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Justices: State must prove loaded gun

Jennifer Nelson
January 1, 2008
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The state has the burden to prove a gun was loaded when charging a defendant with pointing a firearm as a Class D felony, but it is up to the defendant to raise the issue when the state's evidence has not done so, the Indiana Supreme Court has decided.

In Henry J. Adkins v. State of Indiana, No. 20S03-0709-CR-374, the Supreme Court Wednesday upheld Henry Adkins' conviction of pointing a firearm as a Class D felony because during the trial he failed to bring up the issue of whether the gun was loaded or not. If it could be shown he pointed an unloaded gun, he would have been convicted only of a Class A misdemeanor.

Adkins presented an issue regarding the jury instructions, "... (I)f the State proved [all] of the elements of pointing a firearm, but the defendant proved by a preponderance of the evidence that the firearm was unloaded, then, and only then, may you find the defendant guilty of pointing an unloaded firearm."

Adkins contended the state, not the defendant, has the burden of proving the "unloaded" element.

Adkins is correct, the Supreme Court found, because it interpreted Indiana Code Section 35-47-4-3(b) to mean an unloaded gun is a mitigating factor that reduces a defendant's culpability from a felony to a misdemeanor, Justice Frank Sullivan wrote.

The high court compared the act of proving a gun was unloaded to the matter of establishing "sudden heat" in prosecutions of murder and held it applies with respect to Class A misdemeanor pointing a firearm.

If a defendant is charged with the Class D felony offense but wants to be convicted of the Class A misdemeanor, the defendant only bears the burden of placing the issue of whether the gun is unloaded when the state's evidence has failed to do so. Then, the state must prove beyond a reasonable doubt that the firearm was loaded.

In this case, however, Adkins never offered evidence to suggest the firearm was unloaded when he pointed it at another person. In fact, there is evidence to show the gun was loaded when he pointed it, because afterward, witnesses testified they heard gunshots when Adkins was outside. Because of this, the instruction given by the trial court constituted a harmless error, Justice Sullivan wrote.
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