Barteau, Senior J.
Marques Trice appeals the trial court’s order to destroy his handgun. We reverse and remand.
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On March 14, 2017, Officer Matheis of the Indianapolis Metropolitan Police Department (IMPD) conducted a traffic stop of the vehicle driven by Trice due to the vehicle’s lack of illumination for the license plate. When Officer Matheis approached the vehicle, he asked Trice if there were any guns, knives, or other weapons in the vehicle. Trice responded that he had a handgun in the center console. The officer instructed Trice to leave his handgun where it was and returned to his car with Trice’s license and registration to check his driving record through the state database, which includes a firearm permit check. The database indicated that Trice’s firearm permit had expired. Officer Matheis confirmed this information with IMPD and then had Trice exit the car. The officer read Trice his Miranda rights and asked him whether he knew his permit was expired, whether he had his permit with him, and whether the gun was loaded. Trice responded affirmatively to the questions and showed his permit to Officer Matheis; Trice’s permit had expired in 2015. The officer took possession of the handgun, and Trice was charged with carrying a handgun without being licensed as a Class A misdemeanor.
Following a bench trial, Trice was convicted as charged. The trial court sentenced him to 365 days in jail with credit for six days and 359 days suspended. As part of its sentencing order, the court ordered the destruction of the handgun. Trice now appeals that order.
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Although Trice did not file a motion for the return of his handgun, the court’s order of destruction, in substance, operates to deny the return of Trice’s property. Thus, we apply the standard of review used when a trial court has denied a party’s motion for the return of property. When we review the denial of a motion for return of property, we will affirm unless the decision is clearly erroneous and cannot be sustained on any legal theory supported by the evidence. Roy v. State, 81 N.E.3d 641, 643 (Ind. Ct. App. 2017). Once its need for the property has terminated, the court has both the jurisdiction and the duty to return seized property. Barany v. State, 54 N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied.
Both parties agree this controversy revolves around Indiana Code section 35-47-3-2 (2014), which sets forth the procedures for the return of firearms to rightful owners and the disposal of confiscated firearms. At the time of Trice’s offense, this statute provided, in relevant part:
(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm. However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms. …
The thrust of Trice’s argument is that carrying a handgun without being licensed does not amount to “misuse” of a firearm. However, the phrase “misuse of a firearm” has not been legislatively defined in Indiana for purposes of Indiana Code section 35-47-3-2(b). The question before us then is what constitutes “misuse” of a firearm.
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With respect to precedent, we observe that a panel of this Court, noting that the Legislature has not defined “misuse of a firearm” as used in the statute at issue here, concluded that the use of a firearm to murder a person is misuse of the firearm. See Barany, 54 N.E.3d at 387 n.4. Additionally, Barany provides a list of what is not misuse of a firearm. See id. (noting that “lawful purposes” of a firearm include “hunting, self-defense, collecting, and competitive or recreational shooting” (quoting Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 427 (Ind. Ct. App. 2007), trans. denied)). Nevertheless, neither murder nor any of the lawful purposes identified in Barany are involved in this case.
Accordingly, we begin with the dictionary definition of “misuse.” Merriam Webster defines the noun “misuse” as “incorrect or improper use.” https://www.merriam-webster.com/dictionary/misuse (last visited November 2, 2018). Another and similar definition is “The wrong or improper use of something.” https://en.oxforddictionaries.com/definition/misuse (last visited November 2, 2018). Additionally, the term is defined as “an occasion when something is used in an unsuitable way or in a way that was not intended” and “the act of using something wrongly or in a dishonest way.” https://dictionary.cambridge.org/us/dictionary/english/misuse (last visited November 2, 2018).
We observe that Trice was convicted of carrying a handgun—that is, Trice possessed a handgun—without a license. See Armstrong v. State, 742 N.E.2d 972, 978 (Ind. Ct. App. 2001) (“The offense of carrying a handgun without a license requires mere possession of the handgun.”). … However, although Trice possessed the handgun, he did not use the handgun. …
Therefore, the definitions of the term “misuse” can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable. Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun. For the foregoing reasons, we conclude Trice’s conviction of carrying a handgun without a license does not amount to a conviction of misuse of a firearm. Consequently, the trial court erred by ordering the destruction of Trice’s handgun.
Reversed and remanded.
Robb, J., concurs.
Crone, J., dissents with opinion.
Based on the dictionary definitions of “misuse” and the wording and purpose of Indiana Code Section 35-47-3-2, I respectfully disagree with the majority’s determination that it “defies logic and relevant precedent” to say that Trice misused his handgun when he carried it in his car without a license. Just as driving a motor vehicle without a license is misuse of the vehicle, i.e., the unlawful, incorrect, dishonest, and unintended use of the object, so in my opinion is carrying a handgun without a license an unlawful, incorrect, and prohibited use of the gun. …