The defendant, Tyrone Henderson, was found guilty by a jury of two counts of attempted battery with a deadly weapon and found to be a habitual offender. The following related issues are raised in this direct appeal:
1. Whether this single occurrence could result in two separate offenses,
2. Whether attempted battery is a cognizable offense,
3. Sufficiency of evidence.
1. Separate Offenses
The defendant was convicted of shooting at two police officers. He argues that only one offense was committed because “[t]he close proximity of the officers to each other leads to the inference that the shots were fired by the subject in the general direction of both officers.” He urges that this should be treated as logically analogous to multiple blows upon a single victim, which constitutes but one offense.
Hanic v. State
(1980), Ind.App.,
In
Johnson v. State
(1983), Ind.,
Obviously the crime against one victim is separate and distinct from the crime against the other victim. This case involves two separate crimes committed against two separate victims and separate sentenсes were properly imposed for each crime.
Id.
at 937.
See also Randall v. State
(1983), Ind.,
Here, although both officers were chasing the defendant, each testified that the defendant shot separately at each officer. As in Johnson, two separate crimes were committed against two separate victims. It was not error to treat this as two separate offenses.
2. Attempted Battery as a Cognizable Offense
The defendant next contends that the offense of which he was found guilty, attemptеd battery, does not properly exist under Indiana law. Citing
Humes v. State
(1981), Ind.,
The State acknowledges that prevailing Indiana law applies the attempt statute only to specific intent crimes; that two cases contain language describing battery as not a specific intent crime,
Johnson,
In the analysis and discussion of intent as an element of criminal responsibility, noted authorities have recognized that some crimes require a specified intention in addition to the intentionаl doing of the conduct constituting the “deed of crime,” or actus reus, and have used the term “specific intent” to designate such special additional mental element. R. Perkins, Criminal Law 762 (2d ed. 1969); W. LaFave & A. Scott, Handbook on Criminal Law § 28, at 202 (1972). Professor Perkins provides the following specialized definition:
A specific intent, when an element of the mens rea of a particular offense, is some intent other than to do the actus reus thereof which is specifically required for guilt.
Perkins, supra, at 762. Common law larceny and common law burglary are cited to illustrate this definition. In addition to the intent to take and carry away the prоperty of another, conviction for larceny required proof of an additional specific intent to steal. Similarly, conviction of common law burglary required not only an intentional breaking and entry, but in addition a specific intent to commit a felony therein.
Use of the term, however, has not been universal and consistent.
“General intent” is often distinguished from “specific intent,” although the distinction being drawn by the use of these two terms often varies. Sometimes “general intent” is used in the same way as “criminal intent” to mean the general notion of mens rea, while “specific intent” is taken to mean the mental state required for a particular crime. Or, “general intent” may be used to encompass all forms of the mental state requirement, while “specific intent” is limited to the one mental state of intent. Another possibility is that “general intent” will bе used to characterize an intent to do something on an undetermined occasion, and “specific intent” to denote an intent to do that thing at a particular time and place.
LaFave & Scott, supra, at 201-202. Others have similarly expressed dissatisfaction with the variety of terms, including “specifiс intent,” to describe culpable mental states.
Many of such terms are used indiscriminately and, to a large extent, are not defined; whatever light is shed on the meaning of defined terms becomes obscured by the failure to define seemingly synonymous terms; some terms are used interchаngeably but not always consistently; the meanings of some terms overlap or shade into one another; and terms are not sharply distinguished one from another to show that some differ in kind while others differ only in degree.
1 Wharton’s Criminal Law § 27, at 136 (C.Torcia ed. 1978). In order to promote greater clarity аnd precision, the “specific intent” — “general intent” terminology was abandoned in the Model Penal Code. Id.; LaFave & Scott, supra, at 202; Model Penal Code § 2.02 comment (Tent.Draft No. 4, 1955). Indiana substantially implemented this approach with revision of its criminal code in 1976 and the statutory designation of “intentiоnally,” “knowingly,” and “recklessly” as specific terms denoting degrees of criminal culpability. Ind.Code § 35-41-2-2.
Subsequent cases holding that the Indiana attempt statute can have application only to specific intent crimes resulted from discussions reviewing whether the Indiana attempt statute applies to crimes requiring a culpability of mere “recklessly,” rather than “intentionally” or “knowingly.”
See Zickefoose v. State
(1979),
The meaning of “specific intent,” as used in the above attempt statute cases, is also distinguishablе from the intended meaning in those cases which have commented that battery is not a specific intent crime. In
Norris,
the defendant contended that he was so intoxicated that he could not form any specific intent to commit the offenses of murder, battery, resisting arrest, and possession of controlled substances. Perfunctorily noting that of all the offenses charged, only the attempted murder is a specific intent crime, the
Norris
court proceeded to find the evidence sufficient to find the defendant capable of forming the specifiс intent to kill.
In Johnson, this Court affirmed the trial court’s refusal to give tendered instructions regarding criminal recklessness as a lesser-included offense of battery, noting that evidence of defendant’s drug use could not convert otherwise intentional acts into reckless conduct because “neither battery nоr criminal recklessness are specific intent crimes,” and therefore the defense of voluntary intoxication is prohibited by statute. 1 We decline to view Johnson as instructive upon the issue of whether battery is a specific intent crime. There were two reasons given priority in the Court’s rationale for affirming the trial court’s refusal to give the tendered instructions. First, defendant’s arguments supporting tendered instructions on criminal recklessness were rejected because “it is apparent that the battery was accomplished by the direct act of pulling a pistol and firing into thе body of the victim,” thus emphasizing the absence of evidence of mere recklessness. Second, the opinion emphasized that defendant’s tendered instructions were confusing, incomplete, and inadequate because of their failure to explain the role оf an uncharged lesser-included offense, and to define the words recklessly, knowingly, and intentionally. The discussion of “specific intent” and battery in Johnson therefore does not compel us to conclude that the culpability required for battery precludes application оf the Indiana attempt statute.
The offense of battery, Ind. Code § 35-42-2-1, requires proof that the accused “knowingly or intentionally” touched another person in a rude, insolent, or angry manner. In its comments to the battery statute, the Criminal Law Study Commission included the following:
It should be noted there is no crime of assault in the proposed Code. Because the Code has a general attempt crime, I.C. 35-11.1-8-1, the Commission believed it redundant to include the specific crime of assault which is nothing more than an attempted battery. Therefore, all assaults should be prosecuted as attempted batteries.
Ind.Code Ann. § 35-42-2-1 (West 1978, p. 302.)
We conclude that battery is not among the class of offenses whose prerequisite culpability precludes application of the Indiana attempt statute. The offense of attempted battery is a valid and сognizable offense under Indiana law. There is no error on this issue.
3. Sufficiency of Evidence
The defendant challenges the sufficiency of the evidence to support the eon- *1109 victions and the habitual offender determination.
In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt.
Case v. State
(1984), Ind.,
The evidence reveals that Officer Nybo and Officer Niezgodski responded to a dispatch that a burglary was in progress and saw a black male leave the scene of the alleged burglary. They pursued him on foot. Nybo observed the defendant from close range as he ran past him and believed he recognized dеfendant. During the chase, the defendant approached an alley, and before he entered, he turned and fired a shot at Nybo, who returned fire. As Niezgodski entered the alley, the defendant fired at him, and Niezgodski returned fire. Nybo testified that he saw a blue steel .25 caliber sеmi-automatic weapon in defendant’s hand. Officer Scott saw the defendant in the alley, chased him and saw him enter a house through the window. When police surrounded and entered the house, the defendant came down the stairs clad only in a blanket. He told police that another man with a gun had just entered the house and was still there. Clothing matching the description of the clothes worn by the man the police had chased were found inside the house. Inside the pants pockets several bullets were found. No other man was found.
While mere presence at the scene of a crime is not sufficient in and of itself to establish guilt,
Harrison v. State
(1986), Ind.,
The defendant also asserts that testimony rеgarding the suspect’s height and clothing contained inconsistencies. Inconsistency in the testimony of witnesses goes to the weight of the evidence, however, and resolution of inconsistencies is made by the trier-of-fact.
Ingram, v. State
(1981), Ind.,
The defendant next alleges that the evidence was insufficient to show that the two prior felony convictions qualified to support the habitual offender determination. We agree. One of the essential elements of a habitual offender finding is proоf that the second predicate offense was' committed subsequent to the date of sentencing for the first predicate offense. Ind. Code § 35-50-2-8. Failure to prove this element requires that the habitual offender determinations be vacated.
Smith v. State
(1987), Ind.,
The State’s evidence of two prior felony convictions established only that the defendant was sentenced with the first on August 25, 1975, and that the second offense was committed sometime in 1981 or before, for which the defendant was sentenced on June 10, 1981. The evidence fails to establish that the 1981 conviction was for an unrelated offense committed after August 25, 1975.
We affirm the defendant’s convictions on two counts of attempted battery. This cause is remanded to vacate the habitual offender determination and for resentenc-ing.
Upon resentencing the trial court may impose any sentence permissible under statute.
Coble v. State
(1988), Ind.,
Notes
. Ind.Code § 35-41-3-5(b). The particular subsection of this statute has been since held void.
Terry v. State
(1984), Ind.,