B.T.E. v. State of Indiana

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.

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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

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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

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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

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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

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(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

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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;

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(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.

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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.

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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

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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

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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.

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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.

....

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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

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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,

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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.

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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

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