People v. State

In the realm of theodicy (the subject of my undergraduate senior philosophy thesis), I’ve sometimes reflected that Hamlet’s observation to Rosencrantz and Guildenstern that “there is nothing either good or bad, but thinking makes it so” sheds some light on the theological “problem of evil.” In the worldlier and more practical realm of criminal law, not so much.

I would prefer not to be robbed, but if I am robbed I would prefer that nothing resembling a firearm be involved. If what appears to me during the robbery to be a loaded firearm is involved, I would prefer that it in fact be unloaded or inoperational or not a firearm at all (i.e. a BB or pellet gun). If what is in fact a loaded firearm is involved, I would prefer that the robber not fire it.

Thinking a BB gun, e.g., is a potentially deadly firearm doesn’t make it so, even though a robber’s use of an object which the victim reasonably believes to be a deadly weapon heightens the fear inherent in any robbery and could properly be considered as an aggravating factor at sentencing. Although the fear caused during the robbery might be the same regardless of whether what appears to the victim to be a loaded firearm actually is one, the chances of somebody actually dying during the robbery are dramatically reduced if what appears to be a loaded firearm isn’t. Bringing a loaded firearm to a robbery is a much more serious crime than bringing what looks like a loaded firearm but isn’t to a robbery, and should be punished accordingly. Punishing them similarly removes a lot of the incentive many would-be robbers might otherwise have to leave their bullets at home.

David Sklansky, a well-known poker expert and author, was recently the victim of a home invasion and robbery. Somebody burst into his bedroom, and although it was dark, Sklansky saw what appeared to be a gun. Nevertheless, Sklansky had this to say about the incident: “I have no personal animosity toward these guys. They used the absolute lowest level of force necessary to accomplish their purposes. In one of my books, I wrote that there is not enough difference in the punishment of criminals who harm victims and those who don’t . . . . I’m not going to change my mind just because I am now one of those victims.”

In Indiana, unfortunately, the courts have thus far operated under the largely unexamined assumption, contrary to the plain language of the controlling statute, that a robbery victim’s reasonable but erroneous belief that something is a “deadly weapon” is a relevant factor in determining whether it is one. Under Indiana Code section 35-42-5-1: “A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threating the use of force on any person; or (2) by putting any person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon . . . .” A Class C felony is punishable by a prison term between 2 and 8 years (with 4 years being the advisory sentence), while a Class B felony is punishable by a prison term between 6 and 10 years (with 10 years being the advisory sentence. “Deadly weapon” is defined by the Indiana Code to include a “loaded or unloaded firearm,” as well as any other device “that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.”

Indiana precedent also supports the dubious but supportable notion that a jury can reasonably find that a BB or pellet gun is a “deadly weapon” based on evidence that it could have been used to bludgeon the victim or that it could put out an eye (a la A Christmas Story) if shot directly at the face. But in the absence of evidence to that effect actually presented and argued to the jury (e.g., testimony that the robber pointed the BB gun at the victim’s face and that the particular BB gun used was operational and in fact powerful enough to put out an eye), there presumably would be no sufficient basis for such a finding. Because Indiana courts have themselves assumed that a robbery victim’s belief that a BB gun is a real firearm is relevant in determining whether the BB gun qualifies as a “deadly weapon,” Indiana juries are undoubtedly laboring under the same assumption. Under this assumption, whether a jury is persuaded by evidence of actual dangerousness becomes practically irrelevant if it is persuaded that the victim believed the BB was a deadly weapon.

The Indiana Supreme Court has been petitioned to review a case where such evidence of the BB gun’s actual dangerousness was completely lacking, and the jury’s verdict very likely was therefore based solely on the victim’s belief that it was a real firearm. Hopefully the Court will take this opportunity to clarify for lower courts and for juries that such a belief is an improper consideration in determining whether the defendant was in fact armed with a “deadly weapon” during the robbery.

Judge Michael Barnes of the Indiana Court of Appeals got it exactly right when, in his partial dissent to the majority opinion in Davis v. State, 835 N.E.2d 1102 (Ind. Ct. App. 2005), trans. denied (2006), he wrote:

I do not subscribe to the majority’s analysis of whether the unloaded pellet guns were “deadly weapons.” Specifically, the majority places much emphasis on whether the tellers and customers were afraid of the weapons or believed that the guns were “real.” I conclude that this should not be a relevant consideration in assessing whether an item is a “deadly weapon” within the meaning of the criminal code. Taken to its extreme, this approach could lead a finger or a stick of butter to be found a “deadly weapon,” if a robber were to point the finger or stick of butter from underneath a coat and was able to convince the victim that it was actually a gun.

Indiana Code Section 35-41-1-8 provides that a “deadly weapon” includes, besides firearms, devices or materials “that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.” In my view, the plain language of this statute requires that a non-firearm item claimed to be a “deadly weapon” be actually capable of causing serious bodily injury, not that it appears capable of causing such injury to a victim or bystander.

To the extent that the victims here were afraid of Davis and his accomplice, that is already a necessary element of the base offense of robbery as a Class C felony — taking another’s property by force, threatening force, or placing any person in fear. If there had been no fear or threat of force in this case, there would have been no robbery. The key factor, I believe, that distinguishes using a “deadly weapon” to commit robbery and elevates it to a Class B felony is that there is an actual heightened risk of harm to the victim.

Follow