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FOR PUBLICATION
ATTORNEY FOR APPELLANT: DAVID M. PAYNE Ryan & Payne Marion, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARA MCCABE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICHARD G. TORMOEHLEN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 12A02-0511-CR-1120

APPEAL FROM THE CLINTON SUPERIOR COURT The Honorable Kathy R. Smith, Judge Cause No. 12D01-0503-CM-121

May 30, 2006

OPINION - FOR PUBLICATION

ROBB, Judge

Richard Tormoehlen was found guilty by a jury of carrying a handgun without a

license, a Class A misdemeanor. He now appeals his conviction. We affirm. Issues Tormoehlen raises several issues for our review, which we restate as follows: 1. Whether the trial court properly denied his motion to dismiss the charges against him and properly granted the State's motion in limine, both of which concerned Tormoehlen's acquisition of a license to carry a handgun subsequent to the offense; 2. Whether the trial court properly instructed the jury; and 3. Whether the evidence was sufficient to support his conviction. Facts and Procedural History On February 28, 2005, Tormoehlen was driving from his mother's home in southern Indiana to his home in Kokomo. Tormoehlen placed his handgun in the glove compartment of his car and placed the magazine under the spare tire in the trunk area. En route, Tormoehlen's employer, a pharmaceutical delivery firm, requested that he pick up some medication on the north side of Indianapolis and deliver it to a nursing home in Rossville, Indiana. After Tormoehlen picked up the medication but before he arrived at the nursing home, he lost control of his car on an icy roadway and the car slid off the road, landing on its side. Tormoehlen was not injured in the crash. Officer Joel Hargett of the Rossville Police Department was the first to arrive on the scene. After the vehicle was righted, Officer Hargett checked the interior of the vehicle as part of his investigation and found a handgun on the passenger side floorboard. He asked Tormoehlen for his driver's license, vehicle registration, insurance information, and handgun license. Tormoehlen told Officer Hargett that he did not have a license to carry the handgun.

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Because Tormoehlen's car was driveable and the medication he was to deliver was timesensitive, Officer Hargett followed Tormoehlen the short distance to the nursing home and after Tormoehlen completed his delivery, Officer Hargett gave him a summons to appear in court for carrying a handgun without a license. Tormoehlen was charged by information with carrying a handgun without a license, a Class A misdemeanor, on March 11, 2005. Tormoehlen obtained a handgun license in April of 2005 and presented it to the State. In October of 2005, approximately one week prior to his scheduled jury trial, Tormoehlen filed with the trial court a Memorandum of Law regarding the State's duty to dismiss the charge against him because he had obtained and presented a license. 1 Immediately prior to jury selection on the day of trial, Tormoehlen made a motion to dismiss based on the grounds stated in his memorandum. The trial court denied the motion. The State made a motion in limine to keep any mention that Tormoehlen had subsequently obtained a permit from the jury. The trial court granted this motion. Following the presentation of evidence, Tormoehlen submitted an instruction regarding the elements of the crime and of the affirmative defense. The trial court refused Tormoehlen's tendered instruction in favor of an instruction nearly identical in every way but for the inclusion of an additional paragraph stating that if the State proved each of the elements of the crime beyond a reasonable doubt, the jury should find Tormoehlen guilty, subject to any applicable defense. Tormoehlen objected to the trial court's instruction. The jury found Tormoehlen guilty as charged, and the trial court fined Tormoehlen $300.00, which was

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The Memorandum did not accompany a separate motion seeking relief and no relief was requested

therein.

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suspended, and imposed court costs of $156.00. Tormoehlen now appeals. Discussion and Decision I. Effect of Subsequent Issuance of License Tormoehlen contends that the trial court erred in denying his motion to dismiss based upon the fact that he obtained a handgun license subsequent to this incident, and in granting the State's motion in limine to keep testimony regarding the fact that he obtained a license from the jury. Tormoehlen was charged with violation of Indiana Code section 35-47-2-1, which states, "[A] person shall not carry a handgun in any vehicle or on or about the person's body, except in the person's dwelling, on the person's property or fixed place of business, without a license issued under this chapter being in the person's possession." Ind. Code

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