D.B., In re
| Decision Date | 10 April 1995 |
| Docket Number | No. 71A05-9406-JV-211,71A05-9406-JV-211 |
| Citation | 648 N.E.2d 1230 |
| Parties | In re the Matter of D.B., a Child Alleged to be a Delinquent Child. D.B., Appellant-Juvenile, v. STATE of Indiana, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
The trial court found D.B. to be a delinquent child with regard to the commission of the crime of criminal recklessness. D.B. claims on appeal that the evidence was insufficient to prove beyond a reasonable doubt that his conduct with a gun created a substantial risk of bodily injury to another.
After quarreling with a schoolmate, D.B. and another youth approached the home of the schoolmate who was sitting on the front porch with his family. After exchanging words with his schoolmate from across the street, D.B. pointed a handgun at the people sitting on the front porch. D.B. fled the scene when the police were summoned, but was later apprehended. The police never recovered the weapon.
The State filed a Petition Alleging Delinquency, charging D.B. with carrying a handgun without a license, a Class A misdemeanor, and criminal recklessness, a Class D felony. The trial court found D.B. a delinquent child with regard to both counts. D.B. does not challenge the allegation of unlawful possession of a handgun, and limits his appeal only to the finding of criminal recklessness.
Criminal recklessness is set out in Ind.Code 35-42-2-2, which states in relevant part:
(b) A person who recklessly, knowingly or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person
* * * * * * commits criminal recklessness, a Class B misdemeanor. However, the offense is a
* * * * * *
(2) Class D felony if it is committed while armed with a deadly weapon.
Any handgun, whether it is loaded or unloaded, is a deadly weapon. I.C. 35-41-1-8. However, previous cases have held that an unloaded firearm does not create a substantial risk of bodily injury in the context that it cannot be used to shoot someone. See Warren v. State (1993), Ind.App., 615 N.E.2d 500; Reynolds v. State (1991), Ind.App., 573 N.E.2d 430, trans. denied; see also, Mahone v. State (1981), Ind.App., 429 N.E.2d 261; cf., Warren, 615 N.E.2d at 503 (Sharpnack, C.J., dissenting) ().
D.B. argues that the State failed to prove the gun was loaded and therefore did not show that he created a substantial risk of bodily injury. D.B. bases this argument on recent decisions involving similar circumstances.
In Reynolds, we held that "the State was required to prove that the handgun ... was in fact loaded to sufficiently convict [the accused] of criminal recklessness." 573 N.E.2d at 433; see also, Mahone, 429 N.E.2d at 263. Similarly, in Warren, we held that merely pointing an unloaded firearm at another, without more, does not create a substantial risk of bodily injury. 615 N.E.2d at 502. However, each of those decisions is limited to their circumstances, and D.B. seeks to extend their application beyond the scope of their contexts.
In Reynolds, the Information charging criminal recklessness included the specific allegation of pointing a loaded handgun at another. 573 N.E.2d at 433. In order to prove the crime as charged, the State was required to prove the gun was loaded. Id. D.B. improperly reads Reynolds as requiring the State to prove a loaded weapon in every prosecution of criminal recklessness involving a firearm. In D.B.'s case, the Petition Alleging Delinquency does not specify that the gun was loaded, and the specific holding of Reynolds does not apply.
In Warren, we found that there was no substantial risk of bodily injury after conclusive evidence was presented at trial demonstrating that the gun the accused pointed at another person was not loaded. 615 N.E.2d at 502. Like Reynolds, Warren does not hold that the State must prove a loaded weapon in every prosecution of criminal recklessness involving a firearm. Rather, evidence of an unloaded weapon may serve to disprove the accused created a substantial risk of bodily injury. Id.
The State must sustain its burden of proof on each element of the offense charged, and such elements may be established by circumstantial evidence and logical inferences drawn therefrom. Mitchell v. State (1990), Ind., 557 N.E.2d 660, 662. To carry its burden of proving the charge of criminal recklessness against D.B., the State was required to demonstrate that D.B. recklessly, knowingly or intentionally pointed a handgun at or in the direction of his schoolmate, creating a substantial risk of bodily injury.
To sustain a conviction for the offense of Criminal Recklessness, the State has the burden of proving beyond a reasonable doubt each material element of the crime charged. Padgett v. State (1978), Ind.App., 380 N.E.2d 96, 97.
The essential and material elements that the State had to prove to convict D.B., beyond a reasonable doubt, of the crime of criminal recklessness as a class D felony are found in Ind.Code 35-42-2-2 as follows:
Sec. 2. (a) A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness, a Class B misdemeanor. However, the offense is a:
* * * * * *
(2) Class D felony if it is committed while armed with a deadly weapon.
The totality of the State's evidence in support of its case-in-chief was presented through the testimony of J.R., another juvenile, and his aunt, Lisa Gunn. Approximately two days prior to the incident in question, D.B. had gotten into a fight with J.R. regarding his sister. (R. 24). D.B. and two of his companions appeared at a residence across the street from J.R.'s home and, according to J.R.'s testimony on direct examination, the following occurred:
Q. ..... What happened then?
A. Somebody--they pulled out the gun.
Q. They pulled out the gun? Did you see who had the gun?
A. No.
Q. You didn't see who had the gun?
A. No.
Q. Did you see a gun?
A. Yes, I saw a gun.
Q. Well, how was it that you saw a gun?
A. I ran in the house.
Q. Pardon?
A. I ran in the house.
Q. Well, before you ran in the house, where did you see the gun?
A. In one of their hands.
Q. In one their hands? Tell us about that. Where were you when you saw this gun?
A. In front of the house with all my brothers and sisters on the porch.
Q. And A. and D. and this other person, did they come together?
A. Yes.
* * * * * *
Q. Was something said?
A. No.
Q. You saw a gun and ran in the house?
A. Yes.
Q. Did you see what kind of gun it was?
A. No.
Q. Well, was it a rifle like a long gun or short gun?
A. Little, short gun.
Q. A pistol?
A. Yes.
Q. Was it shiny or black or blue or what color?
A. I don't know.
Q. Well, did you see enough of it--was it shiny like this microphone (indicating)?
A. (no response)
Q. Was it the color like part of this witness area?
A. I think, yes, black.
Q. Was it pointed at you?
A. It was pointed at over where we was at.
Q. Were there any gun shots?
A. No.
Q. It was pointed over to where you were at?
A. Yes.
Q. Do you remember calling the police?
A. Yes.
Q. Do you remember who you told the police had the gun?
A. No.
Q. Don't you? But one of the three people had the gun?
A. Yes.
Q. You are sure of that?
A. Yes.
Q. Are you afraid right now, J.R.?
A. No.
Q. You are not afraid?
A. (witness shakes head)
Q. Are you afraid of D.B.?
A. No.
Q. No?
A. No.
(R. 23-26).
The defense did not cross examine J.R. Subsequent to J.R.'s testimony, the State presented the testimony of his aunt, Lisa Gunn, who testified to the following:
Q. I want to direct your attention back to this past May 6th about 2:00 or 2:30 in the afternoon and ask you if you were at or around J.R.'s home on Carlisle Street?
A. Uh-huh, 521.
Q. Did you see three young men approach his house?
A. Yes, I did. Well, they didn't come to his house, they were across the street in front of the house. Like J.R. said, they had an incident with his sister and D.B. was in the middle and there was a guy on each side of him, and he was the one that had the pistol.
Q. D.B. had the pistol?
A. Yes, he did.
Q. Where were you when all that was happening?
A. I was standing--well, when they had came out--my niece had came--well, it was like J.R. and D.B. and them was out there and they wanted to fight, you know. They had little words, and I don't really recall what was said because they had a few words and stuff, and he pulled out the pistol. I was out on the porch because all my nieces and nephews was outside plus...
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