Reckless Endangerment

Reporter’s Note

Based on case law, the State must prove actual danger.  If the charge is that the defendant pointed a firearm at the victim, the firearm must have been operational.  See State v. Longley, 2007 VT 101, 182 Vt. 452; State v. Emilo, 146 Vt. 277 (1985); State v. McLaren, 135 Vt. 291 (1977) (overruling part of State v. Cushman, 133 Vt. 121 (1974)).

The statute, 13 V.S.A. § 1025, was amended in 2000 by the addition of the phrase “and whether or not the firearm actually was loaded.”  Thus, the State need not prove that the firearm was loaded.  However, the State still must prove that it was operational or operable.  State v. Messier, 2005 VT 98, 178Vt. 412.  The word “operational” means that the firearm was capable of operation.  It need not be loaded and cocked.

Even though the statute describes a presumption, the model instruction is drafted to describe a permissive inference, to avoid a potential problem with conclusive presumptions under Sandstrom v. Montana, 442U.S. 510, 514 (1979).

When a defendant is charged with reckless endangerment under 13 V.S.A. § 1025 for aiming an unloaded firearm, the judge and the attorneys should be aware of another statute, 13 V.S.A. § 4011, under which the aiming of a firearm may be punished by a fine not exceeding $50.  The existence of § 4011 may affect a judge’s interpretation of § 1025 when the charge is based on aiming an unloaded firearm.

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