Preschools

[Bill of Rights]

Originally Posted by JD31

If I park my car on the same side of the street as the school would that be considered "on school property"? (There is a fence between the school yard and the street.) Some say they park on the opposite side, and I am honestly interested in the answer to this--same side of the street--question. My occupation makes this important to me.

JD, see my post #8 above for the definition of "school property" directly from the Indiana Code.

Blessings,
B

[flagtag]

Originally Posted by JD31

If I park my car on the same side of the street as the school would that be considered "on school property"? (There is a fence between the school yard and the street.) Some say they park on the opposite side, and I am honestly interested in the answer to this--same side of the street--question. My occupation makes this important to me.

Well, it seems that according to post #8, that since the "near" side of the street is public property and not school property, you would be safe. No problems.

[AFA1CY]

Case law:

FOR PUBLICATION


ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:


BRUCE E. ANDIS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana

CHRISTOPHER L. LAFUSE
Deputy Attorney General
Indianapolis, Indiana





IN THE COURT OF APPEALS OF INDIANA
MICAH NEWSON, ) )Appellant-Defendant, ) )vs. ) No. 49A02-0207-CR-609 )STATE OF INDIANA, ) )Appellee-Plaintiff. )


APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William Robinette, Judge
Cause No. 49F15-0111-DF-215281





April 4, 2003


OPINION - FOR PUBLICATION


BROOK, Chief Judge

Case Summary
Appellant-defendant Micah Newson appeals his conviction for possession of firearms on school property, a Class D felony. See footnote We affirm.
Issues
Newson raises three issues for our review, which we consolidate and restate as follows:
I. whether the trial court abused its discretion in admitting the handgun seized from his car; and

II. whether he established an affirmative defense to possession of firearms on school property.

Facts and Procedural History
At approximately 3:15 p.m. on November 6, 2001, a student at Ben Davis High School in Indianapolis noticed a handgun in the passenger seat of a car parked by the service dock and reported it to school officials. Principal David Marcotte verified the report and notified school security. School security officer James Ingalls opened the car door and retrieved the handgun. Shortly thereafter, Newson approached the car, acknowledged ownership of the vehicle and the handgun, and produced a valid Indiana gun permit.
The State charged Newson with possession of firearms on school property, a Class D felony. On May 3, 2002, the trial court found Newson guilty as charged. Newson now appeals.
Discussion and Decision
I. Admission of Firearm
Newson contends that the trial court abused its discretion in admitting the handgun retrieved from his car. We need not address Newson’s contention, however. Marcotte, Ingalls, and school security officer David Lindsey all testified without objection that they saw a handgun in the passenger seat of a car parked by the service dock. All three witnesses also testified without objection that Newson admitted owning both the car and the handgun. As such, any error in the admission of the handgun can only be considered harmless. See Martin v. State, 736 N.E.2d 1213, 1219 (Ind. 2000) (“[i]t is ‘well settled that the erroneous admission of evidence does not require reversal if other evidence having the same probative value is admitted without objection or contradiction.’”) (citation omitted).

II. Affirmative Defense to Possession of Firearms on School Property
Indiana Code Section 35-47-9-2 provides that a person who possesses a firearm on school property commits a Class D felony. Section 35-47-9-1(3) provides, however, that section 35-47-9-2 does not apply to “[a] person who … may legally possess a firearm … and … possesses the firearm in a motor vehicle that is being operated by the person to transport another person to or from a school or a school function.” Newson does not deny that he possessed a handgun on school property but points to his testimony that he drove a friend to his job at the school. In other words, Newson contends that he established an affirmative defense to the charged crime. See footnote
“[T]he defendant has the burden of proof on any affirmative defense.” Brown v. State, 485 N.E.2d 108, 111 (Ind. 1985). As such, Newson appeals from a negative judgment. Cf. Gambill v. State, 675 N.E.2d 668, 672 (Ind. 1996) (noting that “[t]he burden rests with the defendant to prove, by a preponderance of the evidence, the affirmative defense of insanity” and that “[a] convicted defendant who claims that his insanity defense would have prevailed at trial is in the position of one appealing from a negative judgment”) (citation and quotation marks omitted).
When a party appeals from a negative judgment, he must demonstrate that the evidence points unerringly to a conclusion different from that reached by the trial court. We will reverse a negative judgment only if the decision of the trial court is contrary to law. In determining whether a trial court’s decision is contrary to law, we must determine if the undisputed evidence and all reasonable inferences to be drawn therefrom lead to but one conclusion and the trial court has reached a different one.


Cooper v. State, 760 N.E.2d 660, 665 (Ind. Ct. App. 2001) (citations omitted), trans. denied (2002).
It is undisputed that Newson legally possessed the handgun; at issue is whether he possessed it in a motor vehicle “that [was] being operated” to transport another person to the school. Ind. Code § 35-47-9-1(3). The record clearly indicates that Newson was not operating his car when the student saw the handgun in the passenger seat. As such, we must conclude that Newson failed to establish his affirmative defense.
Affirmed.
FRIEDLANDER, J., and MATTINGLY-MAY, J., concur.

Footnote: Ind. Code § 35-47-9-2.

Footnote: Although not designated as such, the exception enumerated in Indiana Code Section 35-47-9-1(3) is clearly an affirmative defense to the crime of possession of firearms on school property. See Black’s Law Dictionary 430 (7th ed. 1999) (defining affirmative defense as “[a] defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true.”). In his appellate brief, Newson frames his argument as a challenge to the sufficiency of the evidence supporting his conviction; given that Newson does not dispute that he possessed a firearm on school property, we instead review the adequacy of his affirmative defense.

[Bill of Rights]

Had he secured his firearm or even placed it out of sight under the seat, this would not have happened. Not having done so and further, leaving the car unlocked where anyone could have obtained his gun was foolish.
I do not agree with this law restricting law-abiding, peaceable citizens from carrying wherever they wish to do so, and personally, I think the best, least restrictive solution would be to repeal the law, therefore allowing Newson to have simply carried his gun in with him and maintained control over it at all times. Until that happens, however, the law does stand and leaving the gun in the car on school property or property being used for a school function is actionable.

As soon as Sen. Nugent re-introduces the bill (it was SB 356 last term) he introduced last year, I would suggest that we all contact our state legislators repeatedly and often to support it's passage into law.

Blessings,
B

[kludge]

There is no listing for SB 0356. Goes right from 355 to 357.

Session Information - Live Bills

Edit:

Found it after a quick editing of web addresses:

Senate Bill 0356

[Bill of Rights]

Originally Posted by kludge

There is no listing for SB 0356. Goes right from 355 to 357.

Session Information - Live Bills

Edit:

Found it after a quick editing of web addresses:

Senate Bill 0356

Yup. It's not a "live bill" because it went to third reading and missed a constitutional majority by a single vote. (there are 50 senators, but two were out, medically excused (I believe I heard cancer in both cases.) 25 votes to pass to the House, 23 to not do so, so it died. Seven GOP (RINO) senators voted against this. Had it passed, the State House, schools, State Fair, ports, etc., would all have been off the table as far as gov't regulation extending beyond the LTC. Had it passed as originally written, county courthouses would have been, too. State authority does not extend to making carry legal in Federal buildings, of course, and I do support the concept that carry in penal institutions is a bad idea, but I can't think, offhand, of any other places where guns should be prohibited.

I would like to add that it's my understanding that Rep. Jackie Walorski wants to work on a real pre-emption statute. I suggest we all get behind this as well.

Blessings,
B

[minuteman32]

All of this confusion over where one can & can not carry your gun, because of a fairly briefly worded law, is exactly why we need to repeal this law. At the very least, we should demand an exemption for those w/ an LTC!
The law doesn't have any provision for, "I didn't understand", or, "Ooops, I made a boo boo." Right after you tell the nice officer, or judge, this he will say, "you're under arrest", or, "Guilty!" (respectively). By the way, it is a felony. There is no misdemeanor offence to plead down to.

[Bill of Rights]

Originally Posted by minuteman32

All of this confusion over where one can & can not carry your gun, because of a fairly briefly worded law, is exactly why we need to repeal this law. At the very least, we should demand an exemption for those w/ an LTC!
The law doesn't have any provision for, "I didn't understand", or, "Ooops, I made a boo boo." Right after you tell the nice officer, or judge, this he will say, "you're under arrest", or, "Guilty!" (respectively). By the way, it is a felony. There is no misdemeanor offence to plead down to.

You're correct, Dan, and that's what SB 65 and later, SB 356, was designed to do, which is why I suggest we get behind it when it's reintroduced this year and make it happen.

Who's in?

Blessings,
B

[melensdad]

Originally Posted by Bill of Rights

Who's in?

We better ALL join in on this effort. With 1000+ members (and most of us have friends, some of those can probably read & write) we can generate a lot of letters to our reps/senators and get this passed.