Barnes, J.
Michael Miller appeals his conviction for attempted murder. We reverse and remand.
The issues we address today are:
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III. whether the trial court applied an incorrect standard in convicting Miller of attempted murder.
At about 11:30 p.m. on the night of August 10, 2014, Jeremy Kohn was sitting on the porch of his residence in Bloomfield with his girlfriend, Kylee Bateman. Kohn and Bateman observed Miller twice approach a neighboring house, knock on the door or ring the door bell, and then walk away. … Bateman was telling Kohn a story that may have made them both laugh; Miller apparently believed Kohn and Bateman were laughing at him. He then approached Kohn “nonchalantly,” drew a pocketknife with a three-to-four-inch blade, and cut Kohn’s throat without saying a word. … The wound required over forty stitches to close.
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Later on August 13, Miller was arrested in Worthington, about twelve miles away from Bloomfield. … Miller then submitted to an interview conducted by Officer Marvin Holt of the Bloomfield Police Department after waiving his Miranda rights.
During the interview, Miller … admitted that he cut Kohn’s throat with a knife after Kohn and Bateman smiled at him, and Kohn looked at Bateman and shook his head. …
On August 14, 2014, the State charged Miller with one count of Level 1 felony attempted murder and one count of Level 3 felony aggravated battery. The charging information for attempted murder read in part that Miller “did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn, and Michael A. Miller did engage in conduct which constituted a substantial step toward the commission of the crime of murder, to-wit: cut Jeremy Kohn’s throat with a knife . . . .” …
On August 15, 2014, Miller’s attorney filed a notice of defense of mental disease or defect.
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… On January 27, 2016, it entered detailed, written “Findings, Conclusions and Judgment of Conviction.” In those findings, the trial court explained why it was discounting the expert opinions regarding Miller’s sanity or lack thereof and rejecting his defense of mental disease or defect. …
The findings also repeated the language of the charging information for attempted murder, namely that Miller “did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn . . . .” …
The trial court entered judgments of conviction of guilty but mentally ill for both Level 1 felony attempted murder and Level 5 felony battery. … It sentenced Miller to a term of thirty years, with twenty years executed and ten years suspended to probation. Miller now appeals.
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… In a prosecution for attempted murder, the State must prove the defendant acted with the specific intent to kill the victim. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). It is not enough to show that the defendant knowingly engaged in conduct that constituted a substantial step toward the commission of murder. See Spradlin v. State, 569 N.E.2d 948, 949-50 (Ind. 1991). …
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… a “knowing” mens rea is insufficient to sustain a conviction for attempted murder. …
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Both the charging information and the trial court’s findings refer to the long discredited notion that a “knowing” mens rea was sufficient to convict Miller of attempted murder. It was not. Moreover, Miller’s intent was a central issue in this case. …
The difference between acting intentionally and knowingly is that a person acts “intentionally” when “it is his conscious objective to do so,” while a person acts “knowingly” when “he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2. …
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The question we are confronting is whether the trial court in a bench trial, where the judge is presumed to know the law and correctly apply it, used the faulty “knowing” element to arrive at the guilty but mentally ill decision. We have concluded this presumption has been rebutted and that it appears the trial court applied the incorrect standard in deciding Miller’s guilt. This is a circumstance that may be one of first impression. …
Miller’s speedy trial rights were not violated by the trial court’s granting of the State’s continuance motion. There was sufficient evidence as a matter of law to reject Miller’s insanity defense. However, it is apparent the trial court as fact finder applied the incorrect standard of a “knowing” mens rea rather than “specific intent to kill” in deciding to convict Miller of attempted murder. We reverse and remand for a new trial in accordance with this opinion.
Reversed and remanded.
Kirsch, J., and Robb, J., concur.