ATTORNEY FOR APPELLANT

Kimberly A. Jackson 

Indianapolis, Indiana 

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

______________________________________________________________________________ 

In the 

Indiana Supreme Court

_________________________________ 

No. 28S04-1707-CR-468

MICHAEL A. MILLER, Appellant (Defendant below),

 v.

STATE OF INDIANA, Appellee (Plaintiff below). 

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Appeal from the Greene Circuit Court, No. 28C01-1408-F1-2

The Honorable Erik C. Allen, Judge

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On Petition to Transfer from the Indiana Court of Appeals, No. 28A04-1603-CR-634

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July 12, 2017

Per Curiam.

Around 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 
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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.

Three 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 – 11:50.)

The 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). 

Miller 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.1 The Court 

 

1 To convict a defendant of murder, the State must prove he or she acted “knowingly or intentionally.” 

See Ind. Code § 35-42-1-1(1). “A person engages in conduct ‘intentionally’ if, when he engages in the 

conduct, it is his conscious attempt to do so. . . . A person engages in conduct ‘knowingly’ if, when he 

engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(a), (b).

Attempt crimes generally require the same mens rea as completed crimes, but attempted murder is 
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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.

The 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.

Accordingly, 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).

Rush, C.J., and David and Massa, JJ., concur.

Slaughter, J., concurs in part and dissents in part with separate opinion.

 

different in that it requires the State to prove “the defendant’s specific intent to kill.” Rosales v. State, 23 

N.E.3d 8, 12 (Ind. 2015) (emphasis added). This requirement “stems from ‘the stringent penalties for 

attempted murder and the ambiguity often involved in its proof.’” Id. (quoting Hopkins v. State, 759 

N.E.2d 633, 637 (Ind. 2001)).
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Slaughter, J., concurring in part, dissenting in part. 

I agree 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 distancing himself from the evidence already considered and in considering the 

case entirely anew”. Miller v. State, 72 N.E.3d 502, 518 (Ind. Ct. App. 2017). In light of our grant 

of transfer, I would summarily affirm the Court of Appeals’ thoughtful opinion in its entirety, 

including its remand for a new trial.