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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. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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