Question: Did He Intend to Rob the Store?

HISTORY: James Kimball, the defendant, was charged with and convicted of attempted unarmed robbery, at a bench trial conducted in early August 1979. He was sentenced to a prison term of from three to five years and appeals by leave granted. Reversed and remanded. MAHER, J. There is really very little dispute as to what happened on May 21, 1979, at the Alpine Party Store near Suttons Bay, Michigan. Instead, the dispute at trial centered on whether what took place amounted to a criminal offense or merely a bad joke. FACTS James Kimball, the defendant, went to the home of a friend, Sandra Storey, where he proceeded to consume a large amount of vodka mixed with orange juice. The defendant was still suffering from insect stings acquired the previous day so he also took a pill called "Eskaleth 300," containing 300 milligrams of Lithium, which Storey had given him. After about an hour, the pair each mixed a half-gallon container of their favorite drinks (vodka and orange juice, in the defendant's case), and set off down the road in Storey's '74 MGB roadster. At approximately 8:15 or 8:30 in the evening, the defendant (who was driving) pulled into the parking lot of the Alpine Party Store. Although he apparently did not tell Storey why he pulled in, the defendant testified that the reason for the stop was to buy a pack of cigarettes. Concerning events inside the store, testimony was presented by Susan Stanchfield, the clerk and sole employee present at the time. She testified that the defendant came in and began talking to and whistling at the Doberman Pinscher guard dog on duty at the time. She gave him a "dirty look," because she didn't want him playing with the dog. The defendant then approached the cash register, where Stanchfield was stationed, and demanded money. Stanchfield testified that she thought the defendant was joking, and told him so, until he demanded money again in a "firmer tone."

STANCHFIELD: "By his tone I knew he meant business; that he wanted the money."

PROSECUTION: "You felt he was serious?" STANCHFIELD: "I knew he was serious." Stanchfield then began fumbling with the one dollar bills until the defendant directed her to the "big bills." Stanchfield testified that as she was separating the checks from the twenty dollar bills the defendant said, "I won't do it to you; you're good looking and I won't do it to you this time, but if you're here next time, it won't matter." A woman then came in (Storey), who put a hand on the defendant's shoulder and another on his stomach and directed him out of the store. Stanchfield testified that she called after the defendant, saying that she would not call the police if he would "swear never to show your face around here again." To this the defendant is alleged to have responded, "You could only get me on attempted anyway." Stanchfield then directed a customer to get the license plate number on the defendant's car while she phoned the owner of the store. The defendant also testified concerning events inside the store. He stated that the first thing he noticed when he walked in the door was the Doberman Pinscher. When he whistled the dog came to him and started licking his hand. The defendant testified that while he was petting the dog Stanchfield said, "Watch out for the dog; he's trained to protect the premises." DEFENDANT: Well, as soon as she told me that the dog was a watchdog and a guarddog [sic], I just walked up in front of the cash register and said to Sue (Stanchfield) I said, "I want your money." I was really loaded and it just seemed to me like it was kind of a cliché because of the fact that they've got this big bad watchdog there that's supposed to watch the place and there I was just petting it, and it was kind of an open door to carry it a little further and say hey, I want all your money because this dog isn't going to protect you. It just kind of happened all at once. She said, I can't quote it, but something to the effect that if this is just a joke, it's a bad joke, and I said, "Just give me your big bills."

Then she started fumbling in the drawer, and before she pulled any money out of the drawer I don't know whether she went to the ones or the twenties I said as soon as she went toward the drawer to actually give me the money, I said, "Hey, I'm just kidding," and something to the effect that "you're too good looking to take your money." And she said, "Well, if you leave right now and don't ever come back, I won't call the police," and I said, "Okay, okay," and I started to back up. And Sandy (Storey) I mean I don't know if I was stumbling back or stepping back, but I know she grabbed me, my arm, and said, "Let's go," and we turned around and left, and that was it. Both Stanchfield and the defendant testified that there were other people in the store during the time that the defendant was in the store, but the testimony of these people revealed that they did not hear what was said between Stanchfield and the defendant. Storey testified that she remained in the car while the defendant went into the store but that after waiting a reasonable time she went inside to see what was happening. As she approached the defendant she heard Stanchfield say, "Just promise you will never do that again and I won't take your license number." She then took defendant's arm, turned around, gave Stanchfield an "apologetic smile," and took the defendant back to the car. Once in the car, the defendant told Storey what had happened in the store, saying "But I told her (Stanchfield) I was only kidding." The defendant and Storey then drove to a shopping center where the defendant was subsequently arrested. OPINION The general attempt statute, under which defendant was prosecuted, provides in part as follows: Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished. (M.C.L. ß 750.92; M.S.A. ß 28.287) The elements of an attempt are:

(1) the specific intent to commit the crime attempted and

(2) an overt act going beyond mere preparation towards the commission of the crime. Considering the second element first, it is clear that in the instant case defendant committed sufficient overt acts. As the trial court noted, there was evidence on every element of an unarmed robbery except for the actual taking of money. From the evidence presented, including the evidence of defendant's intoxication, the question of whether defendant undertook these acts with the specific intent to commit an unarmed robbery is a much closer question. After hearing all the evidence, however, the trial court found that defendant possessed the requisite intent and we do not believe that finding was clearly erroneous. REVERSED AND REMANDED. [The court reversed and remanded because the trial court didn't allow the defendant to prove that he voluntarily abandoned his attempt to rob the store. Abandonment is discussed later in the chapter.]

Questions: 1. Summarize Susan Stanchfield's version and then James Kimball's version of what happened in the Alpine Party Store.

2. If you were a juror, which version would you believe? Explain your answer.

3. List all the facts relevant to deciding whether Kimball specifically intended to rob the store.

4. Did Kimball specifically intend to rob the store? Back up your answer with the relevant facts and portions of the opinion.