dissenting.
I dissent for the following reasons:
1. The understanding of the law by the Majority Opinion is incorrect. Its Opinion lacks any valid authority. It is based upon a dicta illustration and a dicta assumption.
2. Criminal recklessness does not require that the State prove the gun was actually loaded. The State's burden is to show the action of Al-Saud created "a substantial risk of bodily injury to another person." IND.CODE § 35-42-2-2.
8. Reynolds v. State (1991), Ind.App., 573 N.E.2d 430, trans. denied, and Warren v. State (1998), Ind.App., 615 N.E.2d 500 should be overruled by the Indiana Supreme Court since both are founded upon false assumptions which are contrary to the eriminal recklessness statute.
4. The trial court should be affirmed. Placing a revolver at the head of a person; telling that person "I should shoot you"; and pulling the trigger of the gun (loaded or "unloaded") is an act of criminal recklessness. It is an act which creates "a substantial risk of bodily injury to another person." (Emphasis added.)
The misunderstanding of the law by the Majority stems from an illustration set forth in Mahone v. State (1981), Ind.App., 429 N.E.2d 261, reh. denied. The question in Mahone was whether criminal recklessness was a lesser included offense of battery. To illustrate that it was not, the Makone court gave this illustration which is strictly dicta:
"While most batteries are preceded by the creation of a substantial risk of bodily injury, it is possible for a battery to be committed without first creating such a risk or engaging in the offense of recklessness under IC 85-42-2-2(a). For example, a *825person 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 a battery, does mot necessarily constitute reckless-mess. Thus, recklessness is not an "inherently' included offense of battery. It must therefore be determined whether the charging instrument alleges the commission of the lesser offense of recklessness by virtue of the manner and means allegedly employed by Mahone in the commission of the charged offense, battery." Id. at 263 (emphasis added).
The above from Mahone was merely an illustration to show that criminal recklessness is not an "inherently" lesser included offense of battery. The Mahone court was applying Roddy v. State (1979), Ind.App., 394 N.E.2d 1098.
Later, in Reynolds v. State (1991), Ind. App., 573 N.E.2d 430, the State alleged in its charging instrument that the gun was loaded. Unnecessarily, the court made the following reference to Makone and made the following assumption:
"We agree with the dicta in Mahone v. State (1981), Ind.App., 429 N.E.2d 261 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. However, we will assume-for the purposes of this opinion-that horseplay with a loaded revolver constitutes the crime of criminal recklessness." Id. at 488 (emphasis added).
Whether a defendant pointing a gun at the victim and demanding she have sexual intercourse with him creates a substantial risk of bodily injury is a question of fact for the jury to decide. In Reynolds, the jury found that it did create a substantial risk of bodily injury. On appeal, the Reynolds court held that it did not and reversed the finding of fact by the jury that a substantial risk existed. The Reynolds court reversed because the State did not prove that the gun was loaded.1 The State did not have to prove that the gun was loaded. The statute does not require it.
To compound the misunderstanding of the illustration in Makone and the assumption in Reynolds, the court in Warren v. State (1993), Ind.App., 615 N.E.2d 500, picked up the loaded gun torch and carried it to new heights.
"We agree with the reasoning of the courts in Mahone and Reynolds and hold that merely placing an unloaded firearm against another, without more, does not create a substantial risk of bodily harm. The evidence here shows that Warren placed the unloaded gun against Mr. Sad-ler's stomach and waved the gun in his presence. This evidence is insufficient to support a conviction for criminal recklessness because the State failed to prove that there was a substantial risk of bodily injury." Id. at 502.
Again, the Warren court decided a question of fact as did the Reynolds court. Whether a gun, loaded or unloaded, creates a substantial risk of bodily injury to another person is a question of fact to be decided only at the trial level-not on appeal. The Makone illustration, admittedly dicta, was merely made to show that criminal recklessness was not inherently a lesser included offense of battery and had to be alleged by the State in its charging instrument. Reynolds and Warren should be overruled by the Indiana Supreme Court and Al-Saud's conviction should be affirmed.
For the reasons set forth above, I dissent.
. "Under the circumstances of the present case, we believe that-for Reynolds' act to have created a substantial risk of bodily injury to anyone-the gun he brandished had to have been loaded. Therefore, we conclude that-under the circumstances of the present case-the State was required to prove that the handgun Reynolds aimed at Yung was in fact loaded to sufficiently convict Reynolds of criminal recklessness." Reynolds, supra, 573 N.E.2d at 433.