*1 DeBRULER, DICKSON and
KRAHULIK, JJ., concur.
GIVAN, J., separate dissents with
opinion.
GIVAN, Judge, dissenting.
I must respectfully continue to dissent type of case. majority sets out given instruction judge. the trial It incomprehensible to me that reason-
able could read or hear the instruc-
tion believing in order to be found guilty the defendant must have in-
tended kill at the time he committed the
overt act.
I would affirm the conviction. MILLER, Appellant L.
(Defendant Below), Indiana,
STATE of Appellee (Plaintiff Below).
No. 70A04-9109-CR-296.
Court Appeals Indiana,
Fourth District.
June
751 Richmond, Turner, appellant. for LR. Gen., Pearson, Richard C. Atty. Linley E. Gen., Indianapolis, Atty. . Webster, Deputy appellee. MILLER, Judge. alcoholic with (Kerry), an
Kerry L. Miller by jury of delusions, was Rambo conizicfced Crimi Confinement, felony,1 B and a class Recklessness, felony,2 class D nal (18) years incarcera to thirteen sentenced CO; gas armed with Kerry was tion. looks pellet gun which caliber .177 powerеd sem 9mm 92 Beretta a Model exactly like handgun carried pistol, iautomatic Kerry claims Police. the Indiana right to Amendment that his Sixth was trial counsel his violated agree. do not We ineffective. sponte raise sua we his support was sufficient the evidence it was find that We felony conviction.3 B for Confine conviction his and vacate that find felony. We a B ment conviction supports evidence as a of Confinement offense included lesser D class re- reverse part and affirm We part. mand in (1982), Warriner cess." 35-42-3-3. Ind.Code 1. Ind. 562, 563, 271 citing Johnson v. 35-42-2-2(a). 2. Ind.Code 1005, 444 145, nom. denied sub cert. N.E.2d 390 302, 944, 62 LEd.2d 100 S.Ct. U.S. of an a "conviction said that court has This remain "Lest there held: Supreme Court has infer- and reasonable where evidence offense of the stature offense constitutional about the element doubt of a material ences totally standard, lacking explicitly error]." fundamental hold we [constitutes reasonable-doubt (1982), Ind.App., accused protects Clause the Due Meredith Process error fundamental beyond a as this "Inasmuch except upon proof 204, 208. against conviction record, arewe apparent the face of on neсessary con- every doubt reasonable fact convic- defendant's] compelled [the reverse charged." he is with which crime stitute the although he raises the issues sponte, sua tions 364, 358, S.Ct. U.S. Winship re I4. "Fun- error." appeal do not involve on added). (emphasis L.Ed.2d 1073, 25 1068, rectified, that, if error is error damental pro- due deny fundamental FACTS Kerry was drinking gin orange juice compelled sip Howell to take a gin. The facts most favorable to the verdict laying on desk that at p.m. about 10:50 April at the time. Howell convinced Rodney (Howell) Howell re- he go had to could, home and said he turning to his Milroy, home in Rush Coun- *3 but added that ty, Howell was Indiana. to return within As he drove a friend's car Street, down Walnut five or ten minutes or he was Kerry confronted else would him, get come and wearing a man military (Kerry) that he camouflage cloth- would be armed. Howell arrived at ing. his pointed The man handgun at agitated, home windshield of the told his car and friends that stopped. Howell were Howell, To person familiar with hand- present happened, what had and then re- Kerry's turned to Kerry house. guns, gun appeared then to be a 9mm Beret- changed his clothes and returned to recognized How- ta. Howell man Kerry Kerry Miller. then ordered get Howell, Howell to ell's house out house, of the car Once at and assume Howell's "push-up" the conver- position. sations complied. Howell continued Kerry to make then little sense to anyone except Kerry when referred to put his told Howell his hands behind his head and saying his in elbows front that he eyes. of his "had fifteen in clip record does not and one in pipe." indicate if Howell was [Translated: ground fifteen standing magazine or rounds in the point. (clip) this one in firing Finally, complied. while Howell chamber.] Howell saw a movement porch, on the Kerry picked fight with one out of the eyes corner of and heard a click. He testified that thought he friends, of Howell's (Hous- Mare Houston ton). Houston proceeded then Kerry to "beat the going shoot. hell Kerry. out of" Howell and his friends Howell then Kerry told his name in the went back into the house and called the hope Kerry recognize him and police. not shoot. Kerry recognized Howell, put waistband, in his made an obscene Kerry was arrested near his home and senseless and then Deputy Click and Officer Trout and Howell, comment sаid that Howell would now have to charged come with confinement and criminal party Kerry him. Kerry recklessness.4 A told Howell to showed obvious come into his house and Howell complied signs of intoxication and was bleeding from (the happened incident in Kerry's front of the nose and Kerry mouth. did not have home and place took period over a about gun on him. The officers ob (15) minutes). fifteen tained a search warrant and pel- found the Kerry charged with one count of confine- "Handgun" Sec. 6. any means firearm: felony ment as a B and with one count designed adаpted or so as to be aimed criminal (1) hand, recklessness, a D Both Infor- regardless fired from one mations state that the offense occurred length; barrel or "while said L. Miller was armed with a (2) any firearm with: deadly weapon, handgun." R. 54. The term (A) a barrel less than sixteen inches in "handgun" is not defined in the length; or Statute, Handgun statute. The Ind.Code 35-47- (B) length twenty-six overall of less than seq. 2-1 et contains the definition and various (26) inches. prohibitions. required carry A license is (Emphasis added). handgun in Indiana. handgun Webster's defines a as "a firearm Ind.Code held and Carrying 35-47-2-1 fired with one states: of hand- hand." Webster's gun prohibited; еxceptions Third Dictionary (1976). International Except Sec. 1. provided provides Ind.Code pertinent 35-47-2-23 part: section 2 of chapter, person (c) this person shall A who a hand- violates section 1 ... of this any vehicle chapter or on person, or about his commits a Class A misdemeanor. except dwelling, in his property on his felony the offense is a Class D if the business, place fixed person prior without a license is- has a conviction of offense sued chapter under being subsection, this posses- in his under or if the has sion. felony been convicted years оf a within fifteen 35-47-1-6 states: before the date of the offense. Ind.Code - attorney perfor- proper measure of It was desk drawer. let prevailing under appears mance reasonableness pellets, but loaded with cartridge gas strongly professional that there norms. It shall record no.CO2 half day and a pellet gun. After in the ade- presumed that counsel rendered guilty as trial, jury found significant and made all quate assistance charged. in the exercise of reasonable decisions serutiny judgment. Judicial professional
DECISION highly defer- performance is of counsel's not be exercised I. INEFFECTIVE COUNSEL ential and should hindsight. Isolated distortion denied that he was Kerry claims strategy, inexperience, or bad tac- poor a fair trial right to Amendment his Sixth *4 to ineffec- necessarily amount tics do not attorney's perfor defense his perfor- If deficient tiveness of counsel. that it undermined defective mance was so pro proven, defen- adversarial counsel can be function of the mance of proper a reason- must further show show cannot be relied dant that his trial cess so the out- probability that it altered able just result. The Fеderal having produced a by the a fair trial guarantees Constitution come of the case. provi
Due Process Clause
Ind.,
(1989),
537 N.E.2d
Mftari
Amendment. Strickland
of the Sixth
sions
469, 473-74.
668, 684,
(1984), 466 U.S.
Washington
inexperi
strategy,
poor
Isolated
2062,
2052,
L.Ed.2d 674.
80
104 S.Ct.
necessarily
or bad tactics do not
ence
right
long recognized that the
has
Indiana
Elliott v.
to
counsel.
system of
amount
to our
to counsel is fundamental
ineffective
century
Ind.,
More than a
before Gide
justice.
(1984),
or
465 N.E.2d
per
trial counsel's
335,
to ascertain whether
der
372 U.S.
Wainwright
on v.
799,
Su
L.Ed.2d
the Indiana
S.Ct.
must look
deficient
the court
formance was
defendant
held that
criminal
preme Court
determine
totality
the evidence to
to the
of
attorney
public
ex
right to an
had a
probability
there is
reasonable
himself.5
if
not afford one
pense
he could
errors,
the outcome
that,
for counsel's
but
(1854),
75A It is clear that with or without ef charge against him to a broader charge- counsel, fective Kerry would have been "while armed with a deadly weapon." convicted of criminal confinement as a The element of "while armed with a class D felony.6 He admitted intentionally deadly weapon" elevates Kerry's crime to a ordering Howell out of the car without class B felony.8 Instruction No. 6 ex Howell's consent and confining him for plained that "the word firearm means about fifteen minutes.7 did weapon that capable of or designed to or not accеpt Kerry's acts, defenses for his that may readily be converted to expel a i.e., self-defense and voluntary intoxication. projectile by means of an explosion (em performance, Counsel's best, not the while phasis added)." Instruction No. 5 defined does not sink to the level of ineffective "deadly weapon": counsel. "The term 'deadly weapon' is defined law as meaning: II. SUFFICIENCY OF THE EVIDENCE a. a loaded or firearm; unloaded The dispositive element here is weapon, b. a device, (as taser defined whether the Kerry was guilty 35-47-8-8) I.C. or electronic stun in the Informations Jury (аs defined LC. 85-47-8-1), Instruction 2-i.e., No. that Kerry confined equipment, substance, chemical or other Howell "while armed with a deadly weap *5 material that in the used, manner it is on, namely, a handgun (emphasis added)." or could ordinarily used, be or is intended to R. 54. Throughout case, this used, be is readily capable of causing Information to the Jury Instructions, the serious bodily injury." 35-41-1-8 [I.C. concepts of deadly weapon, firearm, and by added P.L.311-1988, 9, handgun were confused and intermixed. section P.L.81-1985, section By statute a handgun is a firearm. 1.] N. See 4, supra. By inserting phrase the Finally, "name Instruction No. 7 stated that ly, a handgun" in information, the the "where different conclusions can be State chose to limit reached as to whether or not the weapon is the charges against Kerry illegal to the deadly, use of a firearm. question it is a of fact for The the Record is devoid attempt to amend to determine from description the the charges against Kerry by deleting the weapon, the manner of its use and the term "a handgun" and expanding the cireumstances of the case." 6. The trial court declined to sentence for committed while armed deadly weapon a Recklessness, Criminаl felony, a class D judge perceived the potential a jeopardy double Final explained Instruction No. 2 that to con- situation due to the manner in which the of- vict the Defendant, the State must have proved charged. fenses were by As noted each of following court in elements: (1992), Abron v. (1) Ind.App., 634, defendant, The Kerry Miller; L. denied, trans. (2) "[where the great- knowingly conviction of a and intentionally; er (3) crime cannot be had Rodney without confined commission of Howell without his con- crime, the lesser by ordering sent jeopardy double Rodney considerations Howell from a mo- separate bar tor vehicle. conviction and sentencing upon the lesser R. crime 73. sentencing when imposed is on the greater." Id. at 636. proper remedy is to 8. The explained trial court that "[ilf vacate the (if conviction and any) sentence for further beyond a reasonable doubt that the lesser crime. Id. at 637. the offense was committed while armed with a deadly weapon, you should find the defendant 7. The defining statute the offense of confine- guilty of criminal confinement felony. a class B ment which was in effect at the time of the Instruction No. 2, R. 73. charged offense part: reads in person "A knowingly who intentionally: or 9. This definition is quote almost a direct of LC. (1) Confines another the other 35-47-1-5. A technically more accurate defini- person's consent; (2) or Removes per- another "(aln tion of a firearm is instrument used in the fraud, by son enticement, force, or threat or shot, propulsion shell, or bullets the action
force,
place
another;
from one
commits
gunpowder
exploded within
weapon
it. A
confinement,
criminal
ever,
a
class D
How-
which acts
gunpowder."
force of
Black's
the offense is a
felоny
class B
if it
(4th
Dictionary
Law
1968).
ed.
complain-
rifle,
hit the
above),
law, but
statements
correct
These
shin, calf, thigh, and
case.
in this
times-in
four
ant
applicable
not all
appar-
clearly
Thus, it was
violating L.C.
Id.
charged with
buttocks.
specifically
was
readily capable
was
rifle
thus,
there
that
ent
35-41-1-8(1), not subsection
Like
had.
6.
bodily injury-it
No.
Instruction
causing
serious
need
no
was
vio
charged with
Kerry was
wise, because
case, Kerry was
instant
in the
Instruc
need
no
(1),
was
there
lating §
hand
use of
illegal
charged with
only
Kerry was
No. 7.
tion
clearly estab
The State
firearm.
gun-a
re
therefore,
instruction
viоlating §
testimo
the uncontroverted
lished, through
error.10
garding §
Kerry's pellet
Click, that
Deputy
ny of
stat
our
under
that
recognize
We
Thus,
awas
there
handgun.
not be
need
or device
ute, weapon
information,
in
between
variance
weapon."
"deadly
to be
firearm
trial.
produced
proof
structions,
device
weapon or
for a
states
statute
be
difference
an essential
"A variance
(other
deadly
considered
Mul-
proof."
pleading
tween
manner
be, "in the
firearm),
it must
than
Cir.1903), 120 F.
(8th
States
v. United
used, or is
gan
ordinarily be
used,
could
it is
reversal,
variance,
warrant
98,
A
cаpable of
readily
used, ...
to be
intended
might
one,
such
a substantial
"must be
Id.
injury."
bodily
causing serious
Madison
mislead
defense...."
have
courts
Indiana
note
alsoWe
N.E.2d
Ind.
(1955), 284
consid-
can be
guns
BBor
held that
Ar-
Judge
concurring).11
J.,
(Arterburn,
the statute.
within
weapons
ered
"In other
explained:
further
terburn
Ind., 441
v. State
e.g., Glover
is, ...
fatal
words,
variance]
the test [for
(1988), Ind.
1360; Williams
N.E.2d
by the variance
misled
involved
case
Each
App., 451
*6
speci
and
allegations
from
in the evidence
court deter-
the
each
and in
crime
a violent
preparation
in the
charge
in the
deadly
a
fications
was
used
the device
that
mined
defense,
was
ability of the
of
the actual
of
maintenance
weapon because
thereby?"
Id.
prejudiced
or
capable
he harmed
of
weapon
a
function
gun to
the
injury under
bodily
inflicting serious
Kerry's
that
record
the
from
It is clear
in each
cireumstances.
factual
the
on
defense
primary
her
based
counsel
(2)
charged under §
was
defendant
the
case
charged
Kerry was
information, ie., that
also,
v.
Frey
(or
predecessor).
its
the
committing
in
firearm
using a
with
862, 364.
N.E.2d
580
Ind.App.,
State
a di
for
moved
Counsel
charged.
crime
Frey,
In
pellet
a
involved
Frеy too
State's
the
of
close
at the
verdict
rected
weapon
the
fired
actually
defendant
the
clearly
had
the State
that
arguing
case
cited
the cases
in
defendants
(unlike the
the
trial
a new
for
a motion
cause
statute,
ais
a firearm
per the
As
10.
not be
finding
the court
of
or
verdict
unloaded, whether
or
loaded
weapon
all
Not
evidence....
by sufficient
sustained
modifying
The
non-functional.
or
functional
variance
reasoning
cases
[in
the
of
bodily
causing
capable
(2), "readily
of
clause
the
with
be reconciled
proof] can
оf
failure
apply to a firearm
injury"
not
does
Rights
Bill of
our
under
rules
established
well
the statute.
cases,
general
the
but
reasoned
the better
first
the
recognized from
well
has been
rule
meaning of
explained the
court
Madison
11.
allegation
prove a material
to
'a failure
that
thus:
"variance"
is fatal.'"
the offense
descriptive of
court
at 42.
Madison,
N.E.2d
supra, 130
that
isit
where
""Thus
the above:
following
to
footnote
horse,
horse
a black
added
proof that
a white
stole
stolen
been
charged to have
thing
McCallister
suffice'
not
will
stolen
"If
was
partic-
greater
with
indictment
in the
described
N.E.2d
Ind.
unnecessary
requires,
ularity
the law
than
was stolen
any
prove
horse
fails to
If the
rejected as
be
cannot
descriptive averments
proves a
if the state
proof, but
is a failure
it
alleged. 36
proved as
be
but must
surplusage,
charged was stolen
that
from
different
horse
§ 96."
C.J.S., Larceny,
372;
variance,
a failure
852, §
logically
is still
C.J.
it
but
it is
added).
(emphasis
1d.
case it is
charge
In either
made.
prove the
shown
that the
question
by a blow-gun or an air rifle ... al-
pellet
was a
gun, not
firearm,12
therefore Kerry
could
though
each
throws missiles that
can
not
guilty
causе
charged.
death.... When the state
R.
319. At
failed
prove
closing argument
allegation,
essential
said:
"[that
verdict was
pellet
not
by
sustained
suffi-
not a
firearm.
If
it's not a
cient
evidence.
firearm,
it's not a deadly weapon [as
Madison,
charged in
supra,
44-45. Our
If
it's
not a
information].
deadly weapon,
supreme
then Kerry
court's
Miller is
reasoning
Madison is
dispositive of
guilty."
R.
case. Therefore,
495. The
beyond
we
find that the
evidence was
insufficient
reasonable doubt
gun was
convict Kerry of the
crimes with
which
he
firearm.
Madison,
supreme
our
charged:
(1) criminal
court
confinement
addressеd a similar
issue and said:
while armed with a deadly weapon-
If the state had charged the decedent
"namely, a handgun"-as
a class B felony;
killed
loaded with gunpow-
criminal
recklessness
as a class D
der and
bullets,
metal
it would be a fatal
felony because he was not
with a
armed
variance
permit
a conviction to stand
deadly weapon-'"namely,
a handgun,
when the evidence showed he was killed which created a substantial risk of bodily
12. The State
Ooley by the State went
pert, though the Record is
tional
R. 215.
was."
gun. R. 221-22.
know
handle—or the
>o>o
A.
Indiana
ences
Q. By
A.
looks like?
whats
here State's Exhibit No.
©>rororoyp
Police routinely assigns?
A.
*7
Q. What
Indiana State Police?
Q.
The State then
A.
Q. How was it loaded?
Deputy
Indiana State
Okay,
I'm
What
There
Fire the
It looks like the 9mm carry.
That's
Trooper Ooley,
It's the
It's
And Beretta? ...
It's the Beretta
And what does the Imm mean?
Yes,
the G-92 What does mean?
Mike,
It was loaded
questions.
how this
between that
#
looking
already
just
sure it
Click
I am.
this
about
is the
is a
just
uh,
introduced the
a model number
same
chp
Police
as to the
you assigned
grip;
gun works,
loaded,
slight
a-a brand name.
does-pull
been marked and
called
caliber of
When asked
uh,
Police,
The questioning
slides out the bottom of the
that,
[*]
way?
G-92
and the
clip
I'm
this
have
difference....
Trooper
do
he
as follows:
operation
that the Indiana State
devoid of
apparently as an ex-
pellets.
semiautomatic
La
clip
operation?
going
1 and
you
assigned
answered
but I'm sure there
I
"expert"
firearm
doesn't-I
trigger.
weapon by
see
...
[*]
Mike
that it is.
to hand
ask
State if the
identified
you?
testimony
that the
Ooley
"[yles,
what
#
Trooper
founda-
differ-
Imm.
don't
you
R. 259-60.
R. 253-58.
A. Not that I'm aware of.
Q.
A.
license to
State's Exhibit
Q.
carry
A.
Q.
lice
Q.
first of
A. O-OOLEY.
Q.
A.
A.
Q. When it clicks?
it
have to do to make it fire?
A. Yes.
Q.
fautomatic?
A. Mine is.
Q. Okay.
Q. And is this a semiautomatic?
A.
causes
Q.
gas chamber.
force, is
A.
what
gas
Q.
off of-off of
A. That's
Q. Why
has to be a
clicks-until
*
Yes, you
And
I have no
Right.
-Beretta,
Now,
When the
I
Nothing-mine's
issue,
If,
I have no idea.
What
It's
When
cartridge.
just
that,
happens
ta
La
if
pressure?
all,
just
you pull
have a
this
happens
you say they're
how
do
Are
how do
place
gas
pellet
#
#
do.
handgun
you
further
you
trigger's
you
gas.
92-G-
1, you
these
(Emphasis added).
pressure;
Berettas,
that,
then cross examined:
cartridge?
couple,
inside
pressure
w
have
not?
w
hear a
with the
you
pellet guns?
going to fire.
trigger
do
questions.
don't have to have a
that is
back.
thаt's in evidence as
a license to have there
Trooper
spell Ooley?
you?
#
[*]
Imm
that's how it
click-what
operated
guns
inside the
gas
on that
someplace
your
Berettas,
te
se
chamber
Ooley.
off of
State Po-
gun
operated,
#
#
do
uh,
gets
until
sem-
Uh,
you
gas,
its
Ind.Code
the statute.
See
identical
Winship,
In re
R. 54.
injury...."
According
majority,
35-47-1-5.
§
n. 8.
supra,
of fire-
technically
definition
accurate
more
L. Mil
Kerry
vacate
therefore
[9] We
Dictionary
in Black's Law
is found
arm
Confinement
for Criminal
ler's conviction
part of the
gunpowder as
includes
which
to the trial
remand
felony
B
as a class
if we
n. 9. Even
Op. at
definition.
to sentence
instructions
court with
definition of
that Black's
to assume
were
Criminal
lesser included
for the
offense,
accurate,
technically
both
firearm is
felony.13
D
a class
Confinement
are bound
as the trial court
as well
court
statutory definition. Consolidation
by the
CONOVER, J., concurs.
Reve-
Dept.
v. Indiana
Coal Co.
nue
part
in
and dis-
RUCKER, J., concurring
Assembly has defined a
(where the General
opinion.
separate
senting
part
with
by that definition
word,
the court
bound
the common
though it conflicts with
and even
Concurring
RUCKER, Judge,
word);
meaning of the
Ware
part.
Dissenting
20, 28, rek.
(1982), Ind.App., 441 N.E.2d
Miller
majority that
agree
I
with
provides a
(when
Legislature
denied
ren-
trial counsel
to demonstrate
failed
word,
courts
bound
definition
I
assistance.
ineffective
dered
meanings
possible
it, regardless of other
majority's conclusion
agree
cannot
with
word).
no fault
I find
to the
attributable
Miller con-
prove
failed to
that the State
Instruction
court's tendered
the trial
with
handgun.
armed with
Howell while
fined
with
is consistent
The instruction
No. 6.
"handgun" is
majority points out
As the
gunpow-
excludes
properly
the statute
85-47-
Ind.Code
a "firearm."
defined as
$
a firearm.
part of the definition
der as a
turn,
"аny
"Firearm,"
is defined
1-6.
designed to or
of or
capable
weapon that
therefore is
this case
question in
expel a
converted
may readily be
sufficient evi-
presented
the State
explosion." Ind.
an
by means of
projectile
pellet
that the
jury to show
dence to the
in this
The evidence
85-47-1-5.
Code §
Howell,
used to confine
Miller
gun, which
gun is a
Miller's
case demonstrates
expel
designed to
capable of or
either
by statute.
handgun as defined
explosion.
by means of
projectile
sufficiency claims our
examining
When
issue
majority takes
I first observe
We
is well settled.
review
standard of
Instruction
tendered
the trial court's
judge nearly
nor
reweigh the evidence
in terms
firearm
neither
No. 6 which defines
force,
physical
the force from
like
Ooley,
is a
testimony
Trooper
Based on
compressed spring in a BB
reasonably
"in-
could
finds that the
dissent
expelled
projectile
could be
...
specif-
fer ...
using
Miller was
of Miller's
handgun.
the barrel
weapon,
When
type of
ic
*8
namely
counsel,
violence
explosion,
sudden
Trooper Ooley
reason of
testified
by
questioned
pressure
by
energy
the
knowledge,
person
caused
is not
internal
a
from
the best of
that to
Thus,
jury
CO;
carry
pellet gun.
could conclude
gas."
the
to
a
required
from
a license
to have
supra,
Indiana,
handgun.
person
As noted
is
pellet gun
a
a
is
Op.
that a
R. 260.
See
at
handgun.
carry
be a
gun
found to
a
pellet
required
has been
a license to
a
to have
35-47-2-1;
handgun
Carrying
the
circumstances of
a
weapon depending
Op.
on the
n. 4.
at
I.C.
How-
which it is used.
manner in
case and the
35-47-2-23;
crime.
LC.
license
is a
ever,
a hand-
pellet gun
Op.
be considered
cannot
at n. 4.
interpretation
the term
of
in the law
dissent's
gun
term is used
Under the
as the
gun
аnd
(COz),
propellant
pellet
this case
a firearm
"handgun,"
becomes
the
dioxide
carbon
thus,
it.
a license to
need
gas
cannot
ex-
and,
thus,
is a non combustible
shooting
dissent,
supreme
a device
by
question
our
of whether
the
The
plode. As noted
ie.,
"pistol",
a hand-
cartridges
gas
shell
v. State
court in Glover
(which was
Act
1360, 1362,
COg
gun,
1935 Firearms
pistol derives its
under the
said that a
statute)
by
was considered
replaced
current
compressed
the
expansion of
force
COz
He
Attorney
in 1937.
by
General
the Indiana
Dissenting
n. 1. The
gas.
Rucker,
J.
See
p.
Op.Atty.Gen.
that it was not.
gas
propels the
found
compressed
expansion of
credibility of witnesses. We examine only Ninth New Collegiate Dictionary
the evidence most favorable
to the State
(1984).
Trooper Ooley
pellet
testified the
along with all reasonable
gun
inferences to be
is fired in the same fashion as a 9mm
drawn therefrom and if there
Beretta,
is substantial
by pulling
trigger.
the
He also
probative
pellet
testified
evidence of
gun
the
value to support
operates
gas
from
conviction, it will not
pressure
be set aside. Lite! v.
in the chamber
of the
(1988), Ind.,
tile explosion. means of an
Unlike "firearm" the term "explosion" is by defined statute. we are bound Thus apply its common and everyday mean-
ing.
Smithhart
Ind.App.,
everyday meaning explosion of "[Tjo
cause to noisily; burst to burst forth with sudden violence or noise from internal en-
ergy: as ... to burst violently as a result pressure
of from within." Webster's majority 1. As points out in n. carbon hand and expels when fired a .177 caliber metal (CO;) dioxide gas. is a non projectile combustible I have compressed gas"). Nor does con- quarrel no majority with the point. tending, on this majority, as does the that the Index, The Merck Encyclopedia Chemicals, expelled An by "physical question force" resolve the of Drugs, Biologicals (11th 1989) (car- and ed. before us. We are here confronted with matters definition, bon dioxide terminology, does normally support not burn or statutory and con- combustion); General, See also struction. "explosion" Fundamentals The word is not a term Organic, Biological Chemistry, of art and because it is A-9 undefined statute we (defining required plain combustion as a chemical use its ordinary reaction mean- ing. plain which light heat and produced ordinary often meaning term, usually namely: burning refers presence "to burst forth with sudden vio- oxygen). However, lence or energy" noise from the fact internal that carbon dioxide accommo- may variety dates a activity not be might combustible does not resolve occur question chamber of a including physical explo- is involved in an *9 force. occurring sion pellet gun. the chamber of a See, e.g., 3 McGraw-Hill Encyclopedia Science Further, nothing dissenting opinion in this Technology (1987) ("Carbon diox- should be construed to mean that a license is cartridge ide in a propellant used as the required pellet gun. Whether under pistols"); Glover v. State certain 441 N.E.2d provisions of Ind.Code seq., § 35-47-2-1 et (defining Legislature so intended has never been ad- that case as a Crossman .177 pellet pistol caliber dressed this court and is not before this court which, ordinary operation, "is today. held in