Klopfenstein v. State

• Decision Date: 21 September 1982
• Docket Number: No. 2-681A193,2-681A193
• Citation: 439 N.E.2d 1181
• Parties: Melvin KLOPFENSTEIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1181

439 N.E.2d 1181

Melvin KLOPFENSTEIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 2-681A193.

Court of Appeals of Indiana,

Second District.

Sept. 21, 1982.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Melvin Klopfenstein (Klopfenstein) appeals from two Class D felony convictions, one for carrying a handgun without a license ¹ and the other for possession of more than two grams of hashish. ²

The following issues are presented for review:

I. Whether the trial court erred in finding Klopfenstein guilty of carrying a handgun in a vehicle without a license;

II. Whether the trial court erred in finding Klopfenstein guilty of a Class D felony under the Firearms Act because Klopfenstein's prior felony conviction had not been conclusively established;

III. Whether the trial court committed error in admitting evidence obtained as the result of a search incident to an arrest;

IV. Whether the chain of custody was sufficiently established to allow the admission into evidence of an exhibit; and

V. Whether the trial judge abused his discretion in admitting the opinion testimony of an expert witness. We affirm.

Shortly after midnight on December 15, 1979, Officer William Owensby received a radio broadcast regarding two shooting incidents on the south side of Indianapolis. He was instructed to be on the lookout for a vehicle described as a white over black Cadillac El Dorado dating from approximately 1974 and containing four white males. The officer saw a black over white Cadillac El Dorado with four white males inside. While he was still following the vehicle, he radioed in. By the time he stopped the vehicle, other officers had arrived at the scene.

Owensby approached the vehicle and ordered the occupants out. He observed two shotguns in plain view inside the car, one in the front seat in the driver's area and the other across the laps of the two passengers in the back seat. Owensby further observed a pistol fall out of the car when the passenger in the front seat alighted.

While the other officers detained the car's occupants, Owensby searched the car. As he looked in, he saw the butt of what appeared to be a pistol protruding from directly beneath the driver's seat.

Owensby then arrested the occupants of the car, including Klopfenstein, the driver of the car. He searched Klopfenstein's person and found a closed Tylenol pill bottle in a clear plastic bag. Pills were in the bottom of the plastic bag. Officer Owensby removed the Tylenol bottle from the plastic bag and opened it. He discovered several lumps of a greenish-brown substance later chemically identified as 2.2 grams of hashish.

I.

Klopfenstein first contends that the trial court erred in finding him guilty of carrying a handgun in a vehicle. He contends that the state failed to prove the element of "carrying" within the meaning of I.C. 35-23-4.1-3. See note 1, supra. He asserts that the state failed to prove beyond a reasonable doubt that he had any control of the pistol found underneath the driver's seat of the vehicle.

To prove the offense of carrying a handgun in a vehicle, the state must offer evidence that a handgun was found in a vehicle and that the defendant had control of either the weapon or of the vehicle with knowledge of the weapon's presence. This follows from the plain words of the statute: "[N]o person shall carry a handgun in any vehicle or on or about his person ...." I.C. 35-23-4.1-3 (emphasis added). In addition, to support a conviction of carrying a handgun in a vehicle, evidence must be introduced from which the trier of fact could reasonably infer an intention to convey or transport the weapon from one place to another. State v. Cox (1st Dist. 1973) 156 Ind.App. 548, 297 N.E.2d 920. Here, Klopfenstein was driving the car just before Officer Owensby stopped it. Shortly thereafter, Owensby discovered two handguns in the car. The evidence introduced was sufficient to establish the element of intention to convey.

Klopfenstein nevertheless contends that the state failed to prove that he had custody, control or possession of the handgun sufficient to support the element of carrying "a handgun in any vehicle." I.C. 35-23-4.1-3. He asserts that Indiana case law indicates that more than mere presence in an automobile is necessary to establish control over the weapon.

This statement is accurate as far as it goes. A review of the case law, however, reveals that mere presence of a passenger in a car in which a handgun is being transported is insufficient to find that passenger guilty of carrying a handgun in a vehicle or on or about his person. See Frasier v. State (1974) 262 Ind. 59, 312 N.E.2d 77, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686; Johnson v. State (1969) 252 Ind. 79, 246 N.E.2d 181, rehearing denied; Johnson v. State (3d Dist. 1975) 163 Ind.App. 684, 325 N.E.2d 859. Compare Beck v. State (1st Dist. 1981) Ind.App., 414 N.E.2d 970. The driver of a vehicle, however, is in violation of the statute if he conveys a handgun in the vehicle regardless of whether it is on or about his person. Knowledge of the presence of the handgun is all that is required. Here, Klopfenstein was the driver of the vehicle and, therefore, need not have been found to be carrying the handgun on or about his person in order to be found in violation of the statute.

After the occupants of the vehicle alighted, Officer Owensby discovered four firearms which were or had been in the vehicle. Two of them were handguns. The police officer testified that he observed the butt of a pistol protruding from the floor directly beneath the driver's seat. In Phillips v. State (3d Dist. 1974) 160 Ind.App. 647, 651, 313 N.E.2d 101, 103, the Court noted in an analogous case of constructive possession of a controlled substance: "While an accused must have actual knowledge of the presence of the item and of the items' character, this knowledge can be inferred from the fact that the item was found in a place under his dominion and control."

We conclude that the facts here were sufficient to establish the offense of carrying a handgun in a vehicle.

II.

Klopfenstein contends the trial court committed reversible error in finding him guilty of a Class D felony under the Firearms Act. I.C. 35-23-4.1-18 (Burns Supp.1981) provides in part:

"(c) A person who violates section 3 [35-23-4.1-3] or section 17 [35-23-4.1-17] of this chapter commits a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior conviction of any offense under this subsection, or if the person has been convicted of a felony within fifteen (15) years before the date of the offense."

The trial court found Klopfenstein guilty of carrying an unlicensed handgun, "a Class D felony."

The state attempted to prove that Klopfenstein had a prior felony conviction through the testimony of Police Officer Goss. Goss testified that he had been involved in an investigation concerning Klopfenstein in 1977. He testified Klopfenstein was charged with possession of methaqualone. The state also relied upon the certified docket entry of the judgment for the prior conviction. The docket entry revealed that Klopfenstein pleaded guilty as charged to a violation of the Indiana Controlled Substances Act. The docket entry was dated August 5, 1977. According to the entry, Klopfenstein was sentenced to serve one year with all but thirty days of the sentence suspended.

Klopfenstein argues that both Officer Goss' testimony and the certified order book entry are inconclusive in establishing whether the prior conviction was a misdemeanor or a felony. In particular, Klopfenstein emphasizes the following testimony by Officer Goss:

"Q. But, you don't know whether he was, by the Court's records, found guilty of a felony or misdemeanor, do you?

A. The only thing I have to go by is that copy." (Record at 120.)

Klopfenstein acknowledges that Officer Goss' testimony established that the original investigation dealt with possession of methaqualone. He also concedes that the certified copy of the court record shows that the charge involved was a violation of the Indiana Controlled Substances Act, I.C. 35-24.1-1-1 et seq. (Burns Ed. 1975) (current version at I.C. 35-48-1-1 et seq. (Burns Repl.1979), and that he was found guilty as charged and sentenced to one year imprisonment with all but thirty days suspended. He asserts, however, that the certified copy does not indicate whether he was convicted of a felony or a misdemeanor.

Both the state and the defendant base their arguments on the sentencing provisions of the present criminal code. Both parties failed to take into account the effective date of the revisions to the penal code. Acts 1977, P.L. No. 340, Sec. 150 states in part:

"(a) Neither this act nor Acts 1976, P.L. 148 affects:

(1) right or liabilities accrued;

(2) penalties incurred; or

(3) proceedings begun;

before October 1, 1977. Those rights, liabilities, and proceedings are continued, and penalties shall be imposed and enforced as if this act and Acts 1976, P.L. 148 had not been enacted.

(b) An offense committed before October 1, 1977, under a law repealed by Acts 1976, P.L. 148 shall be prosecuted and remains punishable under the repealed law."

Klopfenstein's sentencing for the possession of methaqualone offense took place on August 5, 1977. Thus, he was prosecuted under the law in effect prior to October 1, 1977.

The law in effect at that time, I.C. 35-24.1-2-6 (Burns Ed. 1975), listed methaqualone as a controlled substance under Schedule II. See I.C. 35-24.1-2-6(e)(1). I.C. 35-24.1-4.1-7(b) provided that the possession of a controlled substance classified in Schedule II was "a felony punishable by a determinate term of imprisonment of not less than one year nor more than ten years and a fine not to exceed one thousand...