Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016 Page 1 of 5

APPELLANT PRO SE

David D. Barany

New Castle, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David D. Barany,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 4, 2016

Court of Appeals Case No.

17A04-1510-CR-1734

Appeal from the DeKalb Circuit 

Court

The Honorable Kirk D. Carpenter, 

Judge

Trial Court Cause No.

17C01-0505-MR-1

May, Judge.
Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016 Page 2 of 5

[1] David D. Barany appeals the trial court’s denial of his request to return the 

firearm used in the commission of the crime of which he was convicted. We 

affirm.

Facts and Procedural History

[2] In 2006, a trial court found Barany guilty of murder and sentenced him to fifty 

years.1

 During the trial, four weapons were introduced into evidence. On 

September 10, 2014, Barany asked that a “Bushmaster assault Rifle . . . Beretta 

handgun . . . [and] .22 Mag North American Arms Block powder revolver,”

(App. at 18) (capitalization errors in original), be returned to his mother, Jan 

Barany.

[3] At a hearing on the matter, the State made an oral motion to destroy the 

murder weapon, a “Colt Python .357 Magnum Revolver,” (id. at 16), which 

was not listed in Barany’s motion for return of property. The trial court granted 

Barany’s motion to return the three weapons he requested, and it granted the 

State’s oral motion to destroy the Colt Python.

[4] Barany filed a notice of appeal, and then a motion for remand and motion for 

leave to file belated appellant’s brief with our court. On May 7, 2015, we 

granted his motion for remand “so [Barany] may pursue a Trial Rule 60(B) 

Motion in the trial court.” (Id. at 22.) On June 12, 2015, Barany filed a motion 

 

1 We affirmed Barany’s conviction. Barany v. State, No. 17A03-0607-CR-286 (Ind. Ct. App. April 30, 2007).
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for relief from judgment and affidavits in support thereof. In his motion, he 

asked the trial court “to grant this motion and vacate its December 14, 2014 

Judgment, and order the murder weapon [Colt Python] provided to Jan 

Barany, as it is her property[.]” (Id. at 27.) The State filed an objection to the 

60(B) motion and the trial court held a hearing on Barany’s 60(B) motion.

[5] The trial court granted Barany’s 60(B) motion and determined “the Order of 

December 14, 2014 denying return of the murder weapon [Colt Python] to 

[Barany] is set aside.” (Id. at 15.) It then denied Barany’s request to release the 

Colt Python to Jan and granted the State’s request to have it destroyed, finding:

It is not in the best interest of the citizens of the State of Indiana 

that the murder weapon [Colt Python] be allowed to continue to 

be in existence. It is against public policy to allow the convicted 

Defendant, David Barany, to profit in any way by allowing the 

sale of the very weapon he used to commit the murder.

(Id. at 16.)

Discussion and Decision

[6] Ind. Code § 35-47-3-2(b) states:

Firearms shall be returned to the rightful owner at once following 

final disposition of the cause if a return has not already occurred 

under the terms of IC 35-33-52

. . . . However, nothing in this 

 

2 Ind. Code § 35-33-5-5(c)(1) requires, in relevant part, “[p]roperty [seized as part of an arrest, search warrant, 

or warrantless search] which may be lawfully possessed shall be returned to its rightful owner, if known” 

following the final disposition in the trial court. It is undisputed the Colt Python was not returned pursuant 

to the requirements of Ind. Code § 35-33-5-5(c)(1) and thus the provisions of Ind. Code § 35-47-3-2(b) apply.
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chapter shall be construed as requiring the return of firearms to 

rightful owners who have been convicted of the misuse of 

firearms.

[7] (footnote added). When we review the denial of a motion for return of property, 

we will affirm unless the decision is clearly erroneous and cannot be sustained 

on any legal theory supported by the evidence. Merlington v. State, 839 N.E.2d 

260, 262 (Ind. Ct. App. 2005). The court, once its need for the property has 

terminated, has both the jurisdiction and the duty to return seized property. 

Sinn v. State, 693 N.E.2d 78, 81 (Ind. Ct. App. 1998). 

[8] Barany argues the trial court should have released the Colt Python to Jan.3 He 

cites Williams v. State, 952 N.E.2d 317 (Ind. Ct. App. 2011), in which we held 

the trial court should have released to Williams’ attorney a handgun seized as 

part of a criminal investigation against Williams. Id. at 321. Williams does not 

control, because Williams was not convicted of a crime involving misuse of the 

firearm. Instead, the charge of carrying a handgun without a license against 

Williams was dismissed after the trial court granted his motion to suppress.

 

3 Barany initially argued the trial court erred when it denied his T.R. 60(B) motion. However, as the State 

pointed out in its brief, the trial court granted his T.R. 60(B) motion but denied his request to release the Colt 

Python to Jan. Thus, the standard of review regarding the return of property is appropriate.
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[9] Because the Colt Python was a murder weapon, it was misused4 for purposes of

Ind. Code § 35-47-3-2(b). Thus, the trial court did not err when it denied 

Barany’s request to release the Colt Python to Jan.

Conclusion

[10] The trial court did not err when it denied Barany’s request to release the Colt 

Python that Barany used to commit murder. We affirm.

[11] Affirmed.

Najam, J., and Riley, J., concur.

 

4 The Indiana Legislature has not defined “misuse of a firearm” as used in Ind. Code § 35-47-3-2(b). Based 

on the list of “lawful purposes” of a firearm including “hunting, self-defense, collecting, and competitive or 

recreational shooting” in Smith & Wesson Corp v. City of Gary, 875 N.E.2d 422, 427 (Ind. Ct. App. 2007), reh’g 

denied, trans. denied, we conclude the use a firearm to murder a person is “misuse” of the firearm.