COA: Son who threatened mom with unloaded pellet gun used ‘deadly weapon’

A man whose felony convictions in a domestic violence case were enhanced because he possessed and used a weapon that turned out to be an unloaded and possibly broken pellet gun lost his appeal arguing the charges against him were wrongly aggravated and that he was a victim of double jeopardy.

William Moore assaulted his mother on June 6, 2018, when she came to his Indianapolis home to drop off laundry and collect some items that belonged to his girlfriend. Moore told his mother to leave, but after she refused, he pulled a gun on her and threatened to shoot her in the head.

Outside, Moore’s brother and stepfather heard the commotion, rushed inside and found Moore holding a gun to his mother’s head. Moore’s stepfather trained a gun on his stepson before recognizing Moore’s weapon, then yelling, “Everybody calm down, it’s just a pellet gun.” Moore threw down the gun at that point, which, according to the record, “made a cracking noise like it broke.”

Moore was arrested, charged and convicted in a bench trial in Marion Superior Court, which found him guilty of Level 3 felony criminal confinement and Level 5 felony intimidation — each count enhanced because Moore was armed with, drew or used a deadly weapon.

The Indiana Court of Appeals affirmed the convictions Thursday in William Moore v. State of Indiana, 19A-CR-884, rejecting Moore’s claims that the gun did not qualify as a deadly weapon and that applying felony level enhancements to both of the charges constituted double jeopardy.

“William acknowledges that pellet and BB guns can be considered deadly weapons; however, he argues that his pellet gun is not a ‘deadly weapon’ because it was unloaded and ‘likely inoperable,’” Chief Judge Nancy Vaidik wrote.

Whitfield v. State, 699 N.E.2d 666 (Ind. Ct. App. 1998), established that an unloaded pellet gun may be considered a deadly weapon because they may be “virtually indistinguishable” from actual firearms and because of the fear they may instill in victims.

“The same can be said here,” Vaidik wrote. “William put his pellet gun to his mother’s temple and told her that he was going to ‘f***ing kill [her](.) …’ (She) thought that she was going to die and told her son, ‘Just get it over with.’ … Accordingly, we find that there is substantial evidence of probative value to support the factfinder’s determination that William’s pellet gun is a ‘deadly weapon.’”

Likewise, Moore’s double jeopardy argument failed because the criminal confinement count was enhanced by his possession of a pellet gun, while the intimidation conviction was enhanced by a showing that he drew or used the weapon. “Accordingly, there is no double-jeopardy violation,” the panel concluded.