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Insufficient evidence leads to firearm conviction reversal

February 28, 2018

A man’s conviction of possession of a firearm as a serious violent felon was reversed Wednesday by a divided Indiana Court of Appeals, which found his signature on an underlying robbery plea agreement had not been authenticated.

Khalil Jalon Payne’s conviction of that Level 4 felony was vacated due to evidence a majority of the COA panel found was insufficient to support the conviction. Payne was arrested after Lafayette police responding to a call found a duffle bag in the common area of an apartment building containing a gun and clothes belonging to Payne.

Payne was convicted of unlawful possession of a firearm by a serious violent felon as well as Level 6 felony possession of a synthetic drug and misdemeanor counts of carrying a handgun without a license and possession of a synthetic drug. He was sentenced to nine years on the SVF charge.

But writing for the majority in Khalil Jalon Payne v. State of Indiana, 79A02-1707-CR-1606, Judge Rudolph Pyle III found that evidence the state submitted did not support Payne’s prior robbery conviction, which formed the basis of the SVF conviction. Payne’s purported signature on a robbery plea agreement was the only evidence the state relied on, which Pyle and Judge Mark Bailey concluded was not enough.

“Here, the state did not introduce expert or non-expert testimony to authenticate the signature; nor did Payne admit that the signature was his,” the majority held. “… As this court has already held that a defendant’s name and birth date, alone, are not sufficient to prove identity, we conclude that there was not sufficient evidence to prove that Payne had previously committed the robbery and, therefore, qualified as and SVF.” The court cited Livingston v. State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989).

Evidence, however, was sufficient to support Payne’s lesser convictions, and there were no double-jeopardy concerns, the panel held.

Dissenting judge James Kirsch wrote that he would have affirmed the trial court in all respects. He cited Walker v. State, 988 N.E.2d 1181, 1187 (Ind. Ct. App. 2013) (quoting Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988), trans. denied, for the proposition that proof of a defendant’s identity “may be in the form of circumstantial evidence.” He said there was ample such evidence in this case.

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