dissenting.
I dissent for the following reasons:
1. Meek’s tendered jury instruction contained an accurate statement of the law which was key to one theory raised in his defense.
2. The specific point of law in Meek’s instruction was not adequately covered by the instructions given to the jury.
Relevant to this appeal is the final paragraph of Meek’s tendered jury instruction refused by the trial court, which stated:
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.
This language reflects the current state of Indiana law, most recently reiterated in Warren v. State (1993), Ind.App., 615 N.E.2d 500. In Warren, the defendant placed an unloaded gun against the victim’s stomach and waved it in front of the victim’s children. Id. at 501. Writing for the majority, Judge Barteau concluded that “merely placing an unloaded firearm against another, without more, does not create a substantial risk of bodily harm.” Id. at 502. Meek offered some evidence at trial that his gun was unloaded when the confrontation occurred.2 His evidence sufficiently raised the theory of defense that should the jury believe Officer Goddard’s testimony regarding Meek’s conduct, the jury should consider whether the gun created a substantial risk of bodily injury. The above instruction is thus an accurate statement of the law sufficiently supported by the evidence.
The Majority concedes that Meek’s tendered instruction was a fuller statement of the law provided in the court’s instruction. According to the Majority, however, because the court’s instruction was accurate, it was sufficient, and Meek’s fuller statement of the law was not required. This analysis fails to consider the trial judge’s duty to instruct the jury in “all matters of law which are necessary for their information in giving the verdict.” IND.CODE 35-37-2-2 (1988). The court’s instruction, without more, wholly ignores a matter of law relevant to Meek’s theory of defense; that is, the legal definition of substantial risk of bodily injury in the context of an unloaded weapon. In order to properly conclude that the State met its burden of proof as to each element of criminal recklessness, the jury should have been instructed on this aspect of the law. Moreover, a careful review of the remaining final instructions indicates no other reference to this point of law.
Meek’s tendered instruction is a correct statement of Indiana law. It is sufficiently supported by evidence in the record and not included in the instructions actually given. Under our standard of review, these facts leave me with no choice but to conclude that the trial court committed reversible error in rejecting Meek’s tendered instruction. I would reverse and remand for a new trial.
. The Majority correctly asserts that in this case, the evidence is inconclusive whether the gun was unloaded when the confrontation between Meek and Officer Goddard occurred. However, conclusive evidence is not required to entitle Meek to a jury instruction on his theory. A criminal defendant is entitled to have the jury instructed on any theory of defense that has some foundation in the evidence, even if the evidence is weak and inconsistent. Dayhuff v. State (1989), Ind. App., 545 N.E.2d 1100, 1102.