McAnalley v. State, No. 185S19

• Docket Nº: No. 185S19
• Citation: 514 N.E.2d 831
• Case Date: November 06, 1987
• Court: Supreme Court of Indiana

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514 N.E.2d 831 Robert McANALLEY, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 185S19. Supreme Court of Indiana. Nov. 6, 1987.

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William B. Powers, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stephenson, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant-appellant Robert McAnalley received a sentence of thirty-two years, with one year suspended, following his conviction for Carrying a Handgun Without a License, a class D felony, and determination as a habitual offender. In subsequent separate proceedings which occurred following the initial submission of the record and briefs of the parties in this appeal, one of defendant's prior convictions was set aside. The trial court then vacated the habitual offender finding herein. Because of these intervening events, we need address only the following remaining issues:

1. insufficient evidence on the element of "carrying";

2. insufficient chain of custody;

3. denial of his motion for judgment on the evidence;

4. allowing rebuttal evidence;

5. refusal to give defendant's tendered final instructions; and,

6. failing to find mitigating circumstances and not giving alternate misdemeanor sentencing.

The charges against defendant arose from an incident on the night of October 27-28, 1984, at an Indianapolis tavern. Responding to a radio call concerning a possible disturbance at the tavern, police arrived, entered, and saw the defendant throw what appeared to be a weapon into the corner of the tavern. Officer Brown retrieved a handgun from the corner where the object had been thrown. He found nothing else on the floor. Upon learning that defendant did not have a permit to carry the weapon, police made the arrest.

Issue 1--Definition of "Carrying"

Defendant first contends that his conviction is not supported by sufficient evidence, particularly as to the element of "carrying." Ind. Code Sec. 35-47-2-1 provides that "a person shall not carry a handgun in any vehicle or on or about his person, ... without a license...." Prior cases involving the carrying of a handgun in a vehicle, have required proof of an intention to convey or transport the weapon, State v. Cox (1973), 156 Ind.App. 548, 297 N.E.2d 920; Klopfenstein v. State (1982), Ind.App., 439 N.E.2d 1181. Defendant argues that because the handgun did not belong to him, and because there was no evidence that he brought it into the tavern or otherwise transported or conveyed the weapon, the element of "carrying" was not proved.

However, the issue in Klopfenstein was whether a driver violated the statute when the handgun was in the possession of a passenger. It required only knowledge of the presence of the handgun in the vehicle, not personal possession. Whether there was sufficient transportation of the weapon from one place to another, was not at issue. As authority for its reference to the intent to convey or transport, as an element of the crime, Klopfenstein cited State v. Cox, supra. Noting the absence of any evidence that a vehicle had been driven or moved while a handgun was in it, the Cox opinion stated:

While we are not prepared to say that locomotion must be proven in order to constitute the offense of "carrying" an unlicensed pistol in a vehicle, we, nevertheless, feel that as a minimum requirement the State must at least offer evidence from which the trier of fact could reasonably infer an intention to convey or transport the weapon from one place to another.

156 Ind.App. at 552, 297 N.E.2d at 923.

We must determine whether the legislature, by using the verb "carry," instead of "hold" or "possess," intended to require the element of locomotion to constitute the offense. Indiana had long adhered to the rule that penal statutes are to be strictly construed, and matters and things which are not clearly included cannot be brought within the operation of such statutes by construction. Vanhook v. State (1840), Ind., 5 Blackf. 450. In giving effect to this rule, however, the statute should

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not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the intent of the legislature. State v. Bigbee (1973), 260 Ind. 90, 292 N.E.2d 609.

When seeking to determine the interpretation to be given a word used in a criminal statute, we are concerned both with legislative intent and the probable perceived common meaning. See, R. Dickerson, The Interpretation and Application of Statutes, 34-38 (1975). Germane to both considerations is reference to an authoritative dictionary of common usage contemporaneous with the applicable legislative enactment. Defendant herein was charged with carrying an unlicensed handgun as proscribed by the 1983 revision of the statute ¹. Webster's New World Dictionary, Second College Edition (1982), enumerates twenty-seven separate meanings of the word "carry" as a transitive verb. Among them, the following are relevant to our consideration in this case:

1. to hold or support while moving (to carry a package) 2. to take from one place to another; transport, as in a vehicle (to carry the mail) 3. to hold and direct the motion of; be a channel for; convey; (a pipe carrying water) ... 8. to bear the weight of (the balusters carry a railing) ... 11. to have on one's person or keep with one (to carry a watch, to carry memories) ... [Emphasis in original]

Thus, since both connotations...