concluding that if the legislature had intended the State be required to prove a gun was loaded to obtain a conviction for pointing a firearm, it “could easily have done so by inserting the word ‘loaded’ into [the] statutory provision”
How later courts described this case
- concluding that if the legislature had intended the State be required to prove a gun was loaded to obtain a conviction for pointing a firearm, it “could easily have done so by inserting the word ‘loaded’ into [the] statutory provision”
- "[T]he 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."
- "unloaded firearm" defense under Ind.Code § 85-47-4-8
- “unloaded firearm” defense under I.C. § 35-47-4-3
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring in part and dissenting in part.
The majority attributes to the phrasing of the statute a clarity which I believe is absent. The statute is poorly drafted and, as observed by the majority, is subject to differing constructions. See Op. at 1064-1065.
For example, one might argue, with more than a degree of merit, that if the evidence is totally lacking with regard to whether the weapon was loaded or unloaded, a jury could not convict of an A misdemeanor because the “unloaded” element of the offense has not been established. This leads to a conclusion that the statute in fact makes the matter of an unloaded firearm an affirmative defense upon which the defendant bears the burden of proof.
Subject to the above caveat, I agree that it is not necessary for the State to prove that the firearm was loaded in order to obtain a D felony conviction.
I respectfully dissent, however, from the affirmance of the three separate and distinct convictions. Here there was no evidence, as was present in Armstrong v. State, 742 N.E.2d 972, 976-977 (Ind.Ct.App.2001) that .there were “three separate and distinct pointings of a firearm rather than one continuous action.”
To the contrary, as noted by the majority, the evidence disclosed that Brown pointed his gun “at the people in Camp *1067 bell’s car,” that he was “pointing [the gun] at all of us,” and that he “pointed [the gun] at all three of us ” by waving it. Op. at 1066 (emphasis supplied).
I would reverse and remand with instructions to vacate two of the three convictions.