EASTERLY v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Brian Easterly appeals his conviction for carrying a handgun without a license, a Level 5 felony. Easterly argues: (1) the trial court erred by not instructing the jury on the statutory definition of “firearm”—a term included in the statutory definition of “handgun”; and (2) insufficient evidence supports his conviction. We disagree and, accordingly, affirm.

Issues

[2] Easterly raises two issues, which we reorder and restate as:

I.  Whether the trial court erred by not instructing the jury on the statutory definition of “firearm.”

II. Whether sufficient evidence supports Easterly's conviction for carrying a handgun without a license.

Facts

[3] In the early morning hours of July 17, 2021, Norman McCann, the maintenance supervisor for a Fort Wayne apartment complex, was in the hallway repairing a door to a residence when he heard gunshots. McCann, who was familiar with guns, ran downstairs and saw a man in his underpants walk across the parking lot and yell, “I'll kill the b***h,” as the man repeatedly fired a gun. Tr. Vol. II p. 130. McCann could see the man hold the gun with “his hand up” in the air and “[p]ull[ ] the trigger.” Id. at 131. McCann saw “[a] muzzle flash” when the gun discharged and heard a “pop” as it fired. Id. at 131-32. The parking lot was “pretty bright,” and the man “was standing right underneath the light.” Id. at 144. McCann had a “clear view” of the man's face, and McCann recognized him as a resident of the apartment complex. Id.

[4] McCann contacted 911 and returned inside the apartment complex, where he noticed holes in the wall and a resident's door in the hallway from where the shooter passed through. The holes had not been there before. Law enforcement officers were dispatched to the apartment complex and spoke with Easterly's girlfriend, a resident of the apartment complex. Easterly's girlfriend provided information that led to Easterly being named as a suspect.¹ The officers presented a photo array to McCann, and McCann identified Easterly as the man who fired the gun in the parking lot. Easterly was later arrested, although no gun was ever recovered.

[5] On August 30, 2021, the State charged Easterly with carrying a handgun without a license, which the State alleged was a Level 5 felony because Easterly had been previously convicted of carrying a handgun without a license.² The trial court held a jury trial in October 2024, at which Easterly appeared pro se. During the first phase of the trial, McCann testified and identified Easterly in court as the man who fired the gun in the parking lot. Photographs of the holes in the apartment complex wall and door were admitted as exhibits. Fort Wayne Police Department Detective James King testified that no “handgun permit” had been issued to Easterly. Id. at 168.

[6] The trial court instructed the jury on the elements of carrying a handgun without a license and the statutory definition of “handgun.” The instruction on the definition of “handgun” included the term “firearm,” but Easterly did not request an instruction on the definition of “firearm,” and the trial court did not issue an instruction on this term. The jury found Easterly guilty of carrying a handgun without a license. During the second phase of the trial, the jury found that Easterly had been previously convicted of carrying a handgun without a license in 2017, which elevated his current offense to a Level 5 felony. Judgment of conviction was entered, and Easterly was sentenced to five years executed in the Department of Correction. Easterly now appeals.

Discussion and Decision

I. The trial court did not err in instructing the jury.

[7] We first address Easterly's argument that the trial court erred by failing to instruct the jury on the statutory definition of “firearm.” The trial court properly instructed the jury on the statutory definition of “handgun” as “any firearm:”

(1) designed or adapted so as to be aimed and fired from 1 hand, regardless of barrel length; or

(2) any firearm with:

(A) a barrel less than 16 inches in length; or

(B) an overall length of less than 26 inches.

Appellant's App. Vol. II p. 200; see Ind. Code § 35-47-1-6.

[8] The trial court, however, did not instruct the jury on the statutory definition of “firearm,” which is defined as “any weapon:”

(1) that is:

(A) capable of expelling; or

(B) designed to expel; or

(2) that may readily be converted to expel;

a projectile by means of an explosion.

Ind. Code § 35-47-1-5.

[9] We generally review the trial court's jury instructions either de novo or for an abuse of discretion, depending on the claim of error. Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). Here, however, Easterly did not request or tender an instruction on the definition of “firearm,” which “ ‘results in waiver of the issue for review.’ ” Evans v. State, 30 N.E.3d 769, 775 (Ind. Ct. App. 2015) (citing Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011), reh'g denied), trans. denied; see also Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002) (“ ‘[A] tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request.’ ”) (quoting Mitchell v. State, 742 N.E.2d 953, 955 (Ind. 2001)).

[10] Because Easterly failed to request or tender an instruction on the statutory definition of “firearm,” his claim of error can only be reviewed under the higher standard of fundamental error. See Evans, 30 N.E.3d at 775. In order to be fundamental, “the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process.” Id. (citing Baker, 948 N.E.2d 1178). “In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial.” Id. (citing Baker, 948 N.E.2d 1178-79).

[11] Easterly, however, does not argue that the trial court committed fundamental error in his Appellant's Brief. Any claim of fundamental error, thus, is also waived. See Dilts v. State, 49 N.E.3d 617, 628 (Ind. Ct. App. 2015) (holding fundamental error argument was waived when appellant did not argue fundamental error in his brief), trans. denied; see also Ind. Appellate Rule 46(a)(8) (providing that an appellant's argument “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “must include for each issue a concise statement of the applicable standard of review”).

[12] Waiver notwithstanding, the absence of a jury instruction on the definition of “firearm” does not amount to error, much less fundamental error. Our courts have held that “terms in common use that can be understood by a person of ordinary intelligence do not always need to be defined” for the jury. McKinley v. State, 45 N.E.3d 25, 31 (Ind. Ct. App. 2015) (citing Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied), trans. denied; accord Roche v. State, 690 N.E.2d 1115, 1128 (Ind. 1997). Applying this standard on post-conviction review in Manley, this Court held that the absence of a jury instruction on the definition of “firearm” during the defendant's trial for carrying a handgun without a license did not constitute error.³ The Court held “the jury appropriately could have concluded that the handgun in question was a firearm within the common use of that term. Manley has identified nothing in the charges as a whole which would have obscured the meaning of that term.” 656 N.E.2d at 279. We agree with the reasoning in Manley; the absence of a jury instruction on the definition of “firearm” did not constitute error, and it did not result in or risk “substantial” harm such that Easterly was denied “a fair trial.” Evans, 30 N.E.3d at 775.

II. Sufficient evidence supports the conviction.

[13] We next address Easterly's argument that insufficient evidence supports his conviction. We disagree. Sufficiency of the evidence claims warrant a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence if “there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. In conducting this review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[14] Easterly was convicted of carrying a handgun without a license, a Level 5 felony, which was governed by Indiana Code Section 35-47-2-1. At the time of Easterly's offense,⁴ this statute provided, in relevant part:

(a) Except as provided in subsections (b) and (c) and sections 2 through 2.1 of this chapter, a person shall not carry a handgun in any vehicle or on or about the person's body without being licensed under this chapter to carry a handgun.

* * * * *

(e) A person who knowingly or intentionally violates this section commits a Class A misdemeanor. However, the offense is a Level 5 felony:

* * * * *

(2) if the person:

(A) has a prior conviction of any offense under:

(i) this section[.]

[15] Easterly argues that the State failed to present evidence that “the item in Easterly's hand was capable of expelling or designed to expel or [may be] readily converted to expel a projectile by means of an explosion.” Appellant's Br. p. 14. In other words, Easterly argues that the State failed to prove that the item met the statutory definition of a “firearm,” which is part of the definition of a handgun, and he points out that the State did not present as evidence the gun itself, “spent shell casings,” or “expert” testimony. See Ind. Code § 35-47-1-5 (defining “firearm”). McCann, however, testified that he saw the flash from the muzzle and heard simultaneous gunshots consistent with a firearm. When McCann returned inside the apartment complex, he saw holes in the wall and the door of a residence in the area from where the shooter passed through.

[16] Further, although McCann did not use the phrase “handgun,” the jury could find from McCann's testimony that Easterly carried a handgun. McCann saw Easterly hold a gun in the air with his “hand up” and fire it several times. Tr. Vol. II p. 131-132; see Ind. Code § 35-47-1-6(1) (defining handgun as any firearm “designed or adapted so as to be aimed and fired from one (1) hand, regardless of barrel length”).

[17] Our cases, moreover, have not required that the gun be admitted as evidence in order to prove that the defendant carried a handgun without a license. See Williams v. State, 983 N.E.2d 661, 669-70 (Ind. Ct. App. 2013) (holding that, although convictions would be reversed due to ineffective assistance of trial counsel, sufficient evidence supported conviction for carrying a handgun without a license when victim testified that defendant pointed a handgun at him, and, thus, defendant could be retried on that offense), trans. denied; Skaggs v. State, 751 N.E.2d 318, 320-21 (Ind. Ct. App. 2001) (affirming conviction for carrying a handgun without a license and holding that “[i]t was not necessary for the State to introduce the handgun in order to obtain a conviction”), trans. denied.

[18] Given McCann's testimony and the photographs admitted, Easterly's argument is merely a request that we reweigh the evidence, which we cannot do. We, thus, conclude that sufficient evidence supports Easterly's conviction.

Conclusion

[19] The absence of a jury instruction on the statutory definition of “firearm” does not amount to error, and sufficient evidence supports Easterly's conviction for carrying a handgun without a license. Accordingly, we affirm.

[20] Affirmed.

FOOTNOTES

1.   Easterly's girlfriend did not testify at trial, and her statements to law enforcement were not described with specificity.

2.   The State also charged Easterly with criminal recklessness, a Level 5 felony; however, the State dismissed this charge before trial.

3.   We note that, under our current jurisprudence, the scope of potential relief in post-conviction relief proceedings “is limited to issues unknown at trial or unavailable on direct appeal.” Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), reh'g denied; Ind. Post-Conviction Rule 1(1)(b). Thus, a post-conviction relief petitioner will not normally be permitted to directly challenge the trial court's manner of instructing the jury, as in Manley.

4.   This statute has since been substantially amended, and a person is generally not required to obtain a license to carry a firearm under the amended statute. The amended statute, however, does not control here because it was not in effect at the time of the offense. See Church v. State, 189 N.E.3d 580, 587 (Ind. 2022) (“ ‘[A]bsent explicit language to the contrary, statutes generally do not apply retroactively.’ ”) (quoting N.G. v. State, 148 N.E.3d 971, 973 (Ind. 2020)).

Tavitas, Judge.

Vaidik, J., and Felix, J., concur.