ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL E. CAUDILL KAREN FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JESSE BAKER, )
vs. ) No. 49A02-0010-CR-686
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn L. Moberly, Judge
Cause No. 49G02-0001-CF-2522
May 9, 2001
OPINION - FOR PUBLICATION
SHARPNACK, Chief Judge
Jesse Baker appeals his convictions for aggravated battery, a class B felony,
and possession of a firearm by a serious violent offender, a class B
felony. See footnote He raises three issues, which we consolidate and restate as:
1. whether the prosecutor engaged in misconduct requiring reversal; and
2. whether Ind. Code § 35-47-4-5, which defines the crime of possession
of a firearm by a serious violent offender, is unconstitutional.
The facts most favorable to the judgment reveal that on December 16, 1999,
Jesse Baker went to Adonias Tiptons apartment and smoked crack cocaine with Adonias
in her laundry room. When Baker exited the laundry room, he saw
Laricus McGhee and Dwayne Gross sitting in the living room. Baker talked
to Gross and said, All right then, Peeps.See footnote Record, p. 194.
McGhee told Baker not to use the word Peeps after smoking crack cocaine.
In addition, McGhee threatened to hit Baker in the mouth if Baker
said that word again. Baker smirked and said Peeps again, and McGhee
jumped up off of the couch and hit Baker in the mouth.
In response, Baker shot McGhee five times. Tipton, who was hiding in
the laundry room, heard the shots. She also heard Baker say, What
you gonna do now? McGhee died as a result of the gunshot
Baker was charged with murder and possession of a firearm by a serious
violent offender based upon a prior conviction of robbery. At trial, Baker
admitted that he shot McGhee. He also acknowledged that McGhee was unarmed.
Baker explained that he shot McGhee because he thought McGhee was going
to stomp [his] face and kick it off. Record, p. 323.
Baker denied having the intent to kill McGhee. The jury convicted Baker
of aggravated battery and possession of a firearm by a serious violent offender,
both class B felonies.
The first issue is whether the prosecutor engaged in misconduct. During closing
argument, the prosecutor argued that Baker was not entitled to use self-defense because
he committed other crimes, namely possession of cocaine and visiting a common nuisance,
which led to the confrontation that was the basis of the charge.
Record, p. 370. Defense counsel objected and argued that the prosecutor had
misstated the law. Counsel did not request an admonishment or a mistrial.
Baker acknowledges that the trial court properly instructed the jury regarding self-defense.
See Appellants Brief, p. 12. The trial court also instructed the
jury that comments of counsel were not evidence and that the courts final
instructions constituted the law applicable to the case.
Baker now argues that the prosecutor engaged in misconduct by misstating the law
during closing argument. In reviewing a claim of prosecutorial misconduct, we must
first consider whether the prosecutor engaged in misconduct. Williams v. State, 724
N.E.2d 1070, 1080 (Ind. 2000), rehg denied, cert. denied, 121 S.Ct. 886, 148
L.Ed.2d 793 (2001). Second, we must consider whether the alleged misconduct placed
the defendant in a position of grave peril to which he should not
have been subjected. Id. The gravity of the peril is determined
by considering the probable persuasive effect of the misconduct on the jury.
Baker has waived appellate review of this issue because he failed to request
an admonishment or a mistrial. See Robinson v. State, 693 N.E.2d 548,
552 (Ind. 1998) (failure to request an admonishment or a mistrial following alleged
prosecutorial misconduct results in waiver of the issue on appeal).
Waiver notwithstanding, we find no reversible error. In Woodford v. State, 488
N.E.2d 1121, 1124 (Ind. 1986), Woodford argued that the prosecutor misstated the law
of abandonment during closing argument. We noted that the trial court instructed
the jury that the comments of counsel were not evidence and that the
courts final instructions, which included a proper abandonment instruction, constituted the law applicable
to the case. Id. We therefore found no reversible error.
Here, as in Woodford, the trial court instructed the jury that the
comments of counsel were not evidence and that the courts final instructions, which
included a proper self-defense instruction, constituted the law applicable to the case.
We therefore find no reversible error. See id.
The second issue is whether Ind. Code § 35-47-4-5 is unconstitutional.
See footnote When
a statute is challenged on constitutional grounds, it stands before us clothed with
a presumption of constitutionality until clearly overcome by a contrary showing.
v. State, 728 N.E.2d 219, 221 (Ind. Ct. App. 2000). Further, whether
a statute is constitutional on its face is a question of law.
Teer v. State, 738 N.E.2d 283, 287 (Ind. Ct. App. 2000), trans. denied.
Where the issue presented on appeal is a pure question of law,
we review the matter de novo. Id.
Baker first contends that Ind. Code § 35-47-4-5 violates the Privileges and Immunities
Clause of the Indiana Constitution
See footnote and contravenes the policy of reformation. We
addressed these arguments in
Teer, 738 N.E.2d at 283. Therein, we determined
that the serious violent felon statute neither violates the Privileges and Immunities Clause
of the Indiana Constitution nor contravenes the policy of reformation. Id. at
289; see also Hatchett v. State, 740 N.E.2d 920 (Ind. Ct. App.
2000), trans. denied. Baker's similar constitutional arguments must therefore fail.
Baker further argues that the statute unconstitutionally criminalizes his status as a serious
violent felon. We disagree.
Baker is correct that an individual may not be prosecuted for mere status.
Klein v. State, 698 N.E.2d 296, 300 (Ind. 1998). In the
Klein case, Klein argued that the gang activity statute unconstitutionally penalized his status
as a gang member. Id. at 300. Our supreme court noted
that membership in a gang, by itself, did not provide the basis for
prosecution for criminal gang activity. Id. Rather, the State also had
to prove that the defendant was aware of the gangs actual purpose.
Here, as in Klein, Bakers status as a serious violent offender, by itself,
did not provide the basis for his prosecution. Rather, the State had
to prove that Baker possessed a firearm. Bakers argument must therefore fail.
See United States v. Jester, 139 F.3d 1168 (7th Cir. 1998) (rejecting
an identical challenge to 18 U.S.C. § 922(g)(1), which prohibits a convicted felon
from possessing a firearm).
Baker also argues that the statute violates his constitutional right to bear arms.
Article I, § 32 of the Indiana Constitution provides that the people shall
have the right to bear arms, for defense of themselves and the State.
However, this right is not absolute.
Dozier v. State, 709 N.E.2d
27, 31 (Ind. Ct. App. 1999). Our supreme court has determined that
the Legislature has the power, in the interest of public safety and welfare,
to provide reasonable regulations for the use of firearms. Id. (citing Matthews
v. State, 148 N.E.2d 334, 338 (Ind. 1958) (rejecting an Article I, §
32 challenge to handgun legislation)).
In the Dozier case, Dozier was convicted of carrying a handgun on school
property without a license, a Class C felony, and dangerous possession of a
firearm, a Class A misdemeanor. Id. at 28. On appeal, he
argued that the statutes pursuant to which he was convicted violated his Indiana
Constitutional right to possess a firearm. Id. at 31. We noted
that the statutes at issue in the case required a person to have
a license to carry a handgun, increased the class of the offense for
carrying an unlicensed handgun on school property, and prohibited the possession of a
handgun by a person under eighteen years of age. Id. We
found that because these statutes were in the interest of public safety and
provided reasonable regulation for the use of handguns, Doziers constitutional claim had to
Here, Ind. Code § 35-47-4-5 prohibits the possession of a handgun by a
serious violent offender. Like the statutes in Dozier, the serious violent offender
statute is in the interest of public safety and provides reasonable regulation for
the use of handguns. Bakers claim must therefore fail. See Dozier,
709 N.E.2d at 31.
Lastly, Baker argues that the statute violates the Equal Protection Clause of the
United States Constitution.
See footnote Specifically, he contends that the statute lacks a rational
basis for identifying the individual crimes listed . . . as violent felonies.
Appellants Brief, p. 19.
In assessing a claim under the Equal Protection Clause, our first inquiry involves
the applicable level of scrutiny.
Platt v. State, 664 N.E.2d 357, 364
(Ind. Ct. App. 1996), trans. denied, cert. denied, 520 U.S. 1187, 117 S.Ct.
1470 (1997). Laws that involve a suspect classification and those that burden
the exercise of fundamental rights receive the strictest scrutiny. Id. Classifications
not involving a suspect class or a fundamental right are reviewed under a
rational basis standard. State v. Alcorn, 638 N.E.2d 1242, 1244 (Ind. 1994),
rehg denied. A statute can survive rational basis scrutiny if the classification
in the statute bears some rational relationship to a legitimate governmental goal.
Id. at 1245.
The Seventh Circuit Court of Appeals addressed an issue similar to Bakers in
Jester, 139 N.E.2d 1168. Therein, Jester argued that the selective exemption of
some felonies from 18 U.S.C. § 922(g)(1), the federal counterpart to I.C. 35-47-4-5,
violated his equal protection rights. Id. at 1171. The court found
that because felons are not a protected class, and the right to possess
a firearm is not a fundamental one, the challenged classification was subject to
rational basis review. Id. at 1171.
The court pointed out that Jester could only satisfy this standard by showing
that no state of facts reasonably may be conceived to justify the disputed
classification. Id. (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct.
1153, 1161-62 (1970)). The court also noted that under rational basis review,
appellate courts will not invalidate a challenged distinction simply because the classification is
not made with mathematical nicety or because in practice it results in some
inequality . . . . The problems of government are practical ones
and may justify, if they do not require, rough accommodations. . . .
Id. Lastly, the court pointed out that the rational basis standard
is extremely respectful of legislative determinations and essentially means that an appellate court
will not invalidate a statute unless the statute draws distinctions that simply make
no sense. Jester, 139 F.3d at 1171.
The court in Jester applied these principles to the challenged statute and found
that the distinction challenged by Jester did not approach this requisite level of
irrationality. Id. Specifically, the court explained that Congress enacted the statute
in order to keep firearms out of the hands of those persons whose
prior conduct indicated a heightened proclivity for using firearms to threaten community peace.
Id. The court further noted that the statute also reduces unnecessary
restrictions on the conduct of some felons who do not exhibit these dangerous
tendencies. Id. The court concluded that it was perfectly reasonable for
Congress to assume that violent felons would pose a higher risk of endangering
the public with a firearm than the statutes class of exempted non-violent offenders.
Here, as in Jester, Bakers challenge to Ind. Code § 35-47-45 is subject
to a rational basis review, and we will not invalidate it unless it
draws distinctions that simply make no sense. See id. As in
Jester, we find that the legislature enacted this statute to keep firearms out
of the hands of those persons whose prior conduct indicated a heightened proclivity
for using firearms to threaten community peace. We also find that it
was reasonable for the legislature to assume that violent felons would pose a
higher risk of endangering the public with a firearm than the class of
exempted non-violent offenders. We therefore find no violation of the equal protection
clause. See Jester, 139 F.3d at 1171.
For the foregoing reasons, we affirm the judgment of the trial court.
Kirsch, J. and Mattingly-May, J. concur.
Ind. Code § 35-42-2-1.5.
Footnote: Ind. Code § 35-47-4-5.
Footnote: Peeps is the street name for the Vice Lords gang.
Record, p. 194.
Footnote: Ind. Code § 35-47-4-5(c) provides that a serious violent felon who
knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by
a serious violent felon. A serious violent felon includes a person who
has been convicted in Indiana of robbery.
See I.C. §§ 35-47-4-5(a)(1) and
The Indiana Constitution provides that the General Assembly shall not grant
to any citizen or class of citizens, privileges or immunities, which, upon the
same terms, shall not equally belong to all citizens. Ind. Const. Art
I, § 23.
Footnote: Baker claims that the statute violates both the Second Amendment to
the United States Constitution and Article I, § 32 of the Indiana Constitution.
However, the Second Amendment has never been incorporated to the states through
the Fourteenth Amendment.
See Kellogg v. City of Gary, 562 N.E.2d 685,
692 (Ind. 1990). We therefore address only the state constitutional argument.
The Equal Protection Clause of the United States Constitution provides as
follows: No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of