Darden, S.J.
McAnalley appeals his conviction after a jury trial of Level 4 felony unlawful possession of a firearm by a serious violent felon and his guilty plea to an habitual offender enhancement. We affirm.
McAnalley presents three issues, which we restate as the following questions:
- 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?
- 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?
- 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?
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).
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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.
Search incident to arrest, the officer then patted McAnalley down and found an empty gun holster clipped to the front waistband of his pants.
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During the course of [a] protective sweep, officers looked at a glove box directly in front of the front passenger seat. The glove box in this vehicle 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.
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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.
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The State charged McAnalley with Level 4 felony unlawful possession of a firearm by a serious violent felon and with being an habitual offender. After a pre-trial hearing and briefing by the parties on McAnalley’s motion to suppress the handgun, the trial court denied the motion.
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I. Fourth Amendment
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.
II. Indiana Constitution
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.
III. Stipulation of Prior Conviction
McAnalley [also] 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.
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.
However, we believe that better practice would be to follow the holdings in the United States Supreme Court opinion in Old Chief [v. United States, 519 U.S. 172 (1997)], 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 habitual offender. 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
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.
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.
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.
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.
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 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.
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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.
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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.