Gillespie was charged with attempted dealing in a schedule II controlled substance. He filed a motion to dismiss upon which the court heard argument and received evidence. It was stipulated by the parties that the substance delivered by Gillespie was not a controlled substance. It was crushed common aspirin. In addition, Gillespie testified that Collins, an undercover police officer, had on several occasions attempted to induce Gillespie to procure drugs for him. According to Gillespie, he decided to both teach Collins a lesson and get him to stop bothering Gillespie. He therefore crushed some aspirin, sealed it in a foil packet and sold it to Collins for $110. Relying upon United States v. Oviedo (5th Cir. 1976), 525 F.2d 881 the trial court dismissed the information, and the state appeals.
The information against Gillespie followed the elements of the attempt statute, IC 35-41 — 5—1, and charged that Gillespie *1339“knowingly delivered a substance to another believing it to be cocaine.”
The state initially argues that for purposes of a motion to dismiss, the court must accept as true the facts alleged in the information. It urges that the court was without authority to consider evidentiary matters and that we should reverse because the language of the information was adequate to charge the offense.
We agree that as a generalization an indictment or information is to be tested by taking as true the facts alleged therein. See Smith v. State (1960), 241 Ind. 311, 170 N.E.2d 794; Crouch v. State (1951), 229 Ind. 326, 97 N.E.2d 860; State v. Green (1935), 207 Ind. 583, 194 N.E. 182. On the other hand, we remind the state that the prosecuting attorney’s function in criminal proceedings includes the obligation to see that a person is not erroneously charged, tried, and convicted, and that his rights and freedom are protected. Palmer v. State (1972), 153 Ind.App. 648, 288 N.E.2d 739.
IC 35-4.1-3-1 permits the court to conduct omnibus hearings upon the motion of a party or sua sponte. It expressly authorizes obtaining admissions, simplifying the issues and taking other action to promote a fair and expeditious trial. ■ Pursuant to the statute the court was entitled to receive and consider the stipulation which disclosed that the substance delivered by Gillespie was common aspirin.
Does the fact, standing alone, that the substance delivered was not a controlled substance preclude the state’s ability to properly convict Gillespie of an attempt to deliver? If it does there was no harmful error committed in granting the dismissal.
In Oveido, supra, the Fifth Circuit reversed a conviction where the defendant believed he was delivering heroin but, in fact, delivered procaine hydrochloride, an uncontrolled substance. The court reasoned that for a defendant to be guilty of a criminal attempt, the objective acts performed (apart from considering mens rea) must mark the defendant’s conduct as criminal in nature. The root of Oveido rises from the common law notions of the impossibility defense. Compare the Fifth Circuit’s subsequent explanation of Oveido in United States v. Korn (5th Cir. 1977), 557 F.2d 1089 and United States v. Quijada (9th Cir. 1978), 588 F.2d 1253 which rejects Oveido.
While the Oveido rationale has a certain appeal, we find its basic premise has been rejected by our legislature in the general attempt statute. IC 35-41-5-l(b) expressly 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 attempted.”
In Zickefoose v. State (1979), Ind., 388 N.E.2d 507, our Supreme Court, albeit in dictum, concluded unanimously that the effect of the statute was to abrogate those prior cases which focused upon the result of the conduct and limited a criminal attempt to conduct which would apparently have resulted in the completed crime unless interrupted by circumstances independent of the doer’s will. The court concluded that the statute focuses upon mens rea and the completion of a substantial step towards commission of the offense.
Reading both paragraphs of the statute together it appears to us that the legislature rather pointedly intended to include Oveido-type conduct within the proscription of the attempt statute. It follows that the language of the charging information was sufficient to withstand the motion to dismiss even in the presence of the stipulation. Whether or not Gillespie committed a “substantial step” would be a question of fact for trial.
Gillespie urges us, however, that since he knew the substance was aspirin and, indeed, intended to deliver aspirin he cannot be guilty of the attempted delivery of heroin. We agree with the substantive point of his *1340argument. If he indeed knowingly and deliberately sold aspirin to Collins he is not guilty of an attempt to deliver a controlled substance, whatever other offenses he may have committed. Under such circumstances he would not have been acting with the culpability required for commission of the crime. IC 35-41-5-l(a).
However, this assertion was not presented to the court by stipulation. It is an issuable fact for trial, and the information alleged that Gillespie believed he was delivering cocaine. Thus, had the trial court reached the question, it would have been improper to sustain the motion to dismiss merely upon Gillespie’s assertion. If the state has evidence from which the jury might reasonably conclude beyond a reasonable doubt that Gillespie believed he was selling cocaine, the prosecution should be permitted to proceed.
We therefore sustain the appeal and set aside the dismissal of the information. The case is remanded for such further proceedings as may be necessary in conformity herewith.
Reversed and remanded.
HOFFMAN, P.J., concurs. STATON, J., concurs and files separate opinion.