FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEVE CARTER THOMAS M. THOMPSON
Attorney General of Indiana Smith & Thompson
Connersville, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
_
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 21A01-0103-CR-216
)
ANDREW GIBBS, )
)
Appellee-Defendant. )
________________________________________________________________________
APPEAL FROM THE FAYETTE CIRCUIT COURT
The Honorable Daniel L. Pflum, Judge
Cause No. 21C01-0011-CF-225
February 20, 2002
OPINION - FOR PUBLICATION
BAKER, JUDGE
The State of Indiana appeals the trial court’s ruling granting Gibbs’s
motion to dismiss the criminal charge against him for carrying a handgun
without a license on school property, a class C felony.[1] Specifically,
the State claims that the trial court ignored the plain language of the
criminal statute when it ruled that possession of an inoperable handgun
could not serve as the basis of the charge against Gibbs.
FACTS
The undisputed facts are that on November 13, 2000, the Principal of
Connersville Senior High School received an anonymous telephone call
stating that Gibbs had a handgun in his vehicle. When questioned by Matt
Sizemore, the school’s security officer, Gibbs admitted that he had an
antique handgun in the trunk of his vehicle. Gibbs’s vehicle was parked in
the school’s parking lot.
Sizemore escorted Gibbs to the vehicle and Gibbs opened the trunk
revealing a red gun case. The gun case contained a seventy-five-year-old
Smith and Wesson .38 Special handgun. When Sizemore attempted to open
the cylinder of the handgun to determine whether it was loaded, he was
unable to do so because it was jammed. Sizemore and Gibbs then returned
with the handgun to the Principal’s office, whereupon the Principal
contacted the police.
Officer Ellis McQueen of the Connersville City Police Department was
one of the officers who responded to the call. Officer McQueen took the
handgun from Sizemore and also attempted to open the cylinder but found it
jammed. The officer later testified that the gun’s condition made it
incapable of firing a projectile.
As was his custom when taking juveniles into custody, Officer McQueen
contacted the Probation Department. The Probation Department informed him
that the case was outside of its jurisdiction as seventeen-year-old Gibbs
would be charged as an adult. In order to confirm the accuracy of this
information, Officer McQueen contacted Judge Daniel Pflum. Judge Pflum
told the officer that he did not believe that Gibbs could be charged with
carrying a handgun without a permit because the gun was inoperable.
Accordingly, Officer McQueen elected not to arrest Gibbs at that time.
However, Gibbs was later arrested after the State charged him with
carrying a handgun without a license as a class C felony. Gibbs filed a
motion to dismiss this charge on January 24, 2001, alleging that an
inoperable handgun did not meet the statutory definition of a “firearm”
and, thus, could not serve as the basis of the charge against him. After a
hearing, the trial court granted Gibbs’s motion, ruling that the “device in
this cause was clearly not operable and cannot be considered a firearm”
within the meaning of the criminal statute. Appellant’s App. at 42. The
State now appeals.
DISCUSSION AND DECISION
The State of Indiana contends that the trial court erred in granting
Gibbs’s motion to dismiss the criminal charge against him for carrying a
handgun without a license on school property. Specifically, the State
claims that the trial court ignored the plain language of the criminal
statute when it ruled that possession of an inoperable handgun could not
serve as the basis of the charge against Gibbs.
The interpretation of a statute is a question of law which we review
de novo. State v. Rans, 739 N.E.2d 164, 166 (Ind. Ct. App. 2000). Under
a de novo review standard, we owe no deference to the trial court’s legal
conclusions. Id. If the language of a statute is clear and unambiguous,
it is not subject to judicial interpretation. Id. However, when the
language is susceptible to more than one construction, we must construe the
statute in accord with the apparent legislative intent. Id. This is done
by giving effect to the ordinary and plain meaning of the language used in
the statute. Id. Penal statutes are to be strictly construed against the
State to avoid enlarging them by intendment or implication beyond the fair
meaning of the language used. Id.
In this instance, the State charged Gibbs with carrying a handgun
without a license pursuant to I.C. § 35-47-2-1. Indiana law enhances a
class A misdemeanor of carrying a handgun without a license to a class C
felony if that act occurs on school property. See I.C. § 35-47-2-
23(c)(1)(a). For the purposes of I.C. § 35-47-2-1:
“Handgun” means any firearm:
(1) designed or adapted so as to be aimed and fired from one (1) hand,
regardless of barrel length; or
(2) any firearm with:
(A) a barrel less than sixteen (16) inches in length; or
(B) an average length of less than twenty-six (26) inches.
I.C. § 35-47-1-6. The term “firearm” is defined as “any weapon that is
capable of or designed to or that may readily be converted to expel a
projectile by means of an explosion. I.C. § 35-47-1-5.
In Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995), trans.
denied, this court directly addressed the issue of whether Indiana law
requires the State to prove that a handgun is operable to obtain a
conviction for carrying a handgun without a license. We determined that,
“[a]ccording to the plain terms of the statutes,” the State is not required
to prove a handgun is operable to obtain a conviction for this offense.
Id. Rather, it is sufficient for the State to establish “[t]hat the
handgun was designed to expel a projectile by means of an explosion.” Id.
(emphasis supplied); see I.C. § 35-47-1-5.[2] Gibbs’s handgun, even though
inoperable, was designed to expel projectiles by means of an explosion.
Thus, it falls within the statutory definition of a firearm and can serve
as the basis of a charge of carrying a handgun without a license.[3]
The statute’s requirement that a handgun need only have been designed
to expel a projectile by means of an explosion, rather than actually and
currently capable of doing so, likely reflects our legislature’s
recognition that even an inoperable gun is inherently dangerous. Such
recognition is supported by our supreme court’s opinions in Al-Saud v.
State, 658 N.E.2d 907, (Ind. 1995) and D.B. v. State, 658 N.E.2d 595, 595-
96, (Ind. 1995), and an opinion of the United States Supreme Court,
McLaughlin v. United States, 476 U.S. 16 (1986).
In Al-Saud v. State, 658 N.E.2d at 908-910, and D.B. v. State, 658
N.E.2d at 595-96, our supreme court determined that an unloaded firearm can
create a substantial risk of bodily injury under Indiana’s criminal
recklessness statute. The court reached this decision on the basis that
“[t]he brandishing of a firearm in a congested area or during a dispute can
create a variety of risks of bodily injury to others, regardless of whether
the weapon is loaded.” Al-Saud, 658 N.E.2d at 910.
An earlier decision by the United States Supreme Court expounds upon
the kinds of risks created by the presence of an unloaded handgun. In
McLaughlin, 476 U.S. at 16, the Supreme Court ruled that an unloaded
handgun constitutes a “dangerous weapon” within the meaning of the federal
bank robbery statute. Id. at 17. In reaching its conclusion, the Supreme
Court acknowledged the danger inherent in even an unloaded gun and stated:
Three reasons, each independently sufficient, support the conclusion
that an unloaded gun is a “dangerous weapon.” First, a gun is an
article that is typically and characteristically dangerous; the use
for which it is manufactured and sold is a dangerous one, and the law
reasonably may presume that such an article is always dangerous even
though it may not be
armed at a particular time or place. In addition, the display of a
gun instills fear in the average citizen; as a consequence, it creates
an immediate danger that a violent response will ensue. Finally, a
gun can cause harm when used as a bludgeon.
Id. at 17-18. The U.S. Supreme Court’s rationale in McLaughlin is equally
applicable to the case at bar. Whether a gun is operable, just as
whether it is loaded, is not generally discernible without close
inspection. Thus, the mere sight of a gun is sufficient to provoke a
fearful response from the average citizen, who is very unlikely to wait to
determine the weapon’s operability before reacting in a panicked or violent
manner. We, therefore, conclude that possession of an inoperable handgun
can serve as the basis of the offense of carrying a handgun without a
permit. Accordingly, the State was not required to prove that the handgun
was operable as part of its prima facie case and the trial court erred in
granting Gibbs’s motion to dismiss.[4]
Judgment reversed and remanded for proceedings not inconsistent with
this opinion.
NAJAM, J., and MATTINGLY-MAY, J., concur.
-----------------------
[1] Ind. Code §§ 35-47-2-1 and -23(c)(1)(a).
[2] Gibbs asserts that Manley is distinguishable from the case at bar.
Manley dealt with the defendant’s claim that there was insufficient
evidence to support his conviction for carrying a handgun without a license
because the State failed to offer evidence that the handgun was operable.
Appellee’s brief at 6. In contrast, in the case at bar, “there is clear
and convincing evidence that Gibbs’s firearm was inoperable.” Appellant’s
App. at 6. However, this is a distinction without meaning inasmuch as
resolution of the sufficiency issue in Manley required us to determine
whether the handgun’s operability was an element of the charged offense.
Our determination in Manley that “Indiana law does not require that the
State prove a handgun is operable to obtain a conviction of carrying a
handgun without a license” establishes that operability is not an element
of this offense and is dispositive of the issue in this case. 656 N.E.2d
277, 279 (Ind. Ct. App. 1995).
[3] We note that the State of Florida’s criminal code also defines
“firearm” as “any weapon . . . which will, is designed to, or may readily
be converted to expel a projectile by the action of an explosive.” Fla.
stat. Ann. § 790.001(6) (West 1993). However, the Florida legislature has
made an express exception for “antique firearms” unless they are used in
the commission of a crime. Id. § 790.001(6). An antique firearm is
defined as “any firearm manufactured in or before 1918, and any firearm
using fixed ammunition manufactured in or before 1918, for which ammunition
is no longer manufactured in the United States and is not readily available
in the ordinary channels of commercial trade.” Id. § 790.001(1). In
contrast, the Indiana legislature has not provided an exception for antique
firearms. Therefore, regardless of the handgun’s age, if it was “designed
to expel a projectile by means of an explosion, ” see I.C. § 35-47-1-5, and
meets the handling and barrel-length requirements of I.C. § 35-47-1-6, then
it constitutes a “firearm” according to Indiana Law.
[4] Gibbs cites an unpublished opinion by the Washington Court of Appeals
to support his argument that an inoperable gun cannot be the basis for the
offense of unlawful possession of a handgun. Appellant’s brief at 6. In
Washington v. Moore, No. 194-1-II, 1997 Wash. App. LEXIS 368, at *1 (Wash.
Ct. App. Mar. 21, 1997), the defendant, a juvenile, was convicted after a
bench trial of unlawful possession of a firearm after he took a gun to
school. The gun was incapable of being fired because it lacked a firing
pin, so the defendant argued that it did not constitute a “firearm” within
the meaning of the criminal statute. Id. at *3. The Washington criminal
statute in question provided that a ‘“firearm’ means a weapon or device
from which a projectile or projectiles may be fired by an explosive such as
gunpowder.” Id. The Washington Court of Appeals construed the statute to
“limit[] the term ‘firearm’ to a weapon or device from which a projectile
could be fired at some past, present, or future time.” Id. at *4. Because
the trial court’s findings were ambiguous as to whether the weapon could
have been fired at any other time, the Court of Appeals concluded that
there was insufficient evidence to support the conviction. Id.
Notwithstandng Gibbs’s citation to Washington v. Moore, we need not look
beyond the plain language of our statutes. Specifically, I.C. § 35-47-1-5
does not require that the weapon be capable of being fired at any time to
meet the statutory definition of a firearm. Rather, it is sufficient that
the weapon was simply designed to expel a projectile by means of an
explosion. I.C. § 35-47-1-5. Thus, Washington v. Moore has no persuasive
value in the case at bar.
