D.B. v. State

OPINION

BARTEAU, Judge.

The trial court found D.B. to be a delinquent child with regard to the commission of the crime of criminal recklessness. D.B. claims on appeal that the evidence was insufficient to prove beyond a reasonable doubt that his conduct with a gun created a substantial risk of bodily injury to another.

FACTS

After quarreling with a schoolmate, D.B. and another youth approached the home of the schoolmate who was sitting on the front porch with his family. After exchanging words with his schoolmate from across the street, D.B. pointed a handgun at the people sitting on the front porch. D.B. fled the seene when the police were summoned, but was later apprehended. The police never recovered the weapon.

The State filed a Petition Alleging Delinquency, charging D.B. with carrying a handgun without a license, a Class A misdemean- or, and criminal recklessness, a Class D felony. The trial court found D.B. a delinquent child with regard to both counts. D.B. does not challenge the allegation of unlawful possession of a handgun, and limits his appeal only to the finding of criminal recklessness.

DISCUSSION

Criminal recklessness is set out in Ind.Code 85-42-2-2, which states 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
* * * # * *
*1232commits criminal recklessness, a Class B misdemeanor. However, the offense is a
*t "k " * d i
(2) Class D felony if it is committed while armed with a deadly weapon.

Any handgun, whether it is loaded or unloaded, is a deadly weapon. ILC. 35-41-1-8. However, previous cases have held that an unloaded firearm does not create a substantial risk of bodily injury in the context that it cannot be used to shoot someone. See Warren v. State (1993), Ind.App., 615 N.E.2d 500; Reynolds v. State (1991), Ind.App., 573 N.E.2d 430, trans. denied; see also, Mahone v. State (1981), Ind.App., 429 N.E.2d 261; cf., Warren, 615 N.E.2d at 503 (Sharpnack, C.J., dissenting) (one may use an unloaded handgun to "pistol whip" another, creating a substantial risk of bodily injury).

D.B. argues that the State failed to prove the gun was loaded and therefore did not show that he created a substantial risk of bodily injury. D.B. bases this argument on recent decisions involving similar cireum-stances.

In Reynolds, we held that "the State was required to prove that the handgun ... was in fact loaded to sufficiently convict [the accused] of criminal recklessness." 573 N.E.2d at 433; see also, Mahone, 429 N.E.2d at 263. Similarly, in Warren, we held that merely pointing an unloaded firearm at another, without more, does not create a substantial risk of bodily injury. 615 N.E.2d at 502. However, each of those decisions is limited to their circumstances, and D.B. seeks to extend their application beyond the scope of their contexts.

In Reynolds, the Information charging criminal recklessness included the specific allegation of pointing a loaded handgun at another. 573 N.E.2d at 433. In order to prove the crime as charged, the State was required to prove the gun was loaded. Id. D.B. improperly reads Reynolds as requiring the State to prove a loaded weapon in every prosecution of criminal recklessness involving a firearm. In D.B.'s case, the Petition Alleging Delinquency does not specify that the gun was loaded, and the specific holding of Reynolds does not apply.

In Warren, we found that there was no substantial risk of bodily injury after conclusive evidence was presented at trial demonstrating that the gun the accused pointed at another person was not loaded. 615 N.E.2d at 502. Like Reynolds, Warren does not hold that the State must prove a loaded weapon in every prosecution of criminal recklessness involving a firearm. Rather, evidence of an unloaded weapon may serve to disprove the accused created a substantial risk of bodily injury. Id.

The State must sustain its burden of proof on each element of the offense charged, and such elements may be established by circumstantial evidence and logical inferences drawn therefrom. Mitchell v. State (1990), Ind., 557 N.E.2d 660, 662. To carry its burden of proving the charge of criminal recklessness against D.B., the State was required to demonstrate that D.B. recklessly, knowingly or intentionally pointed a handgun at or in the direction of his schoolmate, creating a substantial risk of bodily injury.

It is axiomatic that the State carries the burden of proof throughout the entire proceeding. But, onee the State has presented a prima facie case showing guilt, the burden of going forward shifts to the accused to revive reasonable doubt. Peabody Coal Co. v. Ralston (1991), Ind.App., 578 N.E.2d 751, 754 (citing Denton v. State (1979), 182 Ind.App. 464, 471, 395 N.E.2d 812, 813, aff'd on reh'g, 398 N.E.2d 1288, 1289). The prosecution presented unrefuted evidence that D.B. had quarrelled with his schoolmate. Afterwards, D.B. stood across the street from his schoolmate's house and exchanged words with the schoolmate who was sitting on the front porch with his family. D.B. then produced a handgun and pointed it in the direction of those sitting on the porch. Although the gun was never recovered, there was no evidence presented demonstrating that the gun was not loaded. Under the cireumstances of this case, it was within the breadth of the fact finder's discretion to draw the reasonable inference that the gun was *1233loaded and created a substantial risk of bodily injury.1

AFFIRMED.

SHARPNACK, C.J., concurs. DARDEN, J., dissents with opinion.

. As noted by the dissent, an accused does not bear the burden of proving the gun was not loaded as an affirmative defense. However, from the evidence presented at trial, the fact finder could conclude beyond a reasonable doubt that the firearm was loaded and created a substantial risk of bodily injury. Such an inference is reasonable under these circumstances.