State v. Stewart

420 N.W.2d 44 (1988)

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Nature of the Case

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Facts

Kodanko testified that he was waiting for a bus after leaving work. He was alone in a three-sided plexiglass bus shelter open to the street. Two men, Mr. Moore and D, entered the bus shelter while a third man, Mr. Levy, remained outside. Moore and D stood one to two feet from Kodanko who was in a corner of the shelter, his exit to the street blocked by the two men. Moore asked Kodanko if he wanted to buy some cigarettes. The complainant responded that he did not. Moore then said, 'Give us some change.' When Kodanko refused, D said 'Give us some change, man.' d repeated this demand in an increasingly loud voice three to four times. Kodanko still refused to give the two men change. D then reached into his coat with his right hand at about the waist level, and Moore stated something to the effect of 'put that gun away.' At that point, Levy entered and said to D and Moore 'Come on, let's go.' Levy showed Kodanko some money, stating, 'I don't want your money, I got lots of money.' The three men left the shelter and entered a restaurant across the street. A few minutes later Moore returned and made 'small talk' with Kodanko. The three men were arrested a short while later. Kodanko did not report the incident to the police. Kodanko testified that he felt threatened throughout the encounter, which lasted less than three minutes. None of the men ever touched him or raised a hand to him, and at no time did he attempt to leave the shelter. D was found guilty of attempted robbery. The circuit judge believed that D's abandonment of the criminal enterprise negated the intent necessary for attempted robbery. After the parties submitted briefs, the circuit judge found D guilty. The court of appeals reversed because D voluntarily terminated his participation in such a crime. P appealed.