ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT M. WINTERS JEFFREY A. MODISETT
Public Defender Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
JOHN F. BRACKSIECK, ) ) Appellant-Defendant, ) ) vs. ) No. 18A02-9704-CR-252 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
of the Blockburger analysis is to determine whether "as defined by the legislature, any two
or more [offenses] are the same offense." Games, 684 N.E.2d at 476 (citing United States
v. Dixon, 509 U.S. 688, 745, 113 S. CT. 2849, 2881-82, 125 L. ED.2d 556, 599-600). In
analyzing double jeopardy claims based on multiple punishments, we utilize a method of
statutory interpretation in which the court is asked to "determine whether the legislature
intended 'to impose separate sanctions for multiple offenses arising in the course of a single
act or transaction.'" Id.
The Blockburger test, also known as the "same elements" test,
requires that we look only to the statutory elements of the offenses, not to the charging
information, the jury instructions outlining the elements of the crime or the underlying proof
needed to establish the elements. Id. at 477; Grinstead v. State, 684 N.E.2d 482, 486 (Ind.
Indiana Code § 35-47-4-3 provides in pertinent part:
A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.
Ind. Code § 35-47-4-3(b). Further, the relevant part of Indiana Code § 35-42-2-2 provides:
A person who recklessly, knowingly, or intentionally performs: (1) an act that
creates a substantial risk of bodily injury to another person . . . commits
criminal recklessness, a Class B misdemeanor. However the offense is a: (2)
Class D felony if it is committed while armed with a deadly weapon.
Ind. Code § 35-42-2-2(b)(1).
The definition of deadly weapon includes, but is not limited to, a loaded or unloaded firearm. Ind. Code § 35-41-1-8. In addition, although many acts "create a substantial risk
of bodily harm," we can envision no situation in which pointing a loaded firearm at another
person does not also create a substantial risk of bodily injury to that person. See
Suad v. State, 658 N.E.2d 907, 910 (Ind. 1995) (brandishing of firearm in congested area or
during a dispute can create variety of risks of bodily injury to others, regardless of whether
the weapon is loaded and is sufficient to sustain criminal recklessness conviction).
when a firearm is involved, the elements of both statutes consist of (1) knowingly or
intentionally (2) pointing a firearm at another person. When, as here, each provision does
not require "proof of an additional fact which the other does not," the Blockburger test is not
satisfied. See Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309. Under these
circumstances, pointing a firearm, as a class D felony, and criminal recklessness, as a class
D felony, are the same offense for double jeopardy purposes and the defendant cannot be
convicted of both offenses without violating both state and federal prohibitions against
We reverse and remand with instructions to vacate Bracksieck's conviction and sentence for pointing a firearm, as a class D felony.
Reversed and Remanded.
BAKER, J., and RILEY, J., concur.
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