Nantz v. State

• Decision Date: 11 January 2001
• Docket Number: No. 40A04-0006-CR-237.,40A04-0006-CR-237.
• Parties: Paul NANTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

740 N.E.2d 1276

Paul NANTZ, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 40A04-0006-CR-237.

Court of Appeals of Indiana.

January 11, 2001.

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Jason J. Pattison, Rogers & Dove, North Vernon, Indiana, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

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OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Defendant, Paul Nantz (Nantz), appeals his conviction for pointing a firearm, a Class D felony, Ind.Code § 35-47-4-3(b).

We affirm.

ISSUES

Nantz raises four issues on appeal, which we restate as follows:

1. Whether there was sufficient evidence to sustain his conviction for Pointing A Firearm.

2. Whether the trial court properly instructed the jury on all elements of the charged crime.

3. Whether he received ineffective assistance of trial counsel.

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4. Whether his sentence was manifestly unreasonable.

FACTS AND PROCEDURAL HISTORY

In 1998, Ralph Mahoney (Mahoney) brought a bulldozer to Nantz's property located on seventy-three acres in Jennings County, Indiana. Mahoney was using the bulldozer to grade the road on Nantz's property leading to his house; however, during the process of grading the road the bulldozer broke down. Thus, Mahoney asked Nantz to allow him to keep the bulldozer in Nantz's barn until Mahoney could fix it. The bulldozer remained on Nantz's property for a year and on November 29, 1999, Mahoney and his wife, Suzanne Smith (Smith) returned to Nantz's property to retrieve the bulldozer. Also, Mahoney hired a driver, Donald Petro (Petro), to help him load the bulldozer on a trailer.

Smith drove a separate vehicle onto the property and stopped at the Nantz residence, while Mahoney and Petro proceeded to the barn to retrieve the bulldozer. It is uncontroverted that Mahoney, Smith and Petro entered Nantz's property without his permission. Smith talked with Nantz and offered to pay him for the bulldozer.¹ Mahoney then approached Nantz and Smith and offered to pay Nantz for the bulldozer. Nantz, who was intoxicated at the time, became angry and ordered Mahoney off his property. Nantz then walked in his house and returned with a pistol. Nantz walked to the barn area and held the gun to Petro's head and ordered him off the property. Meanwhile Mahoney and Smith left the property and called the police. The police later recovered a loaded nine-millimeter pistol from Nantz's vehicle.

The police arrested Nantz and subsequently charged him with pointing a firearm, a Class D felony, and battery by bodily waste, a Class D felony. A jury trial was held on February 10, 2000, and Nantz was convicted on both counts.² He was thereafter sentenced to three years for each count, with the sentences to be served consecutively.

This appeal followed.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Nantz asserts that the State failed to present sufficient evidence in order to support his conviction of pointing a firearm. Essentially, Nantz argues that he put forth sufficient evidence in support of his defense of property defense and the State did not rebut this defense.

In reviewing claims of insufficient evidence, our court neither reweighs the evidence nor judges the credibility of witnesses. Elliott v. State, 690 N.E.2d 774, 776 (Ind.Ct.App.1998). We consider only the evidence supporting the judgment and all the reasonable inferences drawn therefrom. Id. If each element of the crime is supported by substantial evidence, we will affirm. Id. "If there is substantial evidence of probative value from which a trier of fact could find guilt beyond a reasonable doubt, we will affirm the conviction." Newman v. State, 677 N.E.2d 590, 593 (Ind.Ct.App.1997) (citing Gant v. State, 668 N.E.2d 254, 255 (Ind.1996)).

To convict Nantz of pointing a firearm as a Class D felony the State was required to prove that he knowingly or intentionally pointed a loaded firearm at another person. Ind.Code § 35-47-4-3. Petro testified that Nantz pointed a pistol at his head and ordered him off the property.

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Nantz admits that he waived a loaded firearm while ordering Petro off his property, but contends that he never intentionally pointed the firearm at Petro. It was within the jury's province to believe Petro's testimony rather than Nantz's testimony and it is not our role to reweigh this evidence. Furthermore, the testimony of the victim alone is sufficient to support a conviction. Waldon v. State, 684 N.E.2d 206, 207 (Ind.Ct.App.1997) trans. denied. Thus, the State presented sufficient evidence to establish beyond a reasonable doubt that Nantz pointed a loaded firearm at Petro

Nonetheless, Nantz argues that his actions were justified because he was defending his property. Ind.Code § 35-41-3-2(c), provides the following with regard to whether a person may use force to defend his or her property:

With respect to property other than a dwelling or curtilage, a person is justified in using reasonable force against another person if he reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in his possession, lawfully in possession of a member of his immediate family, or belonging to a person whose property he has authority to protect. However, a person is not justified in using deadly force unless that force is justified under subsection (a) of this section.³

Thus, Nantz argues that he used reasonable force to defend his property and therefore, his actions were justified. If self-defense is supported by the evidence, the State must disprove at least one element of the defense beyond a reasonable doubt. Miller v. State, 720 N.E.2d 696, 700 (Ind.1999); see also Hanic v. State, 406 N.E.2d 335, 339 (Ind.Ct.App. 1980) (on review, self defense cases are analogous to defense of property cases). However, the State may refute a claim of self-defense by direct rebuttal or by relying on the evidence presented in its case-in-chief. Mariscal v. State, 687 N.E.2d 378, 381 (Ind.Ct.App.1997), reh'g denied, trans. denied. It is the factfinder's decision to determine whether a claim of self-defense has been disproved. Pointer v. State, 585 N.E.2d 33, 36 (Ind.Ct.App.1992). "A conviction in spite of a claim of self-defense will be reversed only if no reasonable person could say that the claim was negated by the prosecution beyond a reasonable doubt." Id.

Consequently, to establish his defense of property defense, Nantz was required to prove that he used reasonable force to prevent or terminate a trespass or to defend his property or his family's property or property he was authorized to protect. The State argues that the force used by Nantz, pointing a loaded gun at Petro, constitutes deadly force and thus, was unreasonable force under the statute. Since Nantz does not assert that he was attempting to protect himself or a third person and contends rather that he was defending his property interest in the bulldozer, he was prohibited under the statute from using deadly force. However, Nantz argues that he did not use deadly force; that instead his conduct constituted the threat of deadly force and that the threat of deadly force was reasonable force under the circumstances.

"`Deadly force' means force that creates a substantial risk of serious bodily injury." Ind.Code § 35-41-1-7. There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded

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firearm, constitutes deadly force as referred to in the defense of property statute, Ind.Code § 35-41-3-2(c). However, in Spurlock v. State, 675 N.E.2d 312, 316 (Ind.1996), our supreme court concluded that pointing a loaded firearm at a police officer was sufficient evidence to support a conviction for criminal recklessness. "A person commits criminal recklessness when he recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person." Id. (citing Ind.Code § 35-42-2-2.). Thus, within the context of a charge of criminal recklessness, pointing a loaded firearm is considered an action that creates a substantial risk of bodily injury to another person. See Id.

Our supreme court has also held that brandishing an unloaded firearm can create a substantial risk of bodily injury. AlSaud v. State, 658 N.E.2d 907, 910 (Ind. 1995). The Al-Saud court noted that: "The brandishing of a firearm in a congested area or during a dispute can create a variety of risks of bodily injury to others, regardless of whether the weapon is loaded." Id.

We find that these concerns equally apply to the case before the court. By pointing a loaded gun at Petro's head, Nantz created a variety of risks that could have lead to serious bodily injury. In Upp v. State, 473 N.E.2d 1030, 1032 (Ind.Ct.App. 1985), this court affirmed the defendant's conviction for criminal recklessness. In that case, Upp asserted the defense of property defense, and claimed that although he fired his gun several times, he was not trying to hit the trespasser in his back yard. Id. at 1031, 1032. We concluded that even assuming that Upp was not attempting to shoot the trespasser, his behavior still created a substantial risk of bodily injury because Upp could have missed his aim or a bullet could have struck a stone, ricocheted and injured the trespasser. Id at 1032.

Although Nantz did not fire his handgun as the defendant did in Upp, by pointing the gun at Petro's head, the gun could have accidentally discharged or Petro could have grabbed the gun causing serious injury or death to one or both of these men. Further, under Ind.Code § 35-41-3-2(a), Petro may have arguably had the right to use deadly force to defend against Nantz's action of pointing a loaded firearm at him, creating a substantial risk of injury. "`Permitting one to threaten...