Zickefoose v. State, 978S195

• Citation: 270 Ind. 618,388 N.E.2d 507
• Decision Date: 27 April 1979
• Docket Number: No. 978S195,978S195
• Parties: Roger ZICKEFOOSE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 507

388 N.E.2d 507

270 Ind. 618

Roger ZICKEFOOSE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 978S195.

Supreme Court of Indiana.

April 27, 1979.

Christopher C. Zoeller, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Roger Zickefoose, was convicted by a jury of attempted murder, Ind.Code § 35-41-5-1 (Burns Supp.1978). He was sentenced to forty years and now raises several arguments all related to the issue of the sufficiency of the evidence to support the conviction.

The facts from the record most favorable to the state show that the victim, Lorena Sue Sargent, was beaten, stabbed, and knocked unconscious on the night of November 3, 1977. Early that evening, she was standing outside a White Castle restaurant in Indianapolis when defendant stopped and asked her if she needed any help. She said no, but she finally accepted a ride with him.

She testified that they went to an apartment where several people were present and that she voluntarily had sexual intercourse with the defendant so that he would give her a ride home. Instead of taking her home, however, defendant and one of his friends, Michael Williamson, drove the victim to a golf course. Defendant and the victim left the car, and the victim testified that defendant began beating her about the head. Then he started choking her and she fell down unconscious. When she came to, the next morning there was blood all over the grass and she realized she had been stabbed. She was taken to the hospital where she had stitches in her eye, head and hand, and surgery on her hand.

The defendant's friend, Williamson, testified that when the defendant came back to the car alone he said, "I think she's dead." The defendant wanted to go to a filling station to wash off his hands because they were covered with blood. The next day, the defendant told his friend that they should "get out of town." Both the investigating police officer and an employee of the golf course testified that when they found the victim she appeared to be severely beaten about the face and head and had been stabbed several times.

The defendant first contends that there are so many inconsistent statements in the testimony of both the victim and Williamson that the entire story is inherently unbelievable. However, the inconsistencies defendant points to concern such minor points as the color of the car, the number of people at the apartment, the location of the golf course, and the length of the victim's hospital stay. There were no inconsistencies as to the elements of the crime or the nature of the victim's injuries. It is well settled that the credibility and weight given to testimony are the exclusive province of the jury. Taylor v. State, (1972) 257 Ind. 664, 278 N.E.2d 273. The resolution of a conflict in the evidence is for the jury and is not a proper consideration for this Court. In the instant case, there was sufficient corroboration on the elements of the crime and the nature of the victim's injuries to support the verdict of the jury.

The defendant next contends that there was not sufficient evidence to prove that he knowingly and intentionally attempted to kill another human being. It is clear that the same specific intent to kill must be shown for an attempted murder as for the crime of murder. We have consistently held that in reviewing the sufficiency of the evidence we do not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Grigsby v. State, (1978) Ind., 371 N.E.2d 384; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. The triers of fact may draw reasonable inferences from facts established either by direct or circumstantial evidence, and a guilty verdict may be based upon circumstantial evidence. Medsker v. State, (1968) 249 Ind. 369, 232 N.E.2d 869.

In this case, there were several factors which support the verdict. Two witnesses other than the victim testified to the severe nature of the victim's injuries and stab wounds. There was evidence that the defendant beat the victim severely about the head and face and then stabbed her with a knife after she had fallen down unconscious. The necessary intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death. Jackson v. State, (1978) Ind., 371 N.E.2d 698. The act of stabbing the victim after she had already fallen down as well as the remarks defendant made to his friend when he returned to the car clearly support the inference that there was a specific intent to kill the victim. In this case, there are direct evidence and reasonable inferences therefrom establishing the necessary specific intent.

The defendant next contends that the verdict is contrary to law because there was not enough evidence to find him guilty under the new general attempt statute. He argues that since nothing interrupted him to prevent him from actually committing murder, and since his attack did not actually cause the victim's death, the evidence would only support a charge of battery and not attempted murder. However, a careful examination of the general attempt statute reveals that there is no merit in the above argument.

The general attempt statute, Ind.Code § 35-41-5-1 (Burns Supp.1978), reads:

"(a) 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. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a class A felony.

"(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted."

This statute provides for the first time in Indiana a general attempt crime. The statute is drawn substantially from section 5.01 of the American Law Institute's Model Penal Code (Proposed Official Draft 1962) and covers an area that had been treated only sparsely by prior Indiana case law.

While it is well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, it is becoming increasingly common for legislative enactment to provide a penalty for conduct which goes beyond mere preparation. A statute of this type makes possible some preventive action by police and courts to stop the criminal effort at an earlier stage, thereby minimizing the risk of substantive harm without providing immunity for the offender. 22 C.J.S. Criminal Law § 75(1) Et seq.; Perkins, Criminal Law 561-66 (2d ed. 1969); American Law Institute's Model Penal Code (comment at pp. 39-48, Tent.Draft 10, 1960). Although there are somewhat varying definitions of what conduct actually constitutes an attempt, there is fundamental agreement on the two necessary elements of the crime. First, the...