Expired handgun permit not ‘misuse’ of firearm, COA says

KATIE STANCOMBE FOR WWW.THEINDIANALAWYER.COM

A divided panel of the Indiana Court of Appeals has reversed an order to destroy a man’s handgun, finding the man did not misuse the firearm, despite his expired permit.

In March 2017, an Indianapolis police officer stopped a vehicle for its lack of illumination for the license plate. When asked if there were any guns, knives or other weapons in the vehicle, Marques Trice, the driver, said that he had a handgun in the console.

Upon learning Trice’s firearm permit had expired in 2015, the officer took possession of the handgun and subsequently arrested Trice. He was subsequently convicted of Class A misdemeanor carrying a handgun without being licensed. As part of his sentence, the Marion Superior Court ordered that Trice’s gun be destroyed.

On appeal, Trice argued the trial court erred by ordering the destruction of his handgun. Specifically, his argument in Marques D. Trice v. State of Indiana,18A-CR-697 was that carrying a handgun without being licensed does not amount to “misuse” of a firearm.

The appellate court agreed, finding in its Tuesday decision that the phrase “misuse of a firearm” had not been “legislatively defined in Indiana for purposes of Indiana Code section 35-47-3-2(b).” Looking at the dictionary definition of “misuse,” the appellate court said the word is defined as “incorrect or improper use,” “an occasion when something is used in an unsuitable way or in a way that was not intended” or “the act of using something wrongly or in a dishonest way.”

“The evidence shows that Trice’s handgun was in the console of his vehicle, and the officer became aware of its existence when Trice answered affirmatively and honestly the officer’s inquiry as to whether Trice had any weapons in the vehicle,” Senior Judge Betty Barteau wrote for the court. “However, although Trice possessed the handgun, he did not use the handgun.”

“Therefore, the definitions of the term ‘misuse’ can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable,” Barteau concluded. “Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun.”

The appellate court ultimately reversed and remanded the trial court’s order to destroy Trice’s handgun.

Judge Terry Crone dissented from the majority, arguing that carrying a handgun without a license is a misuse, just as driving a motor vehicle without a license is misuse of the vehicle.

“Carrying a handgun without a license is misusing a firearm, and thus a conviction for that offense is a conviction for the misuse of firearms,” Crone wrote in a separate opinion.