. 2010). Moore concedes that he waived his challenge to the gun’s
admissibility by not objecting to its admission at trial. Appellant’s Br. p. 24.
However, he seeks to avoid this waiver by establishing the existence of
fundamental error.
[9] The fundamental error doctrine is an exception to the general rule that failure to
object at trial precludes consideration of the issue on appeal. Benson v. State, 762
N.E.2d 748, 755 (Ind. 2002). The exception, however, is “inapplicable” where a
defendant affirmatively states that he has no objection to the admission of
evidence. Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013); see also Harrison v.
State, 258 Ind. 359, 363, 281 N.E.2d 98, 100 (1972) (“The appellant cannot on
the one hand state at trial that he has no objection to the admission of evidence
and thereafter in this Court claim such admission to be erroneous.”);Winston v.
State, 165 Ind. App. 369, 376, 332 N.E.2d 229, 233 (1975) (“[O]nly the Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 5 of 9
interested party himself can really know whether the introduction or exclusion
of a particular piece of evidence is in his own best interests.”).
[10] Here, the fundamental error doctrine is inapplicable because Moore explicitly
stated, “No objection,” when the gun was admitted into evidence. Tr. Vol. II, p.
14; see Halliburton, 1 N.E.3d at 679. Moore acknowledges as much. Appellant’s
Brief p. 25. But he claims the fundamental error doctrine should transcend his
express acquiescence to the admission of the gun because it was seized during
an unlawful search of the vehicle. Our Supreme Court, however, has long held
that the admission of evidence obtained from an unlawful search and seizure
“does not elevate that issue to the status of fundamental error that may be
raised for the first time on appeal.” Swinehart v. State (1978), 268 Ind. 460, 376
N.E.2d 486, 491; see also Brown v. State, 929 N.E.2d at 207; accord Covelli v. State,
579 N.E.2d 466, 471 (Ind. Ct. App. 1991), trans. denied.
[11] Fundamental error is an “extremely narrow” exception, “available only when
the record reveals a clearly blatant violation of basic and elementary principles,
where the harm or potential for harm cannot be denied, and which violation is
so prejudicial to the rights of the defendant as to make a fair trial impossible.”
Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). In contrast, “the exclusionary
rule that prohibits introduction into evidence of unlawfully seized materials is
an example of a rule that does not go to the fairness of the trial.” Membres v.
State, 889 N.E.2d 265, 272 (Ind. 2008).
Otherwise stated, we do not exclude the products of unlawful
searches and seizures because they are unreliable or immaterial Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 6 of 9
or unduly prejudicial evidence.” Id. (citing Stone v. Powell, 428
U.S. 465, 489-90, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)
(explaining that evidence inadmissible under the Fourth
Amendment's exclusionary rule “is typically reliable and often
the most probative information bearing on the guilt or innocence
of the defendant”). Indeed, exclusion of this evidence is an
obstacle to the truth-finding objective of trials. We nonetheless
exclude it because that is the only effective means of deterring
improper intrusions into the privacy of all citizens.
Membres, 889 N.E.2d 265 at 272. For the foregoing reasons, we reject Moore’s
fundamental error claim.
II. Sufficiency of the Evidence
[12] Moore also argues that the State presented insufficient evidence to support his
conviction for carrying a handgun in a vehicle without a license. When
reviewing the sufficiency of the evidence to support a criminal conviction, we
neither reweigh evidence nor judge witness credibility. Bailey v. State, 907
N.E.2d 1003, 1005 (Ind. 2009). We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from such
evidence. Id. We will affirm if there is substantial evidence of probative value
such that a reasonable trier of fact could have concluded the defendant was
guilty beyond a reasonable doubt. Id.
[13] To convict Moore, the State was required to prove that he “carr[ied] a handgun
in any vehicle” without a license to carry a handgun. Ind. Code § 35-47-2-1(a).
Moore does not dispute that he did not have a license to carry the gun found in Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 7 of 9
the vehicle, but he challenges the sufficiency of the State’s evidence on several
other grounds.
[14] First, Moore curiously claims that the State failed to prove he owned the
vehicle in which the gun was found. Appellant’s Br. p. 29. Moore goes no
further with this claim, and neither shall we—except to note that vehicle
ownership is not an element of the crime. See Ind. Code § 35-47-2-1(a)
(prohibiting unlicensed carrying of handgun in “any vehicle”); see Ind. Code §
35-47-2-1(b)(4) (allowing unlicensed carrying of handgun in vehicle “owned . . .
by another person” under circumstances not present here).
[15] Next, Moore fleetingly claims that the State failed to prove he carried the gun
because it was found in the pocket of a jacket located behind the front passenger
seat. Again, Moore goes no further. But the undisputed evidence establishes
that Moore voluntarily admitted to placing the gun inside the vehicle for the
purpose of transporting it Indianapolis. This admission, together with the gun
found in the vehicle, sufficiently supports a finding that Moore carried the gun.
Cf. Youngblood v. State, 515 N.E.2d 522, 526-27 (Ind. 1987) (“Even when a gun
is not introduced as evidence the testimony of an eyewitness that the defendant
was carrying a pistol . . . is sufficient to sustain a conviction for carrying a
handgun without a license.”).
[16] Finally, Moore claims the State failed to prove that the gun was a “handgun,”
as that term is used in the charging statute. Indiana Code § 35-47-1-6 generally
defines a “handgun” as “any firearm capable of being fired with one hand or Court of Appeals of Indiana | Memorandum Decision 20A-CR-1941 | May 12, 2021 Page 8 of 9
having certain measurements.” Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct.
App. 2006), trans. denied. Indiana Code § 35-47-1-5 further defines a “firearm”
as “any weapon that is capable of or designed to or that may readily be
converted to expel a projectile by means of an explosion.” Id.
[17] Moore contends the State presented no evidence that the gun was designed to
fire without a magazine, highlighting that Officer Helmer did not find a
magazine in the vehicle. We conclude that the absence of a magazine relates to
whether the gun is capable of expelling a projectile, not whether the gun was
designed to do so. According to the plain language of the statutes, the State is
not required to prove that a gun is operable to obtain a conviction for carrying a
handgun without a license. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App.
1995). “That the handgun was designed to expel a projectile by means of an
explosion is sufficient.” Id. (emphasis added). See, e.g., State v. Gibbs, 769 N.E.2d
594, 597 (Ind. Ct. App. 2002) (holding inoperable antique gun was a firearm
because it was designed to expel projectiles by means of an explosion), trans.
denied.
[18] Here, the gun itself was admitted into evidence along with an evidence box that
identified it by make (SCCY), model (CPX-2), and caliber (9mm). Tr. Vol. III,
p. 4. Officer Helmer specifically testified that he found the “firearm” inside the
vehicle. Tr. Vol. II, p. 10. And he ensured that the gun was “secure and safe”
before its admission. Tr. Vol. II, p. 13. From this evidence, the finder of fact
could reasonably infer that the gun was designed to expel a projectile—namely
9-millimeter bullets—by means of an explosion.
Outcome: The judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: