ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                         Attorney General of Indiana

                                                               Laura R. Anderson
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana

                                                              Ellen H. Meilaender
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana
______________________________________________________________________________
                                                                                             FILED
                                     In the                                              Jul 12 2017, 4:31 pm


                             Indiana Supreme Court                                           CLERK
                                                                                         Indiana Supreme Court
                                                                                            Court of Appeals
                                                                                              and Tax Court
                                 _________________________________

                                        No. 28S04-1707-CR-468

MICHAEL A. MILLER,                                            Appellant (Defendant below),

                                                   v.

STATE OF INDIANA,                                          Appellee (Plaintiff below).
                                 _________________________________


                        Appeal from the Greene Circuit Court, No. 28C01-1408-F1-2
                                    The Honorable Erik C. Allen, Judge
                                  _________________________________

       On Petition to Transfer from the Indiana Court of Appeals, No. 28A04-1603-CR-634
                             _________________________________

                                              July 12, 2017

Per Curiam.

        Around 11:30 p.m. on August 10, 2014, Jeremy Kohn was sitting on the porch of his

Bloomfield home with his girlfriend, Kylee Bateman. The pair observed a man twice approach a

neighbor’s house, knock on the door or ring the doorbell, and walk away.             Kohn thought he

recognized the man from school, but could not remember his name. About five minutes after that,

the man—defendant Michael Miller—casually strolled up to Kohn and Bateman, as if to ask a

question. As Kohn turned to ask Bateman if she knew the man, Miller grabbed Kohn’s left arm
and cut him around the throat with a pocketknife. Miller said nothing, and then calmly walked

away. The cut was not deep, but it required over forty stitches to close. Had the cut been slightly

deeper, it could have caused injury posing a risk of death.

        Three days later, Miller was identified as a suspect in the attack of Kohn. Police located

him in a nearby town, hitchhiking to Indianapolis. Miller was arrested without incident, waived

his Miranda rights, and calmly admitted he had cut Kohn’s throat after Kohn and Bateman smiled

at him and Kohn looked at Bateman and shook his head. Miller stated he assumed the police were

not called or did not care about the incident, because he didn’t hear any sirens afterwards. Then

he decided to go to Indianapolis. When asked whether he wanted to kill Kohn, Miller replied that

he did not care. (See App. at 104; State’s Ex. 7 at 11:30 – 11:50.)

        The State charged Miller with Level 1 felony attempted murder and Level 3 felony

aggravated battery (later amended to Level 5 felony battery). The attempted murder charge alleged

in part that Miller “did knowingly or intentionally attempt to commit the crime of Murder, to-wit:

to knowingly kill Jeremy Kohn . . . .” (App. at 29.) After a bench trial, the trial court adjudged

Miller guilty but mentally ill on both counts. The trial court’s judgment of conviction included

several findings and conclusions, including “that Defendant had the requisite intent to kill . . .” and

that the State “has proved beyond a reasonable doubt . . . Miller did knowingly or intentionally

attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn . . . .” (App. at

104-05).

        Miller appealed, contending among other things that the State did not present sufficient

evidence that he had the specific intent to kill Kohn, as required for attempted murder.1 The Court


1
 To convict a defendant of murder, the State must prove he or she acted “knowingly or intentionally.”
See Ind. Code § 35-42-1-1(1). “A person engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious attempt to do so. . . . A person engages in conduct ‘knowingly’ if, when he
engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(a), (b).
Attempt crimes generally require the same mens rea as completed crimes, but attempted murder is
                                                     2
of Appeals found it premature to consider sufficiency of the evidence of Miller’s intent, but

determined that the references in the proceedings below to a “knowing” mens rea could indicate

the trial court applied the wrong standard of proof. Miller v. State, 72 N.E.3d 502, 515, 518 (Ind.

Ct. App. 2017). The Court of Appeals reversed Miller’s attempted murder conviction and

remanded for a new trial. Id. at 518.

        The State seeks transfer, contending the trial court did not apply the wrong standard of

proof, but if it did, the proper remedy is not a new trial, but a remand for the trial court to reconsider

the case under the correct legal standard. We agree the correct remedy in these circumstances is a

remand for reconsideration by the trial court.

        Accordingly, we grant transfer, see Indiana Appellate Rule 58(A), and reverse Miller’s

conviction for attempted murder. We remand this case to Judge Allen with instructions to apply

the appropriate legal standard to the existing evidence. In all other respects, we summarily affirm

the Court of Appeals’ opinion. Ind. App. R. 58(A)(2).



Rush, C.J., and David and Massa, JJ., concur.
Slaughter, J., concurs in part and dissents in part with separate opinion.




different in that it requires the State to prove “the defendant’s specific intent to kill.” Rosales v. State, 23
N.E.3d 8, 12 (Ind. 2015) (emphasis added). This requirement “stems from ‘the stringent penalties for
attempted murder and the ambiguity often involved in its proof.’” Id. (quoting Hopkins v. State, 759
N.E.2d 633, 637 (Ind. 2001)).
                                                       3
Slaughter, J., concurring in part, dissenting in part.

       I agree that Miller’s attempted-murder conviction must be reversed because the trial court’s

written findings recited the wrong legal standard. As the Court holds, the correct standard is not

whether Miller attempted to commit murder “knowingly or intentionally”, but whether he had a

“specific intent to kill”. Where I part company with my colleagues is in the chosen remedy. The

Court orders a remand to the trial court to consider the existing evidence under the correct standard.

But I question whether that remedy will be adequate. Specifically, I fear a mere remand to the

same trial judge instructing him to apply the correct standard will be insufficient to redress the

underlying harm from using the wrong standard. In my view, Miller should receive a new trial.

The erroneous mens rea standard should not be dismissed as a slip of the tongue (or pen) in the

court’s written findings because it first appeared in the State’s charging information and thus

tainted the entire proceeding. Had this been a jury trial, the clear remedy would be to order a new

trial. Although this case was tried to the bench, I believe a new trial also is warranted here. I share

the Court of Appeals’ concern that the trial judge, on remand, “may have a difficult, if not

impossible, task of distancing himself from the evidence already considered and in considering the

case entirely anew”. Miller v. State, 72 N.E.3d 502, 518 (Ind. Ct. App. 2017). In light of our grant

of transfer, I would summarily affirm the Court of Appeals’ thoughtful opinion in its entirety,

including its remand for a new trial.




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