dissenting.
I respectfully dissent. To sustain a convietion for the offense of Criminal Recklessness, the State has the burden of proving beyond a reasonable doubt each material element of the crime charged. Padgett v. State (1978), Ind.App., 380 N.E.2d 96, 97.
The essential and material elements that the State had to prove to convict D.B., beyond a reasonable doubt, of the crime of criminal recklessness as a class D felony are found in Ind.Code 85-42-2-2 as follows:
See. 2. (a) A person who recklessly, knowingly, or intentionally performs 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:
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(2) Class D felony if it is committed while armed with a deadly weapon.
The totality of the State's evidence in support of its case-in-chief was presented through the testimony of J.R., another juvenile, and his aunt, Lisa Gunn. Approximately two days prior to the incident in question, D.B. had gotten into a fight with J.R. regarding his sister. (R. 24). D.B. and two of his companions appeared at a residence across the street from J.R.'s home and, according to J.R.'s testimony on direct examination, the following occurred:
Q. ...l. What happened then?
A. Somebody-they pulled out the gun.
Q. They pulled out the gun? Did you see who had the gun?
A. No.
Q. You didn't see who had the gun?
A. No.
Q. Did you see a gun?
A. Yes, I saw a gun.
Well, how was it that you saw a gun? ©
I ran in the house. >
Pardon? o
I ran in the house. >
o Well, before you ran in the house, Where did you see the gun?
A. In one of their hands.
Q. In one their hands? Tell us about that. Where were you when you saw this gun?
A. In front of the house with all my brothers and sisters on the porch.
Q. And A. and D. and this other person, did they come together?
A. Yes.
# #k ## *s # *
Q. Was something said?
A. No.
Q. You saw a gun and ran in the house?
A. Yes.
Q. Did you see what kind of gun it was?
A. No.
Q. Well, was it a rifle like a long gun or short gun?
A. Little, short gun.
Q. A pistol?
A. Yes.
Q. Was it shiny or black or blue or what color?
A. I don't know.
Q. Well, did you see enough of it-was it shiny like this microphone (indicating)?
A. (no response)
Q. Was it the color like part of this witness area?
A. I think, yes, black.
Q. Was it pointed at you?
A. It was pointed at over where we was at.
Q. Were there any gun shots?
A. No.
*1234Q. -It was pointed over to where you were at?
A. Yes.
Q. Do you remember calling the police?
A. Yes.
Q. Do you remember who you told the police had the gun?
A. No.
Q. Don't you? But one of the three people had the gun?
Yes. |
You are sure of that? ©
Yes. p
Are you afraid right now, J.R.? ©
No. p
You are not afraid? $
(witness shakes head) >
Are you afraid of D.B.? 6
No. >
No? 6
No. >
(R. 23-26).
The defense did not cross examine J.R. Subsequent to J.R.'s testimony, the State presented the testimony of his aunt, Lisa Gunn, who testified to the following:
Q. -I want to direct your attention back to this past May 6th about 2:00 or 2:80 in the afternoon and ask you if you were at or around J.R.'s home on Carlisle Street?
A. Uh-buh, 521.
Q. Did you see three young men approach his house?
A. Yes, I did. Well, they didn't come to his house, they were across the street in front of the house. Like J.R. said, they had an incident with his sister and D.B. was in the middle and there was a guy on each side of him, and he was the one that had the pistol.
Q. D.B. had the pistol?
A. Yes, he did.
Q. Where were you when all that was happening?
A. I was standing-well, when they had came out-my niece had came-well, it was like J.R. and D.B. and them was out there and they wanted to fight, you know.
They had little words, and I don't really recall what was said because they had a few words and stuff, and he pulled out the pistol. I was out on the porch because all my nieces and nephews was outside plus neighbors' kids, and I was telling them to go in the house. And, at the present time, J.R.'s mother was there and she was the one that called the police.
Q. Did you get a good look at the gun?
A. I don't know of guns, no-
Q. Well, let me ask you-
A. No, not really, because they was across the street and I was on the porch.
Q. Could you tell how big it was?
A. It was like that (indicating).
Q. Could you show the Judge with your fingers how big it was?
A. Td say it was a handgun, you know, so-
Q. Do you know the difference between calibers, do you know the word, caliber?
A. Hub-ch. I just heard of them. No, I don't know.
Q. Did you see what he did with the gun?
A. At the present moment when we were out there and I was telling J.R. to stop and J.R. went in the house and said, you know, he was coming back out, you all stay in because I said, you never know what will happen with a gun. At the present time, I was getting them in the house and stuff, and then when he heard the police was coming, they all took off.
Q. Did you see D.B. point the gun in any way?
A. It was pointed like outwards.
Q. Was it pointed across the street to where-in your direction?
A. In our direction towards us, but not at no certain person. Everybody was just out there so-
Q. There were a lot of people out there?
A. J.R.'s sister, his brother, his younger brother and sister, plus some of their friends.
(R. 28-81).
Again, the defense elected not to cross examine the State's witness. The evidence, *1235herein, is unrefuted that D.B., while standing across the street, pointed a gun of some type at or in the direction J.R. or others. (R. 80). The gun was never recovered and the State failed to present any probative evidence to substantiate: 1) whether it was a toy, pellet, or a real gun;1 2) whether the gun was loaded or unloaded; 3) whether the gun was operable or even capable of firing a projectile by D.B., hence, whether it created a substantial risk of injury to another person.
Generally, criminal or penal statutes are to be strictly construed against the State and in favor of the defendant. In this writer's opinion, the State failed to carry its burden of proof on all the essential and material elements of the crime of criminal recklessness. The State's evidence failed to prove beyond a reasonable doubt, that D.B.'s conduct in this case of pointing a gun, standing alone, created a substantial risk of bodily injury to J.R. or to anyone else.
The majority's decision in this case seems to be in direct conflict with several recently decided cases by this court involving defendants who were charged with criminal recklessness involving the use of handguns. Admittedly, the facts in Warren v. State (1993), Ind.App., 615 N.E.2d 500 and Reynolds v. State (1991), Ind.App., 573 N.E.2d 430 differ from the facts in this case; however, in both cases, in essence we held that the State bore the burden of proving, beyond a reasonable doubt, that the guns in question were capable of creating a substantial risk of bodily injury to another person. Specifically, in Warren, supra, we held the following:
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. The State argues, however, that mere use of a handgun can cause the participants to act in ways that endanger them; thereby, creating a substantial risk of bodily injury. "Something is substantial if it has 'substance or actual existence."" Elliott v. State (1990), Ind.App., 560 N.E.2d 1266, 1267 (quoting Webster's Third New International Dictionary 2280 (1966)). Thus, a substantial risk of bodily injury may not be proven by mere speculation for which there has been no evidence presented at trial. Elliott, 560 N.E.2d at 1267.
Id. at 502.
I agree with the majority that it is axiomatic that the State must carry its burden of proof throughout the entire proceeding. I disagree that once the State has presented a prima facie case, as in this case, showing the possibility of guilt, the burden of going forward shifted to the defendant to revive reasonable doubt. The presentation of a prima facie case merely prevents the State's case from being dismissed by a directed verdiet in favor of the defendant. Holliday v. State (1970), Ind., 257 N.E.2d 679. The defense in this case was not required to raise or present an affirmative defense; hence, there was no duty or burden on it to prove or disprove the status of the gun, ie., whether it was loaded or unloaded; operable or inoperable; or whether it was capable of creating a substantial risk of bodily injury to another or to "revive reasonable doubt." -It is fundamental that the burden of proving, beyond a reasonable doubt, all the material and essential elements of the crime of criminal recklessness remained with the State throughout the entire trial Martin v. State (1973), Ind.App., 300 N.E.2d 128. The burden of proof on the prosecution never shifted to the defendant in this case, Smith v. State (1969), Ind., 249 N.E.2d 493; and based upon the facts of this case, we should not ereate a rule to shift such a burden to the defense. Hill v. State (1937), 212 Ind. 692, 11 N.E.2d 141.
I would reverse D.B.'s conviction for the offense of criminal recklessness.
. This writer is aware that on appeal D.B. is not attacking the status or the type of gun involved and, perhaps, he has waived that issue; however, I merely point this out to emphasize the weakness in the State's case-in-chief.