*1 сonvictions Heitman's vacate custody. immediately released reversed.
Judgment ROBERTSON, C.J.,
SHARPNACK,
J., concur. Appellant-Defendant, WEAVER,
Jordan Indiana, Appellee-Plaintiff.
STATE 49A02-9212-CR-606.
No. Indiana, Appeals of
Court District.
Second 18, 1994.
Jan. 24, 1994.
Rehearing Denied Feb. appel- Crawford, Indianapolis, for F.
John lant-defendant. *2 Carter, Pamela Atty. Gen., Davis, Geoff Kurt, He wrestled with kissed or licked his
Deputy Atty. Gen., Attorney Officeof Gener- neck, and Wendy's finger bit when she tried al, Indianapolis, for appellee-plaintiff. separate to the two of them. Weaver kissed Jessica and her, then triеd strangle to calling SHIELDS, Judge. her Kurt hit Weaver with a tire jack, and put then Kris him in a choke hold Jordan appeals his convictions of away from Jessica. group attempted murder,1 a felony; class A conf unsuccessfully tried to restrain Weaver inement,2 a felony; class B battery,3 a class lock him in the trunk of the car to take him felony; C two counts of battery,4 a class A hospital, to the and even hitting cоnsidered misdemeanor; resisting enforcement,5 law him with the car in stop him. misdemeanor; class A mischief,6 criminal then Wendy, repeatedly a class A misdemeanor. We affirm in slamming her head pavement into the part. reverse in her; kicking the rest of group drove away get help. ISSUES Weaver raises four issues for review; our As he tried to away drive the Re- dispositive. three are treat, Weaver Wendy's car, crashed turning it over Is on its side. evidence He then sufficient made his support nearby conviction of attempted neighborhood jumped murder? through bay the closed window of the house owned 2. Did the trial court err in excludingthe Barbara and Michael Blickman. Mr. Blick- opinion of an expert witness until after man hit Weaver over the head with a chair Weaver testified opinion when the was based and then with a leg; chair a scuffle then on Weaver's out-of-court statements to the ensued between Weaver and the Blickmans expert? progressed out into the Blickmans' 3. Did the trial court err in admitting driveway. police and, arrived after a evidence of Weaver's bad character? struggle, placed Weaver under arrest. FACTS I. On the afternoon April Jordan argues the evidenceis insuffi Weaver tоok two "hits" of LSD. Weaver cient to sustain his convictionof the attempt was feeling the effects of drug very ed Wendy murder of Waldman. Specifically, heavily girlfriend, when his Wendy Waldman, argues the State failed to dis picked him up at a friend's house later that prove his defense voluntary intoxication. day. During the evening, Wendy and Weav- agree. er met acquaintances some theirs, Kurt Steigerwald, Hettle, Kris Godlеy, Jessica (1988) Ind.Code 35-41-38-5 provides that Tracie Glanzman. Wendy told group she voluntary intoxicationis a defense to the was worried about Weaver because he was extent negates the intent element of "tripping" on LSD acting very odd- offense, an in this case the intent to murder ly. The group decided to take Weaver to a Wendy. Ferguson See place, secluded Retreat, the Alverna keep 792. The defendant has the him out of trouble. burden of establishing a predicate factual Retreat, Onee at Weaver's behavior voluntary defense of Specif- intoxication. very began erratic. He arguing ically, Weaver had the burden of presenting " Wendy when she tried to him to sit down. evidence 'that, believed, intoxication if is (1992 1. See IC Supp.); 35-42-1-1 4. See id. IC 35-41-5-1 (1988) (attempt statute). (1988). 5. See IC 35-44-3-3 (1992
2. See IC Supp.). 35-42-3-3 (1992 6. SеeIC 35-43-1-2 Supp.). (1988). 3. See IC 35-42-2-1 evening. Weaver go out with a reasonable create it could [sic] such with Wen- to a restaurant went nevertheless trier of rational of a mind doubt incapable there, dy. Once requisite entertained accused instead, he ordering; menu and reading the Fowler intent'" specific he or money either before (quoting gave the waitress *3 was not ordered, he then said Wendy had 105, 402 (1980), 273 Ind. v. Stаte Williams up an Wendy to "make hungry, prompting clearly met this 954). Here, Weaver N.E.2d Record the restaurant. at out" of ample evidence excuse burden, is as there later, Wendy and time A short at 598. was Wendy, Weaver assaulted he the time Kris Steigerwald, Kurt up with met Weaver hits of the two from extremely intoxicated Godley, Tracie Glanzman. Hettle, that and day and that Jessica earlier had taken he LSD at that appearance Kurt described the over erratic behavior he had exhibited out, dazed pretty "he looked time as follows: Thus, had the evening. State of the course me seem to ... it didn't act normal he didn't beyond a reason establishing of the burden really going was any idea what he the defendant able doubt to take group decided 429. Id. at on." ability to form his negate as to intoxicated he because Retreat the Alverna Weaver (1989), v. State Powers required intent. the and we of mind right state in the "was the Whether 1227. Ind., N.E.2d in trouble.... him really want didn't ais that burden has met away from basically somewhere Ind., wanted (1986), We v. State jury, Tata the fact for protection." his own quiet, for kind of people, any 1027, and, as with uphold sufficiency question, we will proba is evidence if there determination Retreat, to sit refused at Onee trier of a reasonable from which value tive arguing with began and the others down doubt beyond a reasonable infer could and "came over Wendy. then He Kurt form too intoxicated was not that Weaver Kurt, id. at top of" basically on laid Wendy. See Isom to murder intent When licking Kurt's neck. kissing or began 246-47, (1992), Ind.App., 589 Kurt, bit help Wendy tried denied. ans. strug- Kurt, tr then Kris, and Weaver fingers; finally hit- with Weaver ground, gled on the whether to dеtermine In order into got then eye. Weaver in the ting Kurt that Weaver found reasonably have Jessica, he kissed. he Kurt's whom when next to murder car to commit had the Jessica, calling her choking began then He at the evi- must look Wendy, we attacked Kris threatening to kill her. Wendy and before, dur- just behavior of Weaver's dence a tire head with on the him twice Kurt hit will exam- attack. We just after the ing, and him, no this had stop in jack prop- general light of the ine this evidence finally got Kurt Kris and not be re- on Weaver. "a defendant effect osition in a him by putting of Jessica off to Weaver was able when he responsibility Keved him. over throwing a blanket choke hold instruct equipment, plan, operate a devise carry out acts or of others the behavior to take group decided point, the At this Terry v. State рhysical skill." thought they hospital because to the They at 510-11. "overdosing." Id. he in the locking him by to restrain tried evi uncontroverted contains record unsue- they car; were "thick" "hits" of two trunk of took that Weaver dence frenzy 2, 1991, fact, such In April cessful. afternoon car hitting him with they considered an "extreme experiencing they could However, before him. stop evening. In up that Wendy picked him time Wendy. After him, attacked he restrain strong that was so fact, the LSD the effect of away to drive tried attack, apparently able he was not think he Wendy he did told dipped" "tripple question was day in doses, is sold that LSD indicates 7. The record usual, meaning "hit" that each than "hits," squares "thicker" small consist of called would. "hit" a normal LSD than contained on Weaver took dipped The LSD paper in LSD. car, Wendy's Rеtreat in which had incapacitation mental because of intoxication. running by been left However, the others. nothing see in the evidence of record he went a short hitting distance before which a could reasonably find that bush car; and overturning appears capable Weaver was of forming the intent to that he got then out of the wrecked car kill when he For example, kicking thrоugh the windshield. Weaver there is no evidence that Weaver committed somehow made his nearby foot to a any "physical acts of dexterity and mental neighborhood, jumped where he through a calculation" similar to those which have been closed window into the home of Michael and found disprove sufficient to the defense of Barbara inside, Blickman. Once voluntary intoxication in Sеe, other cases. Blickman, walked toward Mr. who hit him e.g., Gregory over the head with a chair and then tackled *4 (defendant 585, 594 got ladder from garage, him to the floor. As the struggled two men up climbed to his window, mother's bedroom floor, on the Mrs. Blickman hit Weaver in the window, unlatched climbed in and stabbed back with a leg; chair Weaver shouted ob- mother); his (1987), Gibson v. Ind., 516 scenities at Mrs. Blickman. struggle (defendant 31, 33 taking denied part finally ended outside on the Blickmans' in robbery, goods left stolen behind in an driveway, where Weaver was arrested house, abandoned escape); tried to Boze police officers who had been called to the (1987),Ind., v. State 514N.E.2d 279 , scene. (defendant pulled knife, out a po threatened Evans, Dr. Michael toxicologist who in- officer, lice through ran woods and hurdled a terviewed regarding Weaver experiences his fallen tree in attempt escape); Gambill v. on night question, testified based (1985),Ind., (de on his Weaver, conversation with Weaver fendant blocks, walked several broke into two experiencing "a trip, bad psy- [an] acute cars, victim, got stabbed x a 2 returned to chotic reaction." Id. at 1605. Dr. Evans the scene it, and beat vietim with hid knife on testified that during a "bad building, roof of destroyed wallet, victim's person begins to lose contact with real- and ordered accomplice his to return to the ity and in a sense of only seeing not these scene with a broom and remove their foot things [hallucinations], they can't dis- prints snow); Lewellyn (1988), tinguish reality from they're what seeing Ind.App., (defendant and envisioning. longer It no becomes a gun took guncase, pumped gun and trip. They longer no it, observing are thеy someone, shot then walked to a friend's are of it.... [Ylou lose sense of house to police). elude In each of these reality. your It alters perception so much cases, there was evidence from which the you reality. lose jury reasonably found that the defendant Id. at 1589. plan formed a of action out; and carried it "The presupposition basic upon which the there is nо such evidence here. [voluntary intoxication] defense rests is that There is no doubt that Weaver acting intoxication can be so severe as to render a LSD, under the influence of person incapable none of his forming or entertaining actions indicate that he was able to criminal intent required to commit a devise a plan, operate crime, equipment, yet instruct the behаv- severe as to render such person incapable ior of carry others or required conduct out acts physical Further, skill. obligated we are commit the crime." Street v. State honor legislature's Thus, judgment that volun- tary Weaver ought intoxication physically able to relieve a attack defendant Wendy, somehow liability from the criminal Alverna under Re- certain cireum- treat stances, nеighborhood, is, Blickmans' when the defendant's intoxi- struggle with the simply prohibits Blickmans is cation not him from forming requi- sufficient disprove evidence to his intoxi- site mens rea. Our review of the facts of this defense, cation involvesthe case has convinced us that if the defense of inter- on two his conclusion Dr. Evans based apply not as does voluntary intoxication his feel- related during which Weaver views here, illusory dеfense. an it is of law matter night of the experiences on the ings and carry its burden failed to The State report which con- attack, hospital on a voluntary intoxication disproving Weaver's system in his had LSD that Weaver firmed mur attempted defense, his conviction Dr. he talked to At the time his arrest. reversed.8 must be der Dr. Evans Evans, knew that attorney to interview by his been asked IL. testify hope that he would with the trial court argues the next Therefore, with- behalf. at trial Weaver's testimony of his ex precluding erred testimony, Dr. Ev- foundational out Weaver's Evans. witness, toxicologist Dr. Michael pert as testimony have served opinion ans's arguing testimony, this objected to The State "story" af- without a conduit testify before Dr. Evans to chal- opportunity fording the State opinions Evans's Dr. did because story accuracy of that veracity and lenge the to him statements on Weaver's were based cross-examining Weaver. experi feelings and concerning Weaver's precluded Dr. Ev- properly judge The trial ar question. night on the ences regarding information testimony ans's to show admissible were gues the statements *5 until that evidence received expert opinion. Evans's for Dr. the basis by own Weaver's placed on the reсord was to argument similar rejected an This court testimony. (1968), 148 Briney v. Williams in Weaver's 134. The Ind.App. IIL. Briney in stated: court court finally argues the trial the authority supports weight of char "The of his "bad admitting evidence in erred physician or opinion of a the rule that Wendy testimony of through the acter" state- wholly partly or surgeon based he Specifically, her mother. and Waldman subjective symptoms related аnd ments testimony he objects Mrs. Waldman's is inadmissible by patient the physician the values, nothing saw that he moral had no the made for that he was driving, and the examination drinking and where wrong with sur- physician or qualifying the purpose of im high was finishing school did not think expert." testify as a medical geon to testimony and that she Wendy's and portant, ways follow this brought up in different Indiana believe "were morals and standards" had different and we to do otherwise majority position, self-serving dec- priority and patient's my first the school allow that "I rated and Record he did." I think don't the and to be carried larations opinion. "expert's" by the bolstered charac bad of a defendant's Evidence 1065); Lee also see 51 A.L.R.2d (quoting the defen prove that not admissible ter is (1988), Ind.App., v. Schroeder more that he was is such character dant's ("Admissibility has 349, 354, denied trans. charged; in the criminal acts likely engage opinion of a medical rejected the where been therefore, and, is, person a bad he is in in whole or is based non-treating physician Byrd v. State guilty. likely be hearsay statements subjective 1185; upon the Fed. patient."). 404(a). Here, evidence R.Evid. to demon opin- was relevant admissible in his and was Here, Dr. Evans testified between occurred a "bаd suffering the conflicts ion, strate was throughout Wendy Waldman on Weaver to LSD reaction" psychotic an "acute or cen- often relationship, conflicts which their Record at attack. evening of the relates to evidence excluded As the erred in argues court the trial also 8. Weaver defense, not we need involuntary intoxication testimony Wendy's that she believed excluding light our resоlution in issue decide this only was on her because Issue I. kill her. intend to he did not and therefore tered on regarding Weaver's views disagree. school must I believe that majority drugs which, argued,gave has inadvertently reweighed the evidence Weaver a Wendy. Thus, motive to kill and, in process, has discounted the evi- evidence beyond was relevant implication its dence and reasonably inferencеs that person character, Weaver was a of bad be drawn therefrom and from which the properly Furthermore, admitted. in could have (and did) conclude that Weaver light of testimony Weaver's own that he and not had capacity to form the intent Wendy argued drinking, about drugs, and Wendy to kill but acted with that school and that drugs he used dropped his attack on her. school, high out of and the fact Wendy rеhashing Without length, evidence at brutally Weaver, been beaten we is clear that the evidence demonstrated must conclude the evidence about which he that Weaver was able to walk without diffi- complains unduly prejudicial culty; (albeit respond able to poorly) to could not constitute reversible error. See threats, cajoling, physical attacks; Davis v. . able to into the baсk seat of a car and 1274 attempt girl spite throttle a being Judgment of conviction of attempted mur- time; under attack at the was able to lift reversed; der things, all other judg- Wendy and hurl ground, her to the to kick ment is affirmed. her, bang and to ground; head on the was able to Wendy's into operate car and
SULLIVAN, J., concurs. leaving it in her; scene of his attack on able, SHARPNACK, C.J., dissents, overturned, the car concurs and to free separate himself opinion. from the car kicking out the wind- shield; was able to make his to and into SHARPNACK, Judge, Chief concurring house, the Blickman struggle with the Blick- *6 dissenting. mans, respond with verbal abuse to Mrs. I concur majority with the resolution of the exhortations; Blickman's and was able to designated by issues it as numbers and 3. struggle continue the police with the when I respectfully dissent as to the resolution of they arrived. the issue of the voluntary defense of intoxi- There was also evidence that Weaver's rec- cation, upon majority which the reverses. ollection of the events was complete at aspects Two majority's treatment of hospital than when he testified at trial. First, this issue trouble me. I believe the jury The heard his testimony length at about majority depreciates determinative the effects of an "trip" LSD and what role in evaluating the facts on this issue. night remembered of question, Second, I majority's use of the inwas fair except detail as to the critical standard Terry formulated in for events. jury The also appar- witnessed his determining when a may defendant not be ent inability disorientation and respond relieved of responsibility for his acts. questions having length testified at outset, At the recognize I this is a rеsponsively. jury The was free to conclude very difficult case to consider and that there apparent disability on the is an abundance of support evidence to genuine. stand was not conclusionthat Weaver was under the influ- ence of during LSD precise There is no the time that the materi- hoops set of that a al events occurred. I agree also with the jump defendant must through in order majority analysis of applicability of the capacity have the to form a eriminal intent. voluntary defense of provided intoxication as It totality is the of the facts that is determi- § However, I.C. 85-41-3-5. where the native. The issue is not whether influ- LSD majority finds "nothing in the evidence of enced Weaver's behavior. We know from record from jury which a reasonably experience our that alcohol drugs and other find that Weaver capable of forming influencing are in many physical factors as- to kill when he saults. The issue is whether the influence of Wendy," I of the enough deprive Weaver OF M.O.B. In the PATERNITY intent. ability to act with concluded, reasonably could have The No. 45A03-9304-JV-00142. capable of example, that Weaver for of his escape from the scene intending to Indiana, Appeals of Court seеn as Wendy, which could be attack Third District. the na- comprehension of demonstrating his 20, 1994. Jan. done, capable of he had ture of what starting off on his into the car getting capacity to intend and
flight. If he had intend, capacity to he had the initiate motive, kill distorted
for whatever correctly in- thoroughly The case, applicable to the to the law structed as voluntary intoxi-
including the defense rеquested more jury specifically cation. and was rein- about that defense
information all having heard and seen juryA
structed. case, having prop- been this
the evidence conscientiously instructed, having erly appel- verdict, ought not have an
reached its wrong. got it all tell it that
late court Terry majority quotes proposition not be relieved
that "a defendant devise a was able to
responsibility when he the behav operate equipment, instruct
plan, carry out acts
ior of others or Terry,
physical skill." Since has Supreme Court the Indiana a defen evidence shows that "where the
held offensivelyin ability engage
dant had *7 combat, disengage leave the
physical home
scene, way to a friend's and to find his great aid,
seeking his intoxication was responsibility for his him from to relieve
as (1992), Ind., 594 Ferguson v. State acts." (citing Hughett v. State 1015). This stan
dard, require that the defen does not the behavior of plan or instruct
dant devise de
others, the intoxication appears to focus manifestations analysis on behavioral
fense processes. I be than mental rather supports the that the evidence lieve especially analysis, under either
verdict Ferguson Hughett. so under case, I tragic
In this difficult
affirm.