# Brown v. State

> Indiana Court of Appeals · July 2, 2003 · 790 N.E.2d 1061

URL: https://www.frixlaw.com/law-library/cases/9744384

## Case

- **Full name:** Demetreous BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** July 2, 2003
- **Citations:** 790 N.E.2d 1061; 2003 Ind. App. LEXIS 1203; 2003 WL 21508403
- **Precedential status:** Published
- **Opinion:** Concurring in part by Sullivan
- **Judges:** Sharpnack, Kirsch, Sullivan
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744384

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744384. Public record. Not legal advice.