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Filed: October 31, 1989.


APPEAL FROM THE TIPPECANOE SUPERIOR COURT, The Honorable Vincent F. Grogg, Special Judge, Cause No. S-5585.

Buchanan, J., Shields, P.j. Concurs. Sullivan, J. Concurs IN Result.

Author: Buchanan



Appellant-plaintiff, the State of Indiana (the State), appeals from the trial court's grant of appellee-defendant Donald J. Haines' (Haines) motion for judgment on the evidence,[Footnote 1] claiming that the trial Judge erred in vacating the jury's verdicts of three counts of attempted murder[Footnote 2] and entering judgments of conviction as to three counts of battery, a class D felony.[Footnote 3] The State also alleges that the trial court erred in excluding the testimony of two physicians.

We reverse with instructions that the trial court reinstate the jury's verdict and that Haines be sentenced accordingly.[Footnote 4]


On August 6, 1987, Lafayette, Indiana, police officers John R. Dennis (Dennis) and Brad Hayworth drove to Haines' apartment in response to a radio call of a possible suicide. Haines was unconscious when they arrived and was lying face down in a pool of blood. Dennis attempted to revive Haines and noticed that Haines wrists were slashed and bleeding. When Haines heard the paramedics arriving, he stood up, ran toward Dennis, and screamed that he should be left to die because he had AIDS. Dennis told Haines they were there to help him, but he continued yelling and stated he wanted to f Dennis and "give it to him." Haines told Dennis that he would "use his wounds" and began jerking his arms at Dennis, causing blood to spray into Dennis' mouth and eyes. Throughout the incident, as the officers attempted to subdue him, Haines repeatedly yelled that he had AIDS, that he could not deal with it and that he was going to make Dennis deal with it.

Haines also struggled with emergency medical technicians Dan Garvey (Garvey) and Diane Robinson threatening to infect them with AIDS and began spitting at them. When Dennis grabbed Haines, Haines scratched, bit, and spit at him. At one point, Haines grabbed a blood-soaked wig and struck Dennis in the face with it. This caused blood again to splatter onto Dennis' eyes, mouth, and skin. When Dennis finally handcuffed Haines, Dennis was covered with blood. He also had scrapes and scratches on his arms and a cut on his finger that was bleeding.

When Haines arrived at the hospital, he was still kicking, screaming, throwing blood, and spitting at Dennis, Garvey, and another paramedic, Rodney Jewell. Haines again announced that he had AIDS and that he was going to show everyone else what it was like to have the disease and die. At one point, Haines bit Garvey on the upper arm, breaking the skin.

Roger Conn (Conn), Haines' homosexual lover and former roommate, recalled that Dr. Kenneth Pennington (Pennington) informed Haines that he had the AIDS virus. Haines told Conn that he knew AIDS was a fatal disease. Moreover, when Haines was admitted to the hospital, he repeatedly told the medical staff not to touch him because he was diseased. Haines commented to Conn, who was also at the hospital, that the medical staff was "afraid of his AIDS" because of the protective clothing that they were wearing.

Haines was charged with three counts of attempted murder. At trial, medical experts testified that the virus could be transmitted through blood, tears, and saliva. They also observed that policemen, firemen, and other emergency personnel are generally at risk when they are exposed to body products. One medical expert observed that Dennis was definitely exposed to the HIV virus and others acknowledged that exposure of infected blood to the eyes and the mouth is dangerous, and that it is easier for the virus to enter the blood stream if there is a cut in the skin.

Following a trial by jury, Haines was convicted of three counts of attempted murder on January 14, 1988. On February 18, 1988, Haines moved for judgment on the evidence as to the three counts of attempted murder, which the trial court granted. The trial court did enter judgment of conviction on three counts of battery as a class D felony. Haines was ordered to serve a two-year sentence on each count to run consecutively.


The only issue before us is whether the trial court erred in granting Haines' motion for judgment on the evidence vacating the three counts of attempted murder.[Footnote 5]


PARTIES' CONTENTIONS--The State maintains that the trial court erred in granting Haines' motion for judgment on the evidence because the trial Judge misconstrued the requirements of proof necessary to constitute a substantial step in accordance with the law of attempt. Haines responds that his conduct did not constitute a substantial step toward murder as charged, because all evidence relating to the AIDS virus was introduced by the defense which led only to an inference in favor of Haines.

Conclusion--The trial court erred in granting Haines' motion for judgment on the evidence.

This appeal presents a novel question in Indiana.

We begin with T.R. 50(A) which provides in relevant part:

Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict. . . ."

When the trial Judge sentenced Haines on February 2, 1988, he made this statement:

"I believe my decision in this case was made easier by the State's decision to not introduce any medical expert scientific evidence. Now, I don't quarrel with that strategy. I am not the prosecuting attorney and don't want to be. It's a big job and I'm not sure I could handle it. Indeed, had I been in his shoes, given the apparent great weight of scientific evidence applicable to the facts of this case, I probably would have opted to follow that same strategy.

The State believed that the disease known as AIDS was irrelevant to its burden of proof; that only the intent or state of mind of the defendant was relevant. I disagree with that. All of us know that the conduct of spitting, throwing blood and biting cannot under normal circumstances constitute a step, substantial or otherwise, in causing the death of another person, regardless of the intent of the defendant. More has to be shown, more has to be proven, in my judgment. And the more in this case was that the conduct had to be coupled with a disease, a disease which by definition is inextricably based in science and medicine.

Now, perhaps there are medical conditions so common that a jury of lay people could assess them without the aid of expert assistance. But, certainly this disease known as AIDS does not fit into that category. Indeed it is clear that this condition is one that is in need of a great deal of medical and scientific expertise.

There's no doubt in my mind had defendant been afflicted with hepatitis B, the bubontic [sic] plague, diptheria [sic] or some other medical condition, evidence would have been introduced to show that people can be put in jeopardy from those diseases by the indiscriminate transmission of bodily fluids. But, of course, in this case, the State took the position that everyone has heard of AIDS; that everybody has read about the disease of AIDS; and that everyone knows that this disease can be lethal or that it is lethal; that AIDS, if you will, is as common a killer as a gun or a knife, which by their very nature are deadly weapons.

All of the medical evidence in this case was introduced by the defendant and I forced the defendant to introduce that evidence by my failure or refusal to sustain his motion for judgment of acquittal. And all of that evidence shows conclusively that the sta/--- that the -- this medical condition and what it means is not very clear. And this is especially true when the [u]ncontroverted evidence in this case was that the defendant did not, in fact, have what the doctors consider a AIDS [sic]; but, having instead, as set out in the charges that were filed in this case, an AIDS Related Complex, which is a preliminary stage of the disease of AIDS. And in short, the State produced no medical or scientific evidence that the defendant actually had AIDS or that he had ARC and produced no medical or scientific evidence as to the nature of this disease known as AIDS or that of ARC; produced no evidence that ARC, as alleged, can or will meet the deadly condition of AIDS or more that AIDS is deadly -- even if you have AIDS that it's deadly or, more to the point, that ARC is deadly. There was no medical expert evidence that the person with ARC or AIDS can kill another by transmitting bodily fluids as alleged in this case. And there was no medical evidence from any of the evidence that the defendant had reason to believe that he could transmit his condition to others by transmitting bodily fluids as are alleged in this case. As I recall, the only medical or scientific evidence in the State's case was the equivocal statement of Dr. Griffith, the emergency room physician, wherein he warned the defendant that his actions endangered others. But, as I said, that statement was equivocal as I remember the evidence because there was no clear -- I don't remember clearly what he -- whether he was talking about the victims of this offense, the man that was with the tube in his throat that was in the room or other persons that were involved in the room.

I committed error when I overruled the defendant's motion pursuant to Trial Rule 50 at the completion of the State's case. I committed that error consciously. I let that go to -- this case go to the jury consciously. But, the fact that I did so does not make it any less in error.

Looking at the evidence in this case in the light most favorable to the State and now weighing that evidence, I find that the State failed in its burden of establishing that the defendant had a medical disease of ARC as alleged, that ARC can lead to AIDS, that AIDS or ARC is a disease that can be or is lethal and that spitting, biting or throwing blood at the victims is a method of transmitting AIDS or ARC. So, there's absolutely no evidence linking those factors which I consider to be essential to the State's burden of proving a substantial step in this case. It is my decision today to correct that error.

The verdicts of the jury as to attempted murder will be set aside pursuant to Trial Rule 50 and judgment of conviction of battery on a police officer resulting in bodily injury as a Class D felony will be entered on each of the three counts. A sentence of two years will be ordered on each of the three counts. Those sentences will run consecutively because I find aggravating circumstances and I will set those out at this time."

Record at 699-703 (emphasis supplied).

When a trial court considers a motion for judgment on the evidence subsequent to a jury verdict, it must view all the evidence in a light most favorable to the non-moving party. The trial court may enter judgment only if there is no substantial evidence or reasonable inference to be adduced therefrom to support an essential element of the claim. The evidence must point unerringly to a Conclusion not reached by the jury inasmuch as the evidence is only susceptible of favoring a judgment for the moving party. Huff v. Travelers Indemnity Co. (1977), 266 Ind. 414, 363 N.E.2d 985; Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207; Tancos v. A.W., Inc. (1986), Ind.App., 502 N.E.2d 109, trans. denied; Northern Indiana Pub. Serv. Co. v. Stokes (1986), Ind.App., 493 N.E.2d 175. The trial Judge is prohibited from weighing the evidence when considering whether to enter a judgment contrary to the verdict, and it is only when a verdict for the plaintiff is based on surmise, conjecture or speculation as to one or more of the necessary elements of the claim, that a judgment on the evidence for the defendant should be upheld. Huff, supra ; Tancos, supra ; Senco Products, Inc. v. Riley (1982), Ind.App., 434 N.E.2d 561; see also Berg v. Glinos (1989), Ind.App., 538 N.E.2d 979.

While the trial court determined that the State failed to meet its burden of proof and that it erred in initially overruling Haines' initial motion for judgment on the evidence at the Conclusion of the State's case, T.R. 50(A)(6) provides in pertinent part that:

"A motion for judgment on the evidence made at one stage of the proceedings is not a waiver of the right of the court or of any party to make such motion on the same or different issues or reasons at a later stage as permitted above, except that error of the court in denying the motion shall be deemed corrected by evidence thereafter offered or admitted."

In light of the above, the trial Judge was required to consider all of the evidence presented at trial in deciding whether to grant Haines' motion whether such evidence was presented by the State or the defendant. See e.g. Pinkston v. State (1975), 163 Ind. App. 633, 325 N.E.2d 497 (a defendant waives any error in the denial of a motion for judgment on the evidence if he chooses to present evidence). The trial Judge's failure to consider all of the evidence and his comment at the February 2, 1988, sentencing hearing that he weighed the evidence in deciding whether to grant judgment on the evidence constituted error. See Huff, supra ; Tancos, supra ; T.R. 50(A); T.R. 50(A)(6).

Contrary to Haines' contention that the evidence did not support a reasonable inference that his conduct amounted to a substantial step toward murder, the record reflects otherwise. At trial, it was definitely established that Haines carried the AIDS virus, was aware of the infection, believed it to be fatal, and intended to inflict others with the disease by spitting, biting, scratching, and throwing blood. Record at 255, 266, 268-70, 304, 319, 331-37, 347-48, 355, 371, 383, 400, 441, 474, 478, 485, 494. His biological warfare with those attempting to help him is akin to a sinking ship firing on its rescuers.

Haines misconstrues the logic and effect of our attempt statute codified as Ind. Code 35-41-5-1. While he maintains that the State failed to meet its burden insofar as it did not present sufficient evidence regarding Haines' conduct which constituted a substantial step toward murder, see Appellee's Brief at 15-16, subsection (b) of IC 35-41-5-1 provides:

"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 attempt."

In Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507, our supreme court observed:

"It is clear that section (b) of our statute rejects the defense of impossibility. It is not necessary that there be a present ability to complete the crime, nor is it necessary that the crime be factually possible. When the defendant has done all that he believes necessary to cause the particular result, regardless of what is actually possible under existing circumstances, he has committed an attempt. The liability of the defendant turns on his purpose as manifested through his conduct. If the defendant's conduct in light of all the relevant facts involved, constitutes a substantial step toward the commission of the crime and is done with the necessary specific intent, then the defendant has committed an attempt.

Previous Indiana cases have sometimes narrowly interpreted an attempt as conduct "'which will apparently result in the crime, unless interrupted by circumstances independent of the doer's will.'" Jarman v. State (1977), Ind., 368 N.E.2d 1348; Williams v. State (1973), 261 Ind. 385, 304 N.E.2d 311; Herriman v. State (1963), 243 Ind. 528, 188 N.E.2d 272. However, the new statute shows that this interpretation focusing on the result of the conduct is no longer ...

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