People v. Kimball, Docket No. 48798

• Decision Date: 09 September 1981
• Docket Number: Docket No. 48798
• Citation: 311 N.W.2d 343,109 Mich.App. 273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Emmons KIMBALL, Defendant-Appellant. 109 Mich.App. 273, 311 N.W.2d 343
• Court: Court of Appeal of Michigan — District of US

Page 343

311 N.W.2d 343

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Emmons KIMBALL, Defendant-Appellant.

Docket No. 48798.

109 Mich.App. 273, 311 N.W.2d 343

Court of Appeals of Michigan.

Sept. 9, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 274] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Larry J. Nelson, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

[109 MICHAPP 275] Thomas G. Power, Traverse City, for defendant-appellant on appeal.

Before R. B. BURNS, P. J., and MAHER and KALLMAN, ^* JJ.

MAHER, Judge.

Defendant was charged with and convicted of attempted unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, M.C.L. § 750.92; M.S.A. § 28.287, at a bench trial conducted in early August of 1979. He was sentenced to a prison term of from 3 to 5 years and appeals by leave granted.

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. It appears that on the day in question 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. 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. ¹ At approximately 8:15 or 8:30 in the evening, 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, defendant testified[109 MICHAPP 276] 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 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. 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 defendant directed her to the "big bills". Stanchfield testified that as she was separating the checks from the twenty dollar bills 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 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 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 defendant's car while she phoned the owner of the store.

[109 MICHAPP 277] 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. Defendant testified that while he was petting the dog Stanchfield said "(w) atch 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 cliche 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.

"(A)nd 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.

"(A)nd Sandy (Storey) I mean I don't know if I was [109 MICHAPP 278] 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 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 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 defendant back to the car. Once in the car, defendant told Storey what had happened in the store, saying "but I told her (Stanchfield) I was only kidding". Defendant and Storey then drove to a shopping center where defendant was subsequently arrested.

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. § 750.92; M.S.A. § 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 [109 MICHAPP 279] the commission of the crime. People v. Coleman, 350 Mich. 268, 86 N.W.2d 281 (1957); People v. Youngs, 122 Mich. 292, 81 N.W. 114 (1899); People v. Degraffenreid, 19 Mich.App. 702, 708 fn. 3, 173 N.W.2d 317 (1969); People v. Gardner, 13 Mich.App. 16, 18, 163 N.W.2d 668 (1968); People v. Bowen, 10 Mich.App. 1, 7, 158 N.W.2d 794 (1968), CJI 9:1:01, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1070, p. 1014. ² 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. ³ 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. See People v. Anderson, 64 Mich.App. 218, 221, 235 N.W.2d 746 (1975).

Defendant raised an additional defense in the trial court. Assuming that he committed the necessary overt acts with the requisite specific intent, defendant contended that he was not guilty because he voluntarily abandoned his criminal enterprise before consummating the offense attempted. The defense was rooted in the language of the [109 MICHAPP 280] attempt statute, which refers to a person doing an act towards the commission of an offense and adds: "but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same". M.C.L. § 750.92; M.S.A. § 28.287. (Emphasis added.) Defendant argued that, under the statute, a person who abandons a criminal scheme of his or her own volition, instead of through the intervention of outside forces, has not committed an attempt. The prosecution argued that once the defendant had committed an overt act with the requisite intent, a punishable attempt had occurred which could not subsequently be abandoned. The trial court rejected defendant's arguments, holding that an attempt may still be shown even if the defendant fails to consummate the offense attempted due to a mere lack of perserverance. On appeal, defendant contends that the trial court erred in rejecting the legal basis of his defense.

Regardless of what else might be said on the subject, the authorities are in agreement that it is no defense that a defendant fails to carry through to completion the crime attempted because of the intervention of outside forces, because circumstances turn out to be different than expected, or because the defendant meets more resistance than expected. On the issue of voluntary renunciation of criminal purpose after an overt act beyond preparation but before the completion of the attempted crime, however, there are few reported cases nationwide and no general consensus. LaFave & Scott, Handbook on Criminal Law, § 60, p. 449, Model Penal Code, (Tentative Draft No. 10,...