concurring in result in part and dissenting in part.
. I respectfully dissent from the majority's affirmance of Davis's resisting law enforcement conviction and concur in result in-its affirmance of his robbery conviction and sentence.
The majority concludes that the failure to instruct the jury on the elements of resisting law enforcement, to which omission Davis did not object, did not constitute fundamental error. I do not agree. The Indiana Supreme Court has stated, "we have no doubt a total failure to give an instruction detailing the elements of the offense would be available as reversible error on appeal absent compliance with the contemporaneous objection requirement." Lacy v. State, 438 N.E.2d 968, 971 (Ind.1982). The majority acknowledges this statement but characterizes it as "arguably dictum" because the Court went on to hold that there was not a "total failure" to give an instruction on the elements of the offense where such an instruction had been given as a preliminary instruction, though not as a final instruction. See id.
*1117I do not think that quote from Lacy is dictum that was unnecessary to the resolution of the case. It does appear that if there had been a total failure to give an instruction on the elements of the offense in Lacy, there is "no doubt" the Court would have reversed the conviction. -
The mere fact that a statement might be characterized as dictum does not mean it is incorrect. The Lacy opinion also states, "Certainly appellant is correct in his assertion the giving of an instruction detailing the elements of the offense, or defining or explaining its nature is necessary procedure in a criminal trial." Id. It also quotes precedent from the United States Supreme Court holding as follows:
[Where the error is so fundamental as to not submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed.
Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945). The combined effect of Lacy and Screws is clear: total failure to instruct the jury on the elements of an offense is fundamental error that is not waived for failure to make a contemporaneous objection.
There was a total failure here to instruct Davis's jury on the elements of resisting law enforcement. No such instruction was given either in the preliminary or final instructions. Providing the jury with the charging information against Davis did not cure this error. The information advised the jury of what the State alleged against Davis. No instruction, however, advised the jury that the State had to prove what was alleged in the information or that the information reflected the statutory elements of resisting law enforcement. By contrast, the jury both was provided with a copy of the robbery information and was specifically and separately advised of the statutory elements of robbery and that the State had to prove each of those elements beyond 'a reasonable doubt. This is what should 'and must happen in every criminal case, but it did not happen with respect to Davis's resisting law enforcement charge. I vote to reverse that conviction and remand for further proceedings.12
I concur in the affirmance of Davis's conviction for robbery with a deadly weapon. I do not subscribe to the majority's analysis of whether the unloaded pellet guns were "deadly weapons." Specifically, the majority places much emphasis on whether the tellers and customers were afraid of the weapons or believed that the guns were "real." I conclude that this should not be a relevant consideration in assessing whether an item is a "deadly weapon" within the meaning of the criminal code. Taken to its extreme, this approach could lead a finger or a stick of butter to be found a "deadly weapon," if a robber were to point the finger or stick of butter from underneath a coat and was able to convince the victim that it was actually a gun.
'Indiana Code Section 35-41-1-8 provides that a "deadly weapon" includes, besides firearms, devices or materials "that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily *1118injury." In my view, the plain language of this statute requires that a non-firearm item 13 claimed to be a "deadly weapon" be actually capable of causing serious bodily injury, not that it appears capable of causing such injury to a victim or bystander. See Frey v. State, 580 N.E.2d 362, 364 (Ind.Ct.App.1991), trans. denied ("Whether sufficient evidence exists to establish a weapon is deadly is determined by looking to whether the weapon had the actual ability to inflict serious injury under the fact situation and whether the defendant had the apparent ability to injure the vice-tim seriously through use of the object during the crime.") (emphasis added).
To the extent that the victims here were afraid of Davis and his accomplice, that is already a necessary element of the base offense of robbery as a Class C felony-taking another's property by force, threatening force, or placing any person in fear. Ind.Code § 35-42-5-1. If there had been no fear or threat of force in this case, there would have been no robbery. The key factor, I believe, that distinguishes using a "deadly weapon" to commit robbery and elevates it to a Class B felony is that there is an actual heightened risk of harm to the victim.
I agree that pellet or BB guns can be considered: deadly weapons as defined in Indiana Code Section 35-41-1-8. Merriweather v. State, 778 N.E.2d 449, 457 (Ind.Ct.App.2002). I also acknowledge that other cases have found the victim's belief that a weapon was "real" to be a relevant consideration in deciding whether the weapon was "deadly." See id.; Whitfield v. State, 699 N.E.2d 666, 670 (Ind.Ct.App.1998), trans. denied. However, I believe the proper analysis for whether a pellet or BB gun is a "deadly weapon" is limited to whether it actually could have been used to cause serious injury or death, either through its intended use or as a bludgeon. See Glover v. State, 441 N.E.2d 1360, 1362 (Ind.1982) (noting evidence that air pistol, when discharged at close range, could result in extreme pain or the loss and impairment of hearing or sight); Barber v. State, 418 N.E.2d 563, 568 (Ind.Ct.App.1981) (noting that "even a blank revolver could be used as a bludgeoning instrument").
Here, as the majority recites there was evidence that the type of gun Davis possessed has in the past caused loss of eyesight, and in fact carried a warning label that it could cause serious injury or death. There was also testimony that this type of gun could be used to bludgeon someone, regardless of whether it was loaded. This evidence was sufficient to support Davis's Class B felony robbery conviction. I would go no farther than this in assessing whether the weapon he used to commit the robbery was a "deadly" one.
Finally, regarding Davis's sentence, I disagree with the majority that he waived his claim of a.Sixth Amendment violation by failing to object during a sentencing hearing conducted before our Supreme Court decided Smylie v. State, 823 N.E.2d 679 (Ind.2005). See Muncy v. State, 834 N.E.2d 215, 218-20 (Ind.Ct.App.2005) (Barnes, J., dissenting in part). That said, however, I agree with the remainder of the majority's analysis of Davis's Sixth Amendment claim. I also fully coneur with the remainder of the issues discussed by the majority.
. I do agree that there is sufficient evidence to support the resisting law enforcement conviction, so double jeopardy would not bar his retrial for this offense if we were to reverse for instructional error. See Camm v. State, 812 N.E.2d 1127, 1138 (Ind.Ct.App.2004), trans. denied.
. Pellet and BB guns are not "firearms." See Merriweather v. State, 778 N.E.2d 449, 457 (Ind.Ct.App.2002).