Taylor v. State

• Decision Date: 06 September 1985
• Docket Number: No. 985S354,985S354
• Citation: 482 N.E.2d 259
• Parties: Michael H. TAYLOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 259

482 N.E.2d 259

Michael H. TAYLOR, Appellant, v. STATE of Indiana, Appellee.

No. 985S354.

Supreme Court of Indiana.

Sept. 6, 1985.

Andrew P. Sheff, Bennett & Sheff, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Fourth District Court of Appeals, brought by Appellee State of Indiana.

Appellant Michael Taylor was tried to the court on a charge of carrying a handgun without a license, a class D felony, found guilty and received an executed sentence of two years with six months suspended. The sole issue raised by Appellant in his appeal to the Court of Appeals was the sufficiency of evidence presented at trial as to his control and knowledge of the presence of the handgun in the vehicle to sustain a finding of guilt.

The facts are not in dispute and show that on February 18, 1983, at about 10:00 p.m., Indianapolis Police Officer John Upton was at 38th Street and Sherman Drive, blocking traffic on 38th Street to allow an accident car to pass. A second police officer was in another police vehicle directly in the middle of the intersection. Both police vehicles had their red lights and sirens in operation. After the traffic light for Sherman Drive changed to green, a green 1970 Pontiac, eastbound on 38th Street, proceeded through the red light almost striking both police vehicles and then stopped at the east side of the intersection, pulling into an abandoned service station area. Both police vehicles pulled close to the Pontiac. As Officer Upton approached the Pontiac on the passenger side, Mr. Martin exited the vehicle from the driver's door and walked toward the police vehicle parked behind it. When Officer Upton was approximately three to four feet from the Pontiac, Defendant exited the vehicle from the passenger door. At the same time that Defendant exited the vehicle, Officer Upton observed a .38 calibre revolver lying on the front seat of the Pontiac in plain view. The revolver was lying in the middle of the front bench seat. While the passenger door was open, Officer Upton also observed a .45 calibre automatic handgun lying on the floor of the car, immediately in front of the front seat on the passenger side where Defendant had been sitting. The .45 calibre handgun was approximately 8 to 10 inches from the passenger door. Officer Upton asked both Defendant and Mr. Martin whether they had a license to possess a handgun and they both replied "No." The parties stipulated that Defendant had a prior burglary conviction. Defendant testified at trial that he had gotten into Martin's car about 10 or 15 minutes before this incident and that he did not see or know of the presence of either of the guns when he entered the car. He stated he first saw the .38 revolver lying on the front seat when Martin exited the car at the gas station. He further claimed he never saw the .45 automatic on the floor in front of his seat.

It is well established that in reviewing the challenge to the sufficiency of the evidence to support a conviction, we will not reweigh the evidence nor reassess the credibility of the witnesses; we will consider only the evidence most favorable to the State and all reasonable inferences therefrom. McDowell v. State, (1983) Ind., 456 N.E.2d 713. If there is substantial evidence of probative value to support each element of the offense, we will not disturb the decision of the trier of fact. Warner v. State, (1983) Ind., 455 N.E.2d 355. Because we feel the Court of Appeals did not properly apply this standard, we vacate the opinion of the Court of Appeals and affirm the trial court.

Defendant was charged with and convicted of violating Ind.Code Sec. 35-23-4.1-3 (Burns 1982) which provides:

"Except as provided in [I.C. 35-23-4.1-4] of this chapter, no person shall carry a handgun in any vehicle or on or about his person, except in his place of abode, on his property or fixed place of business, without a license issued under this chapter."

In finding an insufficiency of evidence the Court of Appeals relied almost exclusively on this Court's decision in Frasier v. State, (1974) 262 Ind. 59, 312 N.E.2d 77, cert. denied (1974), 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686. The facts and holding in Frasier were outlined as follows:

"We reversed the trial court's judgment on the gun-possession charge. The evidence, from the viewpoint most favorable to the State, [citations omitted] is simply that Appellant was a passenger in an automobile stopped by a Deputy Sheriff. Both the driver and Appellant, who was riding in the front passenger seat, got out of the car and stood at the rear of the car. A gun-fight developed between the driver and the Deputy Sheriff. Subsequent to this gun fight, in which the driver of the car was killed, the Appellant was arrested. A search of the car revealed a pistol lying on the passenger's seat. These meager facts do not support, as a matter of law, an inference that beyond a reasonable doubt Appellant once possessed this gun."

Id. at 63, 312 N.E.2d at 79 (emphasis added).

There are facts in this case that distinguish it from the fact situation in Frasier and which the trial court had to weigh in making its determination of guilt. There is no evidence in Frasier that the gun was on the passenger seat when Defendant was in the automobile. The gun in Frasier could have been concealed by the driver so that Frasier was not in a position to know of its presence or it could have been placed there by the driver as he exited the vehicle to encounter the deputy sheriff. That is not the fact here. Officer Upton was able to observe both pistols within easy reach and in plain sight of Defendant Taylor. In fact, the .45 automatic was in the very area Defendant placed his feet, within his easy reach, and where it could not be controlled or possessed by the driver of the vehicle.

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