*1 of natural high probability he consideration the conduct and he is aware of a doing so.” sequence and usual to which such conduct logically reasonably points.” mind, statutory With these definitions in we find there was sufficient evidence Affirmed.
engaging step in a “substantial toward requisite commission of the crime” with the HOFFMAN, (sitting by designa- P. J. 1, culpability. supra. The rec- IC 35-41-5— YOUNG, J., tion), and concur. his ord reveals Pethtel removed forced clothes, victim to remove her then took pants,
down his own ordered the victim spread legs apart,
lie down on a bed and her lay top pressed penis
then on of her and
against vagina. The victim her testified I
Pethtel “asked me if had ever had it done
to me before” and that after she told him virgin she was a said wanted “[h]e HIGGINBOTHAM, Joseph Martin just press up against me.” We believe such Below), (Defendant Appellant conduct, sequence, in its natural and usual step constituted a substantial toward sexual v. penetration requisite and evidences the Indiana, Appellee STATE attempted rape.
tent Himes v. See Below). (Plaintiff State, Ind., 1377; (1980) Byassee 403 N.E.2d No. 3-381A67. 114, v. 251 Ind. 239 N.E.2d 586; State, (Ind.App., and Dixon v. Indiana, Appeals Court 673, 1981). was not re- Fourth District. quired to believe Pethtel did not intend to 4, Nov. rape merely may commit because he have going told his victim “I’m not to stick it in
you”6 replete since the record is with evi- rape
dence he did intend to commit step
that his actions were a substantial Compare Barnes
furtherance such aim. State, Ind., 331, (1980)
v. 403 N.E.2d where victim, grabbed
the defendant held her knifepoint
at and threatened to commit a fled, act,
deviant sexual then and our Su-
preme Court concluded there was no evi- attempted
dence the defendant to commit
rape charged. Supreme as As our Court State, 118, in Byassee supra
observed at quoting
239 N.E.2d at Hanes v. 155 Ind. 57 N.E. 705: function, and,
“Intent is a mental where consummated, (and indeed even
then), impossible it is to know with abso- certainty,
lute what was in the mind;
actor’s and in such cases be it must juries
arrived at courts and from a down, hearing “just lay trial, merely at such Pethtel told her 6. At the victim testified “I asked me, going you just going it in I want rub him if he was stick that in and he I’m not to stick answer,” really although transcript you didn’t on [sic].” probable reveals the victim stated cause *2 «97
898 manner in fendant a normal approximately 30-35 westerly direction testimony miles hour. There was proceeding straight down defendant setting road and was blinded something sun. He felt hit the car. He *3 stopped impact was from the the car. hitting stopped a child. The car was on car Damage pavement. the to the front of the headlight. right car was to the left of the defendant the child was From this McEntee, Crowell, Michael R. Bowman & road, him that defendant did not see Fort Wayne, appellant. for regardless of his because of the sun and Pearson, Gen., Linley Atty. E. Janis L. state of intoxication the accident would Summers, Gen., Deputy Atty. Indianapolis, in the There- have occurred same manner. appellee. fore, driving his while intoxicated in no Also, being. caused the death human YOUNG, Judge. explain appearance, his intoxicated de- Appellant Joseph Higginbotham Martin gait presented fendant evidence that his Driving was convicted of Under the Influ- staggered usually was or somewhat un- Intoxicating Beverage ence of an eyes were he steady, his bloodshot because Causing Being. the Death of a Human Ind. speech his was a welder and that was al- l-54(b). Code 9-4 — ways a mumble or a slur. Defendant at- tempted to elicit from the officer appeals First, He presenting two issues. test that de- who administered the breath erroneously did the trial court construe the permitted for- fendant was to leave without requirement causation 9—4—1— mal arrest and that his driver’s license was 54(b) and consequence erroneously as a Apparently, the was to returned. be- struct about the elements of the lieve from this evidence that defendant was Second, offense? did the trial court err sufficiently not considered intoxicated to be permitting to cross-ex- defendant incarcerated, prior that observations were argue amine and about the return of his inaccurate, prima or rebut the facie evi- driver’s license and his release after dence of the breath test. Ind.Code 9—4—1- accident and breath test? 54(b)(4)(A). injured fatally Defendant one Levi Mon- argued at trial and the trial State by hitting hollen him with automobile. driving court ruled that the while intoxicat- consuming Defendant admits or four five ed need not cause the death. The trial beers. His breath test showed a .165%alco- only required court held that the statute approximately hol content two hours after to show defendant was intoxicat- State conflicting the accident. There was evi- vehicle, ed, a motor and as a presented dence by the as to whether person Despite result died. a State’s pavement the victim was on the or off the argument, present it did evidence sufficient road when he was hit. to show facie intoxication that theory Defendant’s of defense was that swerving defendant drove in a manner. alternatively, was not intoxicated and Also, pedestrians the witnesses stated all that even if he was intoxicated the were off the road when Levi Monhollen was legally while intoxicated did not cause the car. hit accident and death because defendant was At the time of the offense the statute setting blinded sun and the victim follows: as was on purposes the road. For of further contentions, (b)(1) person operates A vehicle understanding appellant’s who a following presented. evidence was also De- while:
«99 intoxicated; (A) human or conduct within the ambit of ele- robbery, ments of the offense of the (B) unlawfully under the influence of a quality legal does not result in uncertain- substance; controlled commits a Class A ty. .. . If injury any person an other misdemeanor. offense consequence arises as a of the conduct of felony Class D if it results the death of committing the accused in robbery, person. another properly regarded offense is as a A Class The statute before amended to the above in”, felony.” therefore, Id. “Results is a provided part: form had in relevant general requiring causative term injury “(1) Any person who while under the arising consequence as a of the conduct of intoxicating influence of liquor or unlaw- the offense. Id. fully under the influence of narcotic or We must determine whether defendant other habit-forming dangerous, depres- or was harmed the trial court’s erroneous drugs operates sant stimulant or drives *4 interpretation of the statute. The was a vehicle and operating when so or driv- instructed in the words of the statute. ing person, causes the death of another is Driving The crime of While Intoxicated and, guilty conviction, of a felony upon ” by is defined statute as follows: shall imprisoned be .... person operates “A who a vehicle while ruling The trial court based its that causa- intoxicated commits a class A misde- tion longer required was no on the General meanor. the offense is a Assembly’s omitting amendment the term felony class D if it results in the death “causes” the death. (Ruling on defendant’s being. of another human Judgment Motion for a Evidence person driving A while intoxicated if ruling on Errors).1 the Motion to Correct he is a vehicle while in an im- The trial court erred in its inter paired thought condition of and action pretation of the statute. generally It is and the loss of normal control of one’s rule that where a crime is defined as to not degree, by faculties to a marked caused merely require conduct, specified but also a the use of to such alcohol an extent as conduct, result of the defendant’s conduct endanger persons using public other must be the cause of the result. W. La- highways. Scott, Fave & A. Criminal Law 35 Causa § To convict the defendant the State (1972). tion defining The statute of proved following must have each of the requires specific fense result of the con elements: duct. appeal dispute The State on does not The defendant requirement of causation.2 Causation is operated 1. a vehicle required. 2. while intoxicated and that death of State, (1980)Ind., In Bailey v. 412 N.E.2d being a human resulted. argument 59 the was made that prove If the failed to each of State in”, term “results within the context of the beyond these elements a reasonable statute, Robbery 35-42-5-1, doubt, you should find the defendant not ambiguous, required uncertain and inter- guilty.
pretation. Supreme Court held that prove If the did each of these State when considered in the context of the entire doubt, beyond you elements a reasonable statute, ambiguous. the statute was not guilty should find the defendant of Driv- “The term is a causative one of considerable ing Causing While Intoxicated and generality, denoting but in natural Being, conse- D Death of a Human a class felo- quences responses express and human ny. appears
1. It
that
decisions of our
“[T]he
omission of “causes” death
courts have made the
”
grammatical purposes,
requirement
proven
was more for
rather
of causation be
clear ....
any
change. Compare
g.
Appellee’s
than
substantive
e.
Brief 9.
State,
Bailey
Ind.Code 35-42-5-1 and
Ind.,
While we do assume error in this not case, we do find error in the circumstances Secondly, Higginbotham the trial Higginbotham charged by before us. sustaining plaintiff’s ob- court erred in follows, omitting caption, information as jection thereby preventing defendant’s signatures and statement of oath: officer about cross-examination day Septem- That on or about the 15th the return of his driver’s license after ber, A.D., 1979, County at the Allen Also, defendant contends the tri- accident. Indiana, and in the Defend- said argu- permitting final al court erred ant, Martin J. did then regarding release after the breath ment unlawfully, operate there drive or are test. Defendant states these matters *5 vehicle, certain motor to wit: a 1963 developed been related and would have Plymouth bearing a 1979 Indiana License fully per- more cross-examination been had Plate Number 2N5073 while under the restricted to the one mitted rather than Intoxicating Beverages influence of and concerning of the question the return upon public Highway, commonly a known license. He the return of the license Road, County as Parrott in Allen located contradictory the and his release are to directly proximately Indiana and did and finding The by the officers of intoxication. Monhollen, cause the death of Levi J. counters that the officer was instruct- Being day Human who died on the 15th prosecutor’s office to ed the release the 1979, September, being contrary to the defendant without arrest and such direction form of the Statute in such case made by prosecutor explained the return of provided. and license and the release. Thus, charged defendant was in a manner prosecutor’s instructions to Without the requiring proof of causation. The statute defendant, release the return of the license required causation. Defendant tendered may release have been in contradiction and complete instructions on causation. The and to the officers’ other observations trial court was not re- concluded causation thereby possessed impeachment some value. quired. The thrust of the defense was that prosecutor seem The instructions from even if intoxicated or while intoxi- re- explain the reason defendant’s cated, such was in no the cause of the seeming with lease and the contradiction accident or death. other observations about the defendant. However, explanation upon
Based these circumstances we the effect of such is a jury. The of intoxica- hold defendant was harmed the lack of matter for the state certainly instruction on The of defendant was relevant to causation. instruction tion return of license wording did trace the of the statute as far the issues in the case. The release, guilt, may language. as the while not relevant to spoke “results in” It also officers’ belief terms of loss of normal control of one’s have been indicative of the given opportunity must be to resolve con- 3. While there is sufficient evidence for the causation, according proper sufficiency flicting to have not the evidence instruc- found issue before us. The as the trier of fact tions. proba- Although as to the state of intoxication. The cross-examination of this tive value of such evidence was to deter- permitted, subject officer of the testimony. mine the value the officers’ (and return of the license release without State, (1980) Ind.App., v. Pfefferkorn 413 arrest) completely foreclosed. We find 1090. curtailment, requested line of cross- Pfefferkorn, supra. examination in limine. may The evidence also have been relevant Haeger, supra; Such is se error. to rebut facie intoxication stan- States, Springer (D.C.1978) v. provided United dard 9—4-1- 54(b)(4)(A). If A.2d the officers’ release could be 856. (a
interpreted function jury) as a reasons, For these we reverse and remand belief them that was not for a new trial. degree intoxicated to the his actions were impaired, proba- the evidence would have MILLER, J.,P. concurs. tive concerning value the relation of intoxi- cation to the cause of the accident as well. HOFFMAN, (sitting by designa- P. J.
The trial court has discretion to
concurs,
tion),
opinion.
with
regulate
scope
of cross-examination.
HOFFMAN, Presiding Judge, concurring.
the exercise of such discretion
comport
must
process.
with due
A fair
I
majority, except
concur in the
I cannot
full,
requires
right
trial
adequate
agree
majority’s analysis
however in the
effective
Haeger
cross-examination.
regarding
question
the issue
Ind.App., 390 N.E.2d
Higginbotham’s
return of
driver’s license.
Any doubt as to the legitimacy
questions
question regarding
the return of
on cross-examination must be resolved in
Higginbotham’s
totally
driver’s license is
favor of
questioner.
Sears v.
irrelevant
to the issue of his intoxication
258 Ind.