MILLER, Judge.
Kerry L. Miller (Kerry), an alcoholic with Rambo delusions, was conizicfced by jury of Confinement, a class B felony,1 and Criminal Recklessness, a class D felony,2 and sentenced to thirteen (18) years incarceration. Kerry was armed with a CO; gas powered .177 caliber pellet gun which looks exactly like a Model 92 Beretta 9mm semiautomatic pistol, the handgun carried by the Indiana State Police. Kerry claims that his Sixth Amendment right to counsel was violated because his trial counsel was ineffective. We do not agree.
However, we raise sua sponte whether the evidence was sufficient to support his B felony conviction.3 We find that it was not and vacate his conviction for Confinement as a B felony. We find that the evidence supports his conviction for the lesser included offense of Confinement as a class D felony.
We affirm in part and reverse and remand in part.
[752]*752FACTS
The facts most favorable to the verdict are that at about 10:50 p.m. on April 28, 1990, Rodney Howell (Howell) was returning to his home in Milroy, Rush County, Indiana. As he drove a friend's car down Walnut Street, he was confronted by a man wearing military camouflage clothing. The man pointed a handgun at the windshield of the car and Howell stopped. To Howell, a person familiar with handguns, the gun appeared to be a 9mm Beretta. Howell recognized the man as Kerry Miller. Kerry then ordered Howell to get out of the car and assume a "push-up" position. Howell complied. Kerry then told Howell to put his hands behind his head and his elbows in front of his eyes. The record does not indicate if Howell was on the ground or standing at this point. Howell complied. Howell saw a movement out of the corner of his eyes and heard a click. He testified that he thought that Kerry was going to shoot.
Howell then told Kerry his name in the hope that Kerry would recognize him and not shoot. Kerry recognized Howell, put the gun in his waistband, made an obscene and senseless comment to Howell, and then said that Howell would now have to come and party with him. Kerry told Howell to come into his house and Howell complied (the incident happened in front of Kerry's home and took place over a period of about fifteen (15) minutes).
Kerry was drinking gin and orange juice and compelled Howell to take a sip of gin. The pellet gun was laying on Kerry's desk at the time. Howell convinced Kerry that he had to go home and Kerry said he could, but added that Howell was to return within five or ten minutes or else Kerry would come and get him, and that he (Kerry) would be armed. Howell arrived at his home agitated, told his friends that were present what had happened, and then returned to Kerry's house. Kerry then changed his clothes and returned to Howell's house with Howell, without the pellet gun. Once at Howell's house, the conversations continued to make little sense to anyone except when Kerry referred to his pellet gun saying that he "had fifteen in the clip and one in the pipe." [Translated: fifteen rounds in the magazine (clip) and one in the firing chamber.] Finally, while on the porch, Kerry picked a fight with one of Howell's friends, Mare Houston (Houston). Houston then proceeded to "beat the hell out of" Kerry. Howell and his friends went back into the house and called the police.
Kerry was arrested near his home by Deputy Click and Officer Trout and charged with confinement and criminal recklessness.4 A Kerry showed obvious signs of intoxication and was bleeding from the nose and mouth. Kerry did not have the pellet gun on him. The officers obtained a search warrant and found the pel-
[753]*753let gun in Kerry's - desk drawer. It was loaded with pellets, but it appears from the record that there was no.CO2 gas cartridge in the pellet gun. After a day and a half trial, the jury found Kerry guilty as charged.
DECISION
I. INEFFECTIVE COUNSEL
Kerry claims that he was denied his Sixth Amendment right to a fair trial because his defense attorney's performance was so defective that it undermined the proper function of the adversarial process so that his trial cannot be relied on having produced a just result. The Federal Constitution guarantees a fair trial by the Due Process Clause and through the provisions of the Sixth Amendment. Strickland v. Washington (1984), 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674. Indiana has long recognized that the right to counsel is fundamental to our system of justice. More than a century before Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Indiana Supreme Court held that a criminal defendant had a right to an attorney at public expense if he could not afford one himself.5 Webb v. Baird (1854), 6 Ind. 18. Indiana also recognizes that the right to counsel is the right to effective counsel and follows the two part Strickland standard. Our supreme court has set forth the standards for reviewing a claim of ineffective assistance of counsel thus:
Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) that counsel's performance fell below an objective standard of reasonableness, and (b) that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of alFcireumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial serutiny of counsel's performance is highly deferential and should not be exercised through distortion of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. If deficient performance of counsel can be proven, defendant must further show show a reasonable probability that it altered the outcome of the case.
Mftari v. State (1989), Ind., 537 N.E.2d 469, 473-74.
Isolated poor strategy, inexperience or bad tactics do not necessarily amount to ineffective counsel. Elliott v. State (1984), Ind., 465 N.E.2d 707. In order to ascertain whether trial counsel's performance was deficient the court must look to the totality of the evidence to determine whether there is a reasonable probability that, but for counsel's errors, the outcome would have been different. Brockway v. State (1987), Ind., 502 N.E.2d 105. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Slaton v. State (1987), Ind., 510 N.E.2d 1343.
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Judge.
Kerry L. Miller (Kerry), an alcoholic with Rambo delusions, was conizicfced by jury of Confinement, a class B felony,1 and Criminal Recklessness, a class D felony,2 and sentenced to thirteen (18) years incarceration. Kerry was armed with a CO; gas powered .177 caliber pellet gun which looks exactly like a Model 92 Beretta 9mm semiautomatic pistol, the handgun carried by the Indiana State Police. Kerry claims that his Sixth Amendment right to counsel was violated because his trial counsel was ineffective. We do not agree.
However, we raise sua sponte whether the evidence was sufficient to support his B felony conviction.3 We find that it was not and vacate his conviction for Confinement as a B felony. We find that the evidence supports his conviction for the lesser included offense of Confinement as a class D felony.
We affirm in part and reverse and remand in part.
[752]*752FACTS
The facts most favorable to the verdict are that at about 10:50 p.m. on April 28, 1990, Rodney Howell (Howell) was returning to his home in Milroy, Rush County, Indiana. As he drove a friend's car down Walnut Street, he was confronted by a man wearing military camouflage clothing. The man pointed a handgun at the windshield of the car and Howell stopped. To Howell, a person familiar with handguns, the gun appeared to be a 9mm Beretta. Howell recognized the man as Kerry Miller. Kerry then ordered Howell to get out of the car and assume a "push-up" position. Howell complied. Kerry then told Howell to put his hands behind his head and his elbows in front of his eyes. The record does not indicate if Howell was on the ground or standing at this point. Howell complied. Howell saw a movement out of the corner of his eyes and heard a click. He testified that he thought that Kerry was going to shoot.
Howell then told Kerry his name in the hope that Kerry would recognize him and not shoot. Kerry recognized Howell, put the gun in his waistband, made an obscene and senseless comment to Howell, and then said that Howell would now have to come and party with him. Kerry told Howell to come into his house and Howell complied (the incident happened in front of Kerry's home and took place over a period of about fifteen (15) minutes).
Kerry was drinking gin and orange juice and compelled Howell to take a sip of gin. The pellet gun was laying on Kerry's desk at the time. Howell convinced Kerry that he had to go home and Kerry said he could, but added that Howell was to return within five or ten minutes or else Kerry would come and get him, and that he (Kerry) would be armed. Howell arrived at his home agitated, told his friends that were present what had happened, and then returned to Kerry's house. Kerry then changed his clothes and returned to Howell's house with Howell, without the pellet gun. Once at Howell's house, the conversations continued to make little sense to anyone except when Kerry referred to his pellet gun saying that he "had fifteen in the clip and one in the pipe." [Translated: fifteen rounds in the magazine (clip) and one in the firing chamber.] Finally, while on the porch, Kerry picked a fight with one of Howell's friends, Mare Houston (Houston). Houston then proceeded to "beat the hell out of" Kerry. Howell and his friends went back into the house and called the police.
Kerry was arrested near his home by Deputy Click and Officer Trout and charged with confinement and criminal recklessness.4 A Kerry showed obvious signs of intoxication and was bleeding from the nose and mouth. Kerry did not have the pellet gun on him. The officers obtained a search warrant and found the pel-
[753]*753let gun in Kerry's - desk drawer. It was loaded with pellets, but it appears from the record that there was no.CO2 gas cartridge in the pellet gun. After a day and a half trial, the jury found Kerry guilty as charged.
DECISION
I. INEFFECTIVE COUNSEL
Kerry claims that he was denied his Sixth Amendment right to a fair trial because his defense attorney's performance was so defective that it undermined the proper function of the adversarial process so that his trial cannot be relied on having produced a just result. The Federal Constitution guarantees a fair trial by the Due Process Clause and through the provisions of the Sixth Amendment. Strickland v. Washington (1984), 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674. Indiana has long recognized that the right to counsel is fundamental to our system of justice. More than a century before Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Indiana Supreme Court held that a criminal defendant had a right to an attorney at public expense if he could not afford one himself.5 Webb v. Baird (1854), 6 Ind. 18. Indiana also recognizes that the right to counsel is the right to effective counsel and follows the two part Strickland standard. Our supreme court has set forth the standards for reviewing a claim of ineffective assistance of counsel thus:
Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) that counsel's performance fell below an objective standard of reasonableness, and (b) that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of alFcireumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial serutiny of counsel's performance is highly deferential and should not be exercised through distortion of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. If deficient performance of counsel can be proven, defendant must further show show a reasonable probability that it altered the outcome of the case.
Mftari v. State (1989), Ind., 537 N.E.2d 469, 473-74.
Isolated poor strategy, inexperience or bad tactics do not necessarily amount to ineffective counsel. Elliott v. State (1984), Ind., 465 N.E.2d 707. In order to ascertain whether trial counsel's performance was deficient the court must look to the totality of the evidence to determine whether there is a reasonable probability that, but for counsel's errors, the outcome would have been different. Brockway v. State (1987), Ind., 502 N.E.2d 105. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Slaton v. State (1987), Ind., 510 N.E.2d 1343.
Kerry argues that his counsel's failure: (1) to object to any of the hearsay testimony; (2) to object to "expert" testimony where no foundation had been laid; (8) to cross examine most of the State's witnesses; (4) to object to irrelevant testimony; as well as (5) ineffective and inadequate cross examination of the complainant, Howell, so prejudiced him that he did not receive a fair trial. Kerry notes that his trial counsel did not object to anything or anyone-whatever or whoever the State wanted to put in or on, the State did-without objection.
[754]*754It is clear that with or without effective counsel, Kerry would have been convicted of criminal confinement as a class D felony.6 He admitted intentionally ordering Howell out of the car without Howell's consent and confining him for about fifteen (15) minutes.7 The jury did not accept Kerry's defenses for his acts, i.e., self-defense and voluntary intoxication. Counsel's performance, while not the best, does not sink to the level of ineffective counsel.
II. SUFFICIENCY OF THE EVIDENCE
The dispositive element here is whether the State proved Kerry was guilty as charged in the Informations and Jury Instruction No. 2-i.e., that Kerry confined Howell "while armed with a deadly weapon, namely, a handgun (emphasis added)." R. 54. Throughout this case, from the Information to the Jury Instructions, the concepts of deadly weapon, firearm, and handgun were confused and intermixed. By statute a handgun is a firearm. See N. 4, supra. By inserting the phrase "namely, a handgun" in the information, the State chose to limit the charges against Kerry to the illegal use of a firearm. The Record is devoid of any attempt to amend the charges against Kerry by deleting the term "a handgun" and expanding the charge against him to a broader charge-"while armed with a deadly weapon."
The element of "while armed with a deadly weapon" elevates Kerry's crime to a class B felony.8 Instruction No. 6 explained that "the word firearm means any weapon that is capable of or designed to or that may readily be converted to expel a projectile by means of an explosion (emphasis added)." 9 Instruction No. 5 defined "deadly weapon":
"The term 'deadly weapon' is defined by law as meaning:
a. a loaded or unloaded firearm; or
b. a weapon, device, taser (as defined in I.C. 35-47-8-8) or electronic stun weapon (as defined in LC. 85-47-8-1), equipment, chemical substance, or other material 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." [I.C. 35-41-1-8 as added by P.L.311-1988, section 9, P.L.81-1985, section 1.]
Finally, Instruction No. 7 stated that "where different conclusions can be reached as to whether or not the weapon is deadly, it is a question of fact for the jury to determine from the description of the weapon, the manner of its use and the cireumstances of the case."
[755]*755These are correct statements of law, but not all are applicable in this case. Kerry was specifically charged with violating L.C. 35-41-1-8(1), not subsection (2) thus, there was no need for Instruction No. 6. Likewise, because Kerry was charged with violating § (1), there was no need for Instruction No. 7. Kerry was only charged with violating § (1), therefore, an instruction regarding § (2) was error.10
We recognize that under our stat ute, a weapon or device need not be a firearm to be a "deadly weapon." The statute states that for a weapon or device to be considered a deadly weapon (other than a firearm), it must be, "in the manner it is used, or could ordinarily be used, or is intended to be used, ... readily capable of causing serious bodily injury." Id.
We also note that Indiana courts have held that pellet or BB guns can be considered deadly weapons within the statute. See e.g., Glover v. State (1982), Ind., 441 N.E.2d 1360; Williams v. State (1988), Ind. App., 451 N.E.2d 687. Each case involved a violent crime and in each the court determined that the device used was a deadly weapon because of the actual ability of the gun to function as a weapon capable of inflicting serious bodily injury under the factual cireumstances. However, in each case the defendant was charged under § (2) (or its predecessor). See also, Frey v. State (1991), Ind.App., 580 N.E.2d 862, 364. Frey too involved a pellet gun. In Frey, the defendant actually fired the weapon (unlike the defendants in the cases cited above), a pellet rifle, and hit the complainant four times-in the shin, calf, thigh, and buttocks. Id. Thus, it was clearly apparent that the pellet rifle was readily capable of causing serious bodily injury-it had.
However, in the instant case, Kerry was charged with the illegal use of a handgun-a firearm. The State clearly established, through the uncontroverted testimony of Deputy Click, that Kerry's pellet gun was not a handgun. Thus, there was a variance between the information, the instructions, and the proof produced at trial. "A variance is an essential difference between the pleading and the proof." Mul-gan v. United States (8th Cir.1903), 120 F. 98, 99. A variance, to warrant reversal, "must be a substantial one, such as might mislead the defense...." Madison v. State (1955), 284 Ind. 517, 180 N.E.2d 35, 48 (Arterburn, J., concurring).11 Judge Ar-terburn further explained: "In other words, the test [for a fatal variance] is, ... was the defendant misled by the variance in the evidence from allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby?" Id.
It is clear from the record that Kerry's counsel based her primary defense on the information, ie., that Kerry was charged with using a firearm in committing the crime charged. Counsel moved for a di rected verdict at the close of the State's case arguing that the State had clearly [756]*756shown that the gun in question was a pellet gun, not a firearm,12 therefore Kerry could not be guilty as charged. R. 319. At closing argument counsel said: "[that a pellet gun is not a firearm. If it's not a firearm, it's not a deadly weapon [as charged in the information]. If it's not a deadly weapon, then Kerry Miller is not guilty." R. 495. The State proved beyond a reasonable doubt that the pellet gun was not a firearm. In Madison, our supreme court addressed a similar issue and said:
If the state had charged the decedent was killed by a gun loaded with gunpowder and metal bullets, it would be a fatal variance to permit a conviction to stand when the evidence showed he was killed by a blow-gun or an air rifle ... although each weapon throws missiles that can cause death.... When the state failed to prove this essential allegation, the verdict was not sustained by sufficient evidence.
Madison, supra, 180 N.E.2d at 44-45. Our supreme court's reasoning in Madison is dispositive of Kerry's case. Therefore, we find that the evidence was insufficient to convict Kerry of the crimes with which he was charged: (1) criminal confinement while armed with a deadly weapon-"namely, a handgun"-as a class B felony; or (2) criminal recklessness as a class D felony because he was not armed with a deadly weapon-'"namely, a handgun, which created a substantial risk of bodily [757]*757injury...." R. 54. See In re Winship, supra, n. 8.
[9] We therefore vacate Kerry L. Miller's conviction for Criminal Confinement as a class B felony and remand to the trial court with instructions to sentence Kerry for the lesser included offense, Criminal Confinement as a class D felony.13
CONOVER, J., concurs.
RUCKER, J., concurring in part and dissenting in part with separate opinion.