dissenting.
I dissent for two reasons.
First, there is insufficient evidence that Curtis Smith created a “substantial risk of bodily injury to another person.”
Secondly, the rationale employed by the Majority is misplaced when Boushehry v. State, 648 N.E.2d 1174 (Ind.Ct.App.1995) and Elliott v. State, 560 N.E.2d 1266 (Ind.Ct.App.1990) are cited in support of their rationale. Both of these cases should be disapproved by the Indiana Supremé Court because they misinterpret the intent of the legislature. The intent of Ind.Code § 35-42-2-2(b) is to prohibit conduct which creates a “substantial risk of bodily injury” to another person. The emphasis should be placed upon the “substantial risk” of bodily injury and not the remote possibility of bodily injury. “Risk” does not require absolute proof that a person is in the “line of fire;” is present in a house; is hunting in a woodland; or is driving down a road at a particular time. It is the substantial risk created under conditions where persons are known to be present or expected to be present.
Curtis Smith was firing a Tech 9 millimeter pistol into an old parked car in his backyard. Ten residential homes were fifty yards or more away. There is vague testimony about one of the residents being in Smith’s “line of fire”, but without more, this testimony is meaningless unless supplemented by some evidence which would indicate that Smith raised or pointed his pistol high enough to hit the residence, fifty yards away, instead of the old car in his backyard or the ground in his yard. There is absolutely no evidence that any person was at risk, nor do the conditions described constitute a “substantial risk” of bodily injury to anyone. The evidence is insufficient to sustain the verdict. A complaint to the police from a neighbor is another matter not covered by this Statute.
Boushehry and Elliott have as their foundation a definition of “substantial risk.” They conclude that the risk has to be one of “substance or actual existence.” In other words, someone has to be present to receive the bodily injury. The risk that the Statute is trying to avoid relates to physical conditions that a person could reasonably expect would cause bodily injury. For example in Boushehry firing a rifle across Shelbyville Road was not a violation because Boushery didn’t see a person in a car coming down the road. In Elliott, five pistol shots were fired into a woodland area next to Elliott’s business. Hunters were known to hunt in the woodland area. Because Elliott did not see a hunter in the woodland, his conviction was reversed.
According to Boushehry and Elliott, a live person has to be in the “line of fire” or in the cross-hairs of your sights or nearly so. Otherwise, there is no violation of the Statute. In Boushehry, the Court referred to the Elliott reversal:
In deciding Elliott, this court determined that the word ‘substantial’ as used in the criminal recklessness statute, means something that has ‘substance or actual existence.’ Id. (quoting Webster’s Third New International Dictionary 2280 (1996)). Based upon this definition, this court rejected as ‘mere conjecture’ the State’s contention that a hunter ‘could have been in the woodlands, out of Elliott’s sight.’ Id. ‘A substantial risk of bodily injury may not be proven by mere speculation for which there has been no evidence presented at trial.’ Boushehry, at p. 1177
Boushehry and Elliott have substituted Webster’s Dictionary definition of “substantial” for the statutory intent of the Indiana Legislature. The statutory intent is to prohibit conduct which could reasonably cause bodily injury. It is not neeessary to prove that a person was actually present. If this were the intent of the Statute, it would invite reckless conduct where the actual presence of persons could not be proven. It is quite likely that a person witnessing someone shooting in his direction would seek to distance himself from the shooter. Too, the State should not have to produce someone who has been injured bodily to show that the *1293conduct was reckless. Each case must be decided individually on the reasonableness of the conduct and the risk exhibited — not upon Webster’s Dictionary.
Smith was in his own yard shooting at an old car known to be unoccupied. The nearest house was fifty yards away. The proximity of people who were coming from a park is not known. There is absolutely no evidence that Smith pointed his 9 millimeter pistol at any object or person within “range” of his pistol. The noise created by firing the pistol was disturbing to neighbors and may have caused some apprehension to some neighbors. But, this is only bad judgment on Smith’s part. It does not mean that he violated the Statute by his conduct. The Statute does not cover bad judgment — only reckless conduct which may cause bodily injury-
I dissent.