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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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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