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: ATTORNEYS FOR APPELLEE:

DARREN BEDWELL GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

JODI KATHRYN STEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

EARL McCLENDON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1206-CR-282

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Barbara A. Collins, Judge

The Honorable Deborah Shook, Magistrate

Cause No. 49F08-1110-CM-074190

December 12, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

Appellant-Defendant, Earl McClendon (McClendon), appeals the trial court’s 

denial of his motion requesting the return of his firearm. 

We reverse and remand with instructions. 

ISSUE

McClendon raises four issues on appeal, which we consolidate and restate as the 

following single issue: Whether the trial court abused its discretion when it denied his 

motion requesting the return of his firearm.

FACTS AND PROCEDURAL HISTORY

On October 15, 2011, Indianapolis Metropolitan Police Department Officer 

Timothy Elliot (Officer Elliot) was traveling on 42nd Street in Indianapolis, Indiana, when 

a Chevy Malibu vehicle approaching from the opposite direction traveled left of the 

center lane and almost struck his patrol car. Both he and another officer on the road had 

to perform evasive maneuvers to avoid contact with the vehicle. The Officers detained 

the driver of the vehicle, McClendon, and transported him to the Indianapolis Police 

Department. At the Department, a certified chemical test operator administered a 

chemical test to McClendon and determined that he had an alcohol concentration 

equivalent (ACE) of 0.17 grams of alcohol per two hundred ten liters of breath. 

Subsequently, the Officers learned that McClendon’s license had previously been

suspended.
3

On October 16, 2011, the State filed an Information charging McClendon with 

Count I, operating a vehicle while intoxicated endangering a person, a Class A 

misdemeanor, Ind. Code § 9-30-5-2(b); Count II, operating a vehicle while intoxicated 

with an ACE of 0.15 or above, a Class A misdemeanor, I.C. § 9-30-5-1(b); and Count III, 

driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. On December 5, 

2011, the State moved to amend the Information by adding Count IV, resisting law 

enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. In its motion to amend the 

Information, the State alleged that McClendon had put his hand on his firearm and 

resisted the Officers by refusing to place his hands on the vehicle prior to his arrest. The 

trial court granted the motion to amend the Information. 

On May 9, 2012, McClendon pled guilty pursuant to a written plea agreement to 

Counts II and IV. In exchange, the State dismissed Counts I and III. That same day, the 

trial court held a hearing, at which it accepted the plea agreement and sentenced 

McClendon to 365 days on each Count, with the sentences to be served concurrently and 

363 days suspended to probation. After the sentencing portion of the hearing, 

McClendon requested the return of his firearm, which had been confiscated pursuant to 

his arrest. The trial court heard testimony by Officer Elliot, who testified that he had 

ordered McClendon to place his hands on top of the car and that McClendon had instead 

put his hands on his firearm. At the conclusion of the hearing, the trial court ordered the 

firearm destroyed. The trial court granted McClendon’s request to stay the destruction 

order pending appeal.
4

McClendon now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

McClendon argues on appeal that the trial court abused its discretion when it 

denied his motion requesting the return of his firearm. He asserts that the trial court’s 

decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated 

firearms following the final disposition of a cause. In response, the State argues that the 

trial court’s decision was proper because: (1) McClendon was convicted for the misuse 

of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to 

possess the firearm. 

When we review the denial of a motion for the return of property, we will affirm 

unless the decision is clearly erroneous and cannot be sustained on any legal theory 

supported by the evidence. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011). 

Statutes that relate to search and seizure must be strictly construed in favor of the 

constitutional right of the people. Id. The court, once its need for the property has 

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

The return of McClendon’s handgun is governed by I.C. § 35-47-3-2(b), which 

provides:

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 I.C. § 35-33-5. . . . However, nothing in this chapter shall be construed 

as requiring the return of firearms to rightful owners who have been 

convicted for the misuse of firearms. 
5

The State asserts that the trial court should not return the firearm because 

McClendon falls under the exception to section 35-47-3-2(b) for rightful owners 

who have been convicted for the misuse of firearms. In response, McClendon 

argues that his use of his firearm was not part of the factual basis for his plea 

agreement and that he never admitted to touching his firearm. Accordingly, he 

argues, he was not “convicted” for the “misuse of firearms.” We agree with 

McClendon as none of the evidence underlying his conviction supports the State’s 

contention that he misused his firearm. 

Specifically, at the hearing, the State established the factual basis for McClendon’s

plea as follows: 

As to Count 4, on or about October 15, 2011 in Marion County, State of 

Indiana, the following named defendant, [McClendon], did knowingly and 

forcibly resist, obstruct or interfere with Timothy Elliott, a law enforcement 

officer with the Indianapolis Metropolitan Police Department, while the 

[O]fficer was lawfully engage[d] in the execution of his duties as a law 

enforcement officer.

(Transcript pp. 5-6). McClendon admitted to the veracity of these allegations, but neither 

the State nor McClendon made any references to McClendon’s firearm. The State 

contends that although the factual basis did not provide any evidence that McClendon’s 

conviction involved the misuse of his firearm, both the probable cause affidavit and the 

State’s motion to amend the Information alleged that McClendon touched his firearm 

while resisting law enforcement. However, we have previously noted that, absent a 

defendant’s admission of the veracity of the contents of a probable cause affidavit or 
6

Information, both are “mere accusations against a defendant and no evidence whatsoever 

of his guilt.” Anderson v. State, 396 N.E.2d 960, 962 (Ind. Ct. App. 1979); see also Toan 

v. State, 691 N.E.2d 477, 481 (Ind. Ct. App. 1998) (noting that a factual basis can be 

established by a reading of the Information and an admission by the defendant that the 

allegations are true). Accordingly, we will not find that the probable cause affidavit and 

Information provided evidence that McClendon misused his firearm. 

In addition, while the trial court heard testimony from Officer Elliot concerning 

the firearm, it only did so after it had accepted McClendon’s guilty plea and sentenced 

him. Thus, we cannot find that McClendon’s conviction was founded on Officer Elliot’s 

testimony. The plain language of I.C. § 35-47-3-2(b) states that a trial court is not 

required to return a firearm to a rightful owner who has been “convicted for the misuse of 

firearms.” See I.C. § 35-47-3-2(b) (emphasis added). Because we cannot find any

evidence in the record that McClendon admitted to misusing a firearm as part of his 

guilty plea and conviction, we conclude that he was not convicted for the misuse of a 

firearm. 

Alternatively, the State argues that the trial court’s decision to deny McClendon’s 

motion was proper because he was an alcohol abuser and thus no longer entitled to 

possess the firearm. Pursuant to I.C. § 35-47-2-7(b), “[i]t is unlawful for a person to sell, 

give, or in any manner transfer the ownership or possession of a handgun to another 

person who the person has reasonable cause to believe: . . . (3) is an alcohol abuser[].” 

Under the Indiana Code, an “alcohol abuser” is “an individual who has had two (2) or 
7

more alcohol related offenses, any one (1) of which resulted in conviction by a court or 

treatment in an alcohol abuse facility within three (3) years prior to the date of the 

application.” I.C. § 35-47-1-2. The State alleges that between McClendon’s conviction 

for operating a vehicle while intoxicated in the instant case and a prior conviction for 

public intoxication, McClendon has had two or more alcohol related offense. 

We disagree with the State’s contention as the State did not prove that McClendon 

has a prior alcohol related offense. During the hearing, the State told the trial court: 

“[McClendon] does have a public intoxication arrest on his record which he was also, the 

arrest was actually for failure to stop after an accident, I believe. There’s also a public 

intoxication arrest on that.” (Tr. p. 11). However, the State made this statement during 

its argument to the trial court and did not actually submit any evidence of the alleged 

arrest. Moreover, the State’s use of the phrase “I believe,” does not convince us that the 

State’s statements accurately reflect McClendon’s criminal history. (Tr. p. 11).

In sum, we find that the State did not prove that McClendon misused a 

firearm for purposes of I.C. § 35-47-3-2(b) or is an alcohol abuser for purposes of 

I.C. § 35-47-2-7(b). Accordingly, we conclude that the trial court abused its 

discretion and was instead required to return McClendon’s firearm as stated in I.C. 

§ 35-47-3-2(b). We reverse the trial court’s decision and remand with instructions 

to return McClendon’s firearm.

1

 

1 Because we find that the trial court abused its discretion under I.C. § 35-47-3-2(b), we will not address 

McClendon’s remaining claims.
8

CONCLUSION

Based on the foregoing, we conclude that the trial court abused its discretion in 

denying McClendon’s motion requesting the return of his firearm. We remand with 

instructions for the trial court to return McClendon’s firearm.

Reversed and remanded with instructions.

BAKER, J. and BARNES, J. concur