Criminal charges from airsoft gun sale may continue in Indiana

Back to TopCommentsE-mailPrintBookmark and Share

Charges of theft, counterfeiting and corrupt business influence against Houston-based defendants as a result of the sale of airsoft guns in Indiana can proceed in this state, the Supreme Court ruled Thursday.

In An-Hung Yao and Yu-Ting Lin v. State of Indiana, 35S02-1112-CR-704, the justices affirmed the trial court denial of An-Hung Yao and Yu-Ting Lin’s motions to dismiss the charging informations on jurisdictional grounds and the denial of their motions to dismiss the charging informations alleging three counts each of Class D felonies theft and corrupt business influence. The justices reversed the trial court’s grant of the defendant’s motion to dismiss the charging informations alleging one count each of Class C felony counterfeiting.

Lin operates Generation Guns from Houston, Texas. The company imports from Taiwan and sells in the U.S. “airsoft guns,” toy replicas that look like real guns but shoot lightweight plastic pellets. An-Hug Yao, vice-president of a Houston bank and friend of Lin’s, helped her set up systems for her business and attended trade shows with her. Heckler & Koch Inc. ordered airsoft guns from Lin’s company and had them shipped to Huntington County, Ind. The toys delivered were replicas of guns made by H&K.

On interlocutory appeal, the Court of Appeals concluded that all charges should be dismissed because the trial court lacked territorial jurisdiction.

Justice Robert Rucker wrote that the court couldn’t conclude as a matter of law the defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or counterfeiting charge. If the state can’t prove beyond a reasonable doubt that Lin and Yao engaged in Indiana in any one or more of the forms of exerting control over the property of H&K, then the defendants would be entitled to acquittal or judgment on the evidence.

The justices rejected the defendants’ claim that their airsoft guns can’t constitute a written instrument under the counterfeiting statute because the guns don’t contain any “written matter.” The high court adopted the state’s view of the statute that defines “written instrument” more broadly, which could include an object or symbol of value, right, privilege or identification, even if the object or symbol doesn’t contain writings or markings.

Lin and Yao also argued that it’s not “theoretically possible” to “exert unauthorized control” over a third-party’s trademark right. They also want this case resolved under civil trademark infringement law, not criminal law.

But whether a theft prosecution is the “wrong tool for the job” when it comes to defining intellectual property interests, that is not the justices’ jobs, Rucker wrote. “Rather, our job is to apply the Indiana criminal statutes as drafted by the Legislature. And under those statutes, the questions in this case include whether the Defendants, did beyond a reasonable doubt: 1) knowingly or intentionally; 2) obtain, take, carry, sell, convey, encumber, or possess property, or secure, transfer, or extend a right to property; 3) which property belonged to H & K; 4) without H & K’s consent; 5) with intent to deprive H & K of any part of the property’s value or use? And these are all questions of fact that cannot be determined on a motion to dismiss.”



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?