ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles E. Stewart, Jr. Jeffrey A. Modisett
Crown Point, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
WALTER WILLIAM RICHESON, ) ) Appellant (Defendant Below ), ) ) 45S05-9710-CR-558 v. ) in the Supreme Court ) STATE OF INDIANA, ) 45A04-9508-CR-310 ) in the Court of Appeals Appellee (Plaintiff Below ). )Cause No. 45G01-9311-CF-295
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Richard Maroc, Judge
Does the rule on intent announced in Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), apply to crimes other than murder? We hold it does not.
1. knowingly or intentionally;
2. took a substantial step to accomplish[;]
3. the touching of another person . . . in a rude, insolent, or angry manner;
4. and that the act was committed by means of a deadly weapon.
(R. at 84.) Richeson objected to this attempted battery instruction at trial because it informed the jury that it could convict him if it found that he knowingly, but not intentionally, attempted to touch the victims. The trial court did not delete the "knowingly or" language from the disputed instruction, but instead additionally instructed the jury that, to constitute an attempt, the defendant's conduct must be "done with the necessary specific intent."
attempted battery, requiring the trial court to instruct the jury
that the State must prove "that the defendant acted with the
specific intent to touch the victims in a rude, insolent, or angry
(Appellant's Br. at 8-9 (emphasis added).)
Although we have used broad language suggesting an intent to extend Spradlin to all attempt crimes,See footnote 2 decisions in the Court of
Appeals indicate that the issue is far from settled, and a split of
authority originating in that court has prompted our review in this
The issue, then, is whether the attempt statute, Ind. Code
§ 35-41-5-1, requires the State to prove in an attempted battery
prosecution that the defendant took a substantial step toward the
completion of an intentional battery. We hold that it does not,
and we expressly limit Spradlin to attempted murder.
Indiana's attempt statute, Ind. Code § 35-41-5-1(a), provides:
"A person attempts to commit a crime when, acting with the
culpability required for the commission of that crime, he engages
in conduct that constitutes a substantial step toward the
commission of the crime" (emphasis added). The culpability
required for battery is "knowingly or intentionally." Ind. Code
Ann. § 35-42-2-1(a) (West 1998). We conclude that the attempt and
battery statutes, when taken together, do not require an attempted
battery instruction providing that the State must prove that the
defendant intended to batter. Rather, if the instruction requires
the State to prove that the defendant took a substantial step to
Murder has traditionally been treated differently by this
Court and by the legislature. For example, the General Assembly
has classified murder as its own offense, Ind. Code § 35-42-1-1,
with its own sentencing range, Ind. Code § 35-50-2-3, separate from
the felony-misdemeanor classifications and the sentencing system
for all other criminal offenses.
Moreover, we think that the distance between perpetrator and victim in many attempted murder cases poses special problems of "intent ambiguity." In other attempt prosecutions, the probable or intended victim and result are often clearly indicated by the facts
and circumstances surrounding the commission of the crime. See,
e.g., Jackson v. State, 683 N.E.2d 560 (Ind. 1997) (attempted rape
case where victim was targeted and intent to rape was expressly
stated); Miller v. State, 591 N.E.2d 146 (Ind. Ct. App. 1992)
(attempted kidnaping case where victim was targeted and intent to
kidnap was obvious from the circumstances).
In many attempted murder cases, however, the victim, the
result, or both, are more difficult to ascertain. A drive-by
shooting is the paradigm problematic attempted murder case. In
such cases it is often unclear whether the defendant intended to
murder or to batter, whether he knew of a high probability of death
or a touching, or whether he simply recklessly disregarded either.
Such ambiguity carries with it the risk that the jury will fail to
distinguish between levels of culpability, imposing a penalty for
reckless actions, rather than for intentional or knowing ones. In
order to ensure that juries sort out the higher level of
culpability in attempted murder prosecutions, we construed the
attempt statute in Spradlin to require proof that the defendant
While attempted battery can involve this same type of ambiguity, unlike attempted murder, attempted battery is not subject to the most severe penalty imposed by the legislature for attempted crimes, that of a Class A felony, Ind. Code Ann. § 35-41- 5-1(a) (West 1998); Ind. Code Ann. § 35-42-2-1 (West 1998). An
attempted murder conviction subjects a defendant to a penalty that
is two and one-half to fifty times higher than the penalty for
attempted battery.See footnote
The lower sentence range for attempted battery
convictions reduces the need for a heightened mens rea requirement
to protect against jury confusion caused by ambiguity, because,
while the risk of confusion remains similar, the harm that might
result from such confusion is much less severe. It is the higher
sentence range for attempted murder in combination with the
ambiguity involved in the proof of that crime that justifies the
result in Spradlin and distinguishes other types of attempt
prosecutions that involve either stringent penalties,See footnote
but not both.
We conclude that the special precautions we took in Spradlin are not warranted for lesser offenses. We hold, therefore, that the attempt statute permits an instruction that the jury may convict upon proof that the defendant took a substantial step toward a knowing battery.
Richeson argues that the State provided no evidence that he
intended to hit Michael Foster when he fired at the Foster home.
As discussed above, the State need only provide evidence that
Richeson knew of a high probability that the drive-by shooting
would result in the bullets touching Foster. The evidence most
favorable to the verdict indicates that Richeson fired armor-
piercing bullets from a semi-automatic assault rifle at Foster's
home in the middle of the night. This evidence provides a
reasonable jury with ample grounds to conclude that Richeson
attempted to batter Foster. We hold, therefore, that sufficient
evidence supports Richeson's attempted battery conviction.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
In an attempted murder prosecution, specific intent has meant that the
defendant must have taken a substantial step toward the commission of a
murder, with the intent to kill, not simply knowing a high probability of or
reckless disregard for the fact that death may result. Spradlin, 569 N.E.2d
at 950. In the attempted rape context, specific intent has meant that the
defendant must have taken a substantial step toward the commission of a
knowing or intentional rape, but not a reckless one. Wells v. State, 568
N.E.2d 558, 562 (Ind. Ct. App. 1991). Specific intent in an attempted
burglary action does not prescribe a requisite level of mens rea for the
burglary itself, but rather requires that the defendant intended to commit the
underlying felony once he broke into and entered onto the premises. Bowen v.
State, 671 N.E.2d 1182, 1187 (Ind. Ct. App. 1996), rev'd on other grounds by
Bowen v. State, 680 N.E.2d 536 (Ind. 1997).
The term has been used to exclude application of the attempt statute to
all crimes that contain the mental element of recklessness. Henderson v.
State, 534 N.E.2d 1105, 1107 (Ind. 1989); Tunstall v. State, 451 N.E.2d 1077,
1079 (Ind. 1983). It has been distinguished from "general intent" and been
defined as the particular mental state required for a particular crime,
instead of all mental states or the notion of mens rea generally. Henderson,
534 N.E.2d at 1107. Finally, specific intent has been held to mean an intent
to commit the crime on a particular date and at a particular time, rather than
the intent to do something on an undetermined occasion. Id.
In many of these cases, use of the term "specific intent" was an "unnecessary reference." Id. at 1108. To avoid furthering the confusion generated by the conflicting definitions of "specific intent," we have not used that term in the statement of our holding.
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