Brown v. State

• Decision Date: 02 July 2003
• Docket Number: No. 49A05-0206-CR-281.,49A05-0206-CR-281.
• Parties: Demetreous BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

790 N.E.2d 1061

Demetreous BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0206-CR-281.

Court of Appeals of Indiana.

July 2, 2003.

Mark Small, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Demetreous Brown appeals his three convictions for pointing a firearm as class D felonies.¹ Brown raises two issues, which we restate as:

I. Whether the evidence is sufficient to sustain his pointing a firearm convictions as class D felonies because the State did not prove that the gun was loaded; and

II. Whether the evidence is sufficient to sustain his three separate convictions for pointing a firearm.

We affirm.

The relevant facts follow. On July 25, 2001, Brown, Robert Dunlap, Anthony Hunt, James Campbell, and Dante Tate were working the second shift at Heritage Crystal Clean ("Heritage"). During their 5:00 p.m. break, the men sat outside and Dunlap was stung by a bee. They all laughed about the incident, but apparently Brown laughed too long and Dunlap called Brown a derogatory name. Brown took offense to Dunlap's comment and attempted to hit Dunlap, but struck Campbell instead. Brown and Dunlap then got into a fist fight. After the fight, Brown went to his car and got a gun. Dunlap also went to his car and got a gun.

Lloyd Carter, the supervisor, was notified of the fight and came outside. Brown and Dunlap started to argue again in the parking lot. Carter told Brown to leave the premises. After Carter retrieved Brown's shoes, Brown left. However, during breaks throughout the evening, the men saw Brown in a vehicle outside of the gate.

At the end of the shift, Dunlap, Campbell, Hunt, and Tate were leaving work. Dunlap drove his vehicle and Campbell drove another vehicle with Hunt and Tate as passengers. Campbell, Hunt, and Tate were following Dunlap to his residence. As Dunlap exited the parking lot, Brown pulled his vehicle behind Dunlap's vehicle and in front of Campbell's vehicle. Dunlap turned into a gas station parking lot and the two other cars stopped nearby. Brown and two other men got out of Brown's car carrying guns and walked up to Campbell's vehicle. Brown ordered Tate to get out of Campbell's vehicle and get into Brown's vehicle. According to Dunlap, the men were pointing guns at the people in Campbell's car. Hunt testified that Brown was "pointing [the gun] at all of us." Transcript at 109. Hunt also testified that Brown "pointed [the gun] at all three of us" by waving it. Id. at 114. Brown and the other two men eventually got back into their car, saw Dunlap, and followed him again. Dunlap went to a nearby Speedway Police Department Station. Campbell and Hunt also flagged down a police officer. The State charged Brown with three counts of criminal confinement as class B felonies,² three counts of pointing a firearm as class D felonies, and one count of battery as a class A misdemeanor.³ During the bench trial, Brown conceded that he was guilty of the battery charge. The trial court found Brown guilty of three counts of pointing a firearm as class D felonies and one count of battery as a class A misdemeanor, but not guilty of the criminal confinement charges. At the sentencing hearing, Brown asked the trial court to reduce his pointing a firearm convictions to class A misdemeanors because, according to Brown, the State had not proven that the gun was loaded. The trial court sentenced Brown to three years in the Indiana Department of Correction, with one and one-half years suspended and one year of probation, for each of the three pointing a firearm as class D felonies convictions and one year for the battery conviction. The trial court ordered that the sentences be served concurrently.

Brown challenges the sufficiency of the evidence to sustain his convictions. Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or assess the credibility of witnesses. Maul v. State, 731 N.E.2d 438, 439 (Ind.2000). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We will affirm the conviction if there is probative evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

I.

The first issue is whether the evidence is sufficient to sustain Brown's pointing a firearm convictions as class D felonies because the State did not prove that the gun was loaded. Ind.Code § 35-47-4-3(b) provides that: "A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded." Brown argues that the State presented no evidence or inferences from the evidence that the firearm was loaded and, thus, his convictions should have been class A misdemeanors rather than class D felonies.

The State admits that "[n]o evidence was presented either way to show that [Brown's] gun was or was not loaded." Appellee's Brief at 7. However, the State argues that Ind.Code § 35-47-4-3(b) does not require the State to prove that the firearm was loaded in order to obtain a class D felony conviction. Rather, according to the State, the class D felony is the presumptive level for this crime. The offense is a class A misdemeanor only if the evidence "affirmatively shows that the firearm was not loaded." Id. at 5. Thus, the State contends that although most criminal statutes "recite a baseline offense and then enumerate the various factors which, if proven, enhance the level of that offense," the pointing a firearm statute is written such that the baseline offense is a class D felony and, if it is proven that the firearm was not loaded, the offense is reduced to a class A misdemeanor. Id. at 6. We agree.

The primary rule in statutory construction is to ascertain and give effect to the intent of the legislature. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.2001). "The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute." Id. In construing a statute, we must give effect to every word and clause. Saintignon v. State, 749 N.E.2d 1134, 1137 (Ind.2001). We presume that the legislature intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result. Sales v. State, 723 N.E.2d 416, 420 (Ind.2000).

Ind.Code § 35-47-4-3(b) initially provides that "[a] person who knowingly or intentionally points a firearm at another person commits a Class D felony." I.C. § 35-47-4-3(b). The language used by the legislature indicates a clear intent that the State is not required to prove that the firearm was loaded in order to obtain a conviction for the offense of pointing a firearm as a class D felony. The statute then provides that "the offense is a Class A misdemeanor if the firearm was not loaded." I.C. § 35-47-4-3(b). Thus, a defendant is entitled to a class A misdemeanor rather than a class D felony only if the evidence affirmatively demonstrates that the firearm was not loaded.

If the legislature had intended that the State be required to prove that the firearm is loaded to obtain a class D felony conviction, the legislature could have easily done so by inserting the word "loaded" into statutory provision regarding a class D felony. As such, the relevant section of the statute would read: "A person who knowingly or intentionally points a loaded firearm at another person commits a Class D felony." Alternatively, the legislature could have structured the statute as follows: "A person who knowingly or intentionally points a firearm at another person commits a class A misdemeanor. However, the offense is a class D felony if the firearm was loaded." In these options, the State would have to affirmatively prove that the firearm was loaded to obtain a class D felony conviction. The statutory provision adopted by the legislature does not indicate such an intent. Rather, the statutory language indicates a clear intent that the State is not required to prove that a firearm was loaded in order to obtain a conviction for pointing a firearm as a class D felony.

Our discussion of the statutory language is consistent with the policy behind the pointing a firearm statute. In Armstrong v. State, 742 N.E.2d 972, 976 (Ind.Ct.App. 2001), we noted that we could "envision no situation in which pointing a loaded gun at another person does not create a substantial risk of death or bodily injury to that person." Id. It is "common knowledge that numerous persons are killed each year by guns which the handlers thereof did not realize were loaded, or thought were unloaded, which were in fact loaded." Id. Furthermore, the statutory scheme for the pointing a firearm offense recognizes the difficulty of proving that a person pointed a loaded firearm if, as here, the gun is not fired or recovered during the episode.⁴ Consequently, we conclude that the State was not required to prove that Brown's weapon was loaded in order to convict him of a class D felony.⁵ None of the evidence presented at trial proved that Brown's weapon was unloaded. Thus, the evidence was sufficient to convict Brown of pointing a firearm as class D felonies rather than as class A misdemeanors.

II.

The next issue is whether the evidence is sufficient to sustain Brown's three separate convictions for pointing a firearm. Brown was convicted of three counts of pointing a firearm as a class D felony for pointing his handgun at Campbell, Hunt, and Tate. Brown argues that the charged acts "arose in the context of a fast-paced, single, and continuous incident." Appellant's Brief at 13. Consequently, Brown argues that he could only be convicted of one count of pointing a firearm.

Brown...