*1 (1) Company in the Columbus Wheel one City Addition to the
and M.T. Reeves'
Columbus"). evidence presented
Nava affirmative presumption
sufficient to rebut Kezy tax deed to
the issuance of the Porter, See, eg., 773 N.E.2d at
proper. pre (holding property that the owner evidence sufficient to
sented affirmative presumption
rebut the the issuance proper pur
the tax deed was because the provide
chaser failed to notice he had deeds). seeking tax petition
filed judgment that the trial court's
conclude
Kezy's clearly favor is erroneous. reasons, foregoing
For the we affirm the judgment
trial court's favor of on Swets claim,
Nava's cross reverse trial judgment Kezy,
court's favor of proceedings
remand for consistent with opinion.
this part, part,
Affirmed reversed
remanded.
RILEY, BARNES, J. and concur. J. COLLIER, Appellant,
Mark E.
Defendant, Indiana, Appellee-Plaintiff.
STATE of
No. 76A04-0503-CR-142. of Appeals
Court of Indiana.
April27,2006. July
Transfer Denied *2 Defender Carpenter,
Susan K. Public Indiana, Freund, Deputy P. Public David Defender, Appellant. Indianapolis, Carter, Attorney General Steve Indiana, Deputy Ryan Johanningsmeier, General, Appel- Attorney Indianapolis, lee. night's night."
OPINION Id. at 172. As the two house, walked back to Collier's VAIDIK, Judge. again told going Cameron he was Summary Case kill his wife and himself. Onee back in appeals his conviction for Mark Collier *3 house, each of them drank a beer estranged murder of his eventually and off in Collier "dozed his con Specifically, argues wife. he that his "thought chair." Id. Cameron was over" constitute a duct did not substantial point and went back home. Id. At some murder, toward commission of the crime of during day, called Cameron Charter statute, attempt Indiana's required Beacon, Center, Northeastern and Col preparation. instead mere but was thought lier's ex-boss because he Collier agree, therefore we and reverse Collier's psychiatric help.2 needed conviction murder.1 History Facts and Procedural Collier to again went Cameron's house at p.m. 8:45 and told Cameron that he wife, May Naney, Collier married his on to talk to him. wanted The two walked Nancy separated from 1986. Collier back to Collier's house and each them out of their home on March moved 24, 2008, Nancy 20083. drank another beer. Collier took Camer- On March obtained an Ex Parte Order for Protection in which on him upstairs, showed where the cat stay away was ordered to from Collier were, litter boxes and cats and told him Nancy's place employment, Cameron that he could let the cats outside or take Hospital Angola, Nancy Indiana. filed them to a shelter. Collier then showed April for divorce on 2008. was, dog Cameron where the food asked him dog, gave spare to feed his him 24, 2003, April Naney working On was keys pickup. to his house and his Camer- p.m. hospital. the 2:80-10:30 shift at the says on that Collier then went into his day, That went to Collier the home of his know, prayin', you bedroom and Cameron, "started neighbor, approxi- Charles at Cameron, mately p.m. According 3:00 'God, forgive telling-saying, me for what upset thought gonna Collier was because "he I'm do."' Id. at 178. Collier gonna was lose his home him and because eryin'. kinda Then he ... start- "IsItarted gettin' his were T'r. 170. p. wife divorced." ed kinda chuckling." Id. He then came gonna told Cameron "he Collier room, Cameron, out of hugged his and told kill his wife and himself" and then went him, "Tonight's night. gonna I'm do thought home. Id. Cameron Collier "was it." Id. Collier collected ice a box just talking" because Collier had simi- said said, pair and a of binoculars and things lar actually before but "had never "I'm gonna stab her in the effin' heart anything." Id. at done gonna twice. I'm cut her effin' throat." approximately p.m., At 5:80 re Id. Collier also said he would ram Collier said, Nancy turned to Cameron's home and "To pickup. with his Id. at 174. Collier argument 1. We heard oral in this cause on 2. Charter Beacon Northeastern Center provide behavioral health 20, 2006, services in north- February Valparaiso University at http://www.ft- east Indiana. See School of Law. We thank counsel for their wayne.in.us/health_living/mental_health_sub- students, presentations faculty, able and the stance_abuse.html (last visited March hospitali- and staff of the law school their 2006) (last http://www.nec.org/ visited ty. 28, 2006). March approximately 9:00 A friend of called her at the pickup left in his Angola. hospital police and told her that the and headed towards were p.m. searching for Collier. That prompted left, after Collier Camer- A few minutes Naney police, phone who told her to During on himself left to drive to work. stay in until hospital she heard other drive, driving to- he saw Collier back approximately p.m., wise. At 10:40 Officer away Angola. house and from ward his Sandy and Officer Justice Robert Cun p.m., and 10:00 Sometime between 9:80 ningham Angola Department Police another of arrived at the house of dispatch received a radio says neighbors, Billy Fansler. Fansler thereafter, Shortly locate Collier. Officer going told her that "he was that Collier Cunningham Justice and Officer arrived at enough." Id. at 198. end it and he had had *4 hospital spotted the and Collier's pickup. Collier also told Fansler "to tell hus- [her] The was backed into a pickup parking you band thank and tell children God [her] of space parking the last row the lot Id. Collier was at them{[.]" bless When emergency across the street from the area house, "he looked kind of wob- Fansler's of hospital the so Collier would have feet," bly," quite steady wasn't on his "he emergency been able to see the room en little," speech] a and [his "he kinda slurred This door was the exit trance/exit. "[mlaybe and a little depressed he was leaving hospital available to those the after at angry[.]" Id. 201-08. p.m.3 10:00 left, Fansler called After Collier Camer- approached When the officers Collier's wife, had on's who told her that Cameron vehicle, they observed that the vehicle was planned speak police with the onee he off, off, lights were and was Collier Hamilton, Indiana, way reached on his inside out. The officers Indeed, already had work. Cameron of opened the doors the vehicle and told officer, spoken police and a stopped with It not until Collier to exit. was the offi- Jeremy Deputy Marshall Warner the doors that opened cers Collier awoke. Department. Police Hamilton Cameron vehicle, out of the Once Collier was says Deputy that he told Warner that Col- officers noticed that he was intoxicated him- planning Naney lier was to kill and custody. They him into then and took Warner, hand, Deputy on the other self. pickup searched the interior of the and says him only that Cameron told that Col- pair an a box found ice planning lier to kill himself. After was binoculars, open container of beer Cameron, speaking Deputy Warner partially full. The officers ex- County De- called Steuben Sheriffs they arresting plained to Collier were partment. Deputy and officers Warner privacy violating him for invasion of County Depart- from the Steuben Sheriff's protective terms of the order and also try ment then went to house to public intoxication. explained him. find Fansler went out and however, charged Eventually, to the officers that had been at her the State Collier Murder, a A just pickup Attempted had left in his and Collier with Class house but 27 felony.4 jury at his A trial was held October was not home. 35-41-5-1(a); 35- had been the case since before 4. Ind.Code Ind.Code This information, 42-1-1(1). original Collier, In the Nancy usually separated from when alleged State that Collier p.m. 11:00 worked until Nancy. Ap- "knowingly intentionally kill" pellant's App. p. day 8. On the first 344 beyond 28, 2004, preparation of which the overt act mere at the conclusion and in furtherance of intent to commit an February guilty. On
jury found Collier
State,
Asghar v.
698
offense.
N.E.2d
28, 2005,
Collier
the trial court sentenced
denied,
(Ind.Ct.App.1998), reh'g
883
trans.
thirty
presumptive
sentence
denied. Whether a defendant has taken a
years,
of those
years
five
suspended
substantial
toward the commission of
twenty-
prison term of
for a total executed
generally question
a crime is
of fact to be
years of
followed
five
years
five
to be
by the
of fact
on all the
decided
trier
based
appeals.
now
probation. Collier
case.
particular
circumstances
and Decision
Discussion
State,
Washington v.
517 N.E.2d
79
argues
appeal,
On
(Ind.1987);
Asghar,
see also
to support
insufficient
the evidence is
State,
685
Williams
"Upon
murder.
conviction for
N.E.2d
In
(Ind.Ct.App.1997)).
sufficiency of evidence to
challenge to the
determination,
making this
the focus is on
conviction,
reviewing court
support a
completed,
what acts have been
not what
judge
the evidence or
reweigh
does not
remains to be done.
Jackson v.
witnesses,
respects
credibility of the
(Ind.1997).
complet
province weigh
con
jury's
exclusive
*5
ed acts must be
corroborative of
State,
McHenry
flicting evidence."
v.
820 the firmness of the defendant's criminal
(Ind.2005) (internal
124,
quota
126
N.E.2d
Mitchem,
intent.
685 N.E.2d
at 676.
omitted).
must consider
the
tions
We
differently,
liability
the
of the de
Stated
and reasonable infer
probative evidence
purpose
fendant turns on his
as manifested
the verdict.
Id.
must
supporting
ences
We
State,
through his conduct.
v.
Zickefoose
if
evidence and rea
probative
affirm the
618, 628,
507,
270 Ind.
388 N.E.2d
510
inferences drawn from the evi
sonable
(1979).
has
Supreme
Our
Court
described
have allowed a reasonable tri
dence could
step requirement
the substantial
as a
guilty
of fact to find the defendant
er
Cleave,
"minimal
v.
674
one." State
Van
beyond a reasonable doubt. Id. "To estab
(Ind.1996).
1304
How con
murder,
attempted
lish
the State must
simultaneously
duct can
be described as
(1)
prove beyond a reasonable doubt
that
and "minimal" is the
both "substantial"
specific
the defendant acted with the
intent
grapple.
dilemma with which we
(2)
kill;
engaged
the defendant
jury
acknowledges
Collier
could
constituting
step
to
substantial
found each of the facts
have reasonably
ward commission of the crime" of murder.
alleged
charging
in the amended
informa-
(Ind.
State,
v.
754 N.E.2d
Osborne
(1)
tion,
park-
he was found
wit:
2001)
State,
v.
685 N.E.2d
Mitchem
ing
Naney's place
employment,
lot at
(Ind.1997));
see also Ind.Code
position
from which he could see the
35-41-5-1;
Ind.Code
35-42-1-1. Col
Naney
building;
door
would use to exit the
day
lier contends that his conduct on the
(2)
pos-
when he was found he had
his
law,
not,
question did
as a matter of
consti
cutter,
pick,
session an ice
and binoe-
tute "a substantial
toward commission
(@)
ulars;
before he was found he had
agree.
of the crime" of murder. We must
going
made a statement
that he was
that a
We have said
"substantial wait
Naney
to come out of
work
pickup,
run
her in
step"
purposes
attempt
statute is
her over with
stab
"intentionally
attempted
trial, however,
Collier had
kill"
the trial court allowed
Nancy.
Id.
46.
say
State to
the information
amend
at
involving
the cases
other
Nor have
heart,
Appellant's
throat.
and cut her
as close
Nevertheless,
argues
presented questions
crimes
tempt
he
App. p.
See, eg., Himes v.
a matter of
instant case.
insufficient as
as the
evidence is
(1980)
State,
step toward
is acts are too remote Zicke preme to determine what Court's watershed decision attempt."6 constitute an Williams was borrowed from Model Penal foose 385, 391, Ind. 304 § thereto. Code 5.01 and the Comment (1973). Therefore, try we will 622-28, at Zickefoose, 270 Ind. Compare used to bright-line test formulate N.E.2d at 509-10 with Model Penal a defendant's conduct determine whether (Official § Draft and Revised Code 5.01 step" for pur constitutes a "substantial 1985), 297, 329, at Comment Comments attempt Rath poses of Indiana's statute. requirement that the Specifically, er, origins we will review Indiana's "strongly conduct be defendant's corrobo attempt compare statute and the instant pur of the defendant's criminal rative" from this Court case with another decision Zickefoose, see 270 Ind. at pose, provide some effort measure grounded N.E.2d at is Model Penal attempt law. clarity the area 5.01(2). requirement § It is to this Code "Strongly now turn our focus. I. is When Conduct of Intent? Corroborative" com require defendant's general attempt statute is Indiana's pleted "strongly acts be corroborative" of approach Penal
based on the Model Code a defendant's purpose his criminal because lability. Zickefoose, 270 Ind. is often more indicative of his at 509. The "substan- statements, "equiv intent than are his found in Indiana step" requirement tial 35-41-5-l(a) equivocal reflect an ocal acts well directly taken Code § LaFave, purpose."7 Wayne R. Substan- 5.01(1)(c), from Model Penal Code (”Attem n ted 5.01, (''The (Ind.1998) special is a Comment at 330 basic rationale murder treatment."). deserving special requirement that the actor's conduct purpose shall to com- corroborate M. Perkins & Ronald N. 6. See also Rollin is, course, same as that mit a crime (3d 1982) Boyce, Criminal Law 621 ed. view."); underlying loquitur ipsa the res see ("'The dichotomy prepatory-perpetrating (8th Dictionary also Black's Law discussing gen of a useful in situations rather ed.2004) (res ipsa loquitur is Latin for "the nature, dividing eral the actual line be itself"). *7 thing speaks for One commentator extreme."); shadowy tween the two is in the test, res.ipsa loquitur has described the Ghent, Annotation, Jeffrey What Constitutes F. "equivocality approach," way: this Murder, 612, Attempted 54 A.L.R.3d 617 ('The (1973) agree authorities it is im film, though cinematograph [It is as general possible to formulate a or defini rule depicted merely ac- which had so far (to attempt tion what constitutes mur of person's stating cused acts without what der), applied which as a test in all intention, suddenly been was his Miller, cases[.]") v. 2 Cal.2d California stopped, to and the audience were asked 527, (1935)); Sayre, 42 P.2d Francis B. 308 say to what end those acts were directed. 821, Attempts, 41 Harv. L.Rev. 846 Criminal If there is one reasonable answer to ("It (1928) manifestly impossible lay is [] question then the accused has done this down mechanical or hard and fast rule "attempt" what amounts to an to attain drawing prepara between for the of the line reasonably end. If there is more than one attempts; such efforts tion and indictable answer, possible then the accused has not unhesitatingly ... in this direction must be yet enough. done rejected."). Cambridge 5 Turner, Crimes, Commit Attempts 230, (as (1934) quoted J. 236 Indeed, "strongly corroborative" re- L. quirement is an extension of what the drafters Law LaFave, R. Substantive Criminal Wayne (2d ed.2003)). 11.4(d) § The Wisconsin Su of the Model Penal Code labeled as the "res "stop loquitur preme called this the the film ipsa test."" See Model Penal Code Court has
347 the intent of the defen- certainty what ed.2008) 11.4(d) (2d Law tive Criminal is. "LaFave"). dant of (hereinafter "Statements or a equivocal acts prior
intent made Martinez, 369, v. 88 Dakota S.D. South give subsequent thereto made confession (1974) 530, (quoting 220 531 Cali N.W.2d purpose of that firmness no assurance Miller, 308, 2 42 P.2d Cal.2d fornia dangerous actor's manifests the which Burton, (1985)); Michigan see also 310 "(alo differently, at Id. Stated ness." Mich App. NW a nature that is an act of such tempt is (2002). intent of the criminal evidence itself mind, A criminal bears it is done. this framework which With (quoting face." Id. upon criminal intent its now to determine whether Col proceed (7th Salmond, was sufficient to constitute Jurisprudence lier's conduct J. Wisconsin, ed.1924)); step toward the commission also Hamiel v. substantial see (1979) 639, 644 285 N.W.2d Wis.2d 5.01(2) in Penal murder. Model Code ("[In primarily it is that, attempt, the erime of list of conduct cludes an illustrative if provide which evi the acts of the accused crimi- strongly corroborative the actor's intent."). mental requisite of the dence shall not be held insufficient purpose, mal Therefore, necessarily evaluate we must as a matter to constitute substantial may have a defendant any statements pro Specifically, that subsection of law. order together made with his vides: he has done whether that which determine sufficiency of negativing the Without he said corroborates that which strongly conduct, if following, other Dakota Su he would do.8 As South pur- of the actor's eriminal corroborative has stated: preme Court held insufficient as pose, shall not be of a requiring evidence The reason matter of law: act, con- slight, toward direct however (a) wait, searching for or lying in crime, ... of the intended summation victim of following contemplated to that majority up in the of cases crime; defendant, con- the conduct of the
time has sisting merely preparation, of acts of (b) seeking to entice the enticing or and this is equivocal; ceased to be never go victim of the crime contemplated so, of his de- necessarily irrespective for the com- place contemplated quality being clared intent. It is crime; mission lacking that must be before equivocal (c) place con- reconnoitering may be said act becomes one which for the commission templated of the commis- to be a commencement crime; act, or an overt sion of *8 structure, (d) entry of a itself unlawful any fragment of the crime before in it is con- or enclosure which vehicle committed, this is so for has been com- that the crime will be templated that, long equivocal the reason so as remains, say mitted; no one can quality equivocality of a defen- emphasis on the Stewart, 28, 8. An 143 Wis.2d
test." Wisconsin especially important in (1988) dant's conduct will (concluding 420 N.W.2d one, attempted robbery cases, case where in test was met in which the unlike this those ''film", stopped, statements, shown the de- if would have made ei- defendant has not demanding money appearing fendant his conduct. ther before or after gun). for a reach beyond claim that he (e) be Collier's never moved of materials possession in the commission of the mere employed preparation. crime, specially designed that are for Second, undisputed there is evi use or that can serve no such unlawful dence that took an pick Collier ice and a purpose
lawful of the actor under the Nancy's place box cutter drove to of cireumstances; employment, where he in waited outside
(£)
position from which he would
possession, collection or fabrica-
be able
Nancy
see
But
employed
to be
in
exit.
the corroborative
tion of materials
significance of a
possession
defendant's
of
commission of the
at or near
weapons
he intends to use in commit
for
place contemplated
its commis-
ting a crime must be
in
sion,
light
evaluated
of
or
possession,
if such
collection
weapons
types
possesses.
This
purpose
fabrication serves no lawful
is because the level of threat or
appar
circumstances;
the actor under
danger posed by weapons
inversely
ent
agent
an innocent
(¢) soliciting
proportionate to the distance between the
constituting
in conduct
an ele-
engage
alleged
defendant and the
victim. See
ment of the crime.
Richeson v.
5.01(2). Though
not
Model Penal Code
(Ind.1998)
("[Wle think that
the distance
types
an exhaustive list of the
of conduct
perpetrator
in many
between
and victim
step,
that could constitute a substantial
attempted murder
poses special
cases
guides
Model Penal Code formulation
our
").
problems of
ambiguity."
'intent
There
resolution of this case.
fore, we must consider the nature and
falls into three of the seven Model Penal
capability
injury
particular
wait,
categories, namely, lying
Code
in
re- weapon
weapons possessed by
the de
connoitering,
possession
of materials
fendant.
defendant's conduct must
employed
to be
in the commission of the
something
prepara
"be
more than mere
place contemplated
crime at or near the
tion, remote from
place
the time and
Nevertheless,
for its commission.
can-
11.4(b)
intended
LaFave
at n.
erime[.]"
say
strongly
that his conduct was
cor-
Dumas,
Minnesota v.
118 Minn.
roborative of his stated intent.
(1912)).
186 N.W.
First,
Here,
undisputed
there is
evidence that
pickup
Collier was found in his
Collier,
apprehended
the officers
when
he with a box cutter and an
given
ice
asleep.
was either
out or
While we
the distance between he and
at the
reject
possibility
lying
do not
arrest,
time
those items were virtu-
reconnoitering may
ally
wait
some cases
useless to
terms of an at-
be deemed sufficient to
tempted
constitute a sub
murder.
Inasmuch
a pickup,
as
step,
stantial
this is not such a
pick
potentially
case. Sim
and an ice
are
harmful,
ply driving
place contemplated
necessary
is nonetheless
direct,
allowing
the commission of crime before
make
close contact with the intend-
oneself to fall into
unconsciousness cannot
ed victim order to do harm. Compare
be said to be
corroborative of a
this to the case of a defendant
parks
who
firm
purpose,
require
eriminal
truck full
explosives
building.
is the
near a
Zickefoose,
Though
ment
Indiana. See
270 Ind.
*9
the defendant
be the same
510;
388 N.E.2d at
see also
physical
Mit
distance from his intended victim
chem,
Rather,
351
criminal
at an
stop
and courts to
effort
McHenry, 820
Nancy. See
murdering
stage, thereby minimizing
earlier
the risk
at 126.
harm
im
providing
of substantive
without
Reversed.
munity for the offender."
v.
Zickefoose
State,
618, 622,
270 Ind.
388 N.E.2d
J.,
CRONE,
concurs.
(1979).
509
BARNES, J.,
separate
dissents
step
constitutes a substantial
to
What
opinion.
is,
majority points
murder
as the
wards
BARNES,
dissenting.
Judge,
out, usually
a
litigated
attempt
when direct
majority
In the
I
dissent.
respectfully
agree
is made to take a life. We all could
lucidly frames the
opinion, Judge Vaidik
miss,
stabbing
that a
and a
a
or
shot
as,
are faced with here
question
death,
shooting
does
result
that Collier drove to
evidence
"whether
push
attempt
similar acts
"needle" to
with an ice
Nancy's place
employment
of
See,
guilty beyond a reasonable doubt.
binoculars,
parked
a
(Ind.
State,
e.9., Bethel v.
Some threat of harm to the intended vic- diate Code, attempt law is upon which Indiana's instructive, based, majority recog- the tim. majority's citation I with the agree nizes. in example, For Johnston 5.01(2) Code, which lists to section of the (Ind.1989), the was defendant that, if strong- of conduct examples several convicted of three counts of criminal ly of the actor's corroborative molesting. supporting child The evidence sufficient as a purpose, should be deemed that defendant the convictions was the law to constitute a substantial matter of parents told the of three children committing a crime. I also toward step them, and then wanted to molest went to majority the that Collier's con- agree with devices, parents' house with sexual the three of those duct falls within least give sedatives to lubricants, and in for the explicit examples: lying wait there no evidence the was children;
victim, Nancy; reconnoitering place the actually ever intended to allow the parents the contemplated for commission their children. defendant molest Our of ma- hospital; possession the and affirmed, finding court sufficient supreme employed in the terials to be commission of the defendant's intent to mo- evidence erime, cutter and an ice the three children and that he had lest place contemplated the for its at or near taken a substantial towards commit- commission, I hospital. disagree, observed, ting the crimes. The court course, majority's conclusion that with strongly factors are not corrobora- these Appellant clearly stated his intentions to purpose. tive of Collier's criminal fact parents the children. The states, approached parents it that he with a majority is correct when bag paraphernalia he stated he necessarily "we must evaluate state- which may togeth- intended to use in his molestation of the ments a defendant have made gave conduct in order determine children and the fact that he er with his parents specific he has done instructions as to how whether which prepared were to for the corroborates that which he said he would children degree Additionally, 35-38-1-7.1(a) to which a defen- something Section step" a "substantial toward dant has taken appellate courts take into consideration something committing attempted murder is determining "inap- whether sentence is may take that a trial court into consideration propriate" because it reflects the "nature of determining the sentence be- defendant's Appellate the offense" under Indiana Rule cause it reflects the "nature and circum- 7(B). Code stances of the crime" under Indiana open cardboard boxes supports that he intended which is evidence molestation especially This is true go fishing. ice jury. the verdict of did not of the evidence that Collier light court believed supreme Id. at 517. Our truck, items in his usually have these what to consider necessary proper placed them collected them specifically conjunction had done the defendant driving hospital. truck before performing prior intentions his stated that because Collier was disagree I also that the defendant's The fact those acts. arrived that police out when illegal by themselves were actions *13 passing conduct before out should to the his actual imminent threat posed no strongly corroborative of disqualified as enough for the defendant children was not dozing he until his criminal intent. Was liability criminal escape to get to off Nancy was scheduled he knew molesting. child ingestion Did his of aleohol overtake work? Likewise, that I conclude Collier's here legally any Does it make dif him ?2 his strongly corroborative of actions are warned, police, properly if ference? What in his statements to intent as revealed as he drove into interrupted Collier included, im- Those statements Cameron. more or parking lot? Would Collier be hospital, that mediately going to before can if he were awake? We culpable less Naney by "tonight" to kill going he was certainty, questions these with not answer cutting her in the heart and stabbing her but, me, they legally to are of little conse throat, instructions to Cameron giving and The law "focuses on the substan quence. family pets. care of the as to how to take completed, the defendant has tial that collecting included box Zickefoose, left undone." not on what was binoculars, cutter, pair and a pick, ice Also, N.E.2d at 510. 270 Ind. at in parking and driving hospital and necessary present that there be a "It is not exit where he could see an area ...." the crime Id. ability complete to hospital could use at persons leaving the complet could not have Obviously, Collier I to leave. expected time truck, asleep in his but ed the crime while possessing a box in isolation agree analyzing of no moment I submit that is pair of binoculars pick, ice step toward he took a substantial whether much of a "innocent" and not might appear murdering Naney. threat, with not combined Col- when majori persuaded Nancy by kill I also am not lier's stated intention or discredit distinguish ty's attempt hav- stabbing her and Collier's cutting and (Ind. from the hos- across the street ing parked 468 N.E.2d Hampton rob a case where a would-be Ct.App.1984), or- protective there was a pital exit while while outside a restaurant stay away ber waited requiring der effect a ski mask but never wearing armed and Additionally, although hospital from First, al actually entered the restaurant. legitimate cutters have picks ice later did de- supreme our court though under these weapons, than as uses other "flimsy," as it Hampton facts seribe the there is no indication cireumstances the case was way indicated pos- reason for no any legitimate Collier had instead cited incorrectly decided but ice such as sessing the box cutter and involuntarily (Ind.2001). argue claim he was 2. Collier does not He also does voluntarily intoxicated, to com- abandoned effort voluntary is no intoxication longer to a criminal a defense in Indiana See I.C. 35-41-3-10. mit a crime. State, 749 N.E.2d charge. See Sanchez case, apparent approval support as for af evidence. This is a my close firming the conviction before it. See State dissent should not be taken to mean that (Ind. Cleave, v. Van in another with different facts and issues, 1996). legal discussed, that I necessarily would vote Second, I I have be lieve the fact that Collier was an attempted sustain murder conviction. Third, significance. truck legal is of no I here. do so although post-arrest no Collier made con police, pre-
fession to the he did make clearly
arrest statements Cameron de
lineating Finally, his intent. the fact that physical progress
Collier made no toward arriving hospital
murder after at the is not
significant because it is reasonable to infer from parked posses where Collier and his Virgil CORNELIOUS, Appellant- *14 sion of binoculars he intended to wait Petitioner, hospital until left the before attack Therefore, ing strongly disagree her. I majority Hampton with the "weighs Indiana, Appellee STATE of of reversing favor Collier's conviction." -Respondent. Op. p. I opposite 350. believe the is true. No. 49A02-0507-PC-643. appreciate I the conduct charged, majority could have been as the Appeals Court of of Indiana. suggests, stalking or priva invasion of April 28,2006. However, cy. prosecutorial decision was to charge attempted murder July Transfer Denied try prove charge jury. to a That guilty decision resulted in a verdict.
Where a arguably defendant's conduct vio statute,
lates more than criminal one
prosecutor has the discretion to decide prosecute
whether to and under what stat
ute or charges. Lampitok statutes file (Ind.Ct.App.
2004), trans. denied.
Were I prosecutor in Steuben Coun-
ty, I might have my exercised discretion
differently charging when Collier. I am Additionally,
not. juror had I been a
this possible it is I could have been
persuaded to vote for acquittal
attempted murder. I was not. The bot-
tom jury, facts, line is that this on these guilty
returned a verdict. To conclude infringing
otherwise amounts to on this
prosecutor's charging discretion and this
jury's exclusive prerogative weigh