Opinion
24A-JV-1028
08-30-2024
B.T., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jon A. Keyes Allen Wellman Harvey Keyes Cooley LLP Greenfield, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hancock Superior Court The Honorable Donald J. Davis, Judge Trial Court Cause No. 30D01-2401-JD-37
ATTORNEY FOR APPELLANT Jon A. Keyes Allen Wellman Harvey Keyes Cooley LLP Greenfield, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE.
Case Summary
[¶1] Minor child, B.T. ("Child"), challenges the adjudication that he is a delinquent based on a true finding on Dangerous Possession of a Firearm, a Class A misdemeanor. The only issue he raises on appeal is whether he possessed the firearm legally under Indiana Code Section 35-47-10-1(b). We find that he did, and we therefore reverse.
Ind. Code § 35-47-10-5(a) (2023); I.C. § 31-37-1-2 (2023) (amended effective July 1, 2023, to define "delinquent act," in relevant part, as: "A child commits a delinquent act if, before becoming eighteen (18) years of age, the child commits a misdemeanor or felony offense...").
Facts and Procedural History
[¶2] In December of 2023, Child was seventeen years old, and his parents had joint custody of him. Child spent alternate weeks living at each parent's house. Father and Mother live in different houses, but in the same neighborhood and one street away from each other. Father lives at 129 Liberty Street and Mother lives at 109 New Jersey Street.
[¶3] At or around the beginning of December 2023, Child was gifted a .38-caliber handgun from his paternal grandfather ("Grandfather") as a Christmas present. Child had received firearm training in the past through Boy Scouts and personal training. Prior to Grandfather giving the gift of the firearm to Child, Father had given Grandfather permission to do so. Child had permission from both his Father and Grandfather to possess the firearm.
[¶4] On December 18, 2023, Child was at Mother's house and was in possession of the firearm. The firearm fell off Child's nightstand and discharged. Child was accidentally shot in the leg, and the gunshot also wounded a dog.
[¶5] On January 20, 2024, the State filed a juvenile delinquency petition in which it alleged that Child committed the delinquent act of Dangerous Possession of a Firearm, a Class A misdemeanor. The petition alleges that Child "resides at 109 New Jersey Street, Shirley, IN 47384 with his Mother . . ." App. v. II at 31. At Child's fact-finding hearing, both Child and Father testified that Child lived at each parent's house during alternating weeks and that Father had given Child permission to possess a firearm. Mother did not testify.
Although the delinquency petition states Child committed "Dangerous Possession of Firearm (Ind. Code I.C. 35-47-10-5(a)), Class Misdemeanor, if committed by an adult[,]" App. v. II at 31 (emphasis added), the cited statute defines the crime as "dangerous possession of a firearm, a Class A misdemeanor," without using the qualifying language "if committed by an adult." I.C. § 35-47-10-5(a) (2023).
[¶6] The juvenile court found Child committed the delinquent act of Dangerous Possession of a Firearm, as a Class A misdemeanor and issued a dispositional order of six months on juvenile probation. This appeal ensued.
Discussion and Decision
[¶7] Child maintains that the true finding of delinquency must be reversed because he was permitted, by statute, to possess a firearm. Because his appeal requires that we interpret the applicable statutes, our review is de novo. See, e.g., B.K. v. State, 235 N.E.3d 142, 145 (Ind. 2024).
[¶8] Indiana Code Section 35-47-10-5(a) provides, in relevant part, that '[a] child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor." Section 1 of that chapter states that there are seven exceptions to the prohibition of a child possessing a firearm. Child asserts that the exceptions appliable to this case are subsections (6) and (7); that is, the prohibition of firearm possession by a child does not apply to:
(6) A child who:
(A) is on real property that is under the control of the child's parent, an adult family member of the child, or the child's legal guardian; and
(B) has permission from the child's parent or legal guardian to possess a firearm. (7) A child who: (A) is at the child's residence; and
(B) has the permission of the child's parent, an adult family member of the child, or the child's legal guardian to possess a firearm.Ind. Code § 35-47-10-1 (2023). Because we find that Child falls under the exception of subsection 7 of the statute, we do not address his claim that he also falls under the exception in subsection 6.
[¶9] As Child points out, Indiana's appellate courts have not specifically addressed the exceptions contained in Indiana Code Section 35-47-10-1. "When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction." Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 806 (Ind.Ct.App. 2015) (quotation and citation denied). However, "[w]e are not at liberty to construe a facially unambiguous statute," Siwinksi v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011); rather, we must "apply its plain and clear meaning," West v. State, 177 N.E.3d 856, 860 (Ind.Ct.App. 2021), trans. denied. Moreover, where statutory language is clear and unambiguous, "courts may not substitute language which they believe the legislature intended," State v. Springer, 585 N.E.2d 27, 29 (Ind.Ct.App. 1992), trans. denied, nor will we "ignore the statute's language in favor of what [one party] perceives to be the legislature's intent." Cutchin v. Beard, 171 N.E.3d 991, 997 (Ind. 2021).
[¶10] Here, subsection 7 of Indiana Code Section 35-47-10-1(b) clearly and unambiguously applies to a child who is at his or her "residence" and has the permission of his or her "parent, .. .adult family member, or .. .legal guardian to possess a firearm." There is no question that Child had Father's and Grandfather's permission to possess the firearm. And, as the State admitted in its own delinquency petition, Child was located at his "residence" when he possessed the firearm. See App. v. II at 31 ("That said child resides at 109 New Jersey Street[,] Shirley, IN 47384 with his Mother, [S.T.]"). Although no documentation regarding custody of Child was presented at the fact-finding hearing, Father testified that he and Mother have "a 50/50 custody agreement[,] every other week." Tr. at 38. Child also testified that he lives with each parent every other week.
[¶11] On appeal, the State now argues-without citation to legal authority-that the New Jersey Street residence was only Mother's residence, not Child's, presumably because Mother, rather than Child, owned the residence. While the State cites no legal authority for the proposition that one must own a residence in order to "reside" there as a matter of law, Child provides numerous examples from the Indiana Code defining a residence as the place where one has his or her "fixed" and "permanent" home. See Reply Br. at 6-7 (citing I.C. § 3-5-2-42.5 (election law); I.C. § 7.1-1-3-37 (alcohol and tobacco laws); I.C. § 16-21-12-6 (hospital law); I.C. § 20-26-11-1 (school law)). Most persuasively, Child points to Indiana Code Section 20-26-11-1, which, in part, defines the "residence" of a public school student as follows: "where a court order grants an individual custody of a student, the residence of the student is where that individual resides." Under that definition of residence, Child "resides" at both his Mother's and his Father's residences; therefore, Child was at his own residence when he possessed the firearm.
[¶12] Not only is there no legal authority for the State's proposed interpretation of "residence" as only the property that a person owns or leases, but such an interpretation would lead to the absurd result that Child-indeed, most children-would have no "residence" at all. "[W]e do not presume that the Legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result." Anderson v. Gaudin, 42 nw3s 82, 85 (Ind. 2015) (quotation marks and citation omitted).
[¶13] The State also contends that, even though Indiana Code Section 35-47-10-1(b)(7) says that a child only needs "the permission of the child's parent," we should interpret the statute as requiring that a child have the permission of the parent who controls the real property where the child resides. The State argues that the legislature must have intended that interpretation because, otherwise, one parent could allow a child to bring a firearm into the other parent's house. However, the statute contains no qualifying language to the term "the child's parent"; rather, the clear and unambiguous meaning of the term "the child's parent," is simply one of his or her parents. I.C. § 35-47-10-1(b)(7). We presume the legislature means what it clearly says, and we will not engraft language onto a statute to change its meaning to that which one party believes the legislature should have intended. See Cutchin, 171 N.E.3d at 997.
Although it is a well-established rule of statutory construction that the use of the singular includes the plural, there is no rule that the plural may replace the singular. See, e.g., In re Infant Girl, 845 N.E.2d 229, 242 (Ind.Ct.App. 2006) (emphasis added) ("It is a well-settled rule of statutory construction that words used in their singular also include their plural."), trans. denied.
[¶14] Indiana Code Section 35-47-10-1(b)(7) unambiguously makes it legal for a child to possess a firearm in his own residence when his parent, legal guardian, or another adult family member gives him permission to do so. As Child was in his residence when he possessed the firearm and did so with the permission of his Father, he falls within the exception of Indiana Code Section 35-47-10-1(b)(7); therefore, the trial court erred when it found him delinquent for Dangerous Possession of a Firearm.
[¶15] Reversed.
Altice, C.J., and Mathias, J., concur.