Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018 Page 1 of 21

ATTORNEY FOR APPELLANT

Joel M. Schumm

Indiana University Robert H. McKinney 

School of Law

Indianapolis, Indiana

Seth M. Smoker

Certified Legal Intern

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Wilder,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 9, 2018

Court of Appeals Case No.

49A02-1706-CR-1420

Appeal from the Marion 

Superior Court

The Honorable Peggy R. Hart, 

Magistrate

Trial Court Cause No.

49G10-1609-CM-37937

Bailey, Judge.

Case Summary
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[1] Robert Wilder (“Wilder”) appeals his conviction, following a jury trial, of 

battery resulting in bodily injury, as a Class A misdemeanor,1 and the term of 

his probation that prohibits him from possessing firearms. We affirm.

Issues

[2] Wilder raises the following two issues on appeal:

I. Whether the detective’s testimony violated Indiana Rule of 

Evidence 704(b) and its admission was fundamental error.

II. Whether the condition of probation which prohibits him 

from possessing firearms during his probation period 

violates his right to bear arms, as protected by the Second 

Amendment to the United States Constitution and Article 

1, § 32 of the Indiana Constitution.

Facts and Procedural History

[3] Wilder owns and operates a pierogi food truck. Food truck operators must 

operate out of a commissary or licensed board of health kitchen, and Wilder’s 

commissary is on the south side of Indianapolis next to a bar and restaurant 

called The Tailgate, which is owned by Dennis Turpen (“Turpen”).

[4] At approximately 12:30 p.m. on August 6, 2016, Wilder went to his 

commissary to pick up frozen pierogi. Wilder’s sixteen-year-old son was 

 

1

 Ind. Code § 35-42-2-1(d)(1).
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driving Wilder’s vehicle, and Wilder’s friend, William Greuesser (“Greuesser”), 

was a passenger in the back seat of the vehicle. Turpen had parked his truck in 

an alley behind his restaurant—where there are no parking spaces—in order to 

unload supplies from his truck and take them into his restaurant. Although 

Turpen’s truck was not blocking the alley access, it was parked in such a 

manner that passing around his vehicle would be difficult. Wilder and Turpen 

had previously argued on several occasions about Turpen parking his car 

behind his restaurant. Believing his son, who was an inexperienced driver, 

would not be able to drive around Turpen’s truck, Wilder called out to Turpen 

to move his truck. Turpen responded that it would only take him a few minutes 

to unload his truck, and pointed out that there was room enough to drive 

around his truck.

[5] Wilder became angry, yelled at Turpen, and then exited his vehicle and 

approached Turpen. An altercation ensued during which Wilder tackled 

Turpen and got Turpen face-down on the ground. Wilder knelt on top of 

Turpen and placed his forearm on the back of Turpen’s neck. William Camp 

(“Camp”), who was across the street from Turpen and Wilder at a strip mall, 

did not see how the altercation began but he did witness Wilder holding Turpen 

down on the ground and banging Turpen’s face onto the ground. Wilder then 

got up and went to Turpen’s truck, where he began throwing things out of the

truck and onto the ground. Wilder then got into the driver’s seat of his own 

vehicle and sped away. Turpen sustained bleeding lacerations to his hands, 

arms, elbows, face and one knee. Wilder was not injured. 
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[6] Both Turpen and Camp independently called 9-1-1 to report the incident. 

Indianapolis Metropolitan Police Department (“IMPD”) Officer James Rusk 

(“Officer Rusk”) responded to the 9-1-1 calls. When he arrived at The Tailgate, 

he saw that Turpen had blood on his nose, hands, elbows, and knees. Camp 

approached Officer Rusk and informed him that he had witnessed the 

altercation. Officer Rusk interviewed both Turpen and Camp at the scene.

[7] IMPD Detective Kevin Duley (“Det. Duley”) was assigned to investigate the 

incident further. As part of his investigation, Det. Duley interviewed Turpen 

five days after the incident and noticed that Turpen still had injuries on his nose 

and hands. Det. Duley also interviewed Camp regarding the incident. Det. 

Duley showed Camp an array of photographs, including one of Wilder, and 

Camp identified Wilder as the person whom he saw kneeling on top of Turpen 

and banging Turpen’s head on the ground on August 6. 

[8] The State charged Wilder with battery resulting in bodily injury as a Class A 

misdemeanor. At his May 15, 2017, jury trial, Wilder contended that he had 

acted in self-defense because Turpen had swung at him first. As part of that 

defense, and beginning in his opening statement, Wilder attacked the quality of 

the police investigation and, specifically, the fact that police never spoke to 

Wilder, his son, or Greuesser before filing charges. In his opening statement, 

Wilder’s attorney stated:

The police investigation, which you will also learn today, uh, 

spoke to Turpen and Camp and that’s it, never talked to my 

client. If they had they would have found out that there was 
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another eye witness and you will hear from him today too. ... 

And, if the police had investigated this case appropriately 

you’d—they’d know that there was reasonable doubt.

Tr. Vol. II at 38-39. On cross-examination of Officer Rusk, Wilder’s attorney 

elicited testimony that Officer Rusk never interviewed Wilder, his son, or 

Greuesser, and that Officer Rusk did not take photographs at the scene, collect 

DNA evidence, inspect Turpen’s head for more injuries, call in an evidence 

technician, or check if there were surveillance videos at surrounding businesses 

that may have recorded the altercation.

[9] Following Officer Rusk’s testimony, the State called Det. Duley to testify. He 

was the State’s final witness in its case-in-chief, and the prosecutor asked the 

detective why he never spoke to Wilder during his investigation. Det. Duley 

replied:

I felt that the evidence was sufficient that a battery had occurred, 

and uh[,] in speaking with Mr. Camp[,] his testimony to me 

corroborated what the victim said. And, in my opinion, Mr. 

Camp did not have a dog in the fight. He would have been better 

off to just walk away from the whole thing. Um, so it, it played a 

lot or it waived [sic] heavily for me that he was willing to stick 

around and give testimony that backed up what the victim said.

That being said[,] I also felt like this was a case that maybe 

needed to see its day in court, as opposed to me taking a 

statement and—it be tried in the Prosecutor’s Office so to speak. 

So[,] I submitted it to the Prosecutor for charging.

Tr. Vol. II at 117. 
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[10] On May 15, the jury found Wilder guilty as charged. At the June 5 sentencing 

hearing, the State requested a no-contact order. Wilder did not object to the 

issuance of a no-contact order, but he asked the court to remove from its terms 

the prohibition on possessing a firearm, as this case did not involve the use of 

any firearm. The trial court imposed a 365-day sentence, all suspended to 

probation except for time served. The court imposed standard conditions of 

probation which included a condition that Wilder “not possess a firearm, 

destructive device, or other dangerous weapon or live in a residence where there 

are such items.” App. Vol. II at 119. The court also imposed a no-contact order 

as a condition of probation, which included an order that Wilder “have no 

firearms, deadly weapons, or ammunition in his/her possession.” Id. at 30. 

This appeal ensued.

Discussion and Decision

Indiana Rule of Evidence 704(b)

[11] Wilder contends that Det. Duley’s testimony that he turned Wilder’s case over 

to the prosecutor without first interviewing Wilder because he “felt the evidence 

was sufficient that a battery had occurred,” Tr. Vol. II at 117, violated Indiana 

Rule of Evidence 704(b) and should have been stricken. As our Supreme Court 

has recently noted,

[w]e review evidentiary rulings for abuse of discretion resulting in 

prejudicial error. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.

2003). A trial court abuses its discretion when its ruling is either 

clearly against the logic and effect of the facts and circumstances 
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before the court, or when the court misinterprets the law. Id. at 

703. To determine whether an error prejudiced a defendant, “we 

assess the probable impact the evidence had upon the jury in light 

of all of the other evidence that was properly presented.” Blount 

v. State, 22 N.E.3d 559, 564 (Ind. 2014). If the conviction is 

properly supported by other independent evidence of guilt, the 

error is harmless. Id.

Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).

[12] Wilder failed to object at trial to the challenged testimony. A defendant must 

object to an alleged error to preserve the issue for appeal; issues raised for the 

first time on appeal are waived. See, e.g., Washington v. State, 808 N.E.2d 617, 

625 (Ind. 2004). The purpose of the contemporaneous objection requirement is 

to give the trial court a chance to avoid or correct the harmful error, thereby 

securing a fair and proper verdict. Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. 

App. 2014). “[A] trial court cannot be found to have erred as to an issue or 

argument that it never had an opportunity to consider.” Washington, 808 

N.E.2d at 625. Therefore, Wilder has waived the claim on review.

[13] However, Wilder maintains that the admission of the challenged testimony was 

fundamental error. The fundamental error exception to waiver is extremely 

narrow and applies only when the error constitutes a blatant denial of basic due 

process principles that makes it impossible to receive a fair trial. See Ryan v. 

State, 9 N.E.3d 663, 668 (Ind. 2014). Thus, a matter rising to the level of 

fundamental error is a matter that the trial court had a sua sponte duty to correct. 

Id. “Fundamental error is meant to permit appellate courts a means to correct 
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the most egregious and blatant trial errors that otherwise would have been 

procedurally barred, not to provide a second bite at the apple for defense 

counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id. 

[14] Wilder asserts that Det. Duley’s testimony that he “felt the evidence was 

sufficient that a battery had occurred” was the statement of a legal conclusion, 

in violation of Indiana Rule of Evidence 704(b). That rule precludes a witness 

from testifying “to opinions concerning intent, guilt, or innocence in a criminal 

case; the truth or falsity of allegations; whether a witness has testified truthfully; 

or legal conclusions.” 

[15] Even if Det. Duley’s challenged testimony was an otherwise improper legal 

conclusion or ultimate opinion of Wilder’s guilt,2it was nevertheless admissible 

because Wilder “opened the door” to such testimony when he raised the issue 

of the sufficiency of the police investigation. 

Opening the door refers to the principle that where one party 

introduces evidence of a particular fact, the opposing party is 

entitled to introduce evidence in explanation or rebuttal thereof, 

even though the rebuttal evidence otherwise would have been 

inadmissible. See Clark v. State, 915 N.E.2d 126, 130, 131 (Ind. 

2009).

 

2

 See, e.g., Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015) (holding a detective’s testimony that a 

“transaction for cocaine” had occurred was a declaration of an ultimate opinion of the defendant’s guilt, in 

violation of Rule 704(b)); Bradford v. State, 960 N.E.2d 871, 876 (Ind. Ct. App. 2012) (holding Department of 

Child Services caseworker’s testimony that she “substantiated sexual abuse, meaning our office feels that 

there was enough evidence to conclude that sexual abuse occurred,” was an improper opinion of the truth of 

the allegations, in violation of 704(b)).
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Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). Evidence which opens the 

door “must leave the trier of fact with a false or misleading impression of the 

facts related.” Cameron v. State, 22 N.E.3d 588, 593 (Ind. Ct. App. 2014).

When that happens, the State may introduce otherwise inadmissible evidence if 

it “is a fair response to evidence elicited by the defendant.” Id. 

[16] Here, Wilder “opened the door” for Det. Duley’s testimony by attacking, in 

both his opening statement and his cross-examination of Officer Rusk, the 

sufficiency of the police investigation and, more specifically, the State’s decision 

to bring charges against Wilder before police spoke with him and his witnesses. 

Wilder’s attorney’s opening remarks and cross-examination of Officer Rusk 

necessarily left the jury with the false impression that police must interview all 

witnesses before the State may file criminal charges. The State was entitled at 

that point to elicit testimony about why it brought charges against Wilder 

without first interviewing him, his son, or his friend who was in the car with 

him.3 The trial court did not commit fundamental error by failing to, sua sponte, 

exclude that testimony.4 

 

3

 For the same reason, the trial court did not err in allowing Det. Duley’s testimony that appears to vouch 

for the credibility of Camp as a witness. Again, it was Wilder who first introduced the idea that the police 

had not “investigated this case appropriately.” Tr. Vol. II at 38-39. Det. Duley’s testimony that he thought 

Camp’s non-biased account of the incident, together with the victim’s statement, was sufficient to charge 

Wilder with battery was in direct response to Wilder’s contention that the police failed to properly investigate 

the case when they did not interview Wilder or his witnesses. Thus, Wilder opened the door to Det. 

Dudley’s “vouching testimony” and it was admissible. See Sampson, 38 N.E.3d at 992.

4

 Because we hold that Det. Duley’s challenged testimony was admissible, we do not address the State’s 

argument that any error was harmless.
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Probation Condition Prohibiting Possession of Firearms

Standard of Review

[17] Wilder maintains that the condition of probation that prohibits him from 

possessing firearms during his probation period5 violates his right to bear arms, 

as protected by the Second Amendment to the United States Constitution and 

Article 1, Section 32 of the Indiana Constitution. Probation is a criminal 

sanction wherein a convicted defendant specifically agrees to accept conditions 

upon his behavior in lieu of imprisonment. See, e.g., Bratcher v. State, 999 

N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied.

A trial court enjoys broad discretion when determining the 

appropriate conditions of probation. Freije v. State, 709 N.E.2d 

323, 324 (Ind. 1999). This discretion is limited only by the 

principle that the conditions imposed must be reasonably related 

to the treatment of the defendant and the protection of public 

safety. Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct .App. 

1999). Where, as here, the defendant challenges a probationary 

condition on the basis that it is unduly intrusive on a 

constitutional right, we will evaluate that claim by balancing the 

following factors: (1) The purpose to be served by probation, (2) 

the extent to which constitutional rights enjoyed by law-abiding 

citizens should be enjoyed by probationers, and (3) the legitimate 

needs of law enforcement. 

 

5

 That condition is authorized by Indiana Code Section 35-38-2-2.3(a)(9). Wilder does not attack the 

constitutionality of the statute on its face, only as applied to him.
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Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied; see also 

Taylor v. State, 820 N.E.2d 756, 761 (Ind. Ct. App. 2005) (quotation and citation 

omitted) (“Convicted individuals do not enjoy the same constitutional 

protections as law-abiding citizens. In the context of these constitutional 

freedoms, a state action is valid if reasonably related to legitimate penological 

interests.”), trans. denied.

Purpose to Be Served by Probation Condition

[18] The crime Wilder committed—battery resulting in bodily injury—was, by 

definition, a crime of violence. I.C. § 35-42-2-1(d)(1). The probation condition

at issue here is meant to keep dangerous weapons out of the hands of those who 

have shown a propensity for violence, and that is a legitimate and important 

government purpose. See, e.g., United States v. Yancy, 621 F.3d 681, 683-84 (7th

Cir. 2010) (noting the important government purpose of a federal law 

prohibiting unlawful users of, or addicts to, controlled substances from 

possessing firearms was “to keep guns out of the hands of presumptively risky 

people”); see also, Redington v. State, 992 N.E.2d 823, 833 (Ind. Ct. App. 2013) 

(holding a state statute had the legitimate government purposes of permitting

seizure of firearms from individuals found to meet the statutory definition of 

“dangerous”), trans. denied. 

[19] The fact that Wilder’s violent crime did not involve use of a firearm is not 

dispositive; it is the propensity of the probationer toward violence that is 

relevant to the need to prohibit possession of dangerous weapons such as 

firearms. See, e.g., United States v. Muehlhausen, No. 1:12-CR-00102-TWP-
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DML-51, 2013 WL 3043682, *4 (S.D. Ind. June 17, 2013) (holding the 

government had “a legitimate interest in keeping someone with [defendant]’s 

prior conduct history [of violent misdemeanors] from possessing firearms.”); cf. 

Carswell, 721 N.E.2d at 1265 (holding that a condition of probation prohibiting

a convicted child molester from using drugs or alcohol was reasonable, even in 

the absence of evidence that drugs or alcohol played any part in his crimes, 

since drug possession is illegal and “[t]he propensity of alcohol to impair 

judgment and reduce inhibition is known”). 

[20] The legitimate and important purpose of the probation condition prohibiting 

possession of firearms, as applied to Wilder, is to keep dangerous weapons out 

of the hands of a probationer whose underlying crime has shown he has a 

propensity toward violence resulting in harm to others.

Extent to which the Right to Bear Arms should be Afforded to Wilder

I. The Second Amendment

[21] The Second Amendment states in its entirety: “A well regulated Militia, being 

necessary to the security of a free State, the right of the people to keep and bear 

Arms, shall not be infringed.” U.S. Const. amend. II. The United States 

Supreme Court has held that the “core protection” of the Second Amendment 

is “the right of law-abiding, responsible citizens to use arms in defense of hearth 

and home.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see also 

McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding Second Amendment 

protections are applicable to the states). However, some categorical exclusions 
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on firearm possession may be constitutional. See, e.g., United States v. Skoien, 

614 F.3d 638, 641 (7th Cir. 2010) (quoting Heller, 554 U.S. at 626-27)

(“‘[N]othing in our opinion should be taken to cast doubt on longstanding 

prohibitions on the possession of firearms by felons and the mentally ill, or laws 

forbidding the carrying of firearms in sensitive places such as schools and 

government buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms.’”), cert. denied.

[22] The federal courts use a two-pronged approach when analyzing a Second 

Amendment challenge to a law: (1) Does the challenged law impose a burden 

on conduct falling within the scope of the Second Amendment’s guarantee? If 

not, the inquiry is complete. (2) If it does impose such a burden, does the law 

pass a heightened level of scrutiny? See, e.g., Ezell v. City of Chicago, 651 F.3d 

684, 703-04 (7th Cir. 2011), and cases cited therein. What level of scrutiny 

applies depends upon the severity of the burden on Second Amendment rights, 

although the scrutiny must, in any case, be stronger than rational basis review. 

Id. at 701, 708 (citing Heller, 554 U.S. at 628-29 & n.27).

First, a severe burden on the core Second Amendment right of 

armed self-defense will require an extremely strong publicinterest justification and a close fit between the government’s 

means and its end. Second, laws restricting activity lying closer 

to the margins of the Second Amendment right, laws that merely 

regulate rather than restrict, and modest burdens on the right 

may be more easily justified. How much more easily depends on 

the relative severity of the burden and its proximity to the core of 

the right.
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Id. at 708. This same analysis applies to categorical exclusions that are within 

the scope of the Second Amendment. See, e.g., United States v. Williams, 616 

F.3d 685, 692 (7th Cir. 2010), cert. denied.

[23] Here, the state statute authorizing a prohibition on possession of firearms as a 

probation condition, generally, seems to allow a categorical ban on firearm 

possession by any probationer, regardless of the nature of the underlying crime.

6

 

I.C. § 35-38-2-2.3(a)(9). However, we do not decide whether such a categorical 

exclusion is constitutional, as Wilder challenges only the law as applied to him. 

As applied to Wilder, the law prohibits possession of firearms by a probationer 

who committed a violent crime—i.e., battery. 

[24] Since the probation condition burdens Wilder’s right to bear arms, we must 

determine what level of scrutiny to apply to that burden.

7

 In making this 

determination, we note that the prohibition on possession of firearms is not an 

indefinite one; rather, it applies only during the term of Wilder’s probation

period, which was only 365 days. Thus, the condition is a more “modest 

burden” on Wilder’s right to bear arms. Ezell, 651 F.3d at 708. And it is not a 

 

6

 Such a categorical exclusion may be permissible, as both the United States Supreme Court and the Seventh 

Circuit have stated that “only law-abiding persons” enjoy individualized Second Amendment rights. Berron 

v. Illinois Concealed Carry Licensing Review Bd., 825 F.3d 843, 847 (7th Cir. 2016) (citing Heller, 554 U.S. at 626-

28), cert. denied; see also Yancy, 621 F.3d at 684-85 (citations and quotation omitted) (“Whatever the pedigree 

of the rule against even nonviolent felons possessing weapons (which was codified in federal law in 1938), 

most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a 

virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens.”).

7

 Neither party to this appeal has addressed the level of scrutiny to be applied to Wilder’s Second 

Amendment claim.
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total ban on guns that applies to even law-abiding citizens. See Moore v. 

Madigan, 702 F.3d 933, 940 (7th Cir. 2012) (“[T]he state can prevail with less 

evidence when, as in Skoien, guns are forbidden to a class of persons who 

present a higher than average risk of misusing a gun.”). Therefore, we apply an 

intermediate level of scrutiny. Ezell, 651 F.3d at 708. Intermediate scrutiny 

means “the government has the burden of demonstrating that its objective is an 

important one and that its objective is advanced by means substantially related 

to that objective.” Williams, 616 F.3d at 692.

[25] We have already noted that the government’s objective of keeping guns out of 

the hands of probationers who have been convicted of violent crimes is an 

important one. So, too, is the government’s goal of rehabilitating probationers. 

E.g., Carswell, 721 N.E.2d at 1258. And we hold that application of the 

probation condition to Wilder is substantially related to those important goals. 

Wilder was convicted of a violent crime that caused injury to another, thus 

showing he has a propensity toward violence. Therefore, the State’s goals of 

rehabilitating Wilder and preventing him, while on probation, from committing 

additional violence through the use of a deadly weapon is substantially 

furthered by the probation condition. 

[26] The Seventh Circuit has reached similar conclusions in similar cases. In United 

States v. Yancy, for example, the court upheld a law making it a felony for 

anyone “who is an unlawful user of or addict to any controlled substance” to 

possess a firearm. 621 F.3d at 682. This law applied even to those who had 

never before been convicted of a felony, a crime involving a firearm, or, indeed,
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any violent crime at all. The court held that, since “habitual drug users, like the 

mentally ill, are more likely to have difficulty exercising self-control, making it 

dangerous for them to possess deadly firearms,” the law was substantially 

related to the government’s important interest in “keep[ing] guns out of the 

hands of presumptively risky people.” Id. at 683-84. And, importantly, the ban 

on firearm possession was not indefinite; the defendant “could regain his right 

to possess a firearm simply by ending his drug abuse.” Id. at 687; see also Skoien, 

614 F.3d at 642 (“The belief underpinning [the federal law prohibiting gun 

possession by those convicted of domestic violence] is that people who have 

been convicted of violence once—toward a spouse, child, or domestic partner, 

no less—are likely to use violence again.”).

[27] The temporary curtailment of Wilder’s right to bear arms is substantially related 

to the government’s important goal of keeping dangerous weapons out of the 

hands of probationers who have shown a propensity for violence. Therefore, 

the challenged probation condition, as applied to Wilder, does not violate the 

Second Amendment.

II. Article 1, Section 32

[28] Wilder contends that the challenged probation condition, as applied to him, 

also violates Article 1, Section 32 of the Indiana Constitution, which states: 

“The people shall have a right to bear arms, for the defense of themselves and 

the State.” Claims under that provision are analyzed differently than Second 

Amendment claims. As we have most recently held, we apply both a rational 
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basis review and a material burden analysis to such claims. Redington, 992 

N.E.2d at 832-35. That is, we first apply rational basis review to a restriction on 

firearms to determine if it is a valid exercise of “police power to promote health, 

safety, comfort, morals, and welfare of the public.” Id. at 832 (citing Price v. 

State, 622 N.E.2d 954, 959 (Ind. 1993)). If the restriction passes rational basis 

review, we proceed to determine whether it “materially burdens” a “core 

value.” Id. at 833. 

Rational Basis Review

[29] The firearm law at issue in Redington was Indiana Code Section 35-47-14-1, et 

seq., which authorized the State to seize, pursuant to a warrant, firearms of a 

person who the State proved by clear and convincing evidence met the statutory 

definition of “dangerous.” Id. at 830-31. We held that law was “rationally 

calculated to advance” the State’s legitimate governmental purpose of 

prohibiting possession of firearms by those “dangerous” persons who “present a 

risk of personal injury to themselves or others.” Id. at 833. This was so even 

though the defendant had never been convicted of a crime and claimed not to 

have a mental illness, where the State had nevertheless proven that he was 

dangerous as defined by statute. Id. 

[30] Here, the challenged firearm restriction passes rational basis review for the 

same reasons it passed an intermediate level of scrutiny under the federal 

constitution. The State proved, beyond a reasonable doubt, that Wilder 

committed a violent crime. The probation condition prohibiting him from 
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possessing firearms is rationally calculated to advance the legitimate 

government interest in keeping firearms out of the hands of those who have 

shown a propensity for violence by committing a violent crime. 

Material Burden Analysis

[31] As we noted in Redington, the core value implicated by firearms restrictions is 

the “right for law-abiding citizens to bear arms for self-defense.” Id. (citing Lacy

v. State, 903 N.E.2d 486, 490 (Ind. Ct. App. 2009), trans. denied).

8

 However, our 

courts have recognized that the right to bear arms is not absolute. Lacy, 903 

N.E.2d at 490 (citing Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990)). 

“[S]tate action does not impose a material burden on [a core value] if either the 

‘magnitude of the impairment’ is slight or the [exercise of the right] threatens to 

inflict ‘particularized harm’ analogous to tortious injury on readily identifiable 

private interests.” Redington, 992 N.E.2d at 833 (quoting State v. Econ. Freedom 

Fund, 959 N.E.2d 794, 805 (Ind. 2011)). To determine the magnitude of the 

impairment, we look at whether the government action creates a “substantial 

obstacle” to the exercise of the right. Id. If not, then the law does not impose a 

material burden on the exercise of the right. Id. If so, we must then determine 

whether the defendant’s exercise of that right would threaten to cause 

“particularized harm.” Id.

 

8

 As in federal Second Amendment jurisprudence, the “law-abiding citizen” language in Indiana case law 

seems to remove probationers such as Wilder from any Article 1, Section 32 protections. Nevertheless, we 

proceed to the material burden analysis.
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[32] Here, as in Redington, the challenged restriction does not impose a substantial 

obstacle on Wilder’s right to bear arms for self-defense because the restriction is 

temporary, lasting only while Wilder is serving his one-year probation. See id. 

at 834 (finding no substantial obstacle on the right to bear arms when the statute 

provided a mechanism for regaining the right to carry a firearm within 180 

days). 

[33] Moreover, again as in Redington, even if we found the magnitude of the 

impairment on the right to bear arms was substantial, Wilder’s challenge would 

still fail on the second component of the material burden test because his 

possession of firearms during probation would threaten to inflict “particularized 

harm” on others. See id. at 834-35 & n.4 (emphasis in original) (noting “we 

need only find that a threat analogous to tortious injury on readily available 

private interests exists regarding the ‘particularized harm’ component”). The 

State proved beyond a reasonable doubt that Wilder committed the violent 

crime of battery against Turpen, repeatedly banging Turpen’s head on the 

ground and causing him injury. If Wilder possessed firearms, he would pose an 

even greater threat of violence. See id. (finding sufficient evidence of 

“particularized harm” where the state proved, by clear and convincing 

evidence, that the defendant was dangerous as defined by statute). 

[34] Because Indiana Code Section 35-38-2-2.3(a)(9), as applied to Wilder, has a 

rational basis and does not impose a material burden on Wilder’s right to bear 

arms, it does not violate Article 1, Section 32 of the Indiana Constitution.
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Legitimate Needs of Law Enforcement

[35] Finally, as noted above, the challenged probation condition is meant to keep 

dangerous weapons out of the hands of those who—like Wilder—have shown a 

propensity for violence, and that is a legitimate and important government 

purpose. See, e.g., Yancy, 621 F.3d at 683-84; see also, Redington, 992 N.E.2d at 

833. Moreover, as the State points out, law enforcement has a legitimate need 

to protect probation officers from being shot by a violent probationer. 

Probation officers often engage in home visits and searches of probationers’ 

homes in order to monitor and ensure compliance with the terms of probation. 

I.C. § 35-38-2-2.3(a). Indeed, “probation searches ‘are necessary to the 

promotion of legitimate [state] interests.’” State v. Vanderkolk, 32 N.E.3d 775, 

779 (Ind. 2015) (quoting Samson v. California, 547 U.S. 843, 849 (2006)); see also, 

e.g., Bonner v. State, 776 N.E.2d 1244, 1249 (Ind. Ct. App. 2002) (discussing the 

ability to engage in warrantless probation searches as “an extremely valuable 

aid in rehabilitation” and the supervision and monitoring of probationers as a 

tool that facilitates the goals of genuine rehabilitation and protection of the 

public), trans. denied. 

[36] Furthermore, the probation officer/probationer relationship is one that can 

become fraught with tension, as the probation officer has the power to regulate

the probationer’s behavior in ways that may be unwelcome and the power to 

seek a revocation of probation that could result in incarceration. Prohibiting a 

probationer from possessing firearms or residing in a home where firearms are 

present allows probation officers to carry out their critical supervisory 
Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018 Page 21 of 21

responsibilities in greater safety, which is a legitimate and weighty state interest. 

In addition, it provides protection for law enforcement officers serving arrest 

warrants for probation violations, which is also an important aspect of the 

supervision and monitoring necessary to a successful probation system. 

Decreasing the risk that officers will encounter violent, armed probationers is a 

significant and legitimate law enforcement need.

Conclusion

[37] The trial court did not commit fundamental error by failing to, sua sponte, exclude 

Det. Duley’s testimony under Rule of Evidence 704(b)—even if that testimony was 

an otherwise improper legal conclusion or ultimate opinion of Wilder’s guilt—

because Wilder “opened the door” to that testimony. Sampson, 38 N.E.3d at 992. 

And the trial court did not abuse its discretion when it imposed the probation 

condition prohibiting Wilder from possessing firearms during his one-year 

probationary period, since that provision, as applied to Wilder, does not violate the 

Second Amendment or Article 1, Section 32 of the Indiana Constitution.

[38] Affirmed.

Kirsch, J., and Pyle, J., concur.