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10/19/87 EDGAR E. BOZE v. STATE INDIANA

Filed: October 19, 1987.

EDGAR E. BOZE, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Bruce W. Douglas, Judge, Cause No. 83-PSCr-60.

Pivarnik, J., Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Edgar Boze was charged with attempted murder and battery. Boze pleaded guilty to the battery charge and the attempted murder charge was dismissed. The State appealed the dismissal and the Third District Court of Appeals reversed the trial court and remanded the case for trial on the charge of attempted murder. State v. Boze (1985), Ind.App., 482 N.E.2d 276, trans. denied.

On remand, the attempted murder charge was tried before a jury. On May 9, 1986, the jury returned a verdict of guilty of attempted murder, a class A felony. The trial Judge imposed the presumptive 30 year sentence. Boze directly appeals the conviction, asserting the following issues for our review:

(1) whether double jeopardy bars prosecution on the attempted murder charge;

(2) error in sentencing;

(3) admissibility of a photograph showing Boze making an obscene gesture;

(4) sufficiency of the evidence to prove the proper venue; and

(5) sufficiency of the evidence to prove intent.

On the evening of May 24, 1983, Edgar Boze was attempting to hitchhike on U.S. 20 in Porter County. Porter County Deputy Sheriff Gonzalez was dispatched to the scene where he encountered Boze. He attempted to arrest Boze for public intoxication but when he attempted to frisk Boze, Boze pulled a knife and attacked him. A struggle ensued and Boze threatened to stab the officer in the throat.

A motorist noticed the incident and stopped to aid the officer. When a state trooper later arrived, Boze ran into the woods. The trooper pursued Boze and eventually apprehended Boze after Boze attempted to stab him. Boze was combative and intoxicated and continued to struggle and threaten the officers after he was arrested. Boze was transported to the hospital where he was found to have a blood alcohol content of .28 %. Deputy Gonzalez received knife wounds on this head, face, and neck, and his bullet-proof vest and his shirt were also cut.

I.

Boze argues his prosecution for attempted murder is barred by double jeopardy because he pleaded guilty and was convicted on the lesser-included offense of battery. This is the same argument advanced by the State and expressly decided against Boze in State v. Boze (1985), Ind.App., 482 N.E.2d 276, 279, trans. denied. Where the defendant has an active hand in arranging the Disposition of the causes so he might benefit from the results, he waives any double jeopardy claims. Lutes v. State (1980), 272 Ind. 699, 702, 401 N.E.2d 671, 673. The United States Supreme Court has provided that no interest of a defendant protected by the Double Jeopardy Clause is implicated by continuing prosecution of the remaining charges, such as Boze ...


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