State v. Gillespie

presents no issue for this review. Court’s

would therefore affirm the order of the

trial court. Indiana, Plaintiff-Appellant,

STATE of GILLESPIE,

Steven J. Defendant-Appellee. Pearson, Gen., Linley Atty. E. Thomas D. Gen., Quigley, Deputy Atty. Indianapolis,

No. 3-581A131. for plaintiff-appellant. Indiana, Appeals Court of Thonert, Thonert, Richard J. Romero & Third District. Auburn, for defendant-appellee. Dec.

GARRARD, Judge.

Gillespie charged dealing in a schedule II controlled sub- stance. He filed a motion to dismiss argument the court heard and re- ceived stipulated evidence. It was by the parties that the substance delivered Gil- lespie was not a controlled substance. was crushed aspirin. addition, common In Gillespie Collins, testified that an undercov- police officer, er had on several occasions attempted to procure induce drugs for According Gillespie, him. decided to both teach Collins a lesson and get stop him to bothering Gillespie. He aspirin, therefore crushed some sealed it in packet a foil and sold it to Collins $110. Relying upon (5th United States v. Oviedo 525 F.2d 881 the trial court dis- missed the ap- and the state peals. against Gillespie

The information fol- lowed the attempt statute, elements of the 5—1, charged 35-41— 1339 must mark the defendant’s conduct as crim to anoth- delivered a substance “knowingly in nature. The root of Oveido rises inal cocaine.” believing er it to be impos from the common law notions of the pur- that for initially argues The state sibility Compare the Fifth defense. Cir dismiss, must to the court poses of a motion explanation subsequent cuit’s of Oveido in alleged in the infor- accept as true the facts (5th 1977), v. Korn Cir. 557 United States was with- urges mation. It that the court Quijada (9th v. F.2d 1089 and United States evidentiary mat- authority out to consider rejects 588 F.2d 1253 which Ovei we should reverse because the ters and that do. adequate information was language of the rationale has a certain charge the offense. While the Oveido been premise find its basic has appeal, we generalization a agree We that as legislature general in the rejected by our information is to be tested an indictment or 35-41-5-l(b) express- attempt statute. alleged facts therein. by taking as true the ly provides: 311, (1960), 241 170 v. Ind. See Smith State of a because “It is no defense 794; (1951), 229 Ind. N.E.2d Crouch State circumstances, it misapprehension of the 860; 326, (1935), v. Green 97 N.E.2d State ac- impossible for the would have been 583, 182. the other 207 Ind. 194 N.E. On the crime at- person to commit cused hand, prose we remind the state that tempted.” cuting pro in attorney’s function criminal Ind., (1979), 388 In Zickefoose v. State ceedings obligation includes the to see that Court, in 507, albeit Supreme our N.E.2d tried, erroneously charged, is not dictum, ef- unanimously that the concluded convicted, rights and that his and free abrogate those statute was to fect protected. dom Palmer v. are upon the result prior cases which focused Ind.App. 288 N.E.2d attempt and limited a criminal the conduct permits IC 35-4.1-3-1 the court to con- apparently have which would to conduct hearings upon duct omnibus the motion of a unless in- completed crime resulted in the party sponte. expressly or sua authorizes independent of by circumstances terrupted admissions, obtaining simplifying the issues concluded that will. The court the doer’s taking promote a fair other action to upon mens rea and focuses the statute n to the stat- expeditious trial. Pursuant step towards completion of a substantial was entitled to receive and ute the court offense. of the commission stipulation which that consider the disclosed by Gillespie was the substance delivered Reading paragraphs both aspirin. common appears to us together statute to in pointedly intended fact, alone, legislature rather standing Does the pro Oveido-type conduct within substance delivered was not a controlled clude attempt statute. It follows ability scription of the preclude substance the state’s charging informa language of the properly attempt convict of an that the the motion to withstand deliver? If it there was no harmful tion was sufficient does stipu presence in the granting error to dismiss even committed dismissal. Gillespie committed Whether or not lation. Oveido, supra, In the Fifth re- Circuit step” question be a would a “substantial the defendant versed conviction where fact for trial. but, delivering believed he was heroin however, fact, us, that since he Gillespie urges procaine hydrochloride, delivered an indeed, and, aspirin knew the substance uncontrolled substance. The court reasoned aspirin he cannot deliver guilty of a intended to defendant delivery of heroin. objective attempt, per- guilty acts criminal point of his considering rea) agree with the substantive (apart formed from mens We arose, believe, argument. knowingly he indeed and de- If out of the trial court’s aspirin to he is liberately sold Collins not misapprehension proper function of guilty attempt of an deliver a controlled regarding a motion to dismiss substance, whatever other offenses he an information.1 have committed. Under such circumstances charged by information have acting he would not been “attempted with under dealing” IC 35-41— required for culpability commission 1(a), provides: which 5— 35-41-5-l(a). crime. person attempts “A to commit a crime However, present- assertion was this not when, acting culpability with the re- by stipulation. ed to the court is an quired crime, for of commission the he trial, issuable fact for and the information engages in conduct constitutes a sub- alleged Gillespie believed he was deliv- step of stantial toward commission the Thus, ering cocaine. had the trial court crime;” . . . question, reached the it would have been 35-48-4r-2, provides: and IC which to improper the motion dismiss to sustain person “A who... Gillespie’s If merely upon assertion. the “knowingly .. . delivers a controlled jury state from the has evidence which substance . . . might reasonably a beyond conclude reason- ” “commits dealing. .. . able doubt that believed cocaine, prosecution selling the should be That information stated: n permitted proceed. “Gillespie attempt did to commit appeal We sustain the and set therefore of Dealing crime in a II Schedule con- substance, The aside the dismissal information. by trolled to-wit: Cocaine proceed- case is for such further knowingly delivering remanded a substance to an- ings necessary conformity be may believing as other it to be cocaine which herewith. step conduct constituted a substantial to- ” ward commission said of crime. . . . and remanded. Reversed alleged

The information clearly sufficient facts to constitute the under P.J., HOFFMAN, concurs. See, above statutes. Brown Ind.App., However, 403 N.E.2d 901. confu- STATON, J., separate concurs and files sion arose over stipulated fact that the opinion. actually aspirin, substance delivered was STATON, Judge, concurring. non-controlled substance. While Opinion, I Majority concur IC 35-3.1-1-8 allows the defendant wish clarify my position doing. challenge by in so information motion error in questions dismissal of the information either law or fact. The motion 1. I am in ty position defense to briefly bility eliminate the defense of the attendant follows that his belief as to gerousness.’ It mind is ‘the best ing neutralize “There is a modem “ ‘Attempt’ liability the distinction between factual noted ^[******] complete agreement charges legal impossibility... dangerous circumstances should one commentator: “impossibility” proving ground tendency by seeks to actors. An actor’s impossibility, is not identify crimes. As of his dan- statute to impossi- be Majori- includ- valid con- 4 Wharton’s trend, a viable defense in Indiana. (I4th “attempt” IC 35-41-5-1 to commit the crime have prehension whether the legally (footnotes omitted). trolling, “It is no defense ed. Indiana been statute: in which impossible 1981). Following impossible (b). “Impossibility” Criminal adopted target case it should not circumstances, crime Law, attempted.” subsection because of a § commission....” accused the “modem” is factually pp. clearly (b) it would 585-86 misap- matter not or “(9) or The indictment or information accompanied affidavit docu- may sufficient does not state the offense with prosecutor and the mentary evidence documentary facts stated do not con- certainty evi- or the respond by answer and (e) (d) allow the stitute an offense.” dence. Subsections deny grant to either or the mo- trial court 4(a)(l), Under the reference IC 35-3.1-l— hearing without under certain delineat- tion l-6(a) pro- to section 6 is IC 35-3.1— pertinent. ed not here circumstances Sub- vides: 1-8, (f), section of IC controls the 35-3.1— “An or or a indictment hearing: thereof, count is when: defective court determine the "If the does not “(1) substantially not conform it does (d) (e) pursuant to subsection or motion 2(a) of requirements of section section, of this shall conduct chapter; this findings essential to the and make of fact “(2) allegations demonstrate that the thereof. The defendant determination jurisdiction of the does not have court present by be in right has a and charged; the offense or may at such but waive counsel “(3) offense defining the the statute The has the bur- right. such defendant or other- charged is unconstitutional by the proving preponderance of of den wise invalid.” every support fact essential .evidence motion.” the refer- 35-3.1-l-6(a)(l), the And under IC 35-3.1-l-2(a) 2(a) is ence to section the defendant to Clearly, this statute allows or in- provides an information which that challenge by the information motion and at allege the writing in and dictment must be hearing upon questions of fact. The the offense; commission of the appeal is present by issue raised this “what” and “(1) title of the action Stating the questions of fact the defendant chal- may in indict- court which the the name of the lenge. filed; is ment or information l--f(a) provides that court IC 35-3.1— in “(2) name the offense Stating the may dismiss an indictment or information any other statute or the words of the following grounds: the meaning; conveying the same words “(1) The indictment or information or al- statutory provision “(3) Citing the thereof, count under sec- any is defective except that violated leged have been chapter. tion 6 of this or a citation to include such any failure parties “(2) Misjoinder or of offenses not shall such a citation any error defendant, allegation or or duplicity of a con- for reversal grounds constitute counts. not oth- the defendant viction where “(3) grand jury proceeding The was de- the nature of as to the erwise misled fective. him; charges against immunity “(4) The with defendant has ele- the and “(4) Setting forth nature charged. respect to the offense plain and charged in the offense ments of “(5) prosecution by The is barred rea- unnecessary language without concise previous prosecution. son of repetition; “(6) prosecution untimely is “(5) place time of the Stating brought. particularity offense with sufficient “(7) The defendant has been denied offense was committed show speedy right to a trial. period applicable within of limitations with- “(8) jurisdictional to such committed There exists some jurisdiction of the where in the court to conviction of defend- impediment the time charge except to be filed charged. ant for the offense is place “knowingly” attempt shall be to deliver aspirin or of the offense stated as cocaine; be definitely as can done where either “believing” it to be but place time or of the essence is of the “knowingly” aspirin “believing” delivered offense; and aspirin. “Knowingly” is but an ele- charged, ment of the offense “(6) name Stating every defend- ant, dealing. known, known, proper It was not a if if not function of desig- nating accept contesting the trial any the defendant name or court to evidence description by he can be identified an issue properly reserved the trier of certainty.” reasonable fact at the issue guilt trial. When is court, properly before the trial Although statutes expan- the above are could this possibly present evidence at trial sive, it readily is apparent ques- to establish a defense. may tions of permissibly fact which chal- lenged regarding are not determinations el- forward failed to sufficient chal- ements charged. of the offense The de- lenge prosecutor’s to the information to forward, fendant and the trial court any statutorily prescribed meet review, questions challenging of fact grounds See, found under IC 35-3.1-1-4. jurisdiction court, IC 35-3.1-1- Hopper 161 Ind.App. 6(a)(2), the statutory req- fulfillment N.E.2d 98. court The trial therefore erred uisites in form the IC in dismissing the information. 35-3.1-l-2(a), any of ques- or the factual

tions which might arise under IC 35-3.1-

1—4 {e.g., factual questions pertaining to

double jeopardy, —4(a)(5)). at id. There is

no allowance these under statutes for chal-

lenges questions of fact regarding ele- Questions

ments of the charged.

fact regarding elements offense are decided the trier of fact at trial.

Questions of fact to established at trial

are not properly challenged by the motion

to. dismiss. (1900), Crawford v. State 155 692,

Ind. 57 N.E. 931. The motion to dis

miss is proper way not the to raise a de

fense. Snyder (9th United v. States BAKER, Plaintiff-Appellant, Randall 520, denied, 428 F.2d cert. 400 U.S. v. 903, 139; 91 139, S.Ct. 27 L.Ed.2d State v. (1969), N.J.Super. 311,

Yarusso AMERICAN 105 STATES INSURANCE 252 A.2d 53; CJS, COMPANY, Defendant-Appellee. Indictments and Informations 201, p. (1944,Supp.1981). § The infor No. 1-681A205. mation only allege need pro intent scribed Embry (1951), statute. v. State Indiana, Appeals Court of 179, 229 Ind. also, 96 N.E.2d 274. See District. First (1954), 281, 119 McCormickv. State 233 Ind. 15, N.E.2d 5. sufficiency of the evidence Dec.

pertaining to individual elements of the Rehearing Denied 25,1982. Jan. crime is decided trial. at Schutz State (1981), Ind., 913; 413 N.E.2d Hubbard v. 262 Ind. 313 N.E.2d 346.

At the accepted trial court

Gillespie’s that he “evidence” did not

Case Details

Case Name: State v. Gillespie

Court Name: Indiana Court of Appeals

Date Published: Dec 14, 1981

Citation: 428 N.E.2d 1338

Docket Number: 3-581A131

Court Abbreviation: Ind. Ct. App.