Richeson v. State

685 N.E.2d 709, 1997 WL 550997
CourtIndiana Court of Appeals
DecidedOctober 29, 1997
Docket45A05-9508-CR-310
StatusPublished
Cited by2 cases

This text of 685 N.E.2d 709 (Richeson v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richeson v. State, 685 N.E.2d 709, 1997 WL 550997 (Ind. Ct. App. 1997).

Opinions

OPINION

KIRSCH, Judge.

Walter William Richeson was convicted of attempted battery,1 a Class C felony and criminal recklessness,2 a class D felony. He appeals his attempted battery conviction, raising two issues; we add a third sua sponte:

I. Whether the trial court properly instructed the jury regarding the elements of attempted battery.
II. Whether there is sufficient evidence to sustain Richeson’s conviction.
We reverse.

FACTS AND PROCEDURAL HISTORY

Late on a November night in 1993, Riche-son and two other men were complaining to each other about a drive-by shooting they experienced the month before. The men were convinced that Michael Foster had been involved in the shooting, and they decided to retaliate. Armed with assault rifles, they [710]*710climbed into a car and drove to Foster’s home. They drove past the home once, then drove back and opened fire. Inside, Michael Foster and his parents dived for cover while armor-piercing bullets barraged their home. When the shooting stopped, none of the family had been hit.

Richeson admitted to the police that he had fired at the house while riding in a car driven by one of his companions. The State charged Richeson with attempted murder and criminal recklessness and proceeded to trial. After the close of the evidence, the court instructed the jury on the charges and on attempted battery as a lesser included offense of attempted murder. The jury found Richeson guilty of criminal recklessness and of attempted battery against Michael Foster. Richeson appeals only the attempted battery conviction.

DISCUSSION AND DECISION

I.Attempted Battery Instruction

The trial court gave the following instruction defining the elements of attempted battery:

“To convict the defendant of the lesser offense of Attempted Battery, as to Cts I, II & III, the State must have proved each of the following elements:
The defendant:
1. knowingly or intentionally;
2. took a substantial step to accomplish
3. the touching of another person as named in the particular charge, in a rude, insolent or angry manner;
4. and that the act was committed by means of a deadly weapon.”

Record at 84, Jury Instruction No. 7. Riche-son objected to this instruction; the trial court overruled the objection. Richeson argues that the trial court erred in giving the instruction, pointing out that our supreme court invalidated a similar jury instruction defining attempted murder in Spradlin v. State, 569 N.E.2d 948 (Ind.1991). Richeson maintains that attempted murder and attempted battery are both “specific intent” crimes, and that as such an instruction concerning attempted battery must mirror the requisite instruction for attempted murder. He argues that the instruction in this case failed to specify that to be guilty of attempted battery, Richeson must have intended to hit Foster when he fired at Foster’s home.

The State counters that the Spradlin decision applies only to attempted murder cases, and argues that the instruction at issue correctly reflects the Indiana statutes that define attempt and battery. According to the State, an attempt instruction is correct if it informs the jury of the requisite culpability for the underlying crime. Here, the culpability for the underlying crime, battery, is knowingly or intentionally. IC 35-42-2-1. The State reasons that the disputed instruction properly informed the jury that they could find Richeson guilty of attempted battery if they found he acted intentionally or knowingly.

The parties’ arguments present a question of first impression: whether the Spradlin decision extends to instructions defining the elements of attempted battery. Resolution of this question requires a review of the attempt statute and the Spradlin decision.

Indiana’s attempt statute reads:

“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 commission of the crime.”

IC 35-41-5-1. To formulate an elements instruction for an attempt crime, some courts have combined the attempt statute with the statute defining the underlying crime. The combination yields an instruction like the one at issue in this case — the jury is instructed that the defendant commits attempt by knowingly or intentionally taking a substantial step toward committing the underlying crime.

In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), our supreme court rejected such an instruction. That instruction read as follows:

“To convict the defendants, the State must have proved each of the following elements:
The defendants
1. knowingly or intentionally
[711]*7112. strike, stab and cut [sic] the body of [the victim]
3. that the conduct was a substantial step toward the commission of the crime of murder.”

569 N.E.2d at 950. In reviewing this instruction, the Spradlin court first cited Justice Hunter’s “excellent analysis” of the then-new attempt statute. Spradlin, 569 N.E.2d at 949 (citing Zickefoose v. State, 270 Ind. 618, 388 N.E.2d 507 (1979)). Justice Hunter had explained that the attempt statute incorporates two elements: “[f]irst, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime.” Spradlin, 569 N.E.2d at 949 (quoting Zickefoose, 270 Ind. at 622, 388 N.E.2d at 510). The Spradlin court then noted that it had previously reversed other attempted murder convictions because the elements instructions failed to specify the requisite intent. Spradlin, 569 N.E.2d at 949 (citing Smith v. State, 459 N.E.2d 355 (Ind.1984)).

After reviewing Zickefoose, the supreme court announced a rule governing elements instructions for attempted murder. The court stated that the instruction “must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing.” 569 N.E.2d at 950 (emphasis added). The Spradlin holding has been initially problematic in application. See Swallows v. State, 674 N.E.2d 1317 (Ind. 1996) (reversal not required on post-conviction relief under certain conditions); Jackson v. State, 575 N.E.2d 617

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Related

Richeson v. State
704 N.E.2d 1008 (Indiana Supreme Court, 1998)
Richeson v. State
685 N.E.2d 709 (Indiana Court of Appeals, 1997)

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685 N.E.2d 709, 1997 WL 550997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richeson-v-state-indctapp-1997.