Collier v. State
| Decision Date | 27 April 2006 |
| Docket Number | No. 76A04-0503-CR-142.,76A04-0503-CR-142. |
| Citation | 846 N.E.2d 340 |
| Parties | Mark E. COLLIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Ryan Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.
Mark Collier appeals his conviction for the attempted murder of his estranged wife. Specifically, he argues that his conduct did not constitute a substantial step toward commission of the crime of murder, as required by Indiana's attempt statute, but was instead mere preparation. We agree, and therefore we reverse Collier's conviction for attempted murder.1
Collier married his wife, Nancy, on May 24, 1986. Nancy separated from Collier and moved out of their home on March 22, 2003. On March 24, 2003, Nancy obtained an Ex Parte Order for Protection in which Collier was ordered to stay away from Nancy's place of employment, Cameron Hospital in Angola, Indiana. Nancy filed for divorce on April 8, 2003.
On April 24, 2003, Nancy was working the 2:30-10:30 p.m. shift at the hospital. That day, Collier went to the home of his neighbor, Charles Cameron, at approximately 3:00 p.m. According to Cameron, Collier was upset because "he thought he was gonna lose his home because him and his wife were gettin' divorced." Tr. p. 170. Collier told Cameron that "he was gonna kill his wife and himself" and then went home. Id. Cameron thought Collier "was just talking" because Collier had said similar things before but "had never actually done anything." Id. at 171.
At approximately 5:30 p.m., Collier returned to Cameron's home and said, "Tonight's the night." Id. at 172. As the two walked back to Collier's house, Collier again told Cameron that he was going to kill his wife and himself. Once back in Collier's house, each of them drank a beer and Collier eventually "dozed off in his chair." Id. Cameron "thought it was over" and went back home. Id. At some point during the day, Cameron called Charter Beacon, Northeastern Center, and Collier's ex-boss because he thought Collier needed psychiatric help.2
Collier went to Cameron's house again at 8:45 p.m. and told Cameron that he wanted to talk to him. The two walked back to Collier's house and each of them drank another beer. Collier took Cameron upstairs, showed him where the cat litter boxes and cats were, and told him that he could let the cats outside or take them to a shelter. Collier then showed Cameron where the dog food was, asked him to feed his dog, and gave him spare keys to his house and his pickup. Cameron says that Collier then went into his bedroom and "started prayin', you know, telling — saying, `God, forgive me for what I'm gonna do."' Id. at 173. Collier Id. He then came out of his room, hugged Cameron, and told him, Id. Collier collected an ice pick, a box cutter, and a pair of binoculars and said, Id. Collier also said that he would ram Nancy with his pickup. Id. at 174. Collier left in his pickup at approximately 9:00 p.m. and headed towards Angola.
A few minutes after Collier left, Cameron himself left to drive to work. During the drive, he saw Collier driving back toward his house and away from Angola. Sometime between 9:30 and 10:00 p.m., Collier arrived at the house of another of his neighbors, Billy Fansler. Fansler says that Collier told her that "he was going to end it and he had had enough." Id. at 198. Collier also told Fansler "to tell [her] husband thank you and tell [her] children God bless them[.]" Id. When Collier was at Fansler's house, "he looked kind of wobbly," "he wasn't quite steady on his feet," "he kinda slurred [his speech] a little," and he was depressed and "[m]aybe a little angry[.]" Id. at 201-03.
After Collier left, Fansler called Cameron's wife, who told her that Cameron had planned to speak with the police once he reached Hamilton, Indiana, on his way to work. Indeed, Cameron had already stopped and spoken with a police officer, Deputy Marshall Jeremy Warner of the Hamilton Police Department. Cameron says that he told Deputy Warner that Collier was planning to kill Nancy and himself. Deputy Warner, on the other hand, says that Cameron told him only that Collier was planning to kill himself. After speaking with Cameron, Deputy Warner called the Steuben County Sheriff's Department. Deputy Warner and officers from the Steuben County Sheriff's Department then went to Collier's house to try to find him. Fansler went out and explained to the officers that Collier had been at her house but had just left in his pickup and was not at his home.
A friend of Nancy called her at the hospital and told her that the police were searching for Collier. That prompted Nancy to phone the police, who told her to stay in the hospital until she heard otherwise. At approximately 10:40 p.m., Officer Sandy Justice and Officer Robert Cunningham of the Angola Police Department received a radio dispatch to attempt to locate Collier. Shortly thereafter, Officer Justice and Officer Cunningham arrived at the hospital and spotted Collier's pickup. The pickup was backed into a parking space in the last row of the parking lot across the street from the emergency area of the hospital so that Collier would have been able to see the emergency room entrance/exit. This door was the only exit available to those leaving the hospital after 10:00 p.m.3
When the officers approached Collier's vehicle, they observed that the vehicle was off, the lights were off, and Collier was inside asleep or passed out. The officers opened the doors of the vehicle and told Collier to exit. It was not until the officers opened the doors that Collier awoke. Once Collier was out of the vehicle, the officers noticed that he was intoxicated and took him into custody. They then searched the interior of the pickup and found an ice pick, a box cutter, a pair of binoculars, and an open container of beer that was partially full. The officers explained to Collier that they were arresting him for invasion of privacy for violating the terms of the protective order and also for public intoxication.
Eventually, however, the State charged Collier with Attempted Murder, a Class A felony.4 A jury trial was held October 27 and 28, 2004, at the conclusion of which the jury found Collier guilty. On February 28, 2005, the trial court sentenced Collier to the presumptive sentence of thirty years and suspended five of those years, for a total executed prison term of twenty-five years to be followed by five years of probation. Collier now appeals.
On appeal, Collier argues that the evidence is insufficient to support his conviction for attempted murder. "Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses, and respects the jury's exclusive province to weigh conflicting evidence." McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005) (internal quotations omitted). We must consider only the probative evidence and reasonable inferences supporting the verdict. Id. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. "To establish attempted murder, the State must prove beyond a reasonable doubt that (1) the defendant acted with the specific intent to kill; and (2) the defendant engaged in conduct constituting a substantial step toward commission of the crime" of murder. Osborne v. State, 754 N.E.2d 916, 924 (Ind. 2001) (citing Mitchem v. State, 685 N.E.2d 671, 676 (Ind.1997)); see also Ind.Code § 35-41-5-1; Ind.Code § 35-42-1-1. Collier contends that his conduct on the day in question did not, as a matter of law, constitute "a substantial step toward commission of the crime" of murder. We must agree.
We have said that a "substantial step" for purposes of the attempt statute is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Asghar v. State, 698 N.E.2d 879, 883 (Ind.Ct.App.1998), reh'g denied, trans. denied. Whether a defendant has taken a substantial step toward the commission of a crime is generally a question of fact to be decided by the trier of fact based on all the particular circumstances of the case. Washington v. State, 517 N.E.2d 77, 79 (Ind.1987); see also Asghar, 698 N.E.2d 879 at 883 (citing Williams v. State, 685 N.E.2d 730, 735 (Ind.Ct.App.1997)). In making this determination, the focus is on what acts have been completed, not what remains to be done. Jackson v. State, 683 N.E.2d 560, 566 (Ind.1997). The completed acts must be strongly corroborative of the firmness of the defendant's criminal intent. Mitchem, 685 N.E.2d at 676. Stated differently, the liability of the defendant turns on his purpose as manifested through his conduct. Zickefoose v. State, 270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979). Our Supreme Court has described the substantial step requirement as a "minimal one." State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind.1996). How conduct can simultaneously be described as both "substantial" and "minimal" is the dilemma with which we grapple.
Collier acknowledges that the jury could have reasonably found each of the facts alleged in the amended charging information, to wit: (1) he was found in the parking lot at Nancy's place of employment, in a position from which he could see the door Nancy would use to exit the building; (2) when he was found he had in his possession an ice pick, a box cutter, and binoculars; (3) before he was...
To continue reading
Request your trial
-
United States v. D.D.B.
..."substantial step" of which the Indiana Attempt law speaks must be significant; mere preparation is not enough. Collier v. State , 846 N.E.2d 340, 344 (Ind. Ct. App. 2006). And so for example, it was not enough to constitute substantial steps when a defendant drove to the place of his estra......
-
Gibbs v. State
...differently. I believe the Kemp holding is overbroad and I would decline to follow it. A useful case for comparison is Collier v. State, 846 N.E.2d 340 (Ind.Ct.App.2006), trans. denied 860 N.E.2d 585 (Ind.2006). Collier's wife, Nancy, had separated from Collier, obtained a protective order,......
-
Gentilini v. The State Of Wyo.
...425 (2009). [¶ 14] The nature and capability for injury of the weapon possessed by Mr. Gentilini is also relevant. Collier v. State, 846 N.E.2d 340, 349 (Ind.App.2006) (“[A] defendant with a gun is objectively more dangerous from a few hundred feet away than a defendant with a knife or a ve......
-
Konrath v. Allison Vance, Indianapolis Monthly, & Emmis Publ'g Corp.
...Dkt. No. 62, Ex. C-10 ("Stalking Sentencing Order") at 1. After reviewing the Indiana Court of Appeals decision in Collier v. State, 846 N.E.2d 340 (Ind. Ct. App. 2006), and after comparing the facts of that case to Konrath's case, Miami County Prosecutor Bruce Embrey ("Embrey") decided to ......