Tormoehlen v. State, 12A02-0511-CR-1120.

Citation848 N.E.2d 326
Decision Date30 May 2006
Docket NumberNo. 12A02-0511-CR-1120.,12A02-0511-CR-1120.
PartiesRichard G. TORMOEHLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

David M. Payne, Ryan & Payne, Marion, for Appellant.

Steve Carter, Attorney General of Indiana, Mara McCabe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

ROBB, Judge.

Richard Tormoehlen was found guilty by a jury of carrying a handgun without a license, a Class A misdemeanor. He now appeals his conviction. We affirm.

Issues

Tormoehlen raises several issues for our review, which we restate as follows:

1. Whether the trial court properly denied his motion to dismiss the charges against him and properly granted the State's motion in limine, both of which concerned Tormoehlen's acquisition of a license to carry a handgun subsequent to the offense;

2. Whether the trial court properly instructed the jury; and

3. Whether the evidence was sufficient to support his conviction.

Facts and Procedural History

On February 28, 2005, Tormoehlen was driving from his mother's home in southern Indiana to his home in Kokomo. Tormoehlen placed his handgun in the glove compartment of his car and placed the magazine under the spare tire in the trunk area. En route, Tormoehlen's employer, a pharmaceutical delivery firm, requested that he pick up some medication on the north side of Indianapolis and deliver it to a nursing home in Rossville, Indiana. After Tormoehlen picked up the medication but before he arrived at the nursing home, he lost control of his car on an icy roadway and the car slid off the road, landing on its side. Tormoehlen was not injured in the crash.

Officer Joel Hargett of the Rossville Police Department was the first to arrive on the scene. After the vehicle was righted, Officer Hargett checked the interior of the vehicle as part of his investigation and found a handgun on the passenger side floorboard. He asked Tormoehlen for his driver's license, vehicle registration, insurance information, and handgun license. Tormoehlen told Officer Hargett that he did not have a license to carry the handgun. Because Tormoehlen's car was driveable and the medication he was to deliver was time-sensitive, Officer Hargett followed Tormoehlen the short distance to the nursing home and after Tormoehlen completed his delivery, Officer Hargett gave him a summons to appear in court for carrying a handgun without a license.

Tormoehlen was charged by information with carrying a handgun without a license, a Class A misdemeanor, on March 11, 2005. Tormoehlen obtained a handgun license in April of 2005 and presented it to the State. In October of 2005, approximately one week prior to his scheduled jury trial, Tormoehlen filed with the trial court a Memorandum of Law regarding the State's duty to dismiss the charge against him because he had obtained and presented a license.1 Immediately prior to jury selection on the day of trial, Tormoehlen made a motion to dismiss based on the grounds stated in his memorandum. The trial court denied the motion. The State made a motion in limine to keep any mention that Tormoehlen had subsequently obtained a permit from the jury. The trial court granted this motion. Following the presentation of evidence, Tormoehlen submitted an instruction regarding the elements of the crime and of the affirmative defense. The trial court refused Tormoehlen's tendered instruction in favor of an instruction nearly identical in every way but for the inclusion of an additional paragraph stating that if the State proved each of the elements of the crime beyond a reasonable doubt, the jury should find Tormoehlen guilty, subject to any applicable defense. Tormoehlen objected to the trial court's instruction. The jury found Tormoehlen guilty as charged, and the trial court fined Tormoehlen $300.00, which was suspended, and imposed court costs of $156.00. Tormoehlen now appeals.

Discussion and Decision
I. Effect of Subsequent Issuance of License

Tormoehlen contends that the trial court erred in denying his motion to dismiss based upon the fact that he obtained a handgun license subsequent to this incident, and in granting the State's motion in limine to keep testimony regarding the fact that he obtained a license from the jury.

Tormoehlen was charged with violation of Indiana Code section 35-47-2-1, which states, "[A] person shall not carry a handgun in any vehicle or on or about the person's body, except in the person's dwelling, on the person's property or fixed place of business, without a license issued under this chapter being in the person's possession." Ind.Code § 35-47-2-1(a). There is no dispute that on February 28, 2005, the day of Tormoehlen's accident and the day Officer Hargett found a handgun in Tormoehlen's car, Tormoehlen did not have a license to carry a handgun. Thereafter, on April 19, 2005, a license was issued to Tormoehlen. Tormoehlen presented his newly-acquired license to the State pursuant to Indiana Code section 35-47-2-24(b), which states:

Whenever a person who has been arrested or charged with a violation of section 1 of this chapter presents a valid license to the prosecuting attorney . . ., any prosecution for a violation of section 1 of this chapter shall be dismissed immediately, and all records of an arrest or proceedings following arrest shall be destroyed immediately.

Tormoehlen argued to the trial court and contends on appeal that the charge against him should have been dismissed pursuant to this section because it states only that a "valid license" must be presented to the State, not that the license must have been valid at the time of the offense.

When construing a statute, our objective is to determine and effect the intent of the legislature. Oliver v. State, 789 N.E.2d 1003, 1006 (Ind.Ct.App.2003), trans. denied. A fundamental principle of construction is to construe the statute in accordance with the purpose of the statute and the statutory scheme of which it is a part. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind.Ct.App.2003). We presume that the legislature intends for us to apply language in a logical manner consistent with the statute's underlying policy and goals. Id. The legislative intent as ascertained from the whole prevails over the strict, literal meaning of any word or term used therein. Id. Lastly, we conventionally construe penal statutes strictly against the State. Id. However, the law is clear that:

The rule of strict construction of criminal statutes cannot provide a substitute for common sense, precedent, and legislative history. The construction of a penal statute should not be unduly technical, arbitrary, severe, artificial or narrow. In this regard, while penal statutes are to be strictly construed, they need not be given unnecessarily narrow meaning in disregard of the obvious legislative purpose and intent. . . . In short, although criminal statutes are to be strictly construed in favor of the defendant, the courts are not authorized to interpret them so as to emasculate the statutes.

Id. at 1167-68 (quoting 73 AM.JUR.2D Statutes § 196 (2001) (footnotes omitted)). In other words, the legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result. Sales v. State, 723 N.E.2d 416, 420 (Ind.2000).

In ruling on the motion to dismiss, the trial court noted, "why get a driver's license if you could get it after the fact?"2 Transcript at 9. Tormoehlen notes that our statutes require a person to have a driver's permit or license in his immediate possession when operating a motor vehicle, but provide for dismissal of any charges if a license "that was valid at the time of the person's apprehension" is presented within five days. Ind.Code §§ 9-24-13-3, -6(b). Because the handgun statutes do not similarly include the qualifier that the after-presented license be valid at the time of the person's apprehension, Tormoehlen concludes that "[p]erhaps the legislature had in mind that this would encourage people charged with carrying a handgun without a license to obtain a valid license." Brief of Appellant at 10.

Although Tormoehlen makes a cogent argument supporting his position, we are unable to say that the legislature intended such a result. Construing sections 35-47-2-1 and 35-47-2-24(b) together and considering the purpose of the statute, it is apparent that because the crime is defined as carrying a handgun without also possessing a valid license, only presentation of a license that was valid at the time the handgun was carried would negate the crime. In Wilson v. State, 727 N.E.2d 775 (Ind.Ct.App.2000), summarily aff'd on relevant grounds, 745 N.E.2d 789 (Ind.2001), the defendant was charged with carrying a handgun without a license. The offense was alleged to have occurred on January 17, 1999. Evidence was introduced at trial that a license was issued to the defendant on February 25, 1999, and there was no evidence that he had a license prior to that date. Accordingly, we held that there was sufficient evidence to support his conviction. Id. at 782-83. As Tormoehlen concedes he had no license on the date of the offense, the trial court did not err in denying Tormoehlen's motion to dismiss or in granting the State's motion in limine to keep the irrelevant evidence that Tormoehlen obtained a license after-the-fact from the jury.

II. Jury Instruction

Tormoehlen next contends that the trial court improperly instructed the jury. The instruction in question reads as follows:

The crime of Carrying a Handgun Without a License is defined by statute as follows:

A person shall not carry a handgun in any vehicle or on or about his person, except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession.

To convict the Defendant, the State must have proved each of the following elements:

The...

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