Michael A. Miller, Appellant (Defendant below),
State of Indiana, Appellee (Plaintiff below).
from the Greene Circuit Court, No. 28C01-1408-F1-2 The
Honorable Erik C. Allen, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Kimberly A. Jackson Indianapolis,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Laura R. Anderson Deputy Attorney General
Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney
General Indianapolis, Indiana
11:30 p.m. on August 10, 2014, Jeremy Kohn was sitting on the
porch of his Bloomfield home with his girlfriend, Kylee
Bateman. The pair observed a man twice approach a
neighbor's house, knock on the door or ring the doorbell,
and walk away. Kohn thought he recognized the man from
school, but could not remember his name. About five minutes
after that, the man-defendant Michael Miller-casually
strolled up to Kohn and Bateman, as if to ask a question. As
Kohn turned to ask Bateman if she knew the man, Miller
grabbed Kohn's left arm and cut him around the throat
with a pocketknife. Miller said nothing, and then calmly
walked away. The cut was not deep, but it required over forty
stitches to close. Had the cut been slightly deeper, it could
have caused injury posing a risk of death.
days later, Miller was identified as a suspect in the attack
of Kohn. Police located him in a nearby town, hitchhiking to
Indianapolis. Miller was arrested without incident, waived
his Miranda rights, and calmly admitted he had cut
Kohn's throat after Kohn and Bateman smiled at him and
Kohn looked at Bateman and shook his head. Miller stated he
assumed the police were not called or did not care about the
incident, because he didn't hear any sirens afterwards.
Then he decided to go to Indianapolis. When asked whether he
wanted to kill Kohn, Miller replied that he did not care.
(See App. at 104; State's Ex. 7 at 11:30 -
State charged Miller with Level 1 felony attempted murder and
Level 3 felony aggravated battery (later amended to Level 5
felony battery). The attempted murder charge alleged in part
that Miller "did knowingly or intentionally attempt to
commit the crime of Murder, to-wit: to knowingly kill Jeremy
Kohn . . . ." (App. at 29.) After a bench trial, the
trial court adjudged Miller guilty but mentally ill on both
counts. The trial court's judgment of conviction included
several findings and conclusions, including "that
Defendant had the requisite intent to kill . . ." and
that the State "has proved beyond a reasonable doubt . .
. Miller did knowingly or intentionally attempt to commit the
crime of Murder, to-wit: to knowingly kill Jeremy Kohn . . .
." (App. at 104-05).
appealed, contending among other things that the State did
not present sufficient evidence that he had the specific
intent to kill Kohn, as required for attempted
murder. The Court of Appeals found it premature to
consider sufficiency of the evidence of Miller's intent,
but determined that the references in the proceedings below
to a "knowing" mens rea could indicate the
trial court applied the wrong standard of proof. Miller
v. State, 72 N.E.3d 502, 515, 518 (Ind.Ct.App. 2017).
The Court of Appeals reversed Miller's attempted murder
conviction and remanded for a new trial. Id. at 518.
State seeks transfer, contending the trial court did not
apply the wrong standard of proof, but if it did, the proper
remedy is not a new trial, but a remand for the trial court
to reconsider the case under the correct legal standard. We
agree the correct remedy in these circumstances is a remand
for reconsideration by the trial court.
we grant transfer, see Indiana Appellate Rule 58(A),
and reverse Miller's conviction for attempted murder. We
remand this case to Judge Allen with instructions to apply
the appropriate legal standard to the existing evidence. In
all other respects, we summarily affirm the Court of
Appeals' opinion. Ind.App. R. 58(A)(2).
C.J., and David and Massa, JJ., concur.
Slaughter, J., concurring in part, dissenting in part.
that Miller's attempted-murder conviction must be
reversed because the trial court's written findings
recited the wrong legal standard. As the Court holds, the
correct standard is not whether Miller attempted to commit
murder "knowingly or intentionally", but whether he
had a "specific intent to kill". Where I part
company with my colleagues is in the chosen remedy. The Court
orders a remand to the trial court to consider the existing
evidence under the correct standard. But I question whether
that remedy will be adequate. Specifically, I fear a mere
remand to the same trial judge instructing him to apply the
correct standard will be insufficient to redress the
underlying harm from using the wrong standard. In my view,
Miller should receive a new trial. The erroneous mens
rea standard should not be dismissed as a slip of the
tongue (or pen) in the court's written findings because
it first appeared in the State's charging information and
thus tainted the entire proceeding. Had this been a jury
trial, the clear remedy would be to order a new trial.
Although this case was tried to the bench, I believe a new
trial also is warranted here. I share the Court of
Appeals' concern that the trial judge, on remand,
"may have a difficult, if not impossible, task of