Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 1 of 52

ATTORNEYS FOR APPELLANT

Valerie K. Boots

Megan E. Shipley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn Nieman-Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert McAnalley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 18, 2019

Court of Appeals Case No.

18A-CR-1099

Appeal from the Marion Superior

Court

The Honorable Stanley Kroh, 

Magistrate

Trial Court Cause No.

49G03-1711-F4-44873

Darden, Senior Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 2 of 52

Statement of the Case1

[1] McAnalley appeals his conviction after a jury trial of Level 4 felony unlawful 

possession of a firearm by a serious violent felon2and his guilty plea to an 

habitual offender enhancement.3 We affirm.

Issues

[2] McAnalley presents three issues, which we restate as the following questions:

I. Did the warrantless search of McAnalley’s wife’s vehicle 

and the seizure of the handgun found therein violate the 

protections afforded under the Fourth Amendment to the 

United States Constitution?

II. Was the search of McAnalley’s wife’s vehicle and seizure 

of the handgun found therein unreasonable under the 

protections afforded by article 1, section 11 of the Indiana 

Constitution?

III. Did the trial court commit reversible error by rejecting 

McAnalley’s offer to stipulate to a prior conviction for a 

Class B felony qualifying him as a serious violent felon 

unable to lawfully possess a handgun, by allowing the jury 

to learn the name and nature of his prior conviction, and 

by discussing that robbery conviction in the jury 

instructions?

 

1 Oral argument was held in this appeal at the Indiana Court of Appeals’ courtroom on February 13, 2019. 

We commend counsel for their written and oral appellate advocacy which greatly aided our disposition of 

this appeal.

2

Ind. Code § 35-47-4-5 (2016).

3

Ind. Code § 35-50-2-8 (2017).
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Facts and Procedural History

[3] After midnight on November 17, 2017, in the early morning hours of 

November 18, 2017, McAnalley and a friend, Elgin Wilson, were in 

Indianapolis at the home of another friend. McAnalley’s wife, Desiree, called 

and offered to pick up Elgin and her husband because it was cold outside. On 

the way home, the three were pulled over in a traffic stop near the intersection 

of Raymond Street and Keystone Avenue by Officer Douglas Lepsky of the 

Indianapolis Metropolitan Police Department (IMPD).

[4] Officer Lepsky was in a fully marked police vehicle and uniform patrolling an 

area that was described by him as follows:

Uh, give or take, it’s north and south–let’s see, East Raymond, 

so–the whole area’s–especially around Keystone and Raymond 

can be a touch and go area sometimes. We get calls on narcotic 

investigations around that area. And–but normally the–the 

actually[sic] area I stopped them has been recently pretty quiet. . . 

. [it could be considered a high crime area]. . .(affirming that 

description posed in a question).

Tr. Vol. II, pp. 15, 17. 

[5] Officer Lepsky ran the license plate of the vehicle in front of him, and pulled the 

vehicle over after discovering that the license plate was registered to a different 

vehicle than the one he was following (i.e., the stop was for improper plates). 

The vehicle in front of him was a Chevy, but the license plate was registered for 

a Pontiac. He initiated the traffic stop in what he also described as a residential 

area by only activating his emergency lights and spotlight, but not his siren.
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[6] The vehicle commenced to a “slow roll, and then eventually stopped.” Id. at 6. 

Officer Lepsky testified that as he observed the vehicle come to a stop, he saw 

the front-seat passenger, later identified as McAnalley, “leaning forward 

towards the dashboard.” Id. at 74. The officer characterized those actions as a

“furtive movement.” Id. at 77. The State later used that same terminology in 

closing and rebuttal closing argument at trial; (furtive gestures when defendant 

leaned toward the dashboard where the glove box would be) Id. at 198-99; 

(furtive gestures when defendant moved toward the glove box before officer 

approached car) Id. at 214. 

[7] Officer Lepsky first approached the driver’s side door of the vehicle and 

informed Desiree, the driver, that she had been pulled over for displaying an 

improper license plate. The officer obtained verbal identification from the three 

occupants of the vehicle. McAnalley was in the front passenger seat and Elgin 

was seated in the back behind Desiree. After searching the names and 

birthdates provided by the three occupants of the vehicle, Officer Lepsky 

learned that McAnalley had an active felony warrant for his arrest. The officer 

was unaware of the basis for the issuance of the warrant. Id. at 14. 

[8] Other officers were summoned to the scene, per normal IMPD procedure, to 

make the arrest on the active warrant. When Officers Matthew Coffing and 

Brent McDonald arrived, Officer Lepsky approached the passenger side of the 

vehicle, opened the door, and instructed McAnalley to step out of the vehicle. 

McAnalley complied, Officer Lepsky told him about the warrant, and placed 
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McAnalley in handcuffs. The officer then patted McAnalley down and found 

an empty gun holster clipped to the front waistband of his pants. 

[9] Next, the officers had McAnalley stand, handcuffed, near the rear of the 

vehicle. Later Officer Lepsky instructed Desiree and Elgin to exit the Chevy. 

He testified that all three occupants of the vehicle were compliant. Id. at 13. 

They stood outside of the vehicle but were a slight distance from McAnalley.

[10] Officer Lepsky and Officer Coffing then performed what Officer Lepsky called 

a “protective sweep” of the interior of the vehicle, while Officer McDonald 

stood near the rear of the vehicle “keeping an eye on everybody.” Id. at 8, 15. 

In further explanation of what was described as a protective sweep, Officer 

Lepsky testified as follows:

All occupants were asked to exit the vehicle, and we did what’s 

called a protective sweep where you just look around in plain 

view to make sure there are no guns or any weapons that could 

cause immediate threat or danger. . . .We did a sweep. I started 

on the, I believe it was the driver’s side and Officer Coffing was 

on the passenger side. . . .[Answers affirmatively when asked:] 

When you’re doing a protective sweep, you’re just looking with 

your eyes to make sure that there’s nothing that can be used to 

harm you. . . .[Answers in the negative when asked]: [W]hen 

you are performing a protective sweep, do you touch anything or 

manipulate anything with your hands? . . .

Id. at 8, 15, 16, 79.

[11] During the course of the protective sweep, officers looked at a glove box 

directly in front of the front passenger seat. The glove box in this vehicle, 
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however, was missing its cover. Inside the open glove box area, in plain view, 

the officers saw the handle and magazine of a handgun. Neither officer had 

observed the handgun when they first removed McAnalley from the vehicle. Id.

at 16.

[12] More specifically, the following testimony was offered by Officer Lepsky about 

the condition of the glove box, what was discovered, and what ensued.

Uh, we discovered that there was a–a glove box missing the front 

cover, and in plain view when you just looked at that glove box, 

you could see a handle and a magazine of a handgun. . . .There 

was no cover on the glove box. We didn’t have to manipulate 

anything, open anything, there was no cover, no door on that 

glove box at that time. . . . I requested Officer Coffing, who is a 

gun liaison to secure the gun and do DNA swabs and fingerprints 

off of it. . . .Uhm, I read Miranda Rights to Mr. McAnalley off 

an index card I keep in my front right pocket, ma’am. . . 

.[Answers affirmatively to the question]: Did he indicate that he 

did understand his rights. . . .[Answers affirmatively to the 

question if he had asked about the gun found in the vehicle]. . . . 

He said that it was his. That he knew he did–he shouldn’t have 

had it, but he bought it off of somebody because he needed 

protection for himself and his family. . . . He also admitted that 

he was a felon. [After stating he did not talk to the other two 

occupants of the vehicle in reference to the gun, Officer Lepsky 

testified that at that time neither one volunteered that the gun 

was theirs]. 

Id. at 8, 10, 12, 83, 84, 85.
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[13] Officer Lepsky testified that during the protective sweep the officers found “a 

black pistol, semi-automatic” that was located in the glove box which was 

missing the front cover. Id. at 79.

[14] There were no outstanding warrants or incriminating information about 

Desiree and Elgin and they were allowed to leave the scene in the vehicle after 

the handgun was confiscated. 

[15] Officer Coffing secured the handgun in a gun box in his patrol car. He 

transported the handgun to the police station because he did not want to 

process the handgun in the rain. Once at the police station and while wearing 

protective gloves to preserve the evidence, Officer Coffing first swabbed it for 

DNA in an attempt to collect fingerprints. The DNA was submitted for further 

testing and the findings were “a complex mixture.” Id. at 152.4Fingerprint 

samples, which were also submitted for testing, showed there was “insufficient 

ridge detail” to perform a comparison. Id. at 144.5 

 

4

Shelley Crispin, the DNA Technical Leader at the Indianapolis Marion County Forensic Services Agency, 

or Crime Lab, explained in her testimony that “what that means is that there are four or more individuals 

present whose DNA profiles are present on that sample, and we only analyze samples with three profiles, 

two profiles, or one profile. So once we get four or higher it’s complex and we do not draw any conclusions 

from the samples.” Id.

5 Crispin also testified that “The skin on the palm–palmar surface of your hand is different than the skin on 

the rest of your body. The skin is raised and it tends to form patterns and the ridges–we call this friction ridge 

skin–and the ridges do not flow continually from one side of the hand to the other.” Id.
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[16] Subsequently, the State charged McAnalley with Level 4 felony unlawful 

possession of a firearm by a serious violent felon and with being an habitual 

offender.6 After a pre-trial hearing and briefing by the parties on McAnalley’s 

motion to suppress the handgun, the trial court denied the motion. 

[17] McAnalley’s motion to suppress stated in pertinent part as follows:

1. Following a traffic stop, officers of the Indianapolis 

Metropolitan Police Department conducted a search of the 

vehicle in which Mr. McAnalley was a passenger;

2. That the actions of the Indianapolis Metropolitan Police 

Department amounted to an illegal search of the vehicle;

3. That the search amounted to an illegal search, in violation of 

Mr. McAnalley’s rights as protected by the Fourth and 

Fourteenth Amendment to the United States Constitution and by 

Article I, Section 11 of the Indiana Constitution. Therefore, any 

evidence seized as a result of that illegal search should be 

suppressed and excluded from evidence at trial in this matter.

Appellant’s App. Vol. II, p. 87. 

[18] The trial court stated in pertinent part as follows when denying the motion to 

suppress:

 

6 Other charges filed against McAnalley were dismissed prior to trial and are irrelevant to this appeal.
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1. On March 27, 2018 the parties presented evidence and 

argument on Defendant’s Motion to Suppress. The parties filed 

supporting memoranda on April 2, 2018.

2. The court has considered the officer’s testimony that 

Defendant was the front seat passenger in a vehicle stopped due 

to an improper license plate. After obtaining the identification of 

the driver, the Defendant, and a back seat passenger, the officer 

learned Defendant had an outstanding warrant in a felony case. 

The officer testified he saw the Defendant lean forward in his seat 

in the direction of the glove box. In a search incident to arrest for 

the outstanding warrant the officer discovered an empty handgun 

holster tucked into Defendant’s waist band. Assisting officers

had the other occupants of the vehicle removed from the vehicle; 

the officers conducted what Officer Lepsky characterized as a 

protective sweep of the vehicle, in particular the front seat 

passenger area. The officer testified that the glove box directly in 

front of the front passenger seat was missing its door or cover. 

The contents of the glove box were visible without opening any 

compartments. Officer Lepsky saw in the left side of the glove 

box what he knew to be a handgun. The firearm was recovered. 

Defendant was arrested. The vehicle was released to the driver; 

driver and back seat passenger were released. At the hearing, 

photographs of the firearm in the glove box were admitted as 

evidence. 

* * * *

[Under Fourth and Fourteenth Amendment analysis the court 

held:] under the facts of this case the officer’s brief examination 

of the glovebox[sic] does not run afoul of Defendant’s 

constitutional protections when the officer is aware of the 

Defendant’s active felony warrant, observes the Defendant make 

movements toward the glove box, and observes an empty firearm 

holster on Defendant’s person.
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* * * *

[Under Indiana constitutional analysis the court held:] 

Considering the totality of the circumstances in this case, the 

court finds the police conduct to be reasonable. The initial stop 

was based upon an improper license plate. Upon identifying the 

individual in the vehicle, the officer learned Defendant had an 

outstanding felony warrant. Upon search incident to the arrest 

for the warrant the officer observed the empty firearm holster on 

Defendant’s person. Having previously observed Defendant 

moving toward the glove compartment, it is reasonable for the 

officer to look at the glove compartment where the presence of 

the firearm was immediately apparent. At this time the officer 

was aware of the active felony warrant and therefore it would be 

illegal for Defendant to possess a firearm. The officer did not 

open any closed containers or open the glove box as the door was 

missing.

Id. at 114-17. 

[19] Next, prior to trial, McAnalley filed a motion in limine. In the motion, 

McAnalley argued in pertinent part as follows:

OTHER CRIMES, WRONGS AND ACTS

That the facts and circumstances of this case and the nature of 

the present charge may require the Defendant to exercise his 

constitutional right to testify on his own behalf;

1. That the State and its witnesses should be ordered to refrain 

from mentioning any and all character evidence regarding the 

Defendant in the following forms: other wrongs, prior bad acts, 

and non-charged conduct or criminal offenses not reduced to 

convictions and admissible pursuant to Ashton v. Anderson, (1972) 
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258 Ind. 51, 279 N.E.2d 210 and Indiana Rule of Evidence 404 

(b);

* * * *

2. That the State and its witnesses should be ordered to refrain 

from mentioning any and all evidence of criminal offenses and 

uncharged conduct of Defendant as such conduct is irrelevant, 

having no tendency to make the existence of any consequential 

fact more or less probable. Indiana Rule of Evidence 401. 

Irrelevant evidence is inadmissible. Indiana Rule of Evidence 

101. The prejudicial effect of mentioning this uncharged conduct 

would substantially outweigh any probative value it may have 

and should be excluded. Indiana Rule of Evidence 403;

* * * *

PRIOR CONTACT WITH CRIMINAL JUSTICE SYSTEM

3. That the Defendant has prior contact with the criminal justice 

system. Prior contact is irrelevant, because it would have no 

tendency to make the existence of any consequential fact more or 

less probable. Indiana Rule of Evidence 401. Irrelevant evidence 

is inadmissible. Indiana Rule of Evidence 101. That the 

prejudicial effect of evidence of prior contact with the criminal 

justice system would substantially outweigh any probative value 

it may have and should be excluded. Indiana Rule of Evidence 

403;

* * * *

CURRENT CONTACT WITH THE CRIMINAL JUSTICE 

SYSTEM
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4. That the Defendant at the time of the arrest was serving a 

sentence on Marion County Community Corrections. That 

serving this sentence is irrelevant to the case at bar, because it 

would have no tendency to make the existence of any 

consequential fact more or less probable. Indiana Rule of 

Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule 

of Evidence 101. That the prejudicial effect of evidence of 

current contact with the criminal justice system would 

substantially outweigh any probative value it may have and 

should be excluded. Indiana Rule of Evidence 403;

* * * *

5. That the Defendant had a violation filed against him from 

Marion County Community Corrections at the time of his arrest 

and an outstanding warrant. That this violation and warrant is 

irrelevant, because it would have no tendency to make the 

existence of any consequential fact more or less probable. 

Indiana Rule of Evidence 401. Irrelevant evidence is 

inadmissible. Indiana Rule of Evidence 101. That the 

prejudicial effect of evidence of prior contact with the criminal 

justice system would substantially outweigh any probative value 

it may have and should be excluded. Indiana Rule of Evidence 

403;

* * * *

6. That at the time the defendant was charged with this case, an 

empty gun holster was found on his person. That the fact that he 

had a holster on his person should be excludedff[sic], because it 

would have no tendency to make the existence of any 

consequential fact more or less probable. Indiana Rule of 

Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule 

of Evidence 101. That the prejudicial effect of evidence of 

ongoing police investigations would substantially outweigh any 
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probative value it may have and should be excluded. Indiana 

Rule of Evidence 403;

* * * *

MISCELLANEOUS

7. That the State and its witnesses should be ordered to refrain 

from referring to Defendant’s invocation of his right not to testify 

as well as the exercise of his right to remain silent. U.S. 

Constitution, Amendments[sic]; Indiana Constitution, Article I, 

§ §[sic] 14;

* * * *

8. That the State should be ordered to redact any inadmissible 

evidence from any taped statement, photographs, or other 

documents which may be introduced into evidence;

* * * *

9. That the State of Indiana and its witnesses should be ordered 

to refrain from presenting any expert opinions without first 

establishing the credibility of such witnesses as experts. Indiana 

Rule of Evidence 701 and 702;

* * * *

10. That the State and its witnesses should be ordered to refrain 

from mentioning any prior convictions which will be used for the 

purpose of enhancement until a later and separate phase of the 

trial;
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* * * *

Id. at 130-33.

[20] At the start of his jury trial, McAnalley also objected to the use of the term 

“serious violent felon” and to reference of the specific name of his prior crime 

resulting in a conviction. Tr. Vol. II, pp. 27-28. McAnalley offered to stipulate 

to the fact that he is a serious violent felon and requested that the jury only be 

informed that he was a person who could not lawfully have a gun (a practice 

defense counsel suggested was used in another courtroom in criminal cases in 

Marion County). Id. at 28. In response, the State agreed to remove the 

language using the term serious violent felon from the instruction addressing 

the charged crime but argued that the language about McAnalley’s prior Class 

B felony robbery conviction was an essential element of the charged offense. Id.

at 29. 

[21] After hearing the arguments of the parties on the motion in limine and the 

proposed instructions, the trial court agreed that the language referring to 

McAnalley as a serious violent felon should be removed from the jury 

instruction and ordered the State not to refer to McAnalley as such during trial. 

Id. at 32.

[22] To provide context for the discussions regarding how the trial court chose to 

address McAnalley’s prior robbery conviction, we reproduce Preliminary 

Instruction Number 4 and Preliminary Instruction Number 5, which were given 

over his objection.
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Instruction Number 4

In this case, the State of Indiana has charged the Defendant with 

Count: I: Possession of a firearm in violation of I.C. 35-47-4-5, a 

Level 4 felony. The charge reads as follows:

Count I:

On or about November 18, 2017, Robert McAnalley having 

previously been convicted of Robbery, a Class B felony, in 

Marion Superior Court under Cause Number 

49G010907FB059960 on or about April 23, 2010 did knowingly 

possess a firearm, to wit: a handgun.

Instruction Number 5

The crime of possession of a firearm in violation of I.C. 35-47-4-5 

is defined by law as follows:

A person who knowingly or intentionally possesses a firearm 

after having been convicted of and sentenced for an offense 

enumerated under I.C[.] 35-47-4-5 commits possession of a 

firearm in violation of I.C[.] 35-47-4-5, a Level 4 felony.

To convict the Defendant, the State must have proven each of the 

following elements:

1. The Defendant, Robert McAnalley

2. Knowingly

3. Possessed a firearm, that is: a handgun
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4. After the Defendant had been convicted of Robbery, a Class B 

felony enumerated under I.C[.] 35-47-4-5

If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of 

possession of a firearm in violation of I.C[.] 35-37-4-5, a Level 4 

felony, as charged in Count I.

Appellant’s App. Vol. II, 150-51. The language of Instruction 4 follows the 

language of Indiana Pattern Criminal Jury Instruction 1.0700 (2016), while the 

language of Instruction 5 follows the language of Indiana Pattern Criminal Jury 

Instruction 7.2740 (2016).

[23] McAnalley had tendered a proposed jury instruction, which was rejected, but 

would have omitted any reference to the robbery conviction. The proposed 

instruction reads as follows:

Defendant is charged in Count I with the offense of Unlawful 

Possession of a Firearm, which is defined by statute as follows:

A person who knowingly or intentionally possesses a firearm 

when unable to lawfully do so commits unlawful possession of a 

firearm.

To convict the Defendant of Possession of a Firearm, as charged 

in Count I, the State must have proved each of the following 

beyond a reasonable doubt:

1. On or about January 18, 2018

2. the Defendant
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3. knowingly or intentionally

4. possessed a firearm.

If the State fails to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant, Robert 

McAnalley, not guilty of Possession of a Firearm, a Level 4 

felony.

Id. at 141. 

[24] The following discussion about McAnalley’s prior robbery conviction is 

reflected in the record.

The State: The prior is an element of the offense and the State 

believes that we should be using that to prove that he’s in 

violation of Indiana Code.

* * * *

Defense: [O]n Count I, uh, would the Court entertain the–

instead of reading ‘Previously been convicted of Robbery, a Class 

B felony,’ just stating, Having been convicted of a Class B felony? 

And that’s number four.

* * * *

The State: I think there are some B felonies that would not 

qualify you as SVF. I think Robbery, a Class B felony as 

enumerated i[n] the Indiana Code, so the fact that it’s a Robbery, 

as a Class B felony is what makes it–what qualifies it for SVF, 

much like other felonies don’t qualify someone as SVF. It would 
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just qualify them as a felon in possession within 15 years, or 

something like that.

* * * *

The Court: [After discussing case law and the removal of the 

serious violent felon terminology:] And the Court does rely on 

the language in Spearman[v. State, 744 N.E.2d 545 (Ind. Ct. App. 

2001), trans. denied] that, you know, for–the legislature passed this 

law and the Court’s not been presented with any specific 

language of a stipulation. So the Court, at this point, does intend 

to give the instruction fo[u]r–as it’s written there. . . .Okay. 

Thank you. And just revisiting the issue–the primary issue we 

discussed earlier about the bifurcation. I did see one other case 

that was a[sic] Indiana Supreme Court case that–that’s hinds[sic] 

versus State. But–and that case was a reversal and a remand, but 

there was a difference in that case. There was a robbery charged 

right at the same time as the serious violent felon. And the Court 

of Appeals and the Supreme Court found that–notice of the prior 

qualifying felony was prejudicial to the robbery charge. And 

here, you know, we have something different here. It’s the–the 

Possession of a Firearm by a Serious Violent Felon charge, so the 

Court does see a distinction there. But the Court does direct the 

State not to dwell on this prior conviction, or in anyway[sic] refer 

to Mr. McAnalley as a serious violent felon. If during the 

proceeding, the defendant offers to stipulate to having the prior 

conviction as a B felony as a Robbery that that would be 

accepted. And so I think from our prior discussions you’re 

mindful of that concern, [State]. . . . If the defense offers to 

stipulate to Robbery as a class B felony, that’s something the 

Court would certainly accept. In other words, the Court is 

expecting the State to really not reference the prior much at all. 

And not have that be the focus. The focus is the possession. The 

element of–the prior conviction is an element and the Court 

believes it should be before the jury, but should not be the focus 

of the trial. 
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Tr. Vol. 3, pp. 29, 34, 35, 44, 45, 54.

[25] The State clarified for the trial court as follows:

Uhm, and finally when I said, the question about in evidence–

when we have the written stipulation about the prior that we 

won’t illicit[sic] any information from any witnesses about it. It 

is Mr. Barloh’s intention to say Robbery, Class [B] felony, which 

disqualifies him from possession[sic] a handgun in opening. And 

then of course, in closing we will be saying he has the Robbery 

conviction and Class B felony which disqualifies him from 

possessing a handgun.

The Court: Okay.

The State: I just wanted to clarify that, because it will be 

mentioned in opening and closing, but not in evidence, other 

than the written stipulation.

The Court: Okay. Thank you. And over objection, I think 

that’s fair. As the Spearman case tells us, it’s an element of the 

offense, so I thin[k] you’re obligated to discuss it, just not to be 

the focus, of course, the evidence.

Id. at 59-60. 

[26] State’s Exhibit 13, located in Exhibit Volume at 48, was read to the jury and 

reads as follows:

STIPULATION OF FACT
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COME NOW the State of Indiana, by its deputy prosecuting 

attorney, and Defendant, by counsel, and hereby stipulate to the 

following facts for purposes of trial:

1. That the Defendant Robert McAnalley was previously 

convicted of Robbery, [a] Class B Felony under cause number 

49G01-0907-FB-059960 on or about April 23, 2010 which is an 

offense enumerated under I.C. 35-47-4-5 which disqualifies him 

from possessing a firearm.

Id. at 159. 

[27] Desiree testified at trial that she was the owner of the 2007 Chevrolet Cobalt 

she was driving on November 18, 2017, and which was the subject of the traffic 

stop involving the three. She testified about her purchase of the vehicle, that 

she had purchased the confiscated handgun for approximately $250.00 earlier 

that day from a friend, and that the holster that was recovered was hers as well. 

She did not observe McAnalley being patted down by the officers. Therefore, 

she could not testify about whether the holster was recovered during the patdown search or during the search of her vehicle. She testified that she had 

placed the firearm in the glove box. Desiree further testified that because they 

lived in “a rough neighborhood,” McAnalley sometimes wore an empty holster 

to give the impression to others that he was carrying a gun. Id. at 175.

[28] Desiree additionally testified that she did not give her consent to a search of the 

vehicle and that she “actually protested a lot that they did not have consent to 

search my vehicle.” Id. at 173. 
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[29] McAnalley renewed the arguments from his motion to suppress the handgun 

when it was offered as evidence at trial. At the conclusion of the first phase of 

the bifurcated jury trial, the jury found McAnalley guilty of Level 4 felony 

unlawful possession of a firearm by a serious violent felon. He then admitted 

his status as an habitual offender. 

[30] On April 13, 2018, the trial court sentenced McAnalley to eight years in the 

Department of Correction for his conviction on Count I, enhanced by ten years 

for his habitual offender status. Additionally, he was ordered to pay a $200.00 

Safe Schools Fee. McAnalley now appeals. 

Discussion

I. Fourth Amendment

[31] The trial court admitted the handgun into evidence at trial over his objection. 

McAnalley claims the trial court abused its discretion in doing so, citing Fourth 

Amendment jurisprudence.

[32] Trial courts have broad discretion in ruling on the admissibility of 

evidence. Dycus v. State, 108 N.E.3d 301, 303 (Ind. 2018). A reviewing court 

will ordinarily disturb a trial court’s admissibility rulings only where it has 

abused its discretion. Id. On review, we will find that a trial court abuses its 

discretion if its decision is clearly against the logic and effect of the facts and 

circumstances before the court or if it misapplies the law. Id. That said, where, 

as here, a constitutional violation is alleged, the proper standard of appellate 

review is de novo. Id. at 304.
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[33] The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized.

U.S. Const. Amend. IV. 

[34] Our Supreme Court’s opinion in Holder v. State, 847 N.E.2d 930, 935 (Ind. 

2006) offers guidance regarding warrantless searches by government officials.

Searches performed by government officials without warrants are 

per se unreasonable under the Fourth Amendment, subject to a 

‘few specifically established and well-delineated exceptions.’ 

Katz v. U.S., 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 

576, 585 (1967). A search without a warrant requires the State to 

prove an exception to the warrant requirement applicable at the 

time of the search. White v. State, 772 N.E.2d 408, 411 (Ind.

2002).

The opinion continues with a discussion of how one establishes evidence of a 

defendant’s reasonable expectation of privacy in the location of the warrantless 

search. The burden of proof is on the State to establish that a warrantless 

search or seizure falls within one of the exceptions. Justice v. State, 765 N.E.2d 

161, 164 (Ind. Ct. App. 2002). The State, however, does not appear to contest 
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McAnalley’s expectation of privacy in his wife’s vehicle.7 Nevertheless, even 

though that issue is not contested, the State still bore the burden of establishing 

the warrantless search or seizure fell into one of the exceptions to the warrant 

requirement.

[35] The State contends that the discovery of the handgun was proper because: (1) 

the officers’ discovery of the handgun in open view did not constitute a search; 

and, (2) the automobile exception to the warrant requirement applies. 

McAnalley, however, argues that the open view doctrine does not apply to this 

case because Officer Lepsky opened the door of Desiree’s vehicle. Further, he 

argues, in the alternative, that if the open view doctrine applies, the officers did 

not have probable cause to believe that a crime was being committed, “because 

there is no crime of possession of a firearm with an open warrant.” Appellant’s 

Br. at 17. 

[36] The following discussion from Justice v. State, 765 N.E.2d 161 (Ind. Ct. App. 

2002), helps distinguish terms which are important to the resolution of this issue 

and the evidence required to support or reverse the trial court’s decision.

The phrase ‘plain view’ is often used when ‘open view’ may be a 

more appropriate term with regard to the admissibility of 

evidence. The plain view doctrine is recognized as an exception 

to the search warrant requirement. 16 WILLIAM ANDREW 

KERR, INDIANA PRACTICE § 2.2(f)(3) at 177 (1991). The 

 

7

See Pollard v. State, 270 Ind. 599, 607, 388 N.E.2d 496, 503 (1979) (holding under circumstances of case not 

involving separation or divorce, husband has legitimate expectation of privacy in vehicle titled to spouse).
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 24 of 52

concept of ‘plain view’ is used when an officer is making a lawful 

search in a constitutionally protected area and discovers an item 

in plain view. Id.; see also Sayre v. State, 471 N.E.2d 708, 712 

(Ind. Ct. App. 1984), cert. denied 475 U.S. 1027, 106 S. Ct. 1226, 

89 L. Ed. 2d 336 (1986) (emphasizing that the plain view 

doctrine is not implicated unless a search actually occurs). 

Generally, items observed in plain view are not considered the 

product of the search. Horton v. California, 496 U.S. 128, 133, 110 

S. Ct. 2301, 110 L. Ed. 2d 112 (1990) (recognizing that there is 

no invasion of privacy when items in plain view are observed). 

Thus, the plain view exception is addressed to concerns 

implicated by the seizure of items. Id. at 134, 110 S. Ct. 2301.

To justify a warrantless seizure under the plain view doctrine, a 

law enforcement officer must not have violated the Fourth 

Amendment in arriving at the place where items are in plain 

view, the ‘incriminating character’ of the items must be 

‘immediately apparent,’ and the officer must have ‘a lawful right 

of access’ to the items in plain view. See id. at 136-37, 110 S. Ct. 

2301; Middleton, 714 N.E.2d at 1101. If such requirements are 

met, the items discovered in ‘plain view’ may be seized without a 

warrant. KERR, supra, § 2.2(f)(3) at 177-78.

Often confused with the plain view doctrine is the concept of 

‘open view,’ which is used in situations in which a law 

enforcement officer sees contraband from an area that is not 

constitutionally protected, but rather is in a place where the 

officer is lawfully entitled to be. KERR, supra, § 2.2(e)(2) at 129; 

Sayre, 471 N.E.2d at 712. In such situations, anything that is

within ‘open view’ may be observed without having to obtain a 

search warrant because making such ‘open view’ observations 

does not constitute a search in the constitutional sense. KERR, 

supra, § 2.2(e)(2) at 129; see also Sayre, 471 N.E.2d at 712. 

Nonetheless, in order to lawfully seize items in ‘open view,’ it 

may be necessary to obtain a search warrant or be able to justify a 
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warrantless seizure under an exception to the warrant 

requirement. KERR, supra, § 2.2(e)(2) at 129.

To justify a warrantless seizure from an automobile, “‘an officer 

must have probable cause to believe that the property to be seized 

is connected to criminal activity.’” Id. at 1191 (quoting Cochran v. 

State, 429 N.E.2d 672, 674 (Ind. Ct. App. 1981)); see also Cody v. 

State, 702 N.E.2d 364, 366 (Ind. Ct. App. 1998). ‘Probable cause 

requires only that the information available to the officer would 

lead a person of reasonable caution to believe the items could be 

useful as evidence of a crime.’ Taylor v. State, 659 N.E.2d 535, 

539 (Ind. 1995).

765 N.E.2d at 164-65 (footnote omitted).

[37] Also helpful to the analysis is Indiana Code section 35-33-2-3(b) (2011). The 

statute provides as follows:

(b) A law enforcement officer may break open any outer or inner 

door or window in order to execute an arrest warrant, if the 

officer is not admitted following an announcement of the officer’s 

authority and purpose.

Here, it appears that the officer simply opened the door to ask McAnalley to 

exit the vehicle. There is no evidence to suggest that he was denied access to 

McAnalley, who was seated in the vehicle.

[38] Further, our Supreme Court has stated the following about an officer’s ability to 

enter a home to execute an arrest warrant without having a search warrant.

The first issue is the requisite quality of information to support 

entry into a home to execute an arrest warrant without a search 
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warrant. ‘At the very core [of the Fourth Amendment] stands 

the right of a man to retreat into his own home and there be free 

from unreasonable governmental intrusion.’ Silverman v. United 

States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). 

In recognition of this principle, the police may not enter a home 

by force to make a ‘routine’ arrest without a warrant. Payton v. 

New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 63 L. Ed. 2d 639 

(1980). An arrest warrant founded on probable cause gives the 

police ‘limited authority to enter a dwelling in which the suspect 

lives when there is reason to believe the suspect is within.’ Id. at 

603, 100 S. Ct. 1371. The belief is judged on the information 

available to the officers at the time of entry and need not prove to 

have been correct in hindsight. United States v. Lovelock, 170 F.3d 

339, 343 (2d Cir. 1999). As one leading treatise summarized, it is

‘generally accepted’ that reason to believe ‘involves something 

less than’ probable cause. 3 Wayne R. LaFave, Search and 

Seizure § 6.1(a), at 265 (4th ed. 2004).

Duran v. State, 930 N.E.2d 10, 14-16 (Ind. 2010) (footnote omitted). Here, 

although this factual situation involves an automobile, the officers were aware 

that they needed to immediately execute an arrest based upon an outstanding 

felony arrest warrant issued for McAnalley.

[39] McAnalley contends that the automobile exception is inapplicable. “The 

‘automobile exception’ to the warrant requirement allows police to search a 

vehicle without obtaining a warrant if they have probable cause to believe 

evidence of a crime will be found in the vehicle.” State v. Hobbs, 933 N.E.2d 

1281, 1285 (Ind. 2010). “[T]he exception applies to vehicles that are readily 

mobile and found in a non-residential area.” Id. Because of the mobility of the 

vehicle, evidence may disappear before a warrant may be obtained. Id. Most of 
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the cases discussing the exception involve an arrest or an investigatory stop of a 

motorist that gives rise to probable cause. Id. McAnalley argues that there is 

no crime of possessing a handgun when a person has an active felony warrant 

for their arrest. 

[40] McAnalley cites to our Supreme Court’s opinion in Pinner v. State, 74 N.E.3d 

226 (Ind. 2017) in support of his position. In Pinner, a cab driver observed 

Pinner, one of two occupants of his vehicle, drop a handgun and then pick it up 

again upon exiting the cab to enter Studio Movie Grill. He gave a description 

of Pinner and of the woman with Pinner. The driver stated that he was afraid 

he might be robbed although he was not actually robbed, nor did Pinner 

threaten the driver with the weapon. Officers responded to the dispatch and 

located two individuals matching the descriptions provided. Both uniformed 

officers flanked Pinner who was seated alone on a bench in a hallway of the 

theater. Pinner rocked back and forth wringing his hands, ultimately denying 

that he had a weapon. The officers, nonetheless, asked Pinner to stand up and 

keep his hands up where they could be seen. When Pinner complied, the 

officers observed the butt of a handgun in Pinner’s front pocket.

[41] The trial court’s denial of Pinner’s motion to suppress evidence of his 

possession of a handgun without a license was reversed on appeal because the 

officers did not have a reasonable suspicion that criminal activity might be afoot 

based on the facts of that case. 74 N.E.3d at 234. 
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[42] McAnalley argues that Officer Lepsky’s knowledge that McAnalley had a 

felony warrant for his arrest did not necessarily lead to the conclusion that he 

could not possess a firearm under Indiana law or that such possession would 

lead to the inference that criminal activity was afoot. He contends that the 

admission of the handgun evidence at trial should be reversed along the same 

lines as those set forth in Pinner. 

[43] The State claims that the facts of this case are much different than in Pinner. In 

particular, the State highlights evidence that McAnalley leaned forward 

towards the dashboard area of the vehicle making furtive gestures or 

movements within the vehicle as observed by the officer, that he had an

outstanding felony warrant for his arrest, that an empty gun holster was found 

clipped to the waistband of his pants and was obscured by his t-shirt, and that a 

handgun and magazine were observed in the glove box, which had a missing 

glove box cover. 

[44] The State analogizes the facts of this case with those in Von Hauger v. State, 255 

Ind. 666, 266 N.E.2d 197 (Ind. 1971). In Von Hauger, at almost 4:00 a.m. the 

defendant stopped his conversation with another person in front of a restaurant, 

attempted to hide a sack containing instruments for narcotics use behind his 

back, and dropped the sack along the way toward his running vehicle after 

seeing police officers. The Supreme Court held that those actions were “some 

evidence of a consciousness of guilt.” 255 N.E.2d at 198. 
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[45] The State claims that the automobile exception applies because the handgun 

was not seized by the officers prior to McAnalley’s admissions to them. The 

State points to the portions of the record where Officer Lepsky testified that 

after the gun was observed in the vehicle, he did not collect the gun. He 

approached McAnalley, read his Miranda warnings, and questioned him about 

the handgun. McAnalley admitted that the gun belonged to him and that he 

knew he should not have it. Officer Coffing, a certified gun liaison, waited for 

ten minutes until an evidence technician could arrive at the scene to photograph 

the gun. During that time, Officer Coffing did not touch or disturb anything in 

the vehicle until the technician arrived. The State argues that McAnalley’s 

admissions after the gun was observed but before the gun was seized are strong 

evidence that his possession was unlawful. Therefore, the State concludes, the 

seizure of the handgun was justified by the automobile exception. 

[46] In this case, we conclude that the trial court correctly denied the motion to 

suppress, later renewed by objection to the admission of evidence at trial, 

reasoning that the automobile exception to the warrant requirement applies. As 

noted, the officer pulled over Desiree’s vehicle in the early hours of November 

18, 2017, due to improper plating, in an area known for a high level of crime. 

As her car rolled to a stop, the officer noticed that McAnalley, the front seat 

passenger, made furtive movements by leaning forward toward the front 

dashboard area. After the officer verified the identification of the three 

occupants of the car, he became concerned because McAnalley had an 

outstanding felony warrant and called for other officers to arrive at the scene. 
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McAnalley was told about the outstanding felony warrant and was placed in 

handcuffs after he stepped out of the car. He was patted down and the officer 

found an empty holster clipped to the waistband of his pants. During a 

protective sweep of the car, officers observed the handgun in the glove 

compartment area of the vehicle. Prior to seizing the weapon, Desiree and 

Elgin were asked to exit the vehicle. After McAnalley was Mirandized, he 

admitted that the gun was his and that he should not have it. 

[47] We agree that there is no crime for possession of a handgun by a person with an 

outstanding felony warrant. Here, however, the handgun was found under 

suspicious circumstances, and was seized only after McAnalley admitted 

ownership and that he should not possess it. Neither Desiree nor Elgin was

arrested after the traffic stop for improper plates. Apparently, the evidence is in 

dispute as to whether Desiree protested against the search and that she had 

purchased the handgun on the day of the incident and that it belonged to her. 

Either of them could have driven the vehicle away. Indeed, after McAnalley’s 

admission to possession of the handgun and after the gun was seized and 

photographic evidence was documented, Desiree was allowed to leave with 

Elgin in her car. We conclude that there was no violation of Fourth 

Amendment protections.8

 

8 An alternative reason supporting the search and seizure of the handgun was set forth by the trial court as a 

search incident to arrest. In New York v. Belton, 453 U.S. 454, 460 (1981), the United States Supreme Court 

held that when a police officer has made a lawful custodial arrest of the occupant of a vehicle, the officer may 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 31 of 52

II. Indiana Constitution

[48] The Indiana Constitution provides as follows:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable search or seizure, shall 

not be violated; and no warrant shall issue, but upon probable 

cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the person or thing to be 

seized.

Article 1, § 11.

Although the wording of Section 11 is almost identical to that of 

the Fourth Amendment, our State Constitution’s search and 

seizure clause is given an independent interpretation and 

application. Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

In fact, Indiana’s Constitution sometimes offers broader 

protections than those offered by the U.S. Constitution. Conley v. 

State, 972 N.E.2d 864, 879 (Ind. 2012). Amongst those broader 

protections offered by our State Constitution is the requirement 

that, prior to obtaining consent to a search, police must explicitly 

advise a person in custody of her right to consult with counsel. It 

is unique to Indiana and has no federal counterpart. See United 

States v. LaGrone, 43 F.3d 332, 337 (7th Cir. 1994) (‘A person in 

custody has no federal constitutional right to consult with an 

attorney before consenting to a search of his property. However, 

the Indiana [C]onstitution does afford such a right.’). 

 

as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle. However, in 

Arizona v. Gant, 556 U.S. 322, 351 (2009), the United States Supreme Court held that a police officer may 

search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the 

passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of 

the offense of arrest.
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 32 of 52

Dycus, 108 N.E.3d at 304.

[49] Regarding a challenge under the Indiana Constitution for a search of an 

apartment, our Supreme Court stated that upon review we focus on the actions 

of the police officer instead of the defendant’s reasonable expectation of 

privacy. Duran, 930 N.E.2d at 17. On appellate review, we look to the totality 

of the circumstances to evaluate the reasonableness of the officer’s actions. Id. 

The State bears the burden of showing that the intrusion was reasonable. State 

v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004).

[50] “As we consider reasonableness based upon the particular facts of each case, we 

also give Article I, section 11 a liberal construction in favor of protecting 

individuals from unreasonable intrusions on privacy.” Rush v. State, 881 

N.E.2d 46, 52 (Ind. Ct. App. 2008). Our Supreme Court explained in Litchfield 

v. State, 824 N.E.2d 356, 361 (Ind. 2005) as follows: 

In sum, although we recognize there may well be other relevant 

considerations under the circumstances, we have explained 

reasonableness of a search or seizure as turning on a balance of: 

1) the degree of concern, suspicion, or knowledge that a violation 

has occurred, 2) the degree of intrusion the method of the search 

or seizure imposes on the citizen’s ordinary activities, and 3) the 

extent of law enforcement needs.

[51] McAnalley argues under the first consideration that because Officer Lepsky did 

not know the specifics of the felony arrest warrant, there was no evidence in the 

record to indicate that McAnalley had committed any other crimes justifying a 

search of the vehicle for additional evidence. See Chest v. State, 922 N.E.2d 621, 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 33 of 52

624 (Ind. Ct. App. 2009). The State contends that Officer Lepsky had a high 

degree of concern that a violation of the law had occurred after observing 

McAnalley lean forward in his seat toward the glove box area; the location and 

time of day/night of the occurrence of the traffic stop was a high crime area; 

McAnalley had a felony warrant for his arrest; McAnalley had an empty gun 

holster clipped to the waistband of his pants that was obscured by his shirt; he 

observed a handgun and magazine wedged in the glove box; and, McAnalley 

confessed that the gun belonged to him and he knew he should not have it. The 

State concludes that the totality of the circumstances gives rise to probable 

cause that the vehicle contained evidence of a crime (carrying a handgun 

without a license). In reply, McAnalley argues that Indiana Constitution, 

article 1, section 32 protects the right to bear arms.

[52] Regarding the degree of intrusion, caselaw establishes that it is evaluated from 

the defendant’s point of view. Duran, 930 N.E.2d at 18. McAnalley reiterates 

that he had an expectation of privacy in his wife’s car. He claims that it was a 

moderate intrusion, Appellant’s Br. at 27, because Officer Lepsky opened the 

door and looked inside, and Officer Coffing later seized the handgun. This 

took place at night and “limited public exposure and embarrassment.” Id.

(citing Chest, 922 N.E.2d at 624). 

[53] In terms of law enforcement needs, the State contends that those needs were 

high once they observed the firearm in the car. McAnalley, on the other hand, 

argues that following State v. Moore, 796 N.E.2d 764 (Ind. Ct. App. 2003), trans. 

denied, the law enforcement officers’ safety concerns did not support a search. 
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In Moore, officers observed a vehicle they believed was out of place in that 

neighborhood. After completing a traffic stop for failure to signal a turn, the 

officers placed Moore, the driver, under arrest for operating a vehicle while his 

license was suspended and had a previous violation of that suspension. His two 

passengers were also asked to exit the vehicle. During a subsequent total search 

of that vehicle, officers discovered a .38 caliber handgun under the driver’s seat. 

Moore admitted that the gun was his. 

[54] On appeal, resolving an argument under Indiana Constitutional analysis, a 

panel of this Court stated the following:

On one hand, we have a police officer who is conducting a lawful

arrest performing a search of the person he is arresting and the 

passenger compartment of the car in which the arrestee was 

riding. In addition, the stop was conducted at night and two 

other individuals were in the car. Clearly, concerns for officer 

safety are an important consideration. . . . On the other hand, 

there is no evidence that Moore and the two passengers were 

anything but cooperative with the police officers at the scene. 

Moore immediately pulled the car over after Officer Zotz 

activated his lights and he put his hands up and out of the 

window so that Officer Zotz would not be concerned for his 

safety. He provided Officer Zotz with correct identification 

information and there is no indication that Moore resisted when 

ordered to step out of the car. Once the gun was found, Moore 

admitted that it belonged to him. During this time, Ms. Miller 

and J.J. sat on the sidewalk next to the car and waited until they 

were allowed to leave. A second officer was present at the scene 

and had control over Ms. Miller and J.J. so that they would not 

be a threat to Officer Zotz. Finally, Officer Zotz did not indicate 

that he was ever fearful for his safety. With these considerations 

in mind, we hold that the trial court did not err in concluding 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 35 of 52

that the concern for officer safety did not play a part in the search 

of the vehicle. . . . Further, the State’s position is unsupported by 

the fact that Moore was placed under arrest because he 

committed the offense of driving while suspended and the initial 

stop was caused by his failure to signal a turn at an 

intersection. We see no facts which indicate that Officer Zotz 

needed to search the car in order to find and preserve evidence 

connected to the crime of driving while suspended, nor can we 

perceive of any such situation arising out of this charge. These 

circumstances, in addition to the facts that all parties were 

cooperative and Officer Zotz apparently lacked fear for his safety, 

lead to the conclusion that the search of the car was not 

reasonable under the totality of the circumstances present when 

the arrest was made.

796 N.E.2d at 770-71 (internal footnotes omitted). The trial court’s order 

granting a motion to suppress the evidence of a handgun was affirmed.

[55] Here, Officer Lepsky pulled over a vehicle with improper plates in a high-crime 

area. It was late at night/early in the morning. He observed McAnalley make 

furtive movements toward the dashboard area of the vehicle on the passenger 

side. After Officer Lepsky received identification information regarding the 

three people in the vehicle, he learned that McAnalley had an outstanding 

felony warrant for his arrest. When back-up officers arrived, Officer Lepsky 

opened the passenger door of the vehicle and instructed McAnalley to exit the 

vehicle. McAnalley complied, he was told of the outstanding felony arrest 

warrant, was handcuffed, and was taken to the back of the vehicle. At that 

point, Officer Lepsky discovered an empty gun holster clipped to the waistband 

of McAnalley’s pants that was covered by his shirt.
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 36 of 52

[56] While another officer monitored McAnalley, Officer Lepsky and Officer 

Coffing conducted a protective sweep of the car. Once the officers observed the 

handgun in the open glove compartment on the passenger side of the vehicle 

where McAnalley had been seated, they instructed the driver and other 

passenger to exit the vehicle. They complied and were taken away from the 

vehicle and not near McAnalley. Officer Lepskey Mirandized McAnalley, after 

which McAnalley admitted the handgun was his and that he should not have it 

in his possession. Officer Coffing then seized the weapon, secured it, and 

transported it for testing. 

[57] In Litchfield, 824 N.E.2d at 361, our Supreme Court held that among other 

relevant considerations, the reasonableness of a search or seizure turns on a 

balance of the degree of concern, suspicion, or knowledge that a violation has 

occurred, the degree of intrusion imposed on the citizen’s ordinary activities by 

the method of the search or seizure, and the extent of law enforcement needs. 

Here, there was a high degree of concern, suspicion, or knowledge that a 

violation had occurred and the intrusion upon McAnalley’s activities was 

minimal. Further, unlike in Moore, where the defendant put both hands out of 

the window for officers to see, McAnalley made furtive movements toward the 

dashboard area of the vehicle. Furthermore, Moore did not have an 

outstanding felony arrest warrant at the time of his encounter with the police. 

Under the totality of the circumstances, we conclude that Officer Lepsky’s and 

Officer Coffing’s behavior was reasonable and did not violate the protections 

afforded under the Indiana Constitution. 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 37 of 52

III. Stipulation of Prior Conviction

[58] McAnalley contends that the trial court abused its discretion by instructing the 

jury on the specific nature of McAnalley’s prior felony, and admitting evidence 

of the specific prior felony, when McAnalley had offered to stipulate to his 

status as a person who could not lawfully possess a firearm. 

[59] McAnalley initially was charged with multiple offenses. By the time of trial, 

however, McAnalley faced only the charge of Level 4 felony unlawful 

possession of a firearm by a serious violent felon and being an habitual 

offender. Clearly, the habitual offender status, to which McAnalley admitted,

was a separate matter which was bifurcated from the main charge. 

[60] The issue is how the trial court treated McAnalley’s proposed stipulation. 

McAnalley’s proposals are listed above. Caselaw shows that on review, we 

have recognized that in jury trials for possession of a firearm by a serious 

violent felon, there is the potential for unfair prejudice against the defendant 

when the jury learns of the defendant’s underlying criminal status. Analysis of 

the following cases helps explain the concerns.

[61] In Spearman, officers responded to a report of an altercation. 744 N.E.2d at 

546. When officers arrived at Hardin’s mother’s home, Hardin indicated that 

Spearman had brandished a gun and had then placed the gun in the trunk of the 

car in which he had arrived there. Spearman consented to a search of the 

vehicle, and law enforcement discovered the handgun. 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 38 of 52

[62] Spearman was arrested. He had a prior conviction for criminal confinement, so 

he was charged with unlawful possession of a firearm by a serious violent felon. 

A second charge, pointing a firearm at another person, was dismissed prior to 

trial. Spearman moved for bifurcated proceedings, so the jury would not be 

aware of his prior conviction before determining whether he was in possession 

of a firearm. The trial court denied the motion. The trial court’s denial was 

affirmed, because the prior conviction was essential to the determination of 

innocence or guilt. 744 N.E.2d at 547 (citing Lawrence v. State, 259 Ind. 306, 

286 N.E.2d 830 (1972)). 

[63] Later, in Hines v. State, 794 N.E.2d 469 (Ind. Ct. App. 2003), a defendant was 

charged with a felony offense and a count of unlawful possession of a firearm 

by a serious violent felon. The issue of bifurcation was revisited. This 

defendant faced a robbery charge and a charge of unlawful possession of a 

firearm by a serious violent felon. A trial court may bifurcate in this situation 

but does not appear to be required to do so. On appeal, a panel of this court 

held that the trial court erred by denying the motion to bifurcate because it 

denied the defendant a fair trial. Id. at 472 (adopted and incorporated by Hines v. 

State, 801 N.E.2d 634 (Ind. 2004)).

[64] In Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct. App. 2005), a panel of this 

Court held that 

we conclude the trial court here struck the proper balance 

between advising the jury that Williams had indeed been charged 

with a firearm-related crime and avoiding identifying Williams as 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 39 of 52

a “serious violent felon” from the outset of trial. Although 

current precedent does not require trial courts to bifurcate SVF 

trials, we believe that the bifurcation procedure serves the ends of 

justice in such trials and urge our state’s trial judges to use this 

procedure in SVF cases.

[65] Next, in Russell v. State, 997 N.E.2d 351 (Ind. 2013), the defendant was charged 

with murder and Class B felony possession of a firearm by a serious violent 

felon based upon a previous conviction for robbery. Prior to trial, Russell 

requested a complete bifurcation of the murder charge and serious violent felon 

charge. Instead of completely bifurcating the trial on the two charges, the trial 

court partially bifurcated the trial, by instructing the jury to consider along with 

the murder charge whether the Russell had committed the non-existent offense 

of unlawful possession of a firearm. After the jury found Russell guilty of both 

“offenses,” the trial court then instructed the jury to determine whether Russell 

was a serious violent felon. The jury convicted him of the charge and found 

that he was an habitual offender.

[66] On a petition to transfer, the Supreme Court held that, under the abuse of 

discretion standard, Russell was not prejudiced by the trial court’s partial 

bifurcation. “One of the purposes of bifurcation is to keep prior convictions 

away from the jury in their initial determination of guilt for the substantive 

crime charged.” Id. at 354 (citing Hines, 794 N.E.2d at 472 adopted and 

incorporated by Hines v. State, 801 N.E.2d 634 (Ind. 2004)). 

[67] Bifurcation is not an issue here because McAnalley did not request bifurcation

of the issues of possession of a handgun and his status as a serious violent felon; 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 40 of 52

thus the issue is not preserved for appeal. We include this caselaw analysis to 

help inform the bench and bar should this issue arise in another case. 

[68] The main contention here is that McAnalley stipulated to his status as a felon 

who could not lawfully possess a handgun. In Hardister v. State, 849 N.E.2d 563 

(Ind. 2006), our Supreme Court held as follows when discussing a similar 

situation:

Where status as a felon is an element of the crime charged and 

the defendant stipulates to his status as a felon, admission into 

evidence of the full record of a defendant’s prior felony 

conviction is an abuse of discretion under Indiana Rule of 

Evidence 403. Sams v. State, 688 N.E.2d 1323, 1325 (Ind. Ct.

App. 1997), trans. denied (adopting the rule announced in Old 

Chief v. United States, 519 U.S. 172, 191-92, 117 S. Ct. 644, 136 L.

Ed. 2d 574 (1997)). However, we find that any error committed 

by the trial court in disclosing the nature of Hardister’s prior 

felony conviction was harmless. There was no other reference to 

the prior felony during the trial and therefore no substantial 

likelihood that the trial court’s reference to the prior conviction 

materially influenced the verdict in view of the evidence 

supporting Hardister’s conviction. 

849 N.E.2d at 577. 

The trial court read an instruction disclosing the nature and name of Hardister’s 

prior conviction. Later, however, an instruction was given to the jury that 

comported with the stipulation agreed to by Hardister and the State. Thus, the 

single reference constituted harmless error. 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 41 of 52

[69] McAnalley argues that the trial court’s treatment of his stipulation is not 

harmless error because, unlike in Hardister, the State acknowledged that it 

would make a reference to the prior conviction in opening and closing 

arguments. Further, the instructions read to the jury included the name and 

nature of the underlying offense. Therefore, according to McAnalley, the jury 

heard about the robbery conviction at least four times: twice during 

instructions, during trial, and in closing argument. 

[70] Further, McAnalley argues that there was conflicting evidence about his 

constructive possession of the handgun. McAnalley claims that given the 

repeated references to his robbery conviction, the jury was likely unfairly

influenced to believe that he and not someone else in the vehicle constructively 

possessed the handgun.

[71] The State, on the other hand, argues that although the jury learned that 

McAnalley had a prior conviction for robbery, no evidence was introduced 

suggesting that he had used a handgun during the commission of the robbery. 

Further, the State argues that there was substantial independent evidence of 

McAnalley’s guilt such that the admission of this evidence of the name of his 

conviction was harmless. 

[72] In Ray v. State, 846 N.E.2d 1064, 1070 (Ind. Ct. App. 2006), trans. denied, the 

references to the defendant’s prior robbery conviction were limited at trial and 

the State was prohibited by the trial court from referring to the defendant as a 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 42 of 52

serious violent felon at trial. The defendant testified at trial to the facts of a 

robbery he had committed here and in Kansas. No reversible error was found.

[73] By contrast, in McClain v. State, 898 N.E.2d 409, 411-12 (Ind. Ct. App. 2008), 

the conviction was reversed and remanded because the trial court admitted the 

defendant’s sex offender registry form after he had stipulated that he was a sex 

offender. Reversal was required because of the prejudicial impact of the 

admission of the details supporting his status. The panel cited the decision in 

Sams v. State, 688 N.E.2d 1323 (Ind. Ct. App. 1997), where the trial court’s 

admission of the defendant’s complete driving record was admitted despite the 

defendant’s offer to stipulate that his license had been suspended for life. 

[74] In Old Chief v. U.S., 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), the 

defendant was charged with being a felon in possession of a firearm, using or 

carrying a firearm during the commission of a violent crime and assault with a 

dangerous weapon. The defendant offered to admit to the prior conviction 

element of the offense of being a felon in possession of a firearm. The 

Government refused to join in the stipulation and the district court agreed. The 

district court’s decision was upheld by the Ninth Circuit Court of Appeals.

[75] The United States Supreme Court addressed whether a district court abuses its 

discretion when it refuses a defendant’s offer to admit to the prior conviction 

element of the offense involving the defendant’s legal status. The Court also 

considered whether evidence of the name and nature of a defendant’s 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 43 of 52

conviction was admissible to show the prior felony conviction element of the 

offense of possession of a firearm by a felon.

[76] Prior to trial, Old Chief had moved for an order requiring the Government “to 

refrain from mentioning–by reading the Indictment, during jury selection, in 

opening statement, or closing argument–and to refrain from offering into 

evidence or soliciting any testimony from any witness regarding the prior 

criminal convictions of the Defendant, except to state that the Defendant has 

been convicted of a crime punishable by imprisonment exceeding one (1) year.” 

519 U.S. at 174. He also tendered a proposed jury instruction reading as 

follows:

The phrase ‘crime punishable by imprisonment for a term 

exceeding one year’ generally means a crime which is a felony. 

The phrase does not include any state offense classified by the 

laws of that state as a misdemeanor and punishable by term of 

imprisonment of two years or less and certain crimes concerning 

the regulation of business practices.

[I] hereby instruct you that Defendant JOHNNY LYNN OLD 

CHIEF has been convicted of a crime punishable by 

imprisonment for a term exceeding one year. 

Id. at 175-76.

[77] The Ninth Circuit briefly addressed Old Chief’s argument, stating as follows:

Regardless of the defendant’s offer to stipulate, the government is 

entitled to prove a prior felony offense through introduction of 

probative evidence. Under Ninth Circuit law, a stipulation is not 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 44 of 52

proof, and, thus, it has no place in the FRE 403 balancing 

process.

. . . .

Thus, we hold that the district court did not abuse its discretion 

by allowing the prosecution to introduce evidence of Old Chief’s 

prior conviction to prove that element of the unlawful possession 

charge.

Id. at 177 (internal citations omitted).

[78] After granting Old Chief’s petition for writ of certiorari, the Court held as a 

threshold matter that the name of the prior offense was relevant under Federal 

Rule of Evidence 401. Id. at 178-79. However, the Court held that the 

evidence may be inadmissible as unfairly prejudicial under a Federal Rule of 

Evidence 4039analysis. Id. at 179.

[79] Turning to what constitutes unfair prejudice and its application to Old Chief’s 

appeal, the Court stated the following:

The term “unfair prejudice,” as to a criminal defendant, speaks to 

the capacity of some concededly relevant evidence to lure the 

factfinder into declaring guilt on a ground different from proof 

specific to the offense charged. So, the Committee Notes to 403 

explain, “Unfair prejudice” within its context means an undue 

 

9

Indiana Rule of Evidence 403 is almost identical to the language of Federal Rule of Evidence 403. Indiana 

Rule of Evidence 403 does not use “wasting time” as one of the dangers of the admission of relevant but 

prejudicial evidence.
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 45 of 52

tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotion one.

Such improper grounds certainly include the one that Old Chief 

points to here: generalizing a defendant’s earlier bad act into bad 

character and taking that as raising the odds that he did the later 

bad act now charged (or, worse, as calling for preventive 

conviction even if he should happen to be innocent 

momentarily). As then-Judge Breyer put it, “Although

‘propensity evidence’ is relevant, the risk that a jury will convict 

for crimes other than those charged–or that, uncertain of guilt, it 

will convict anyway because a bad person deserves punishment–

creates a prejudicial effect that outweighs ordinary relevance.”

Id. at 180-81 (internal citations omitted).

[80] Next, the Court quoted from Justice Jackson’s opinion in Michelson v. State, 335 

U.S. 469, 475-76, 69 S. Ct. 213, 218-19, 993 L. Ed 168 (1948).

Courts that follow the common-law tradition almost 

unanimously have come to disallow resort by the prosecution to 

any kind of evidence of a defendant’s evil character to establish a 

probability of his guilt. Not that the law invests the defendant 

with a presumption of good character, but it simply closes the 

whole matter of character, disposition and reputation on the 

prosecution’s case-in-chief. The state may not show defendant’s 

prior trouble with the law, specific criminal acts, or ill name 

among his neighbors, even though such facts might logically be 

persuasive that he is by propensity a probable perpetrator of the 

crime. The inquiry is not rejected because character is irrelevant; 

on the contrary, it is said to weigh too much with the jury and to 

so overpersuade them as to prejudge one with a bad general 

record and deny him a fair opportunity to defend against a 

particular charge. The overriding policy of excluding such 

evidence, despite its admitted probative value, is the practical 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 46 of 52

experience that its disallowance tends to prevent confusion of 

issues, unfair surprise and undue prejudice.

Old Chief, 519 U.S. at 181.

[81] The Government’s argument against agreeing to the stipulation was that it 

should be allowed to make its case the way it saw fit. The Court, however, held 

as follows: “This recognition that the prosecution with its burden of persuasion 

needs evidentiary depth to tell a continuous story has however, virtually no 

application when the point at issue is a defendant’s legal status, dependent on 

some judgment entered wholly independently of the concrete events of later 

criminal behavior charged against him.” Id. at 190. The Court also held as 

follows: “Although Old Chief’s formal offer to stipulate was, strictly, to enter a 

formal agreement with the Government to be given to the jury, even without 

the Government’s acceptance his proposal amounted to an offer to admit that 

the prior-conviction element was satisfied, and a defendant’s admission is, of 

course, good evidence.” Id. at 186.

[82] The judgment was reversed and the case was remanded to the Ninth Circuit 

Court of Appeals for further proceedings consistent with the United States 

Supreme Court’s opinion.

[83] In the present case, the defendant did not request bifurcation of his trial. The 

trial court did, however, advise McAnalley as follows prior to trial:
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 47 of 52

If during the proceeding, the defendant offers to stipulate to 

having the prior conviction as a B felony as a Robbery that that

would be accepted.

Tr. Vol. 2, p. 45.

[84] At first, McAnalley offered to stipulate that he was a person who could not 

possess a firearm. However, he ultimately agreed to a stipulation that included 

the name of the prior conviction and the cause number. Further, the trial 

court’s instructions followed those contained in the Indiana Pattern Criminal 

Jury Instructions and considered caselaw on the issue of how to treat 

McAnalley’s legal status. Additionally, the trial court agreed to remove any 

reference to serious violent felon. But for the overwhelming evidence against

McAnalley, it would have been reversible error not to have followed the United 

States Supreme Court’s precedent on the issue. Because of the overwhelming 

nature of the evidence against McAnalley, we hold that the trial court did not 

abuse its discretion.

[85] However, we believe that better practice would be to follow the holdings in the 

United States Supreme Court opinion in Old Chief, and the Indiana Supreme 

Court opinion in Russell. Russell affirmed the trial court’s partial bifurcation of 

the defendant’s case to allow the jury to make the initial determinations of 

whether Russell had committed murder and whether he committed the nonexistent offense of possessing the firearm. After phase one was complete and 

the jury found Russell to be in possession of the firearm, the jury was then 

asked to determine Russell’s legal status as a serious violent felon and an 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 48 of 52

habitual offender.10 The United States Supreme Court held in Old Chief the 

defendant’s proposal amounted to an offer to admit that the prior-conviction 

element was satisfied, and a defendant’s admission is, of course, good evidence. 

The district court should have accepted the proposal regardless of the 

Government’s agreement. 

Conclusion

[86] We conclude that the admission of the handgun evidence did not violate 

McAnalley’s federal or state constitutional protections. Further, the trial court 

did not abuse its discretion under the circumstances of this case. We offer 

guidance to the bench and bar as to what would constitute better practice in 

these situations.

Affirmed. 

Baker, J., concurs

Bradford, J., concurs in result with 

opinion.

 

10 One could argue that the matter should have been trifurcated, separating the serious violent felon status 

from the habitual offender status.
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 49 of 52

I N T H E

COURT OF APPEALS OF INDIANA

Robert McAnalley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

[Add Hand-down date]

Court of Appeals Case No.

18A-CR-1099

Appeal from the Marion Superior 

Court

The Honorable Stanley Kroh, 

Magistrate

Trial Court Cause No.

49G03-1711-F4-44873

Bradford, Judge, concurs in result with opinion. 

[87] While I agree that the admission of the handgun evidence did not violate our 

federal or state constitutions and that it was harmless error for the trial court to 

instruct the jury about the nature of McAnalley’s prior felony conviction, I 

respectfully disagree that bifurcation is a better or necessary practice in cases 

such as this. 

[88] Because I do not believe that bifurcation, as used in Russell, is a better or 

necessary practice when a defendant is charged with Level 4 felony unlawful 

possession of a firearm by a serious violent felon (“SVF”), I respectfully concur 

in result. 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 50 of 52

[89] I agree with our decision in Spearman v. State, in which we concluded that 

where a defendant is only charged with SVF, as McAnalley was in this case,

bifurcation of the proceedings is “not practical, or even possible[.]” 744 N.E.2d 

545, 548 (Ind. Ct. App. 2001), trans. denied. We noted that “the legal status of 

the offender is an essential element of the crime, and the act—the possession—

is illegal only if performed by one occupying that status.” Id. Moreover, we 

reasoned that

The court could not hold a guilt phase as to the possession of a 

firearm before holding a guilt phase regarding the existence of a 

prior conviction that constitutes a serious violent felony because, 

without more, one is not “guilty” of possession of a firearm. The 

court could not tell the jury that the defendant is charged with 

possessing a firearm because that in and of itself is insufficient to 

constitute a crime. In the absence of the serious violent felony 

conviction there is no unlawful possession component. 

Id. Rather than conducting a bifurcated trial with a first phase regarding a 

possession charge that does not exist, a better practice is for the trial court to 

craft instructions and accept stipulations that minimize the potential for 

prejudice by stating “previously convicted of a felony enumerated under 

Indiana Code section 35-47-4-5” instead of explicitly naming the prior felony 

conviction or referring to it as a serious violent felony. See id. at 550 n.8 (“For 

example, trial courts may determine to reference the predicate felony as one 

‘enumerated under IC-35-47-4-5’ rather than as a ‘serious violent felony.’”). 

[90] Finally, I agree that a trial court should accept a defendant’s stipulation to his 

status as a felon where it is an element of the crime. See Hardister v. State, 849 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 51 of 52

N.E.2d 563, 577 (Ind. 2006) (citing Sams v. State, 688 N.E.2d 1323, 1325 (Ind. 

Ct. App. 1997), trans. denied (adopting the rule announced in Old Chief v. United 

States, 519 U.S. 172, 191–92 (1997)) (“Where status as a felon is an element of 

the crime charged and the defendant stipulates to his status as a felon, 

admission into evidence of the full record of a defendant’s prior felony 

conviction is an abuse of discretion under Indiana Rule of Evidence 403.”)). 

However, in this case, that is not to what McAnalley offered to stipulate. 

McAnalley, through his counsel, was willing to agree to a stipulation being read 

to the jury that McAnalley is “a person who cannot have a gun lawfully.” Tr. 

Vol. II p. 28. This stipulation, however, is not sufficient to establish that 

McAnalley is a serious violent felon, which is what the statute requires. There 

are plenty of Hoosiers who cannot lawfully have a gun, e.g., certain individuals 

with a mental illness or a domestic-battery conviction, who are not serious 

violent felons. 18 U.S.C. § 922, Ind. Code § 35-47-2-1(c). Rather, what makes a 

person a serious violent felon is that he has committed a crime that has been 

deemed a serious violent felony under Indiana Code section 35-47-4-5, which is 

an essential element that the State must prove in cases involving an SVF charge. 

Therefore, should a defendant charged with SVF want to stipulate to his status 

as a serious violent felon without the jury hearing that he is a serious violent 

felon or the name of his prior felony conviction, it is a better practice for the 

language “previously convicted of a felony enumerated under Indiana Code 

section 35-47-4-5” to be used in the instructions and stipulations. 
Court of Appeals of Indiana | Opinion 18A-CR-1099 | October 18, 2019 Page 52 of 52

[91] Because I do not believe bifurcation is a better or necessary practice when a 

defendant is only charged with SVF, I respectfully concur in result.