Rush, CJ.
We cherish stories about changes of heart and abandoned criminal endeavors. Take Dr. Seuss’s beloved children’s tale about the Grinch, whose softened heart and renounced endeavor to steal Christmas ended the story with joyful celebration. …
But this story’s ending gives no reason to celebrate.
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One night in Terre Haute, Destin Jones went to several houses and stole various items from the sleeping residents. At about 2:00 a.m., Jones and his accomplice, Stoney Johnson, decided to rob a Speedway gas station. With dark hoods over their heads, masked faces, and what appeared to be guns in their hands, they walked toward the station from its rear.
But unlike the tranquil homes, the station was bustling with a stream of customers. Jones and Johnson lurked for a while on one side of the building, crouched behind a pair of large outdoor freezers. … Eventually they unmasked their faces, removed their hooded sweatshirts, and entered the store with empty hands—and with a different crime in mind. While customers preoccupied the store’s cashier, Jones burglarized the back office and rummaged through the manager’s safe. …
Police caught up with Jones and Johnson the next week at an apartment. There, police found clothes worn at the gas station, property stolen from the victimized homes, and several firearms. The State charged Jones with twenty-one offenses.
For his charges of attempted robbery of and conspiracy to rob the Speedway, Jones asserted an abandonment defense. Since some evidence supported Jones’s assertion, the trial court properly instructed the jury on the defense. Ultimately, the jury returned guilty verdicts on nine offenses: six thefts, burglary of the Speedway back office, and attempted robbery of and conspiracy to rob the Speedway. The trial court merged the attempt and conspiracy convictions and sentenced Jones to an aggregate seventeen-year term—including twelve years for the merged attempt and conspiracy.
Jones appealed, challenging only the attempt and conspiracy convictions. The Court of Appeals affirmed the conspiracy conviction, reasoning that the abandonment defense was unavailable for Jones’s conspiracy charge. Jones v. State, 75 N.E.3d 1095, 1098–99 (Ind. Ct. App. 2017). But it vacated the attempt conviction, concluding that the State did not disprove the abandonment defense beyond a reasonable doubt. …
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At common law, abandonment was a limited defense. It shielded a defendant from criminal liability for attempt, conspiracy, and aiding or abetting, but only if the defendant had abandoned both the “idea” and the “evil intention” of the crime. Hedrick v. State, 229 Ind. 381, 389, 98 N.E.2d 906, 910 (1951); Stephens v. State, 107 Ind. 185, 189, 8 N.E. 94, 95–96 (1886) …
When codified in 1976 and amended in 1977, the defense narrowed even more. It now applies exclusively to three statutory offenses—attempt; conspiracy; and aiding, inducing, or causing an offense—and it shields only a defendant who “voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.” Ind. Code § 35-41-3-10 (2014).
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… Jones asserts that he abandoned the crimes when he removed his hood, unmasked his face, and concealed any weapons. At that point, he had committed attempt by taking substantial steps toward robbing the station, with intent to rob it: he approached the gas station with Johnson; walked back and forth on the side of the building with his head covered, face masked, and an object resembling a firearm in his hand; and three times advanced toward the entrance before ducking out of view behind large freezers. … So at the time of Jones’s asserted abandonment, he had “engaged in the prohibited conduct” of both attempt and conspiracy. See I.C. § 35-41-3-10.
Abandonment must occur not only after the “prohibited conduct” of the charged offense, but also before the “underlying crime” has been committed or becomes inevitable. I.C. § 35-41-310; Sheckles, 501 N.E.2d at 1055–56. …
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Since Jones’s asserted abandonment occurred after he had “engaged in the prohibited conduct” of attempt and conspiracy, but before the underlying robbery was completed or became inevitable, the defense of abandonment was available on his attempt and conspiracy charges. We now turn to whether sufficient evidence allowed the jury’s determination that Jones did not abandon the attempt and conspiracy.
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Here, the jury could have inferred that Jones’s abandonment was not voluntary because it was at least partially attributable to extrinsic factors. The evidence showed that Jones preferred to commit crimes with a minimal likelihood of detection….
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This case unfortunately does not show “a change of heart” or a “desertion of criminal purpose” coming “from within.” Pyle, 476 N.E.2d at 126; Norton, 273 Ind. at 668, 408 N.E.2d at 536. So while the abandonment defense was legally available on Jones’s attempt and conspiracy charges, the evidence supports at least one finding invalidating that asserted defense. We thus affirm his convictions.
David, Massa, Slaughter, and Goff, JJ., concur.