ATTORNEY FOR APPELLANT

Meggan Smith

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Reginald Webster,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 7, 2016

Court of Appeals Case No.

49A05-1603-CR-417

Appeal from the Marion Superior 

Court

The Honorable David Hooper, 

Magistrate

Trial Court Cause No.

49F08-0303-CM-42430

Crone, Judge.

Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016 Page 1 of 6
Case Summary

[1] Reginald Webster appeals his conviction for class A misdemeanor carrying a 

handgun without a license, following a bench trial. He raises two issues for our 

review, one of which we find dispositive: namely, he asserts that the trial court 

clearly erred in denying his Indiana Trial Rule 41(B) motion for involuntary 

dismissal. Finding that dismissal was warranted, we reverse his conviction.

Facts and Procedural History

[2] On March 17, 2003, the Indianapolis Metropolitan Police Department received 

an anonymous tip that three black males and one white female were selling 

drugs on the front porch of the residence located at 1554 East Naomi Street in 

Indianapolis. Officers Robert L. Wheeling, Jr., and Richard L. Hemphill, Jr., 

were dispatched to the scene. Upon arrival, the officers observed one black 

male and one white male sitting on a couch located on the porch. When the 

officers exited their police vehicles, they each observed the black male, later 

identified as Webster, bend over toward the bottom of the couch and then 

quickly sit back up. The officers observed the white male, later identified as 

Jason Borenstein, reach over the porch railing and place something shiny in a 

shrub. The officers approached the males and asked them to stand. Concerned 

for officer safety, Officer Wheeling conducted a patdown search of Webster. 

Officer Hemphill then lifted up the couch and found a loaded .357 Magnum 

handgun directly under the front edge of the couch where Webster had been 

sitting and where he had reached. Webster did not present the officers with a 

permit or a license to carry a handgun.

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[3] The State charged Webster with class A misdemeanor carrying a handgun 

without a license. During the bench trial, Webster objected to the admission of 

and moved to suppress evidence of the handgun arguing that the anonymous tip 

was unreliable and that the officers lacked reasonable suspicion of criminal 

activity when they searched him. The trial court denied the motion and 

admitted the evidence. Thereafter, at the close of the State’s evidence, Webster 

moved for involuntary dismissal pursuant to Indiana Trial Rule 41(B). 

Specifically, Webster argued that the State had failed to prove that he possessed 

the handgun in a place other than his dwelling, property, or place of business, 

which is an element of the offense of carrying a handgun without a license. The 

trial court denied the motion and found Webster guilty as charged. This appeal 

ensued.

Discussion and Decision

[4] Webster asserts that the trial court clearly erred in denying his motion for 

involuntary dismissal pursuant to Indiana Trial Rule 41(B). Our review of a 

trial court's decision to grant or deny a motion to dismiss pursuant to Trial Rule 

41(B) is well-established:

The grant or denial of a motion to dismiss made under Trial Rule 

41(B) is reviewed under the clearly erroneous standard. In 

reviewing a motion for involuntary dismissal, this [C]ourt will 

not reweigh the evidence or judge the credibility of the witnesses. 

We will reverse the trial court only if the evidence is not 

conflicting and points unerringly to a conclusion different from 

the one reached by the lower court.

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Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (citations omitted). In a 

criminal action, a defendant’s Trial Rule 41(B) motion is essentially a test of the 

sufficiency of the State’s evidence. Id. Our review of the denial of a motion for 

involuntary dismissal is limited to the evidence presented by the State during its 

case-in-chief. Nichols v. State, 31 N.E.3d 1038, 1041 (Ind. Ct. App. 2015).

[5] The statute in effect at the time Webster was alleged to have committed his 

offense provided in relevant part that “a person shall not carry a handgun in 

any vehicle or on or about the person’s body, except in the person’s dwelling, 

on the person’s property or fixed place of business, without a license issued 

under this chapter being in the person’s possession.” Ind. Code § 35-47-2-1(a). 

Thus, the essential elements comprising the offense are that: (1) Webster (2) 

possessed (3) a handgun (4) in a place that was not his dwelling, property, or 

fixed place of business. See Armstrong v. State, 742 N.E.2d 972, 978 (Ind. Ct. 

App. 2001) (noting essential elements of carrying handgun without a license). 

Once the State establishes that a defendant carried a handgun on or about his 

person, away from his dwelling, property, or fixed place of business, the burden 

shifts to the defendant to demonstrate that he possessed a valid license. Id. at 

977 (citing Harris v. State, 716 N.E.2d 406, 411 (Ind. 1999)). “Thus, proof of the 

presence of a license to carry a handgun is an exemption or exception to, and 

not an element of the crime of carrying a handgun without a license.” Id. 

[6] At the close of the State’s evidence, Webster moved for involuntary dismissal 

arguing that the State failed to prove that he possessed the handgun in a place 

other than his dwelling, property, or fixed place of business. Specifically, he 

Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016 Page 4 of 6
argued that the State presented no evidence to show that 1554 East Naomi 

Street was not his dwelling, property, or fixed place of business. We agree. 

[7] In response to Webster’s motion for involuntary dismissal, the State argued that 

similar to the defendant’s possession of a valid license, the location where the 

defendant is carrying the handgun is an exemption or exception to, rather than

an element of, the offense of carrying a handgun without a license. Thus, the

State maintained, and the trial court mistakenly agreed, that it was Webster’s 

burden to prove that 1554 East Naomi Street was his dwelling, property, or 

fixed place of business as opposed to the State having the burden to prove that 

1554 East Naomi Street was not his dwelling, property, or fixed place of 

business.

1 This was clear error. As we already stated, the location where the 

defendant is carrying a handgun is an essential element of the charged offense. 

Armstrong, 742 N.E.2d at 978; see also Harris, 716 N.E.2d at 411 (Ind. 1999); 

Washington v. State, 517 N.E.2d 77, 78 (Ind. 1987); Woods v. State, 768 N.E.2d 

1024, 1027 (Ind. Ct. App. 2002); Seel v. State, 739 N.E.2d 170, 172 (Ind. Ct. 

App. 2000). The State presented no evidence that Webster possessed the 

1 During trial, the State directed the trial court to Morgan v. State, 427 N.E.2d 1131, 1135 (Ind. Ct. App. 

1981), for the proposition that “it is the burden of the defendant to prove he comes within one of the 

exceptions” to the carrying a handgun without a license statute. Relying on Morgan, the State argued that the 

location where the defendant is carrying a handgun is an “exception” to the offense, and therefore that 

Webster had the burden to prove that he was “carrying it lawfully in his place of abode.” Tr. at 56. The trial 

court accepted this argument, concluding that “burden-shifting is allowed” and that “from a common sense 

standpoint” it seems logical that a defendant should have the burden to prove that he was in his dwelling, 

property, or fixed place of business rather than the State having the burden to prove that he was not in his 

dwelling, property, or fixed place of business. Id. at 58. As we stated above, the location where the 

defendant is carrying a handgun is an essential element of the offense and not an exception, and despite the 

State’s arguments to the contrary, we do not think that Morgan suggests otherwise. 

Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016 Page 5 of 6

 
handgun in a place other than his dwelling, property, or fixed place of 

business.2

 Accordingly, the trial court clearly erred in denying Webster’s 

motion for involuntary dismissal, and we reverse his conviction for class A 

misdemeanor carrying a handgun without a license. 

[8] Reversed.

Kirsch, J., and May, J., concur.

2 The State briefly mentions that a 2016 arrest record, admitted for purposes of fingerprint identification, lists 

Webster’s address as 3331 West 33rd Street. The State implies that this evidence supports a reasonable 

inference that Webster did not reside at 1554 East Naomi Street at the time he committed the alleged offense 

in 2003. We agree with Webster that “[l]ittle, if anything, can be inferred” from his address thirteen years 

after the alleged offense, and that such evidence was insufficient to prove that Webster was in a place that 

was not his dwelling, property, or fixed place of business when he possessed a handgun in 2003. Reply Br. at 

5. 

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