Opinion by Justice Slaughter
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.
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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.
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 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).
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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 aggravated battery. He engaged in conduct that would constitute a substantial step toward the crime of aggravated battery if committed by an adult. …
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. § 35-415-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 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.
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… 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. …
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 criminal law reach in holding the defendant guilty for attempt.” Ward v. State, 528 N.E.2d 52, 54 (Ind. 1988) … An act that is insubstantial for an attempt conviction on a less serious charge may well be substantial for more serious crimes. …
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. … 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 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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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.
Chief Justice Rush and Justices David, Massa, and Goff concur.