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High Court finds abandonment defense was disproved

December 19, 2017

A man convicted of attempted robbery of and conspiracy to rob a Terre Haute gas station has lost his appeal to the Indiana Supreme Court, which found Monday there was sufficient evidence to disprove his defense of abandonment.

One night while stealing from multiple houses in Terre Haute, Destin Jones and Stoney Johnson decided to rob a Speedway gas station. In a Monday opinion, Indiana Supreme Court Chief Justice Loretta Rush likened Jones and Johnson’s exploits to Dr. Seuss’ the Grinch stealing Christmas, yet noted that unlike the Grinch, Jones and Johnson did not have a change of heart.

Rather, the men merely changed their crime when they discovered the gas station was very busy, deciding to lose their guns, hoods and masks and instead burglarize the back office and rummage through the safe. One week later, police found the men, the hooded clothes they had been wearing and items stolen from the homes, as well as several firearms, at an apartment, leading to their arrest.

Jones was charged with 21 offenses and asserted an abandonment defense for his charges of attempted robbery of and conspiracy to rob the Speedway. The Vigo Superior Court instructed the jury on the defense, but Jones was found guilty on nine of his charged offenses, including the attempt and conspiracy charges, which were merged.

Jones appealed the attempt and conspiracy convictions, and the Indiana Court of appeals vacated the attempt conviction on the grounds that the state did not disprove the abandonment defense beyond a reasonable doubt. But in the Monday opinion, the Indiana Supreme Court granted transfer to the case of Destin Jones v. State of Indiana, 84S05-1712-CR-741 and upheld both of Jones’ convictions.

Rush, who wrote for the unanimous court, first said that in order for an abandonment defense to apply, the purported abandonment must occur after the conspiracy has been formed or attempt has been made, but before the underlying crime is complete. Here, Jones abandoned his plan to rob the gas station by removing his hood and mask and emptying his hands, but only after conspiring with Johnson and taking steps toward an attempt to complete the robbery. Further, the abandonment occurred before the underlying robbery was carried out, thus making the defense available to him.

However, the high court also determined Jones’ abandonment was not voluntary, thus disproving his defense. That’s because the abandonment was caused at least partially by extrinsic factors, particularly the fact that the Speedway was busy when he and Johnson arrived with the intent to rob it.

“Customers streamed in to purchase snacks and lottery tickets as cars came and went in the front lot,” the chief justice wrote. “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 haw busy the store was and so altered their criminal plan from brash robbery to stealthy burglary.”

“This case unfortunately does not show a ‘change of heart’ or a ‘desertion of criminal purpose’ coming from ‘within,’” Rush continued. “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.”

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