COA affirms machine gun adjudication for teen who had pistol with ‘Glock switch,’ reverses 2nd adjudication for double jeopardy

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A teen arrested for possession of a modified pistol will not shake his machine gun adjudication but has convinced the Court of Appeals of Indiana that a juvenile court violated double jeopardy principles when it also tacked on a possession-of-a-dangerous-firearm offense.

In July 2021, two officers with the Speedway Police Department were on patrol when they saw a car driving 60 mph in a 35 mph zone.

After the car stopped, a 17-year-old identified as A.W. exited the car from a rear passenger seat. The teen ran from the vehicle and officers saw he had a gun in his hand.

A foot chase ensued before A.W. tripped and fell. As he started falling to the ground, he tossed the gun toward a house.

During a pat-down search, an officer found a phone and a “large sum of money” in A.W.’s pants pocket. A second officer recovered the gun, which was identified as a Glock fitted with a laser pointer and an extended magazine. The officer recognized the Glock as being “essentially” the same as his own firearm, except something was “different” about the suspect’s gun.

The state filed a delinquency petition alleging A.W. had committed conduct which, if committed by an adult, amounted to three Class A misdemeanors, namely, carrying a handgun without a license, resisting law enforcement and criminal mischief.

However, the state later discovered that the Glock had been converted from a semi-automatic weapon to an automatic weapon through the addition of an after-market device known as a “Glock switch,” which is a square black box about the size of a quarter that attaches to the rear slide of the gun.

Accordingly, the state amended the delinquency petition to add a count of possession of a machine gun, a Level 5 felony if committed by an adult. Following a factfinding hearing, the juvenile court entered a true finding that A.W. had committed each of the offenses as alleged in the amended petition.

The Marion Superior Court then placed A.W. on probation and released him to his father’s custody.

On appeal, A.W. questioned whether the state presented sufficient evidence to support his adjudication for possession of a machine gun, and whether his possession adjudications violated double jeopardy.

A.W. argued he didn’t know the gun had been modified, but the COA shot down that argument.

“Here, A.W. had exclusive possession of the machine gun while the officers were chasing him,” Judge Edward Najam wrote. “That evidence supports a reasonable inference that A.W. knew the gun was a machine gun. Further, the juvenile court found that A.W.’s conduct, namely, his flight from the traffic stop, supported an inference that he knew that the gun was a machine gun.”

The COA did, however, find that possession of a machine gun and dangerous possession of a firearm violated the Indiana Constitution’s prohibition against double jeopardy.

“The bottom line is that A.W. was found culpable twice for possession of the same weapon at the same time where possession of that weapon was the means used to commit both crimes,” Najam wrote. “Accordingly, we hold that these two true findings violate Indiana’s prohibition against double jeopardy, and the true finding that A.W. committed dangerous possession of a firearm cannot stand.”

In a separate opinion, Chief Judge Cale Bradford concurred in part and dissented in part.

Bradford differed from the majority on whether the offenses are factually included in one another.

“The charges overlap only in that they allege that A.W. possessed a firearm, but they do not amount to multiple punishments for one act, as one requires proof that he had the status of a minor who could not lawfully possess the firearm and the required proof that he possessed a machine gun, which no person may lawfully possess, minor or not,” Bradford wrote.

“Moreover, the evidence adduced at trial clearly established two separate offenses. As discussed by the majority, the evidence supported a conclusion that A.W. knowingly and intentionally possessed a machine gun,” he continued. “As for the dangerous possession charge, it was proved by evidence that A.W. was a minor and did not satisfy any of the requirements of Indiana Code section 35-47-10-1, proof of which was not relevant to the machine-gun charge.  Given that each charge requires proof of facts that the other does not, I cannot conclude that either is factually included in the other. “

The case is A.W. v. State of Indiana, 22A-JV-150.

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