Kelvin McEwen, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Kelvin McEwen appeals from his convictions of two counts of carrying a handgun without a license, contending that his convictions violate double jeopardy protections. Concluding that the charges do not involve one continuous act of the offense, but rather two separate instances of the offense, we affirm.

Facts and Procedural History

[2] On March 25, 2023, McEwen contacted Sharee Green via social media and arranged to meet at the Studio 6 Motel in Indianapolis. McEwen brought a handgun with him, which he placed between the mattresses of the bed. The two had sexual intercourse, McEwen paid Green, he took the gun and left.

[3] McEwen and Green texted each other that night and early in the morning of March 26, arranging for McEwen to return to the motel. When he returned, McEwen brought the handgun with him. At one point, McEwen pointed the handgun at Green and said, “give me all the money that you made for today[.]” Tr. Vol. 2, p. 196. Green lied and told McEwen that someone had already collected her earnings. McEwen continued to point the handgun at her and told her to call that person, or the person would have “one dead client.” Id. Green picked up her telephone and dialed 911 instead. McEwen then stood up, still pointing the gun at her. Green fled the room and banged on the doors of neighboring rooms. When McEwen left the motel, Green took photographs of him and his vehicle.

[4] Law enforcement officers located McEwen by using the license plate number of the vehicle in the photographs. On March 28, a detective found McEwen and several law enforcement officers responded to the location. McEwen fled after an officer initiated a traffic stop, but he was ultimately captured and taken into custody. McEwen's handgun was found on the front passenger seat of the vehicle he was driving. He told the officer that he had been carrying the gun and had it with him at the motel during his two visits there. At trial, he testified that he carried the same handgun on March 26 and March 28. He further testified that he told Green she owed him “$800.00 for wasted time.” Tr. Vol. 3, pp. 47-48.

[5] The State charged McEwen with various offenses, but the charges he challenges on appeal are his two convictions of Level 5 felony unlawful carrying of a handgun. The trial court sentenced him to an aggregate sentence of seven years in the Department of Correction.

Discussion and Decision

[6] McEwen contends that he was subjected to double jeopardy because he was twice convicted of unlawfully carrying a handgun when he claims he did so continuously over the period of several days. He argues that under our Supreme Court's double jeopardy analysis in Powell v. State, 151 N.E.3d 256 (Ind. 2020), one of his convictions should be vacated.

[7] Indiana Code subsection 35-47-2-1.5(b)(1) (2022) provides in pertinent part that a person may not knowingly or intentionally carry a handgun if the person has been convicted of a federal or state offense punishable by a term of imprisonment exceeding one year. The offense is a Level 5 felony if the person has been convicted of a felony within fifteen years before the date of the offense. Ind. Code § 35-47-2-1.5(e)(2)(B) (2022).

[8] We are asked here to decide whether McEwen can be convicted twice for carrying the same handgun on March 26 and March 28. We conclude that he can.

[9] “The Powell test applies ‘when a single criminal act or transaction violates a single statute and results in multiple injuries.’ ” Caranza v. State, 184 N.E.3d 712, 715 (Ind. Ct. App. 2022) (quoting Powell, 151 N.E.3d at 263). But we need not engage in the Powell analysis where the defendant violates the same statute on different occasions. See Henson v. State, 237 N.E.3d 1160, 1168 (Ind. Ct. App. 2024) (two similar acts of child molestation against same victim on two different occasions were not part of same act or transaction, thus no Powell analysis needed), trans. denied. Here, Count III alleged that McEwen had a prior state conviction punishable by a term of imprisonment exceeding one year, and knowingly or intentionally carried a handgun on March 26, while having a prior felony conviction within fifteen years. Count V alleged that McEwen had a prior state conviction punishable by a term of imprisonment exceeding one year, and knowingly or intentionally carried a handgun on March 28, while having a prior felony conviction within fifteen years.

[10] In Moore v. State, we acknowledged that: “ ‘The Legislature has the power, in the interest of public safety and welfare, to provide reasonable regulations for the use of firearms which may be readily concealed, such as [pistols.]’ ” 244 N.E.3d 934, 943 (Ind. Ct. App. 2024) (quoting Matthews v. State, 148 N.E.2d 334, 338 (1958)). “The purpose of the Firearms Act is to achieve a maximum degree of control over criminal and careless uses of certain types of firearms, while at the same time making them available to persons where needed for protection.” Matthews, 148 N.E.2d at 338. Thus, the gravamen of the statute is controlling who can carry handguns in public to protect the safety of the general public.

[11] Here, McEwen's conviction under Count III recognized that he endangered Green and those members of the public he encountered when he unlawfully carried a handgun on March 26. His conviction under Count V recognized that McEwen endangered the police officers and members of the general public on March 28 when he unlawfully carried a handgun. The fact that the handgun he unlawfully carried on two separate occasions is the same handgun is of no moment. McEwen did so on two discrete occasions, admitting as much at trial. Tr. Vol. 3, pp. 79, 88-90. Thus, McEwen's convictions for two separate acts of unlawfully carrying a firearm do not implicate double jeopardy concerns. He is not being punished twice for the same offense.¹

[12] Nevertheless, McEwen's claim would fail under the second step of the Powell analysis.² “Under this second step, a court must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses.” Powell, 151 N.E.3d at 264. “To answer this question, we ask whether the defendant's actions are ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), cited with approval by Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015)).

[13] The evil proscribed by Indiana Code subsections 35-47-2-1.5(b)(1) and (e)(2)(B) is the bringing of a firearm in public by a person who has been convicted of a state or federal offense punishable by a term of imprisonment exceeding one year, enhanced if the person has been convicted of a felony within fifteen years before the date of the offense. And the gravamen of the statute is to punish those who do so. McEwen admittedly unlawfully carried a handgun in public on two separate occasions, March 26 and March 28. Thus, there is no evidence of actions so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction. We conclude there is no double jeopardy violation here.

Conclusion

[14] In light of the foregoing, we affirm the trial court's judgment.

[15] Affirmed.

FOOTNOTES

1.   The State argues that prosecutorial discretion is a sufficient mechanism to protect individuals against double jeopardy concerns. See Appellee's Br. p. 13. We disagree. In recognition of the adversarial nature of the prosecutor and the criminal defendant: “The Due Process clauses of Article 1, section 12 of the Indiana constitution and the Fourteenth Amendment to the United States Constitution prohibit prosecutorial vindictiveness.” Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005) (discussing prosecutorial vindictiveness in refiling more severe charges for the same conduct after defendant exercises right to appeal). And we have noted that prosecutorial discretion does not extend to the determination of which conviction should be vacated upon a finding of double jeopardy. Moala v. State, 969 N.E.2d 1061, 1067 (Ind. Ct. App. 2012). “[I]t is the reviewing court that will determine what is the appropriate remedy for a double jeopardy violation.” Id.

2.   In the first step, “we review the text of the statute itself.” Powell, 151 N.E.3d at 264. “If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature's guidance and our analysis is complete.” Id. Although not necessary for the ultimate decision in this appeal, it would be helpful if the Supreme Court would clarify for the bench and bar how courts should construe a “unit of prosecution.” In Powell, the Court borrowed from federal law to incorporate the “unit of prosecution” language. But courts applying federal law may resort to legislative history when conducting statutory interpretation. Id. at 264 n.7 (U.S. v. Rentz, 777 F.3d 1105, 1111-13, 1122 (10th Cir. 2015). State courts on review do not enjoy that same benefit. See McNeil v. Anonymous Hosp., 219 N.E.3d 789, 800 (Ind. Ct. App. 2023) (“While resort to legislative history is out of bounds, we can consider statutory history.”), trans. denied.

Crone, Senior Judge.

Judges Kenworthy and Scheele concur. Kenworthy, J., and Scheele, J., concur.