B.T.E. v. State of Indiana , 108 N.E.3d 322 ( 2018 )

FILED
Oct 11 2018, 12:10 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 36S05-1711-JV-711
B.T.E.,
Appellant,
–v–
State of Indiana,
Appellee.
Argued: January 11, 2018 | Decided: October 11, 2018
Appeal from the Jackson Superior Court
The Honorable Bruce A. MacTavish, Judge
No. 36D02-1601-JD-3
On Petition to Transfer from the Indiana Court of Appeals
No. 36A05-1607-JV-1702
Opinion by Justice Slaughter
Chief Justice Rush and Justices David, Massa, and Goff concur.
Slaughter, Justice.
For several months B.T.E., a juvenile, plotted to shoot up and blow up
his high school, and he targeted two of his classmates to die. B.T.E. took
several steps to implement his plot. The trial court adjudicated B.T.E. a
juvenile delinquent on two counts, one of which is relevant here:
attempted aggravated battery, a level 3 felony if committed by an adult.
We consider whether, under Indiana’s criminal-attempt statute, B.T.E.
took the required “substantial step” toward committing aggravated
battery—or whether his actions were “mere preparation”. After
considering several factors, we hold there was sufficient evidence of the
“substantial step” element and affirm the trial court’s judgment.
Factual and Procedural History
Appellant, B.T.E., was a sophomore at Seymour High School during the
2015-16 school year. During the fall semester, he began plotting an attack
at his school in the spring semester of his senior year. He targeted two of
his classmates: G.M., the object of B.T.E.’s unrequited affection; and J.R., a
rival suitor. B.T.E. chose April 20, 2018, as the date of his planned attack—
the anniversary of the 1999 massacre at Columbine High School in
Colorado, a shooting spree during which 13 people were murdered, many
more were injured, and the two student gunmen committed suicide.
In January 2016, a school resource officer at Seymour High School
learned that B.T.E. had liked a Facebook page called “Columbine High
School Massacre”. The officer reported this information to the Seymour
Police Department, which began its own investigation. During an
interview, police told B.T.E. of the allegations against him, and he became
visibly upset and teary-eyed. B.T.E. admitted talking to other students
about possibly “shooting up the school”. And he admitted having a crush
on G.M. and a strong animus toward J.R., whom he thought G.M.
preferred. Although B.T.E. acknowledged plotting with his friend and
classmate, M.V., he claimed their scheme was just a long-running joke.
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 2 of 18
B.T.E. was arrested shortly afterward. The State charged B.T.E. with
juvenile offenses that would be crimes if an adult committed them:
attempted murder, attempted aggravated battery, conspiracy to commit
murder, and conspiracy to commit aggravated battery.
At the juvenile-delinquency proceeding, the trial court admitted into
evidence statements B.T.E. made to M.V. and other juveniles via Facebook
chat. B.T.E. repeatedly expressed his wish to torture or kill J.R. and
occasionally mentioned killing G.M., too. In exchanges with his friend and
co-conspirator M.V., B.T.E. claimed he had “figured out how to make pipe
bombs” and described the weapons he might use against J.R.
B.T.E.: I could steal a knife … and kill [J.R.] with it and then
take out as many people as possible.
M.V.: Or you could buy a gun.
....
B.T.E.: Or I could attempt to break into my dads [sic] gun safe
so I wouldn’t have to buy a weapon.
The Facebook chat logs also show B.T.E. solicited M.V. and a student from
a different school, D.H., to assist with violent acts.
B.T.E. disclosed the date of his planned attack when he said in a
Facebook chat, “four twenty eighteen (4/20/18). Some people will find out
what the state of nothingness is like.” B.T.E. told police he chose that
particular date because it was the anniversary of the Columbine school
massacre. When police asked B.T.E. about the significance of 2018, he
responded that was his senior year and he had done a large amount of
research on school massacres including the Columbine shooting and its
perpetrators. The two Columbine student-gunmen were high-school
seniors when they carried out their deadly attack.
The court also admitted into evidence a diagram B.T.E. made of one of
the classrooms depicting the seating arrangement, marking the exits, and
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 3 of 18
indicating an “x” where one of his intended victims sat. And the trial
court admitted B.T.E’s “death note”, which was to be read after B.T.E.
died carrying out his plan. The trial court adjudicated B.T.E. a delinquent
for attempted aggravated battery and conspiracy to commit aggravated
battery but not for the other charges. The court sentenced B.T.E. to
probation until his eighteenth birthday with a suspended commitment to
the Indiana Department of Correction.
A divided Court of Appeals reversed the attempt finding but affirmed
the conspiracy finding. B.T.E. v. State, 82 N.E.3d 267 (Ind. Ct. App. 2017).
On the attempt issue, the majority held that “the State did not present
evidence that B.T.E. completed a substantial step toward the commission
of the crime of aggravated battery”, id. at 279, because “the conduct . . .
did not go beyond mere preparation and was not strongly corroborative
of his stated intent”, id. at 278. The dissent would have affirmed the trial
court’s findings on both the conspiracy and attempt charges. Id. at 282(Bradford, J., concurring in part, dissenting in part).
We granted transfer, thus vacating the Court of Appeals’ decision. We
provide additional facts below.
Standard of Review
When reviewing the sufficiency of the evidence in a juvenile
adjudication, we do not reweigh the evidence or judge witness credibility.
K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006) (citation omitted). We consider
only the evidence favorable to the judgment and the reasonable inferences
supporting it. Id. We will affirm a juvenile-delinquency adjudication if a
reasonable trier of fact could conclude that the defendant was guilty
beyond a reasonable doubt. Moran v. State, 622 N.E.2d 157, 159 (Ind.
1993) (citations omitted).
Discussion and Decision
We hold there is sufficient evidence to support the trial court’s
adjudication of B.T.E. as a juvenile delinquent on the charge of attempted
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 4 of 18
aggravated battery. He engaged in conduct that would constitute a
substantial step toward the crime of aggravated battery if committed by
an adult. In addition, we summarily affirm the Court of Appeals’
disposition of two other issues: that the State’s continuance did not
deprive B.T.E. of a speedy hearing under Indiana Code section 31-37-11-2,
and that there was sufficient evidence to support the juvenile court’s
finding of conspiracy to commit aggravated battery.
Sufficient evidence supports B.T.E.’s delinquency
adjudication for attempted aggravated battery.
In Indiana, a person commits aggravated battery, a level 3 felony, if he
“knowingly or intentionally inflicts injury on a person that creates a
substantial risk of death or causes: (1) serious permanent disfigurement;
(2) protracted loss or impairment of the function of a bodily member or
organ; or (3) the loss of a fetus”. Ind. Code § 35-42-2-1.5. And a person
commits the crime of attempt when, “acting with the culpability required
for commission of the crime, the person engages in conduct that
constitutes a substantial step toward commission of the crime.” Id. § 35-41-
5-l(a). See also State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind. 1996).
“Whether a substantial step has occurred is a question of fact, to be
decided by the jury, based on the particular circumstances of each case.”
State v. Lewis, 429 N.E.2d 1110, 1116 (Ind. 1981) (citations omitted).
There is no doubt B.T.E. acted with the scienter required to commit
aggravated battery. The object of his intentions, which included killing
two of his classmates, qualifies as aggravated battery, and he does not
argue otherwise. The only unresolved issue is whether B.T.E. took a
“substantial step” toward committing that offense.
A. We consider several factors when assessing whether the
defendant took a “substantial step” toward completion of
the underlying offense.
What qualifies as a “substantial step” under the attempt statute is not
amenable to a hard-and-fast definition but is based on context. Whether a
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 5 of 18
step is substantial “must be determined from all the circumstances of each
case”. Zickefoose v. State, 270 Ind. 618, 622-23, 388 N.E.2d 507, 510 (1979).
Although in rare circumstances a defendant’s actions may be insubstantial
as a matter of law, a step’s substantiality is generally a fact question based
on the totality of the circumstances. See Lewis, 429 N.E.2d at 1116.
The substantial-step “requirement is a minimal one, often defined as
any ‘overt act’ in furtherance of the crime.” Van Cleave, 674 N.E.2d at 1304.
Still, the overt act must go “beyond mere preparation”. Jackson v. State, 683
N.E.2d 560, 566 (Ind. 1997). But this requirement is not so strict that it
forecloses some “preventive action by police and courts to stop the
criminal effort at an earlier stage”. Zickefoose, 270 Ind. at 622, 388 N.E.2d at
509. Instead, the attempt statute enables law enforcement to “minimiz[e]
the risk of substantive harm without providing immunity for the
offender.” Id. We focus on “the substantial step that the defendant has
completed, not on what was left undone.” 270 Ind. at 623, 388 N.E.2d at
510.
Renowned jurists have long struggled with where to draw the line
between mere planning and preparation, which are insufficient to
establish the crime of attempt, and a substantial step, which is sufficient.
As Judge Hand observed, “The decisions are too numerous to cite, and
would not help much anyway, for there is, and obviously can be, no
definite line” between preparation and attempt. United States v. Coplon,
185 F.2d 629, 633 (2d Cir. 1950).
Like Judge Hand, we are unable to capture the difference between mere
preparation and a substantial step in a pithy, bright-line rule. Rather than
pronounce a clear delineation, we can only describe and apply the
relevant criteria. Of necessity, we balance several factors:
(1) whether the defendant’s acts strongly corroborate his
criminal intent;
(2) the severity of the charged crime;
(3) proximity to the underlying crime;
(4) the examples listed in Model Penal Code section 5.01(2); and
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 6 of 18
(5) whether the defendant’s multiple acts, viewed together,
indicate he attempted a crime.
We trust that these factors and their application here will, in true
common-law fashion, add incrementally to the tapestry of decisional law.
At all times, however, we proceed cautiously to ensure that prosecutors
and police, in discharging their duty to snuff out serious threats to public
safety, do not infringe upon protected activity, particularly freedom of
conscience and expression. Our criminal law does not punish evil
thoughts. A guilty mind, by itself, does not subject the actor to criminal
liability. Such liability attaches only to those with a guilty mind who also
perpetrate a wrongful deed.
1. Strong corroboration
Since the enactment of Indiana’s modern attempt statute, we have said
that the defendant’s conduct, to qualify as a substantial step, “must be
strongly corroborative of the firmness of the defendant’s criminal intent.”
Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510. The Model Penal Code’s
authors found this factor essential, reasoning “that if the defendant
manifests a purpose to engage in the type of conduct or to cause the type
of result that is forbidden by the criminal law, he has sufficiently exhibited
his dangerousness to justify the imposition of criminal sanctions.” Am.
Law Inst., Model Penal Code and Commentaries Part I 303 (1985). According
to one academic, “The actus reus of an attempt to commit a specific crime
is constituted when the accused person does an act which is a step
towards the commission of the specific crime, and the doing of such act
can have no other purpose than the commission of that specific crime.”
Wayne R. LaFave, Substantive Criminal Law Vol. 2 § 11.4(d) (3d ed. 2017)
quoting J.W. Cecil Turner, Attempts to Commit Crimes, 5 Cambridge L.J.
230, 236 (1934).
2. Severity of the crime
In assessing substantiality, we look at the nature and severity of the
offense. “[T]he more serious the crime attempted . . . , the further back in
the series of acts leading up to the consummated crime should the
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 7 of 18
criminal law reach in holding the defendant guilty for attempt.” Ward v.
State, 528 N.E.2d 52, 54 (Ind. 1988) quoting Francis Bowes Sayre, Sr.,
Criminal Attempts, 41 Harv. L. Rev. 821, 845 (1928). An act that is
insubstantial for an attempt conviction on a less serious charge may well
be substantial for more serious crimes. For example, a reconnaissance
mission in furtherance of stealing a target’s wallet may be insufficient to
convict for attempted theft. But the same mission in furtherance of killing
the target could be sufficient to convict for attempted murder.
3. Proximity and remoteness
The third factor we consider is the proximity (or remoteness) of the
actor’s conduct to his intended crime. Proximity and remoteness,
sometimes viewed as opposite sides of the same coin, have both temporal
and geographic dimensions. If the actor’s conduct is sufficiently proximate
in time and place to the planned offense, then he is more likely guilty of
attempt. But the reciprocal proposition does not necessarily follow. Just
because the actor’s completed conduct may be remote in time or place to
the underlying crime does not mean there was no attempt. The reason for
treating these complementary concepts differently is that Indiana “focuses
on the substantial step that the defendant has completed, not on what was
left undone.” Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510. If the completed
acts represent a substantial step, then there was an attempt, even if one or
both dimensions of proximity are unsatisfied.
4. The Model Penal Code
Like Indiana’s attempt statute, I.C. 35-41-5-1(a), the Model Penal Code
considers whether the defendant took a “substantial step” toward
commission of the underlying crime. Section 5.01(2) of the Model Penal
Code lists examples of conduct that may qualify as a substantial step:
(a) lying in wait, searching for or following the contemplated
victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the
crime to go to the place contemplated for its commission;
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 8 of 18
(c) reconnoitering the place contemplated for the commission
of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which
it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of
the crime, that are specially designed for such unlawful use or
that can serve no lawful purpose of the actor under the
circumstances;
(f) possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place
contemplated for its commission, if such possession, collection
or fabrication serves no lawful purpose of the actor under the
circumstances;
(g) soliciting an innocent agent to engage in conduct
constituting an element of the crime.
Model Penal Code § 5.01(2) (Am. Law Inst. 2018). A person who engages
in one or more of these recited acts may be subject to liability under
Indiana’s criminal-attempt statute. We do not hold that a trial court that
acquits despite the presence of one of these acts commits error. But it is
difficult to imagine reversing a trial court that convicts in the presence of
one of these acts.
5. Aggregate conduct
Last, we consider the cumulative effect of all the defendant’s actions
taken together. In other words, the factfinder should consider the totality
of the circumstances instead of isolating each fact that the State raises
about the defendant’s conduct.
B. There was sufficient evidence for a reasonable factfinder to
determine B.T.E. attempted to commit aggravated battery.
The trial court determined that B.T.E.’s conduct over four months
satisfied the substantial-step requirement. We hold on this record that
substantial evidence supports the trial court’s adjudication of B.T.E. as a
juvenile delinquent for attempted aggravated battery.
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 9 of 18
Our attempt test comprises the five factors outlined in Section A. We
balance those factors, keeping in mind our deferential standard of review.
The test is not conjunctive, but embraces a sliding scale. If the State shows
the defendant’s acts were strongly corroborative of his criminal intent,
that lessens the need for proximity. Thus, the absence of one or more
factors is not fatal to a finding of attempt. Conversely, just one or two
factors, if compelling enough, can lead to a finding of attempt.
1. Strong corroboration
As discussed next, B.T.E.’s solicitations, drawings and diagrams, and
death note strongly corroborate his criminal intent.
a. Solicitations
As mentioned, B.T.E. recruited M.V. to help carry out his planned
attacks at Seymour High School, including sharing with M.V. detailed
notes outlining his research into how to make a pipe bomb, debating what
murder weapon would be best for killing J.R., and discussing tips for
avoiding suspicion. And B.T.E. urged D.H., who lived elsewhere and was
suicidal, to travel to Seymour to kill J.R. before taking his own life. B.T.E.
had also sent D.H. a picture of J.R.
B.T.E.’s solicitation of M.V. and D.H. manifests his commitment to
carrying out his planned offense of aggravated battery in two respects.
First, discussing his plans with potential accomplices brought B.T.E. closer
to committing a crime. He discussed the logistics of getting away with
murder with his friend M.V., and he discussed how to obtain a murder
weapon. And, in his conversations with D.H., he actively urged D.H. to
commit the crime. These solicitations reveal the tenacity with which B.T.E.
was pursuing his goal of harming J.R. Second, the solicitation subjects
B.T.E. to potential adverse consequences for his violent desires. By telling
his friends, he risked being reported to school officials, his parents, or
police. So firm was B.T.E. to committing aggravated battery that he was
willing to take that risk to carry out his plan.
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 10 of 18
The Court of Appeals, however, concluded that B.T.E.’s solicitations
were not a substantial step, relying on Ward, 528 N.E.2d 52. There, we
adopted two tests for assessing whether solicitation is an attempt. One test
asks whether the underlying offense is a “sufficiently serious crime” that
it makes sense to treat even early steps toward completion of the offense
as substantial. Id. at 54. The other test, cited by the panel majority below,
requires (among other things) that any solicitation must urge the
commission of a crime “at some immediate time and not in the future”.
B.T.E., 82 N.E.3d at 278 (quoting Ward, 528 N.E.2d at 54). Because B.T.E.’s
planned crimes at Seymour High School against his two classmates were
not imminent, the Court of Appeals held B.T.E.’s solicitations did not
qualify as an attempt under Ward. We respectfully disagree and hold that
Ward does not govern here for two reasons.
First, the narrow issue in Ward was whether an adult defendant’s
solicitations of two underage boys to engage in sexual activity were a
substantial step toward completion of the underlying offenses of child
molesting and thus qualified as attempted child molesting. Ward did not
address the very different issue here, which is whether a defendant’s
solicitations in conjunction with other affirmative steps together can
satisfy the substantial-step requirement. We hold they can. B.T.E.’s
solicitations were not the only overt acts he committed. Ward does not
foreclose treating solicitation as a substantial step even for remote-in-time
offenses if they would be substantial when viewed alongside other overt
acts.
Second, Ward’s holding involved two-party solicitations. As we
observed, the underlying crime of child molesting “is a two-party offense,
which requires the cooperation or submission of the child being solicited.”
528 N.E.2d at 55. Ward expressly excluded from its solicitation-as-attempt
test the three-party solicitation at issue here: “This specific evaluation of
the solicitation, therefore, excludes three-party solicitations, where A
solicits B to murder C.” Id. at 54 n.3 (emphasis added). The Court of
Appeals believed this statement from Ward—which it said “precisely
describes” B.T.E.’s solicitations, 82 N.E.3d at 279—to mean that B.T.E. did
not take a substantial step toward the crime of aggravated battery. Again,
we disagree with this narrow interpretation of Ward. Our focus is on the
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 11 of 18
steps taken toward completing the underlying crime and not on the steps
remaining. We reject a categorical rule that A’s solicitation of B to commit
a crime against C can never amount to attempt.
b. Drawings and diagrams
In addition to his solicitations of the two other students, B.T.E. drew a
pair of diagrams that represent affirmative steps toward fulfilling his
planned Columbine-style attacks on the high school. One diagram depicts
the high-school building where the attacks were to occur. The other shows
the specific classroom that B.T.E. targeted. This latter diagram reveals the
location of the room’s entrance and exit, and it contains a crude seating
chart with two of the chairs highlighted and another chair marked with an
“x”. The preparation of these diagrams is among several acts strongly
corroborative of B.T.E.’s criminal intent to commit aggravated battery.
c. Death note
B.T.E. also prepared a seven-page, single-spaced note that M.V. was to
share at school after B.T.E.’s death. It included messages of varying
lengths expressing his sentiments about more than a dozen of his
classmates. Some of the messages are cold and crass: “kill yourself”.
Others are warm and even affectionate: “I like you a lot and always will.”
We agree with the Court of Appeals’ dissent that this note appears to
show that B.T.E. is “put[ting] his affairs in order” in anticipation of his
planned attack and, thus, is “strongly corroborative of the firmness of his
intent to attack J.R. in school.” 82 N.E.3d at 284 (Bradford, J., concurring in
part, dissenting in part).
In sum, B.T.E.’s solicitations and other acts strongly corroborate his
criminal intent. This factor weighs heavily in favor of the trial court’s
attempt adjudication.
2. Severity of the offense
We observed in Ward that the line between mere preparation and a
substantial step depends on the seriousness of the offense. There, the
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 12 of 18
Court had “little difficulty” concluding that child molesting “is a
sufficiently serious crime to justify drawing a fairly early line to identify
and sanction behavior as an attempt.” 528 N.E.2d at 54.
For B.T.E.’s proposed crimes against his school and two of his
classmates, we conclude that aggravated battery also is “sufficiently
serious” that it warrants drawing an “early line” to assess whether B.T.E.
“attempted” aggravated battery. B.T.E.’s affirmative steps included his
prolonged solicitation of M.V. and D.H. In numerous Facebook chats over
several weeks, B.T.E. said he would do things to J.R. that “would make
even the sociopathic of sociopaths shake and stutter [sic]”; that he would
kill J.R. and “[i]f [J.R.] dates [G.M.] then I will seriously kill him” and “I’ll
kill her too”; that he “should kill [J.R.] to prove that I never fail”; that he
would kill J.R., his dogs, his parents, and burn down his house with him
in it; that he would “HELP [J.R.] CATCH PERMANENT ZZZ … OR
IMPALE HIM LIKE VLAD THE IMPALER DID”; that “[h]opefully [J.R.]
kills himself because I’m going to get myself arrested if he doesn’t”; that it
was too bad he didn’t have a benevolent mind or J.R. would make it past
high school; that G.M. should hope he never gets to his father’s gun or he
would kill her and J.R., saying “that’s two people I want to kill in
Seymour high”; that he wanted to get a “bowl cut” and “become famous
after I’m arrested”, an apparent reference to the hairstyle of mass
murderer Dylann Roof; and that he wanted J.R. to get “nonstop” sleep.
B.T.E. also wrote more explicitly vile messages that are part of this record,
but we omit them in the interest of decorum. In addition to these
solicitations are B.T.E.’s school drawings and death note—all of which
strongly corroborate his plan to fulfill his intended crime. And they
support the trial court’s conclusion that B.T.E.’s acts were a substantial
step toward committing aggravated battery. B.T.E.’s discussions with
friends over Facebook were not idle chatter or the venting of frustrations
after one bad day. His threats were both serious and sustained over a
period of months, revealing the palpable danger he posed to his
classmates. The severity of his crime—a school shooting—weighs heavily
in favor of the trial court’s attempt adjudication.
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 13 of 18
3. Proximity and remoteness
Like the Court of Appeals, we pause when presented with a finding of
attempt against an offender who says he will commit his crime two years
in the future. But a distant date is not dispositive on this record for two
reasons. First, regardless of the acts that remain, B.T.E.’s completed
conduct is sufficiently dangerous and corroborative of a seriousness of
purpose that the law can reasonably reach back and treat it as a
substantial step.
Second, some of B.T.E.’s own words and deeds suggest he might carry
out an attack much sooner than his senior year in high school. One
example is B.T.E.’s conversations with D.H., in November 2015, in which
he solicits his potentially suicidal friend to come to Seymour High School
and murder J.R. before taking his own life. The solicitation seems to be a
present-tense command. And nothing in the record suggests D.H. had any
reason to believe B.T.E.’s plan called for an attack in April 2018. In one
conversation, D.H. suggested killing a friend of B.T.E.’s—a student at
Seymour High School. D.H. even asked B.T.E. to send a picture of the
friend. In response, B.T.E. suggested that D.H. kill J.R., and he sent a
picture of J.R. so that D.H. could identify him. The next week, when D.H.
told B.T.E. he was suicidal, B.T.E. encouraged him to come to Seymour
High School and kill J.R. before killing himself.
D.H.: I’m so close to killing myself.
B.T.E.: No no kill someone else not yourself.
B.T.E.: Come to Seymour and kill that fucker and then kill
yourself.
....
D.H.: I’m gonna kms.
....
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 14 of 18
B.T.E.: Don’t do that.
B.T.E.: Kill others before yourself.
On its face, this solicitation appears to urge violence against J.R. much
sooner than B.T.E.’s proposed date in April 2018.
Additionally, B.T.E.’s classroom drawing in which two seats are shaded
and another is marked with an “x” hints at more imminent violence. As
students change classes and classrooms from one year to the next—and
almost certainly change their seating assignments—B.T.E.’s map would
presumably have no value for a crime planned two years in the future.
Finally, B.T.E.’s “death note” also indicates an attack may be more
imminent. The note does not discuss the nature of B.T.E.’s eventual crime.
But its mere existence speaks to both the seriousness of B.T.E.’s plot and
its timing. After all, B.T.E.’s note written in 2015 or 2016 would not
necessarily reflect his feelings about his classmates in April 2018.
We find it instructive to compare this case to a recent, strikingly similar
case from Vermont also involving a prospective school shooter. In State v.
Sawyer, 187 A.3d 377 (Vt. 2018), a recent graduate was alleged to have
planned a shooting at his former high school. The defendant allegedly
wrote detailed journals expressing his wishes and plans for committing a
school massacre and procured a shotgun in service of those plans. Id. at
380-81. He also sent Facebook messages to friends suggesting he was a
threat to his former school and admitted to police that he planned to
attack the school. Id. And like B.T.E., Sawyer planned “a mass shooting on
the anniversary of the date of the Columbine school shooting”. Id. at 381.
The Vermont Supreme Court held Sawyer’s actions likely did not
amount to an attempt under Vermont law, which “requires an intent to
commit a crime, coupled with an act that, but for an interruption, would
result in the completion of a crime.” Id. at 382 (citing State v. Hurley, 64 A.
78 (Vt. 1906)). Sawyer recognized the difference between Vermont’s
attempt statute and those statutes, like Indiana’s, that require merely a
substantial step. In doing so, the Vermont Supreme Court noted that
Sawyer might be guilty of attempt under a substantial-step attempt
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 15 of 18
statute. Id. at 385-86. “The substantial-step analysis presents a lower bar
regarding the kind of act required to show that a defendant has attempted
to commit a crime”. Id. at 385. Ultimately, unlike Vermont, Indiana
adjudges a person preparing to commit a crime guilty of attempt much
earlier along the continuum.
We also note that some Indiana caselaw on attempt focuses
substantially more on proximity and, in particular, remoteness than we do
here. Each of the defendants in Calvert v. State, 930 N.E.2d 633 (Ind. Ct.
App. 2010), Collier v. State, 846 N.E.2d 340 (Ind. Ct. App. 2006), and State v.
Kemp, 753 N.E.2d 47 (Ind. Ct. App. 2001), trans. denied, were closer in time
or space to committing their underlying respective crimes when arrested
than was B.T.E. In Calvert, the defendant drove around a liquor store to
scout it for a holdup with a shotgun in his car. 930 N.E.2d at 639-40. In
Collier, the defendant told his neighbor he was going to murder his ex-
wife and staked out her workplace while possessing an ice pick, box
cutter, and pair of binoculars. 846 N.E.2d at 342-43. And in Kemp, which
has since been superseded by statute, the defendant was alleged to have
met with an undercover officer posing as an underage girl to engage in
sexual activity. 753 N.E.2d at 51. Yet in all three cases, the Court of
Appeals held there was no substantial step and thus no attempt. To the
extent that Calvert, Collier, or Kemp would have foreclosed finding a
“substantial step” under these facts, we disapprove of these cases. Lack of
proximity is not dispositive.
4. Model Penal Code
B.T.E. engaged in some conduct that may be held a substantial step,
according to Model Penal Code section 5.01(2). He unquestionably was
“soliciting an innocent agent to engage in conduct constituting an element
of the crime”, Model Penal Code § 5.01(2)(g), by asking D.H. to kill J.R.
before killing himself.
True, the Model Penal Code also refers to “reconnoitering the place
contemplated for the commission of the crime”. § 5.01(2)(c). And Judge
Bradford’s dissent views B.T.E.’s drawings of his school building and
classrooms as reconnoitering under section 5.01(2)(c). But on this record,
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 16 of 18
we conclude B.T.E. was not undertaking a reconnaissance mission at his
school; by law, he had to be there during school hours. I.C. § 20-33-2-4.
Even so, the drawings are strongly corroborative of B.T.E.’s criminal
intent.
5. Aggregate conduct
Last, we consider B.T.E.’s conduct in the aggregate. The State’s
evidence shows a young man with a clear intention to commit violence at
his school, along with affirmative acts that strongly corroborate that
intent. On their own, B.T.E.’s conversations with his friend M.V. might be
viewed as a long-running “joke”, albeit one extremely offensive and in
poor taste; his drawings of the school building and classroom the reckless
doodles of a bored student; and his death note a dramatic diary entry. But
together these acts reflect a young man who, despite knowing the
difference between right and wrong, both conjured up a horrific scene at
school involving death and mayhem to fellow classmates and then took
affirmative actions toward carrying out that plan. Based on our
consideration of all the evidence, we cannot say the juvenile court
committed reversible error in adjudicating B.T.E. a delinquent on the
charge of attempted aggravated battery.
Conclusion
B.T.E. did more here than simply think evil thoughts. What may have
begun as mere ruminations about his hatred for J.R. turned into a plot to
kill him along with another classmate, and then extended beyond mere
planning and preparation. The planning, the solicitations, the bomb
research, the drawings depicting the target classroom, and the death note
together justify the trial court’s conclusion that B.T.E.’s affirmative
conduct amounts to a substantial step toward the commission of
aggravated battery. For these reasons, we affirm the trial court’s
judgment.
Rush, C.J., and David, Massa, and Goff, JJ., concur.
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 17 of 18
A TT O RN E Y F O R A P P ELLA N T
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
A TT O RN E YS FO R A P PELL EE
Curtis T. Hill, Jr.
Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 36S05-1711-JV-711 | October 11, 2018 Page 18 of 18