Warren v. State, 49A05-9212-CR-440
| Decision Date | 22 June 1993 |
| Docket Number | No. 49A05-9212-CR-440,49A05-9212-CR-440 |
| Citation | 615 N.E.2d 500 |
| Court | Indiana Appellate Court |
| Parties | Robert WARREN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
William F. Thoms, Jr., Indianapolis, for appellant-defendant.
Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Does placing an unloaded weapon against another's stomach and waving the gun near the other create a substantial risk of bodily injury so as to constitute criminal recklessness? We hold that under the circumstances presented in this case, it does not.
Robert Warren was convicted, following a bench trial, of criminal recklessness, a Class D felony and of carrying a handgun without a license, a class A misdemeanor. The court sentenced him to two consecutive one year sentences, with six months suspended on each conviction. Warren appeals his conviction on the criminal recklessness conviction, arguing the evidence is insufficient to sustain the conviction.
We reverse Warren's conviction for criminal recklessness.
On July 4, 1992, Mr. and Mrs. Sadler were in front of their house with their two children and other relatives shooting fireworks. Warren came up to them, waving a gun very close to Mr. Sadler's face, and stating that he was the "meanest [man] in town." Warren also placed the gun against Sadler's stomach and waved it in front of the Sadler children. After waving the gun, Warren put it back into his pocket and began to talk to some others in the yard. While the gun was in Warren's pocket, Sadler went into his house and called the police. When Sadler returned to the yard, Warren took the gun out and again pointed it at Sadler.
When the police arrived, Warren was in front of the Sadler house. The officers found a gun on Warren; however, it was not loaded and the magazine, which holds the ammunition, was missing.
When faced with a challenge to the sufficiency of the evidence, we neither weigh the evidence nor judge witness credibility. Rather, we look only to the evidence, as well as the inferences to be drawn therefrom, most favorable to the conviction. Chandler v. State (1991), Ind., 581 N.E.2d 1233, 1237.
Indiana Code 35-42-2-2 provides 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
* * * * * *
Class D felony if it is committed while armed with a deadly weapon.
Thus, the State was required to prove that 1) Warren recklessly, knowingly, or intentionally performed an act; 2) that created a substantial risk of bodily injury; 3) to another; 4) while armed with a deadly weapon. Warren attacks the second element and argues that the evidence is insufficient to show that his actions created a substantial risk of bodily injury. The State argues that the mere display of an apparent firearm, even though it is not loaded and not capable of being loaded, is enough to risk the infliction of bodily injury on someone.
The question of whether placing an unloaded gun against another person constituted criminal recklessness was broached by Judge Staton in Mahone v. State (1981), Ind.App., 429 N.E.2d 261. Mahone was convicted of battery after shooting another man in the leg. On appeal, Mahone argued that he was entitled to a jury instruction on criminal recklessness as a lesser included offense. The court held that criminal recklessness was not a lesser included offense because a person could commit battery without committing recklessness. In illustrating this point, Judge Staton wrote:
For example, a person may knowingly or intentionally touch another person by placing the barrel of an unloaded firearm against the body of another person, thus perpetrating a battery of the Class C felony type. However, such conduct does not necessarily create a substantial risk of bodily injury. Perhaps the use of an unloaded firearm in another manner may create such a risk, but the mere placement of the barrel against another person, while constituting battery, does not necessarily constitute recklessness.
Id. at 263 (emphasis supplied). However, this is dicta because Mahone's gun was indeed loaded.
The question was also addressed in Reynolds v. State (1991), Ind.App., 573 N.E.2d 430, trans. denied, again in dicta. Reynolds was charged and convicted of pointing a loaded handgun at the victim and demanding sexual intercourse. Reynolds argued that the evidence was insufficient to show that he committed an act that created a substantial risk of bodily injury. The court agreed with the Mahone court
to the effect that placing the barrel of an unloaded firearm against the body of another person does not necessarily constitute the crime of criminal recklessness because such an act does not necessarily create a substantial risk of bodily harm.
Id. at 433. Noting that Reynolds was...
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