ATTORNEY FOR APPELLANT                                         ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                        Attorney General of Indiana
Brooklyn, Indiana
                                                               Andrew A. Kobe
                                                               Michael Gene Worden
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana
______________________________________________________________________________


                                             In the
                        Indiana Supreme Court                                                FILED
                             _________________________________                          Dec 19 2017, 1:27 pm

                                                                                             CLERK
                                                                                        Indiana Supreme Court
                                     No. 84S05-1712-CR-741                                 Court of Appeals
                                                                                             and Tax Court


DESTIN JONES,
                                                               Appellant (Defendant),

                                                 V.

STATE OF INDIANA,
                                                       Appellee (Plaintiff).
                             _________________________________

                Appeal from the Vigo Superior Court 1, No. 84D01-1504-F3-863
                             The Honorable John T. Roach, Judge
                           _________________________________

     On Petition to Transfer from the Indiana Court of Appeals, No. 84A05-1609-CR-2065
                           _________________________________

                                        December 19, 2017

Rush, Chief Justice.

       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. This case, too, involves an individual going
from house to house overnight, stealing property from sleeping inhabitants—as well as
opportunities to abandon criminal efforts and escape liability.

       But this story’s ending gives no reason to celebrate.
       Here, the defendant’s night of criminality, which included a plot to rob a gas station, earned
him a host of criminal charges. He contested two of them by claiming that he had abandoned his
attempt and conspiracy to rob the station. But a jury disagreed. We hold that although abandonment
is an available defense for both attempt and conspiracy charges, the evidence is sufficient to
support the jury’s verdicts. We therefore affirm the convictions.

                                  Facts and Procedural History

       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. A few times they advanced toward the front entrance before again ducking out of view.
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. Jones and
Johnson then left, retrieving their discarded attire from behind the freezers.

       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


                                                  2
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. Id. at 1099–1100.

       We now grant Jones’s petition to transfer, vacating the Court of Appeals opinion. Ind.
Appellate Rule 58(A).

                                       Standard of Review

       We first determine whether the abandonment defense applies to conspiracy charges. This
is an issue of statutory construction, reviewed de novo. Day v. State, 57 N.E.3d 809, 811 (Ind.
2016). Our goal is to determine the legislature’s intent, which we do by following the plain and
ordinary meaning of the statute’s unambiguous language. Suggs v. State, 51 N.E.3d 1190, 1193–
94 (Ind. 2016).

       We then review whether sufficient evidence supports Jones’s convictions. See Buelna v.
State, 20 N.E.3d 137, 141 (Ind. 2014). We consider only the probative evidence and reasonable
inferences supporting the verdicts, without reweighing the evidence or assessing witness
credibility. Id. Unless no reasonable factfinder could find the defendant guilty, we affirm. Id.

                                     Discussion and Decision

       The parties agree that the abandonment defense is available for both attempt and conspiracy
charges. They dispute, however, whether sufficient evidence supports the jury’s rejection of that
defense. We begin by explaining why and when the abandonment defense applies to conspiracy
charges. Then, applying our deferential standard of review, we hold that the evidence was enough
for the jury to reject Jones’s abandonment defense.

I.     The Abandonment Defense Has Narrowed Over Time.

       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) (emphasis omitted).
The abandonment had to be voluntary, come before the crime’s completion, and show that the
accused had “wholly and effectively detached himself from the criminal enterprise.” Harrison v.



                                                 3
State, 269 Ind. 677, 687–88, 382 N.E.2d 920, 926–27 (1978) (citing Hedrick, 229 Ind. at 389, 98
N.E.2d at 910).

          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).

II.       The Abandonment Defense Is Available for Both Attempt and Conspiracy Charges.

          The State initially argued that abandonment is not an available defense for Jones’s
conspiracy charge, but at oral argument the State rightly conceded the opposite. The abandonment
statute plainly provides that abandonment “is a defense” “[w]ith respect to” statutory charges of
both attempt and conspiracy:

                 With respect to a charge under IC 35-41-2-4 [aiding, inducing, or
                 causing an offense], IC 35-41-5-1 [attempt], or IC 35-41-5-2
                 [conspiracy], it is a defense that the person who engaged in the
                 prohibited conduct voluntarily abandoned his effort to commit the
                 underlying crime and voluntarily prevented its commission.

I.C. § 35-41-3-10. Our prior cases have acknowledged this plain reading. See, e.g., Smith v. State,
636 N.E.2d 124, 127 (Ind. 1994) (“Indiana Code § 35-41-3-10 makes abandonment a legal defense
to several inchoate crimes including conspiracy and attempt.”); Sheckles v. State, 501 N.E.2d
1053, 1056 n.4 (Ind. 1986) (“Abandonment may be asserted as a defense only to attempt,
conspiracy, and aiding, inducing or causing an offense.” (citing Ind. Code § 35-41-3-10 (Burns
1979 Repl.))).

          While we have recognized that abandonment is a defense to conspiracy, we have not
explained when that abandonment must occur. For attempt charges, though, we have concluded
that abandonment must occur after the defendant engaged in conduct constituting attempt but
before the attempted crime is complete or inevitable. See, e.g., Sheckles, 501 N.E.2d at 1055–56.
We based this conclusion on the relevant statutory text and the rationales for the abandonment
defense. See id. at 1056; Woodford v. State, 488 N.E.2d 1121, 1124 (Ind. 1986). For the same
reasons, we find that for conspiracies the abandonment defense similarly applies only after the
conspiracy has formed but before the underlying crime is complete or inevitable.

                                                4
   A. Abandonment Can Occur Only After the Defendant Engaged in the Prohibited Conduct of
      the Charged Offense.

       Logically, defenses—including abandonment—are unnecessary if no crime has been
committed in the first place. See Sheckles, 501 N.E.2d at 1056; Norton v. State, 273 Ind. 635, 668–
69, 408 N.E.2d 514, 536 (1980). If Jones had never attempted and conspired to rob the Speedway,
for example, he would not need a defense. Accordingly, the abandonment statute applies only after
the accused has “engaged in the prohibited conduct” of the charged offense. I.C. § 35-41-3-10;
Woodford, 488 N.E.2d at 1124. Thus, a person can “commit the elements of the crime” of attempt
or conspiracy, and “still avail himself of the defense of abandonment under IC 35-41-3-10.”
Woodford, 488 N.E.2d at 1124. Holding otherwise would “ignore and defy the abandonment
defense enacted by the legislature.” Id.

       For attempt, a defendant has “engaged in the prohibited conduct” when, with the culpability
required for commission of the attempted crime, he has taken a substantial step toward commission
of the crime. See Ind. Code § 35-41-5-1(a) (2014); Woodford, 488 N.E.2d at 1124; Zickefoose v.
State, 270 Ind. 618, 622, 388 N.E.2d 507, 510 (1979). And for conspiracy, a defendant has
“engaged in the prohibited conduct” when, with intent to commit a felony, he agrees with another
person to commit the felony, and either the defendant or a co-conspirator performs an overt act in
furtherance of the agreement. See Ind. Code § 35-41-5-2 (2014); Erkins v. State, 13 N.E.3d 400,
407 (Ind. 2014).

       Here, neither party disputes that Jones’s purported abandonment occurred after he
committed attempt and conspiracy. 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. These acts also show that Jones had
committed conspiracy: he agreed with Johnson to rob the station and took multiple overt acts in
furtherance of that agreement, with intent to commit robbery. 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.


                                                 5
   B. Abandonment Can Occur Only Before the Underlying Crime Is Complete or Inevitable.

       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. § 35-41-3-
10; Sheckles, 501 N.E.2d at 1055–56. This requirement is clear from the statute’s mandate that the
defendant “prevented” commission of “the underlying crime,” see I.C. § 35-41-3-10, since a crime
that is complete or inevitable cannot be prevented. And “[o]bviously,” one cannot abandon a crime
after its completion. Barnes v. State, 269 Ind. 76, 83, 378 N.E.2d 839, 843 (1978).

       Since the statute requires that abandonment occur after the “prohibited conduct” of the
charged offense but before the “underlying crime,” the underlying crime cannot be the same as the
charged offense. For attempt, the “underlying crime” is the crime that is attempted. See, e.g.,
Smith, 636 N.E.2d at 127 (criminal deviate conduct); Sheckles, 501 N.E.2d at 1055 (robbery);
Woodford, 488 N.E.2d at 1124–25 (rape). For conspiracy, the “underlying crime” is the offense
the conspirators agreed to commit. See, e.g., Babin v. State, 609 N.E.2d 3, 4–5 (Ind. Ct. App. 1993)
(murder), trans. denied. By abandoning the underlying crime before it occurs or becomes
inevitable, the defendant detaches the charged offense from the crime it’s “hitched” to. See Smith,
636 N.E.2d at 127 (recognizing attempt and conspiracy as “inchoate crimes”); Webster’s Third
New International Dictionary 1142 (unabridged ed. 2002) (defining “inchoate” and providing that
the Latin incohare means “to begin” and literally, “to hitch up”).

       This temporal requirement furthers the abandonment defense’s twin rationales: deterring
criminal conduct and minimizing dangerousness. See Sheckles, 501 N.E.2d at 1056. Criminal
conduct is deterred when people know they can avoid criminal liability by abandoning and
preventing the underlying crime before its commission. Id. And a person tends to negate the
dangerousness of engaging in an attempt or a conspiracy by abandoning and preventing the
underlying crime before it is inevitable or complete. Id.; Norton, 273 Ind. at 669, 408 N.E.2d at
536.

       Here, there is no dispute that Jones’s asserted abandonment of both the attempt and the
conspiracy occurred before the underlying crime of robbery was completed or became inevitable.
When Jones and Johnson removed their hoods, unmasked their faces, and emptied their hands,
they had not even entered the gas station.



                                                 6
       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.

III.   Sufficient Evidence Allowed the Jury to Reject the Abandonment Defense.

       Jones acknowledges on appeal that he attempted and conspired to rob the Speedway, but
he argues that the State failed to disprove his asserted abandonment defense. When, as here, the
defendant’s abandonment defense has some support in the evidence, the State must disprove the
defense beyond a reasonable doubt. See, e.g., Smith, 636 N.E.2d at 127. In addition to the temporal
prerequisites already discussed, abandonment must be both voluntary and complete, and the
defendant must successfully and voluntarily prevent commission of the underlying crime. See I.C.
§ 35-41-3-10; Smith, 636 N.E.2d at 127; Brownlow v. State, 272 Ind. 678, 680, 400 N.E.2d 1374,
1376 (1980); Barnes, 269 Ind. at 82–83, 378 N.E.2d at 843.

       At trial, since all of the abandonment defense’s elements are required for the defense to
apply, the State need only disprove one element beyond a reasonable doubt. See Brownlow, 272
Ind. at 680, 400 N.E.2d at 1376. We will find sufficient evidence to disprove an abandonment
defense if a jury could reasonably infer that at least one of the defense’s elements was absent. See
Smith, 636 N.E.2d at 127. Here, because we find sufficient evidence for a jury to find that Jones’s
abandonment was not voluntary—which alone defeats Jones’s asserted defense—we need not
evaluate whether the evidence was sufficient to disprove Jones’s defense in other ways.

       For abandonment to be voluntary, the decision to withdraw from the “effort to commit the
underlying crime” must “originate with the accused.” I.C. § 35-41-3-10; Smith, 636 N.E.2d at 127.
That decision must “in no way be attributable” to “extrinsic factors that increase the probability of
detection or make more difficult the accomplishment of the criminal purpose.” Smith, 636 N.E.2d
at 127; Barnes, 269 Ind. at 82–83, 378 N.E.2d at 843. In other words, abandonment is not voluntary
unless the criminal effort was abandoned “under such circumstances as would show that there were
no outside causes prompting the abandonment.” Barnes, 269 Ind. at 82, 378 N.E.2d at 843; see
also Norton, 273 Ind. at 668–69, 408 N.E.2d at 536.



                                                 7
       The State can disprove voluntariness in several ways. It can show that the defendant
unexpectedly encountered a person at the crime scene who made the crime harder to carry out.
See, e.g., Pyle v. State, 476 N.E.2d 124, 126–27 (Ind. 1985); Estep v. State, 716 N.E.2d 986, 987
(Ind. Ct. App. 1999); Peak v. State, 520 N.E.2d 465, 468 (Ind. Ct. App. 1988). Or that a person or
object the defendant expected to encounter posed an unexpected difficulty. This unexpected
difficulty can be as blatant as a stubborn door that won’t break open, see Peak, 520 N.E.2d at 468,
or as subtle as a bank teller speaking in a voice slightly louder than normal, which “fluster[s]” the
defendant, Gravens v. State, 836 N.E.2d 490, 497 (Ind. Ct. App. 2005), trans. denied.

       Even if the evidence doesn’t show an additional obstacle to the criminal endeavor, there is
sufficient evidence to disprove voluntariness if the jury could infer that the defendant’s
abandonment was “due to a fear of discovery” or apprehension, Babin, 609 N.E.2d at 5, rather than
wholly attributable to a “rising revulsion for the harm intended” or a “change of heart” that
“originate[d] with the accused,” Smith, 636 N.E.2d at 127; Land v. State, 470 N.E.2d 697, 700
(Ind. 1984). This was the case, for example, when the defendant in Babin called off the conspired
crime over the phone, but the officer on the other end of the call testified that the defendant sounded
“scripted” or “rehearsed.” Babin, 609 N.E.2d at 5; see also Smith, 636 N.E.2d at 125, 127 (finding
sufficient evidence to disprove voluntariness when the jury could infer from a tree branch snapping
that the defendant abandoned his attack due to fear of a victim’s escape); Munford v. State, 923
N.E.2d 11, 18 (Ind. Ct. App. 2010) (finding sufficient evidence to disprove voluntariness when the
defendant told accomplices, “They’re on us, we need to get out of here.”).

       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. All six of Jones’s overnight thefts, for
example, took place while the victims were sleeping.

       Unlike those homes, the Speedway presented an obvious danger of detection. When Jones
and Johnson arrived, the store was particularly busy, especially for a weekday at about 2:00 a.m.
Customers streamed in to purchase snacks and lottery tickets as cars came and went in the front
lot. Jones and Johnson did not empty their hands and cast aside their hooded sweatshirts and masks
until after they approached the front entrance, where—the jury could infer—they saw how busy
the store was and so altered their criminal plan from brash robbery to stealthy burglary.


                                                  8
       The evidence thus supports two reasonable inferences: (1) that it was the unanticipated
steady stream of customers—and not a change of heart—that deterred Jones from carrying out the
robbery as planned, or (2) that Jones had anticipated the busyness of the store, but realized upon
seeing the parade of patrons that his detection and apprehension were more likely than he had
originally appreciated. Either permissible inference is enough to support a jury finding that Jones’s
abandonment was not voluntary, which defeats his abandonment defense.

       Because sufficient evidence supports the jury’s finding that the State disproved Jones’s
abandonment defense in at least one way, we affirm Jones’s convictions.

                                            Conclusion

       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.




                                                  9
