Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-487| June 30, 2015 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Deborah Markisohn

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Leon Payne,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 30, 2015

Court of Appeals Case No.

49A04-1410-CR-487

Appeal from the Marion Superior

Court

The Honorable David Earl Cook, 

Judge 

Cause No. 49G07-1407-CM-034840

Najam, Judge.
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Statement of the Case

[1] Leon Payne appeals his conviction for carrying a handgun without a license, as 

a Class A misdemeanor, following a bench trial. He presents one issue for our 

review, namely, whether the State presented sufficient evidence to support his 

conviction.

[2] We affirm.

Facts and Procedural History

[3] At approximately 9:00 a.m. on July 10, 2014, the Indianapolis Metropolitan 

Police Department (“IMPD”) dispatched Officer Scott Strietelmeier and several 

other IMPD officers to the 1600 block of Winfield Avenue in Indianapolis after 

a resident of that area saw several men standing in a driveway and loading a 

handgun. The resident was concerned because gunshots had been heard in the 

area the prior evening.

[4] As the officers drove to the location of the call, Officer Strietelmeier saw several 

men on the porch of the residence matching the description provided to IMPD. 

Officer Strietelmeier observed one of the men, Payne, dropping a dark handgun 

on the ground. Payne picked up the gun and threw it into a line of trees 

alongside the house.

[5] As Officer Strietelmeier and the other officers got out of their cars, they ordered 

the individuals to lie face-down on the ground, and the officers handcuffed 

them. Officer Strietelmeier and another officer searched the tree line next to the 
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home and found two pistols. Payne did not have a license to carry a handgun. 

The officers asked Payne about the guns, but he declined to answer questions. 

Payne was subsequently notified of his Miranda rights and arrested.

[6] On July 10, 2014, the State charged Payne with carrying a handgun without a 

license. The trial court held Payne’s bench trial on September 9 and 23, 2014. 

At the conclusion of the State’s case, Payne moved for judgment on the 

evidence. Payne contended that the State had failed to meet its burden of proof

because the State had not shown that Payne did not have the consent of the 

homeowner to have a firearm at the home, a statutory exception to the offense 

of carrying a handgun without a license. Payne argued that the statutory 

exception at issue was not an affirmative defense to be proved by the defendant 

but, rather, was an element of the offense. Thus, he continued, the burden of 

proof rested with the State to negate the element.

[7] In response to Payne’s argument, the trial court took the issue under 

advisement. Thereafter, the court concluded that the specific exception Payne 

sought to apply was an affirmative defense, the initial burden of proof for which 

rested with Payne. Accordingly, the trial court denied Payne’s motion for 

judgment on the evidence. Payne then testified on his own behalf. Payne 

stated that the firearms actually belonged to another man present at the home,

who also was the person who had tossed the firearms into the bushes. At the 

conclusion of the trial, the court found Payne guilty as charged and sentenced 

him to 365 days in the Marion County Jail, with all but fifteen days suspended 

to probation. This appeal ensued.
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Discussion and Decision

[8] Payne contends that the State failed to present sufficient evidence to convict 

him for carrying a handgun without a license. Our standard of review for 

sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 

111 (Ind. 2000).

In reviewing the sufficiency of the evidence, we examine only the 

probative evidence and reasonable inferences that support the 

verdict. We do not assess witness credibility, nor do we reweigh 

the evidence to determine if it was sufficient to support a 

conviction. Under our appellate system, those roles are reserved 

for the finder of fact. Instead, we consider only the evidence 

most favorable to the trial court ruling and affirm the conviction 

unless no reasonable fact-finder could find the elements of the 

crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted) 

(internal quotation marks omitted).

[9] Indiana’s carrying a handgun without a license statute, Indiana Code Section 

35-47-2-1, provides in relevant part:

(a) Except as provided in subsection[] (b) . . . of this chapter, a 

person shall not carry a handgun in any vehicle or on or about 

the person’s body without being licensed under this chapter to 

carry a handgun.

(b) . . . [A] person may carry a handgun without being licensed 

under this chapter to carry a handgun if:
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* * *

(2) the person carries the handgun on or about the person’s 

body while lawfully present in or on property that is 

owned, leased, rented, or otherwise legally controlled by 

another person, if the person:

(A) has the consent of the owner, renter, lessor, or 

person who legally controls the property to have the 

handgun on the premises.

[10] Payne asserts that the State failed to prove in its case in chief that he “lacked the 

consent of the homeowner to carry a handgun on the private residential 

property.” Appellant’s Br. at 4. However, Payne acknowledges that our 

supreme court “has found that it is the defendant, not the State, who must 

prove that he came within one of the exceptions to the licensing requirement.” 

Id. at 6 (citing, among other cases, Moore v. State, 369 N.E.2d 628, 632 (Ind. 

1977)). Despite this, Payne asks this court to reconsider our supreme court’s 

precedent because “the ever increasing number” of exceptions to the carrying a 

handgun without a license statute makes it “more appropriate to require the

State to disprove” a claimed exception “where such evidence is readily 

available and is easily obtained by the State.” Id. at 7.

[11] But “[i]t is not this court’s role to reconsider or declare invalid decisions of our 

supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005). 

And our supreme court has already considered and rejected an argument 

identical to Payne’s. In particular, our supreme court has held that 
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when the State has established that a defendant was found to be 

in possession of a handgun and not in possession of a license to 

carry it, then the burden shifts to the defendant to come forward 

with any proof that he in fact was licensed to carry the weapon or 

was [excepted] from the statute.

Tonge v. State, 575 N.E.2d 269, 271 (Ind. 1991). Tonge precludes our 

consideration of Payne’s argument and is the controlling authority.

1

[12] The evidence presented by the State at Payne’s trial demonstrated that Payne 

carried a handgun without a license. As such, the burden shifted to Payne to 

establish that he either had a license to carry his weapon or that he fell within 

an exception to the statute. Payne did not do so but, instead, testified that the 

firearm did not belong to him. Payne, therefore, did not meet his burden, and 

we hold that the evidence was sufficient to support his conviction.

[13] Affirmed.

Baker, J., and Friedlander, J., concur.

 

1

 We also note that, insofar as Payne attempts to rely on post-Tonge statutory amendments to avoid applying 

Tonge, his argument is not well taken. In its subsequent amendments to the license statute, our General 

Assembly has conspicuously not enacted legislation that would demonstrate a disagreement with our 

supreme court’s interpretation of the statute in Tonge. In such circumstances, the doctrine of legislative 

acquiescence—to say nothing of our obligation to simply follow binding supreme court authority—compels 

the conclusion that our supreme court’s interpretation in Tonge was correct. See Bailey v. State, 979 N.E.2d 

133, 141 (Ind. 2012). And, in any event, Tonge’s observation that “requir[ing] the State to eliminate all 

possibilities of lawful carrying of the weapon would be a waste of judicial time and effort” still holds true. 

575 N.E.2d at 271.