Following a jury trial in the Vander-burgh Circuit Court, Defendant-Appellant Robert A. Hurt a/k/a Robert A. Miller (Hurt) was convicted of the crimes of Attempted Murder, for which he received a sentence of imprisonment for forty (40) years, and Attempted Rape, for which he received a term of twenty (20) years, said sentences to be served consecutively.
Issues presented for our review in this direct appeal have been consolidated as follows:
1. error in the giving of final instructions;
2. admission of Hurt’s statements into evidence without first proving a corpus delicti; and
3. denial of Hurt’s Motion for Judgment on the Evidence concerning the attempted rape charge.
The evidence showed that on July 11, 1987, V.Q. attended a backyard party at 1401 S. Governor in Evansville, Indiana. Hurt was also at the party with his girlfriend. Hurt and the victim spoke only casually to each other during the party.
After the party was over, while the victim and Hurt were alone, discussing Hurt’s old relationship with the victim’s sister, Hurt suddenly, for no apparent reason, stabbed the victim in the neck. She ran from Hurt. She remembers nothing after that until she awoke in a garage across the street. A neighbor found the victim lying nude and covered with blood in the garage shortly after 7:00 a.m. The neighbor called the police and an ambulance was sent to the scene. The victim was able to tell the police at that time that Hurt had injured her. It was determined that she had many stab wounds about her neck, chest, and shoulders, and had lost 30% to 40% of her blood. A sexual assault examination revealed no external or internal trauma to her genitalia. Tests for spermatozoa and seminal fluid were negative. She had no recollection of any sexual assault although she had “a funny feeling” in her genitalia. Doctors testified that the symptoms she described could be consistent with a vaginal infection.
Hurt was arrested at 9:18 a.m. on July 12.At police headquarters, he gave three statements to the police after having been given his Miranda rights and waiving them. He raises no question about the voluntariness of those statements. In his first statement, given from 11:10 to 11:41 a.m., Hurt claimed he was at the party with his girlfriend and subsequently walked the victim across the street. He could not explain blood on his clothes. From 2:00 to 2:18 p.m., he gave a second statement in which he said he got into a fight with the victim and ripped her clothes off. He admitted he hit the victim with a sharp object. From 2:37 to 2:46 p.m., he gave a third statement in which he admitted he had been on top of the victim while she was naked and while his pants were down and his penis exposed. However, he denied he had raped her or had had any intention of raping her.
*18 I. Instructions
Hurt claims the trial court erred in the giving of Final Instruction No. 12, because it did not inform the jury that, in order to find Hurt guilty of attempted murder, the evidence must show Hurt had a specific intent to commit murder. The trial court also, however, gave Instruction No. 13 which did adequately inform the jury of the requirement of finding specific intent. Hurt’s tendered Instruction No. 1 on the issue of specific intent was refused.
Hurt first claims that Instruction No. 12, standing alone, was erroneous because it failed to advise the jury of the requirement that it find specific intent. He urges that such omission cannot be cured by the giving of another instruction that covers this requirement. Further, however, he claims the court erred in refusing to give his instruction on specific intent, implying that, had it been given, the instructions to the jury on that subject would have been adequate.
Instruction No. 12 informed the jury of the statutory elements of murder, attempt and attempted murder, explaining what must be proved beyond a reasonable doubt pursuant to the statutes. No. 13 followed 12 and explained to the jury it must find a specific intent to kill the victim and explained the definition of intent. Instructions must be construed as a whole. They are to be read together as a whole and not as single units, and a single instruction need not contain all the law applicable to the case.
Lopez v. State
(1988), Ind.,
Hurt is correct in his contention that an erroneous instruction is not cured by a correct one. However, Instruction No. 12 was not an erroneous instruction. Instruction No. 12 informed the jury of the statutory requirements that must be supported by the evidence and Instruction No. 13 informed the jury of the requirement of specific intent. It is true that in
Smith v. State
(1984), Ind.,
Hurt further claims error because the trial court refused his tendered Instruction No. 1. That instruction reads as follows:
DEFENDANT’S INSTRUCTION NO. 1
Before you may find the defendant guilty of Attempted Murder as set out in Count I, you must find that the State has proven by evidence beyond a reasonable doubt each one of the following elements:
1. That the defendant intentionally, that is, with the specific intent to kill;
2. Engaged in conduct which constituted a substantial step toward killing [V.Q.];
If you find that the State has failed to prove any one of these elements byond [sic] a reasonable doubt, then you must find the defendant not guilty of Attempted Murder.
/s/ _
John P. Brinson Attorney for the Defendant
Such instruction more nearly complies with what we believe to be a proper instruction setting forth the elements of attempted murder,
see Spradlin v. State
(1991), Ind.,
*19 Hurt also claims the trial court erred in giving final Instruction No. 24A in that it improperly invaded the province of the jury. Hurt concedes that, although he objected to the giving of Instruction No. 24A in the trial court, he did so on entirely different grounds. He has now abandoned the grounds raised in the trial court and presents, for the first time on appeal, the argument that Instruction No. 24A invades the province of the jury. Although he concedes this would be a waiver of consideration of this issue, he claims the error is fundamental. The court’s Final Instruction No. 24A was as follows:
COURT’S FINAL INSTRUCTION NO. 24A
Included in the offense charged in Count II is the crime óf Attempted Rape, a class A felony.
“Attempt” is defined by statute as follows:
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward the commission of that crime. An attempt to commit a crime is a felony of the same class as the crime attempted. Attempted rape is a class A felony.
To convict the defendant the State must have proved each of the following elements:
The defendant
1. knowingly
2. on or about July 12th, 1987, engaged in conduct that constituted a substantial step to accomplish
3. the crime of Attempted Rape which conduct was using force with the intent to have sexual intercourse with [Y.Q.] without her consent while the defendant was armed with a deadly weapon, to-wit: a sharp metal object. If the State failed to prove each of
these elements beyond a reasonable doubt you should find the defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt you should find the defendant guilty of the crime of Attempted Rape, a class A felony.
Hurt claims the trial court mandated the jury in this instruction to find that the substantial step taken by Hurt in the attempt to commit rape was “using force with the intent to have sexual intercourse with [V.Q.] without her consent while Hurt was armed with a deadly weapon, to-wit: a sharp metal object.” He claims this mandates the jury to find these are the facts rather than making their own finding as to what the facts are. Hurt explains his argument by claiming this instruction equated the “use of force” with “substantial step,” thus eliminating the need for the jury to determine the existence of a substantial step once the jury determined force was used. Therefore, he states, the instruction omitted the need to find a material element of the offense. Hurt’s reliance on
Micinski v. State
(1986), Ind.,
Hurt presents no error on the issues of the instructing of the jury.
II. Corpus Delicti
Hurt contends the trial court erred by permitting into evidence his three statements, State’s Exhibits 37, 39, and 40, without requiring the State to first establish the
corpus delicti
regarding the crime of rape. The purpose of the
corpus delicti
requirement is to prevent the admission into evidence of a confession by a defendant to a crime which never occurred.
Riley v. State
(1976),
No error was committed in the admission of the statements.
III. Sufficiency of the Evidence
Finally, Hurt claims there is insufficient evidence of probative value to support his conviction for attempted rape. Ind. Code § 35-42-4-l(a)(l) provides that rape is committed if “a person ... knowingly or intentionally has sexual intercourse with a member of the opposite sex when the other person is compelled by force or imminent threat of force.” Ind.Code § 35-41-5-l(a) defines attempt to commit a crime as an act where one, acting with the culpability required for commission of the crime, engages in conduct that constitutes a substantial step toward commission of that crime. Hurt was originally charged with rape but the trial court found there was insufficient evidence to support this charge and set it aside, leaving the jury to determine whether or not Hurt had committed attempted rape. Hurt raises no question concerning this procedure but claims there was insufficient evidence to support the crime of attempted rape. Hurt relies on
Goolsby v. State
(1987), Ind.,
In the instant case, evidence of penetration is not required to support a conviction for the crime of
attempted
rape, as opposed to the crime of rape itself.
See, e.g., Canaan v. State
(1989), Ind.,
The trial court is affirmed.