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MARTINSVILLE, Ind. A 12-year-old Indiana boy didn't mean to kill his 6-year-old brother when he pointed what he thought was an unloaded gun at him and pulled the trigger, but he knew better than to take the chance, a judge ruled Friday.

Morgan Superior Court Judge Christopher Burnham acquitted the boy of murder but convicted him of a lesser juvenile charge of reckless homicide.

Burnham said the evidence including testimony from 20 witnesses and more than 70 exhibits didn't prove beyond a reasonable doubt that the boy acted "knowingly or intentionally" when he shot his younger brother, Andrew Frye, on June 30 at their Martinsville home. The boys had different last names.

Burnham said prosecutors did prove that the boy acted with "reckless disregard" for human life by arguing that the boy's hunting experience showed he knew the .22 rifle could kill.

Burnham can choose from a wide range of penalties geared toward rehabilitation when he sentences the boy at an undetermined date, including probation, special programs and juvenile detention. The boy, who was 11 at the time of the shooting, could face detention until age 18 and remain on probation until he is 21.

Until he's sentenced, he'll remain at a juvenile facility, where he will undergo a psychiatric and behavioral evaluation that probation officials will use to help make their sentencing recommendation.

Chief Deputy Prosecutor Bob Cline said after the hearing Friday that he thinks the verdict was just and that the boy needs long-term help and rehabilitation.

"He's 11 years old, 12 years old. You can't lock a person up at 11 or 12 for the rest of their life," he said.

Defense attorney John Boren said he respected the judge's decision. He said Burnham was "very thorough."


During the two-day fact-finding hearing, which is the juvenile equivalent of a bench trial, Burnham heard recordings of the boy's panicked 911 call and watched videos in which he initially told police his little brother had killed himself. He also heard from witnesses including a police officer who testified that the boy was a mild-mannered youth who served as a role model for other children.

Police said they became suspicious after autopsy results showed the fatal shot had been fired from at least three feet away. The 6-year-old's arms were too short to allow him to shoot himself with the rifle, witnesses testified.

When confronted with that information, the older boy recanted his story, but insisted he believed the gun was not loaded. He said he had loaded the gun that day but later unloaded it using the bolt action, not realizing he had left a round in the firing chamber.

He then took the gun to the room he shared with his brother and confronted the younger boy over a chore, he said in a video.

"I said, `Clean up your room.' He said, `No,'" the boy said. He said he then pointed the gun and pulled the trigger and the gun went off, hitting Andrew between the eyes.

The older boy then returned the gun to his parents' bedroom before calling 911.

Prosecutor Steve Sonnega, who was not present Friday due to a prior commitment, argued that the boy's actions after the shooting implied guilt. He also said the boy had enough hunting experience with his stepfathers to understand how the gun worked.

Sonnega said the boy's sister told police the youth had used a gun before to threaten his siblings into doing their chores. She told investigators the other children had kept kitchen knives in their rooms for self-defense.

But Boren said Andrew's death was clearly unintentional and that anyone, even a trained adult, could make a mistake and believe a gun wasn't loaded.

The boys' mother and her boyfriend are charged with neglect for leaving the gun where the children had access to it. The two boys were home alone at the time of the shooting.