Jarmaal Smith challenges the sufficiency of the evidence to support his conviction for two counts of attempted murder. On February 18, 2000, Karen A. drove her boyfriend, Renell T., Sr. (Renell), to a friend’s house on Greenholme Lane in Sacramento, California. Renell was seated in the front passenger seat, and their three-month-old baby, Renell T., Jr., was secured in an infant car seat in the back seat directly behind Karen. Karen parked alongside the curb on the street in front of the house, and Renell got out of the car. As Karen waited in the car to ensure that Renell’s friend was home, she spotted Smith in her rearview mirror approaching the automobile. Karen had last talked to Smith eight to nine months earlier, and he had told her that the next time he saw her that he would “slap the shit out of [her].” Defendant walked up to the open front passenger window of Karen’s car, looked inside and said, “Don’t I know you, bitch?” Renell walked back toward the car and defendant responded by lifting his shirt to display a handgun tucked in his waistband. Renell said, “It is cool,” and backed away from defendant. As Renell returned to the car, a group of men on the street corner began approaching the car, and the defendant and the other men began hitting him.

         As Renell reentered the car, Karen started to pull away from the curb. After moving roughly one car length, she looked in her rearview mirror and saw Smith standing “straight behind” her holding a gun. She heard a single gunshot, and the bullet shattered the rear windshield, narrowly missed Karen and her baby, passed through the driver’s head rest, and lodged in the driver’s side door. Renell testified that the defendant had a.38-caliber pistol in his possession. After the shooting, a Sacramento County deputy sheriff searched defendant’s room at his mother’s home and recovered two.38-caliber shell casings. The jury convicted Smith of two counts of attempted murder and he was sentenced to two 27-year prison terms, which were to be served concurrently.

     On these facts, we conclude a rational jury could find beyond a reasonable doubt that defendant intended to kill the baby as well as the mother. Defendant suggests in his brief on the merits that “there was no proof of [his] animus toward the baby.” But his very act of discharging a firearm into the car from close range and narrowly missing both mother and baby could itself support such an inference. Indeed, given defendant's claim at trial that Karen was his ex-girlfriend, and given the circumstance that she had just arrived on the scene with a new boyfriend and their baby, the jury could well have inferred that defendant felt “animus” toward both the mother and her baby when he started shooting. In any event, even if defendant subjectively believed he had a particular reason or cause to shoot at the mother, that does not preclude a finding that he also harbored express malice toward the baby when he fired into the vehicle with both victims directly in his line of fire. Defendant's assertion on appeal—that his motive to kill Karen but not the baby establishes his intent to kill her but precludes a finding that he also harbored express malice toward the baby—is without support in the facts or the law.
     Defendant further argues that “[he] fired from a point very near the car, and thus a ‘high potential for accuracy’ existed.” He asks this court to infer from that circumstance that “the fact that the baby was not hit, under such conditions of accuracy, tends to prove the baby was not a target.” In light of the deferential standard of review that applies to this sufficiency of evidence claim, we must reject his interpretation of the evidence.
    Did the fact that defendant fired a single bullet at the victims as a matter of law    preclude his conviction for the attempted murders of both Karen and the baby? The decision in Chinchilla, 52 Cal.App.4th 683, on which the Court of Appeal below relied, is directly on point. The Chinchilla court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter's line of fire. The court held that “intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant.”
    The Chinchilla court placed principal reliance on People v. Lashley, 1 Cal.App.4th 938, for the propositions that intent to kill usually must be inferred from a defendant's actions and all the circumstances surrounding the attempted killing; that the act of firing at a victim from close range in a manner that could have inflicted a mortal wound had the bullet been on target is itself sufficient to support an inference of intent to kill; that the fact that a shooter fires only once and then, out of necessity, abandons his efforts, does not compel the conclusion that he lacked the animus to kill in the first instance; and that the fact that the victim or victims may have escaped death due to the shooter's poor marksmanship does not necessarily establish a less culpable state of mind. The court explained: “Where a defendant fires at two officers, one of whom is crouched in front of the other, the defendant endangers the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both.”
     We have explained why defendant's assertion—that he had a motive to kill Karen A. but not her baby, and that consequently, because he fired only a single shot, he cannot be found to have acted with express malice toward both victims—is both factually and legally incorrect. The jury was properly instructed on all the elements of attempted murder, including the requirement of express malice, and found, on these facts, that defendant intended to kill both victims, each of whom, the evidence showed, was directly in his line of fire when he shot at them with lethal force.
     Our dissenting colleagues suggest the evidence was insufficient to support an inference that defendant intended to kill the baby “with whom, as far as the evidence showed, defendant had no quarrel at all.” We disagree. The ballistics evidence established that the large-caliber bullet defendant fired into the vehicle from a distance of one car length away missed the mother and baby by a matter of inches. Defendant's own   testimony established he knew the baby was in the backseat positioned directly behind the mother, and hence directly in his line of fire when he fired the shot into the vehicle.

              We do not base our conclusion that defendant's conviction of the attempted murder of the baby must be affirmed on mere grounds that he “placed the infant's life in danger by shooting in his direction.” Rather, we base our conclusion on evidence in the record that, a rational jury could find, establishes beyond a reasonable doubt that defendant acted with intent to kill both the baby and the mother when he shot at them with a large-caliber bullet from close range knowing each was directly in his line of fire.
    Finally, the dissent suggests the fact “[t]hat defendant had displayed overt hostility toward Karen and none at all toward the baby is, in the majority's view, immaterial because conviction of attempted murder does not require proof of a motive for killing.”  This too misconstrues our analysis of defendant's claim.
     It would require this court to draw an inference that defendant “had no quarrel” with the baby and intentionally fired off a single shot to kill the mother, notwithstanding testimony suggesting Karen A. may have been defendant's former girlfriend and evidence that defendant had become embroiled in an altercation with her current boyfriend, the baby's father, moments before the shooting; that defendant saw the baby in the backseat and therefore knew the infant was in his line of fire when he fired the shot into the vehicle; and that the bullet missed both the mother and the baby by a matter of inches—all of which supports an inference that defendant shot into the vehicle with intent to kill the baby as well as the mother.
    Defendant's display of hostility toward Karen A. surely constituted some evidence that he had a motive to shoot at her, which in turn was probative of whether he intended to kill her. But the fact that defendant displayed “overt hostility” toward Karen A. moments before the shooting was not the only evidence that he shot at her with intent to kill. Defendant's very act of discharging a lethal firearm at her from close range “ ‘in a manner that could have inflicted a mortal wound’ ” is itself evidence sufficient to support an inference of intent to kill.
     The question whether the evidence was sufficient to support defendant's conviction of the attempted murder of the baby must be analyzed in the same way. The physical evidence showed both Karen A. and her baby were directly in defendant's line of fire; the testimonial evidence established defendant had looked into the open passenger window of the vehicle moments before the shooting and knew the baby was positioned in the backseat directly behind her. The bullet missed both the mother and the baby by inches. Although there was evidence that defendant exhibited overt animosity toward Karen A., which is probative of whether he acted with intent to kill her, the facts also support an inference that defendant intended to kill the baby as well. The infant was the offspring of Karen A. and her current boyfriend, the baby's father, all three of whom had just arrived on the scene only moments before defendant's hostile verbal exchange with the mother, his physical altercation with the father, and his determination to shoot at the mother and child as the vehicle pulled away from the curb. The jury could have concluded that because defendant viewed Karen A. as his former girlfriend, he harbored animosity toward the child she had with her current boyfriend.
       Viewing the record in the light most favorable to the conviction obtained by the prosecution below, we conclude the evidence is sufficient to support defendant's conviction of the attempted murder of the baby. The fact that only a single bullet was fired into the vehicle, or that defendant exhibited overt animosity toward the mother but not the baby moments before the shooting, does not, as a matter of law, compel a different result.

      At 6:15 a.m., an anonymous caller phoned the Kankakee City, Illinois, police to say that two armed men were hiding behind a service station. Officer Whitehead arrived at the scene and observed an armed man fleeing over a fence. The officer later detained Terrell, who was hiding in the weeds roughly 280 feet from the service station. Terrell was resting on his shirt, which had been spread on the ground, and had a black nylon stocking with a knot in the end in his pocket. A gun was later discovered adjacent to the fence. Terrell claimed that he intended to purchase cigarettes, but the officer found that the defendant had no money. The other suspect, Lott, was arrested by two other officers and was found with a black nylon stocking with a knot in the end in his pocket along with marijuana. Terrell was convicted of an attempt to commit an armed robbery (taking of property of another through the threat of use of force) and appealed on the grounds that he should have been convicted of burglary (breaking and entering with an intent to commit a felony). An Illinois appellate court noted that the defendant did not have burglar tools. The investigating officer reportedly noticed that the station “was open at some time during his search of the area.” Did Terrell possess the necessary intent to be held liable for attempted armed robbery? Would you affirm a conviction for an attempted armed robbery? Attempted burglary? Attempted murder? See People v. Terrell, 459 N.E.2d 1337 (Ill.1984). Consider the following hypothetical situation. The defendant entered the store with his face covered with a nylon stocking and shot the clerk in each shoulder when she refused to hand over money from the cash register. The defendant then dragged the clerk’s body to the rear of the store and fled. The clerk’s body was not discovered for two hours, and by this time she had bled to death. Would the defendant be liable for attempted intentional murder?

          People v. Terrell, 459 N.E.2d 1337 (Ill. 1984). Virginia defines an attempt as an act committed "with intent to commit a specific offense." A defendant must possess the undertake an "act which constitutes a substantial step towards the commission of the offense." The defendants were discovered behind the service station, presumably awaiting the arrival of the attendants before robbing the station. It is not a defense to attempted robbery that the robbers misapprehended the facts and that the service attendant was not yet on duty when the defendants first arrived at the station. Terrell was hiding in the weeds close to the service station which was about to open. He had a stocking mask and loaded revolver. The Illinois Supreme Court concluded that "faced with these facts, we find it incredulous that defendant had any intent other than the armed robbery of the service station."

         The defendant was arrested while "lying in wait," only twenty-five to thirty feet from the service station. He was in possession of the materials required to carry out an armed robbery and a loaded revolver, a disguise, and was arrested together with an accomplice who was in possession of an identical disguise. These facts all suggest a prearranged plan that only was abandoned following the arrival of the police. The actions of the defendant are similar to those listed in the Model Penal Code as constituting an attempt.

         The dissent argued that the facts only indicate a general intent. The facts do not strongly corroborate and prove beyond a reasonable doubt the actor's intent to commit an armed robbery. The state has only established preparation to commit a crime involving a business in the area.

         The defendants could have intended to commit a crime involving any number of area businesses. There was no attendant at the service station at the time of the arrest and there was no evidence indicating when the service station was scheduled to be opened. The facts are equally as consistent with burglary, which is defined as the breaking and entering into a building for purposes of a felony. The dissent concluded that the majority was punishing attempt based on "mere preparation and undefined intent." 

On June 20, 2002, Jonathan Daughtrey saw two men standing and talking by the back outside corner of the BB&T Bank in Holland, Virginia. The men were later identified as Williams and Cooper. Several minutes later, he viewed them walking toward the bank entrance with bandanas over their faces. Williams was holding a knapsack with his hand inside. As Williams and Cooper walked toward the bank entrance, they made eye contact with Daughtrey. The two then pulled their masks off and Williams removed his hand from the bag and threw the bag across his back. Williams and Cooper continued walking toward the bank entrance, paused at the entrance, and then walked down the street. Daughtrey telephoned the police and the two were arrested. A handgun, two bandanas, latex gloves, a knapsack, and a BB&T Bank brochure were found under the passenger seat. The defendants admit that they possessed the intent to commit the crime, but argued that they did not satisfy the actus reus of attempt.

         Are the defendants guilty of an attempted bank robbery? See Williams v. Commonwealth, Va. App. LEXIS 154 (2004).

         Williams v. Commonwealth, 2004 Va.App. LEXIS 154. Williams does not contest that he possessed the intent to commit the crime. However, he contends that he did not commit an overt act towards the commission of a bank robbery.

         The prosecution is required to establish an overt, ineffectual act which ‘must go beyond mere preparation and be done to produce the intended result.” The act must establish an “actual intent” to commit the crime. Williams testified that he heard Cooper, talking about robbing a bank the day before the attempted robbery. Williams parked his car in an isolated area and the two stood outside the bank talking with each other and then pulled bandanas over their faces. Williams had his hand inside his knapsack and two walked towards the entrance to the bank. As they spotted Daughtrey staring at them, they pulled down their bandanas, Williams threw his bag across his back and the two men continued walking towards the bank. They stopped at the entrance and at the last minute walked away.

         The trial court judge observed that the two defendants would have carried out the robbery had they not been observed by Daughtrey. The Virginia Court of Appeals concluded that the “evidence is credible and sufficient for the fact finder to conclude that Williams did an overt act toward realizing the ultimate purpose of the robbery.”

         Calvert was driving a jeep in which his wife, Tina Jewell and Joseph Cole, and seventeen-year-old J.F. were passengers. Calvert and Jewell picked up Cole and J.F. earlier in the evening. J.F. had previously told Calvert about his involvement in on or more robberies. J.F. told Cole shortly after being picked up that he was going to rob a liquor store by running inside, demanding money, and running back out the door. An officer observed Calvert turn the jeep into the parking lot of the House of Spirits liquor store. The police had been alerted to the possibility of liquor store robberies. The officer parked his squad car behind the jeep and addressed Calvert who was seating in the jeep’s driver’s seat. Calvert told the Officer e was “just hanging out.” Other officers arrived to assist. Nothing was found. Officer Keith Messer saw a sawed-off shotgun lying on the floor, partially under the front passenger seat but protruding enough toward the rear seat that its handle and trigger guard were plainly visible. Officer Messer also observed what looked like a handgun, but was actually a BB pistol, lying in "plain view" on the back seat. An orange ski mask was also visible in the Jeep. Subsequent searches of the Jeep uncovered another BB pistol, three pairs of sunglasses, and two more orange ski masks.  Calvert claimed he was dropping off Cole and J.F. at American Rental when approached by a police officer. Calvert stated he had stolen two of the pistols in the car, and had purchased the other. Did Calvert take a substantial step toward an attempted robbery or was this “mere preparation.” Would you convict Calvert of attempted robbery? See Calvert v. State, 930 N.E. 633 (Ind. App. 2010).

Calvert v. State, 930 N.E.2d 633 (Ind. App. 2010)

ROBB, J.

         Following a jury trial, David Calvert was convicted of attempted robbery with a deadly weapon and possession of a firearm as a serious violent felon, both Class B felonies, and possession of a sawed-off shotgun, a Class D felony. The trial court entered judgment and imposed sentence *637 on all three convictions, with concurrent sentences of fifteen years with three years suspended on the Class B felony convictions. Calvert now appeals, raising the following restated issues: (1) whether sufficient evidence supports his convictions; (2) whether Calvert's dual convictions of possessing a firearm as a serious violent felon and possessing a sawed-off shotgun violate double jeopardy; and (3) whether Calvert's sentence is inappropriate in light of the nature of the offenses and his character. We conclude the evidence is insufficient to support Calvert's conviction of attempted robbery because the State failed to prove a substantial step; sufficient evidence supports Calvert's conviction of possessing a firearm as a serious violent felon; Calvert's conviction of possessing a sawed-off shotgun violates double jeopardy; and Calvert's sentence is not inappropriate. We therefore affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

         In the evening of July 26, 2007, Calvert was driving a Jeep in which his wife Tina Jewell, Joseph Cole, and seventeen-year-old J.F. were passengers. Earlier in the evening Calvert and Jewell had picked up Cole and J.F. before driving to North Vernon. Calvert was acquainted with Cole and J.F., and J.F. had previously told Calvert about one or more robberies he had attempted or completed. According to Cole's statement to police officers, after Calvert picked up Cole and J.F., J.F. said he was going to rob a liquor store by running in, demanding money, and running back out.

         Calvert was driving the Jeep southbound along State Road 7 in North Vernon when he turned the Jeep into the south side parking lot of the House of Spirits liquor store. Officer Staples of the North Vernon Police Department took notice of the Jeep because he had been assigned to specially patrol the city's liquor stores, the police department having been informed by another law enforcement agency that there were heightened grounds to suspect liquor store robberies. Officer Staples observed the Jeep circle the liquor store by turning into an alley behind the store, driving back to the north side parking lot, and finally turning north on State Road 7. Officer Staples then drove his police car out of the parking lot of American Rental, a business closed at the time and on the opposite side of the road from the liquor store, and turned to follow the Jeep.

         Calvert turned the Jeep into the parking lot of American Rental and stopped it near where Officer Staples had initially been parked. Officer Staples parked his car behind the Jeep, stepped out, and spoke briefly with Calvert, who was still sitting in the Jeep's driver's seat and told Officer Staples he was "just hanging out." Transcript at 153. When other officers arrived to assist, they removed Calvert and his three passengers from the Jeep. Calvert was cooperative while one of the officers frisked his person for weapons and found none. With all the doors of the Jeep open, Officer Keith Messer saw a sawed-off shotgun lying on the floor, partially under the front passenger seat but protruding enough toward the rear seat that its handle and trigger guard were plainly visible. Officer Messer also observed what looked like a handgun, but was actually a BB pistol, lying in "plain view" on the back seat. Id. at 177. An orange ski mask was also visible in the Jeep. Subsequent searches of the Jeep uncovered another BB pistol, three pairs of sunglasses, and two more orange ski masks.

         Calvert, Cole, and J.F. were arrested and interviewed at the police station. Calvert claimed that at the time Officer Staples stopped behind the Jeep, he was getting ready to drop J.F. and Cole off at *638 American Rental but had "no clue" what they were going to do there. Id. at 370. When asked about the guns in the Jeep and who they belonged to, Calvert answered:

         [Calvert]: [J.F.]. He stole two of them pistols from Wal-Mart and the other one he bought.

         [Detective]: Which one did he buy?

         [Calvert]: The 12-gauge.^[1]

         Id. J.F., when interviewed separately, told the detective that the sawed-off shotgun belonged to Calvert.

         The State charged Calvert with Count I, attempted robbery as a Class B felony; Count II, possession of a firearm by a serious violent felon as a Class B felony; and Count III, possession of a sawed-off shotgun as a Class D felony. The case was tried to a jury, which found Calvert guilty as charged. The trial court held a sentencing hearing and in its sentencing order found

         the following aggravating factors: [Calvert] has no high school diploma or GED certificate; [Calvert] has had two (2) formal delinquency adjudications, three (3) prior felony convictions, and one (1) successful probation revocation. The Court finds the following mitigating factors: [Calvert]'s young age; incarceration would be a hardship on his dependents; the crime (in part) was caused by chronic substance abuse by [Calvert] since the age of twelve (12); and [Calvert] himself had been the victim of a sex crime at age eleven (11). The Court in weighing the aggravating factors and the mitigating factors, finds the aggravating factors slightly outweigh the mitigating factors and justify the imposition of a sentence in excess of the advisory sentence[.]

         The trial court imposed the following concurrent sentences: fifteen years on Count I, with twelve years executed and three years suspended to probation; fifteen years on Count II, with twelve years executed and three years suspended to probation; and two years, suspended, on Count III. Calvert now appeals.

         Calvert argues the evidence is insufficient to sustain his conviction of attempted robbery. To convict Calvert of attempted robbery as a Class B felony, the State must prove beyond a reasonable doubt that Calvert, either directly or as an accomplice, engaged in conduct that constituted a substantial step toward the knowing or intentional taking of property from the liquor store, by using or threatening force or placing a person in fear, and while armed with a deadly weapon. The State argued at trial that Calvert aided J.F. in taking a substantial step toward robbing the liquor store.^[2] Calvert contends the evidence is insufficient to prove a substantial step, either by him directly or as an accomplice of J.F. For the reasons stated below, we agree.

         "The substantial step element of attempt requires proof of any overt act beyond mere preparation and in furtherance of the intent to commit the crime . . . but the conduct must strongly corroborate the defendant's criminal intent." Id. A reviewing court's analysis "focuses on what has occurred and not what remains to be done." Id. Whether a defendant's actions constitute a substantial step is generally a question for the trier of fact based on the totality of circumstances, and it "is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt." Nonetheless, in some cases the defendant's conduct will fall short of a substantial step as a matter of law.                      
   In Collier, this court held the defendant's actions did not constitute a substantial step toward the murder of his estranged wife. Three times on the day of the incident, Collier told a neighbor that he was going to kill his wife and himself. Later that night, he drove to his wife's workplace while she was there, had in his car an ice pick and a box cutter, and parked in a lot with a view of the building's only after-hours exit. However, when police officers later found Collier inside his car, he was asleep or passed out. This court reasoned that despite Collier's lying in wait, reconnoitering, and possessing materials to be used in the crime, his conduct as a whole was not "strongly corroborative of his stated intent," id. at 348 (emphasis original), because he thereafter ceased to be awake or alert and never came close enough to his wife to place her in imminent physical danger, In Hampton v. State, this court affirmed a conviction for attempted robbery of a restaurant. The defendant parked his car next to a busy highway, a potential easy escape route; he walked up to the restaurant and hid between bushes and the restaurant building in an effort to avoid car lights; and when found by police he was lying face down between bushes and the building, carrying a pistol and wearing a ski mask. Additionally, the defendant was a former employee of the restaurant, admitted his plan to rob that restaurant, and knew its assistant manager would be departing that night with a large amount of cash.          
    Applying Collier and Hampton to the facts of this case, we conclude Calvert's actions, including as an accomplice through J.F., were at most mere preparation to rob the liquor store. The facts favorable to the judgment indicate J.F. told Calvert of his intent to rob a liquor store, and Calvert and J.F. drove to the liquor store with materials for committing a robbery: BB guns, a sawed-off shotgun, ski masks, and sunglasses. However, as Collier illustrates, merely driving to a location contemplated for a crime while possessing materials for use in the crime is not necessarily sufficient for a substantial step.                      
   In Hampton, this court cited additional circumstances corroborating the defendant's continuing intent to commit a robbery: the defendant approached on foot to just outside the building, he actively sought to conceal himself, and he was apprehended immediately outside the building while wearing a ski mask and holding a pistol. Such circumstances are not present here, where Calvert and J.F. never left their vehicle or walked up to the liquor store, the vehicle was plainly visible from the highway with no evidence of attempts at concealment, and after circling the liquor store Calvert drove to a different parking lot across the highway before Officer Staples made contact with him.

         We are mindful that the question of what actions constitute a substantial step is generally one for the trier of fact and that Indiana courts eschew laying down general rules in the matter. Yet it is also well settled a substantial step must go beyond mere preparation or planning to commit an offense; "[w]ere we to conclude otherwise, there would be no limit on the reach of attempt' crimes." Further, we note that Hampton, though cited with approval, has been regarded by our supreme court as "flimsier" than the typical case of attempted robbery and as illustrating a minimal "threshold" for the offense. We therefore conclude Calvert's and J.F.'s actions, which constitute an appreciably less substantial step than Hampton illustrates, are insufficient to sustain a verdict of attempted robbery. We therefore reverse Calvert's attempted robbery conviction.

         Defendant Daniel Walter Jr., age 24, was convicted of attempted aggravated criminal sexual abuse. He exchanged e-mails with Rachael K., age 15. Some of the e-mails included discussions of sex and sexual fantasies. In a June 2 communication, defendant described his fantasy of meeting his "pen-pal" in a restaurant, then having sexual relations in a movie theater and, presumably, a hotel room. In another communication, defendant mentioned to Rachel a fantasy "of you and your best friend teaming up on me." Rachel responded, "[Y]ou never told me about this fantasy. [W]hen did you plan on telling me? [A]nd no I'd never do that with my best friend that would be way too weird!!"
    Rachel’s father discovered the e-mails and contacted the police. The police told Rachel that if the subject of a meeting were to arise that she should suggest that they meet at a local fast-food restaurant. Roughly a month later on June 16, Rachel asked defendant if he had thought anymore about meeting in person. Defendant told her that maybe they could meet for lunch on a weekday. Defendant also said:

         "As before, whatever makes you comfy is fine by me, if that means brings [sic] your best friend or whatever. I'm nervous/weary [sic] about meeting parents, but [if] it makes you feel better I will. Like I said, I don't know how they'd take to a 24 year old talking to their 16 year old daughter."

         Defendant said that he thought about Rachel and "those fantasies." The next day, Rachel responded that she would feel more comfortable with her best friend present. She still thought about the fantasies and thought that "once we meet we could talk about those fantasies and see how we both feel about them." Several days later, defendant e-mailed back that the earliest he could meet Rachel was July 7 and that "I'm willing to if you are." Rachel responded that they should meet at the McDonald's in Harvard on July 7.

         On July 2, defendant informed Rachel that he planned to arrive at noon. He said he could stay:

         "For a couple of hours. We'll see, maybe you can convince me to stay more . . .? Not too much though, because I still have to work that day."

         On July 6, Rachel sent an e-mail describing what she and her friend would be wearing the next day. At Burton's behest, she also mentioned that there was a hotel near the McDonald's. Defendant responded, "That sounds interesting. That may be a possibility." 
    Burton waited for Rachel at the restaurant and left after an hour. He was arrested by the police in the parking lot. A consent search of his car resulted in the seizure of condoms bought in the morning. Defendant stated that he bought the condoms "just in case he did have sex with Rachel that day" and that if he did not have sex with Rachel, he would use them with his girlfriend.        
    Defendant also gave Burton a written statement, which included, in relevant part:

         "She sent a final couple of e-mails, one of which referred to possibly acting out the fantasy. I said, it was a possibility. I then began to wonder if she were serious—because I was going to be in serious trouble if I did follow through! Just in case, I bought a box of condoms (3) and was convinced that I would only go through with it if she understood that I (and she) could get in serious trouble. …. I decided against action, unless Rachel was provocative. … I had no intention of sleeping with a 16-year-old unless the situation felt right…. [A]ll I was looking for—a lunch with an e-mail/internet friend and her best friend."

         A search of the defendant’s home revealed a piece of paper that contained the telephone numbers of a hotel and a motel nearby to the fast-food restaurant and a dollar amount near the hotel telephone number. A box of condoms containing three sealed condoms. See People v. Walter, 349 Ill. App.3d 142 (Ill. App. 2004).
 

The PEOPLE of the State of Illinois, Plaintiff-Appellee
v.
. Daniel G. WALTER, Jr., Defendant-Appellant.

No. 2-02-1359.

Appellate Court of Illinois, Second District.

May 26, 2004.

Justice McLaren delivered the opinion of the court:

         Defendant, Daniel Walter, Jr., was charged with three counts of attempt (aggravated criminal sexual abuse) (720 ILCS 5/8-4(a), 12-16(d) (West 1998)). Following a bench trial, defendant was convicted of one count of the offense and sentenced to probation. Defendant now appeals from his conviction. We reverse.

         In April 1999, defendant, aged 24, began exchanging e-mails with Rachel K. of Harvard, Illinois. Rachel, who was 15 years old at the time, had placed a personal ad on her e-mail account in order to meet and get to know new people. Shortly thereafter, she received a response from defendant. The two never spoke, but they began to e-mail each other at least once a day. Some of the e-mails included discussions of sex and sexual fantasies. In a June 2 communication, defendant described his fantasy of meeting his "pen-pal" in a restaurant, then having sexual relations in a movie theater and, presumably, a hotel room. In another communication, defendant mentioned to Rachel a fantasy "of you and your best friend teaming up on me." Rachel responded, "[Y]ou never told me about this fantasy. [W]hen did you plan on telling me? [A]nd no I'd never do that with my best friend that would be way too weird!!"

         In May 1999, Rachel's father, Fred, discovered some of the sexually themed e-mails. He spoke to Rachel about the e-mails, but noticed that she continued to communicate with defendant at least once a day. In June, Fred printed some of the e-mails from May and June and took them to the Harvard police department. Detective Dean Burton reviewed the e-mails, including a June 2 message wherein defendant and Rachel discussed meeting in person. Burton met with Rachel on June 15, and he reviewed all subsequent e-mails between Rachel and defendant. He also told Rachel that, if the subject of meeting were to come up, she should suggest that defendant meet her in some public place, such as a McDonald's restaurant.

         On June 16, Rachel asked defendant if he had thought anymore about meeting in person. Defendant told her that maybe they could meet for lunch on a weekday. Defendant also said:

         "As before, whatever makes you comfy is fine by me, if that means brings [sic] your best friend or whatever. I'm nervous/weary [sic] about meeting parents, but [if] it makes you feel better I will. Like I said, I don't know how they'd take to a 24 year old talking to their 16 year old daughter."

         Defendant said that he thought about Rachel and "those fantasies." The next day, Rachel responded that she would feel more comfortable with her best friend present. She still thought about the fantasies and thought that "once we meet we could talk about those fantasies and see how we both feel about them." Several days later, defendant e-mailed back that the earliest he could meet Rachel was July 7 and that "I'm willing to if you are." Rachel responded that they should meet at the McDonald's in Harvard on July 7.

         On July 2, defendant informed Rachel that he planned to arrive at noon. He said he could stay:

         "For a couple of hours. We'll see, maybe you can convince me to stay more . . .? Not too much though, because I still have to work that day."

         On July 6, Rachel sent an e-mail describing what she and her friend would be wearing the next day. At Burton's behest, she also mentioned that there was a hotel near the McDonald's. Defendant responded, "That sounds interesting. That may be a possibility."

         Detective Burton went to the McDonald's at about 11:15 a.m. on July 7. Rachel was not present. Burton, who had seen a picture of defendant, saw him enter the McDonald's, buy a meal, and sit in a booth. Defendant sat in the booth, eating and reading a newspaper, for about one hour. As defendant left, Burton followed him out to the parking lot and introduced himself, but told defendant, "you might better know me as Rachel." Although Burton told defendant that he was not under arrest, an unmarked squad car pulled behind defendant's car so that he could not exit the parking lot in his car. Defendant agreed to accompany Burton to the police station to discuss the situation regarding Rachel. When asked if he knew that he had been exchanging e-mails with a 16-year-old girl, defendant stated that he did, and that he knew that Rachel was only 15 when they began e-mailing each other. He was also aware that, if he had committed the sexual acts that he had discussed with Rachel, he would have committed a crime.

         Defendant consented to a search of his car. Officers found a bag containing a candy bar and a box of condoms. The receipt in the bag showed that the items had been purchased that morning. According to Burton, defendant stated that he bought the condoms "just in case he did have sex with Rachel that day" and that if he did not have sex with Rachel, he would use them with his girlfriend. The officers also found two atlases in the car. Defendant told the officers that he used an atlas and the Internet to determine how to get to Harvard.

         Defendant also gave Burton a written statement, which included, in relevant part:

         "So I figured we could meet for lunch, to put a name to the face. She sent a final couple of emails, one of which referred to possibly acting out the fantasy. I said, it was a possibility. I then began to wonder if she were serious—because I was going to be in serious trouble if I did follow through! Just in case, I bought a box of condoms (3) and was convinced that I would only go through with it if she understood that I (and she) could get in serious trouble. * * * I decided against action, unless Rachel was provocative.

         * * *

         I had no intention of sleeping with a 16-year-old unless the situation felt right (which would have been Rachel acting far more adult than her age). I had no malicious or violent intent whatsoever. I acknowledge that I engaged in fairly risky, serious behavior and that I acted against my better judgment in wanting to meet her. However, that was all I was looking for—a lunch with an email/internet friend and her best friend."

         Burton reviewed the evidence with the State's Attorney's office, then placed defendant under arrest. He obtained search warrants for defendant's home and office. Officers seized defendant's computers from both locations and several computer disks from his home. In addition, Burton found a piece of paper near defendant's home computer that contained the telephone numbers of a hotel and a motel in Harvard and a dollar amount near the hotel telephone number. Burton also seized from defendant's bedroom an open box containing three sealed condoms.

         The trial court found defendant guilty of attempt (aggravated criminal sexual abuse) in that defendant:

         "[K]nowingly traveled to the McDonald's Restaurant located at 353 South Division Street, Harvard, Illinois in order to meet a minor, R.K., for the purpose of engaging in sexual conduct with R.K. * * *."

         Defendant now contends that he was not proven guilty of that charge beyond a reasonable doubt. We agree.

         To prove a defendant guilty of attempt, the State must establish beyond a reasonable doubt that the defendant intended to commit the offense and that he took a substantial step toward the commission of the offense. For purposes of this case, a person commits aggravated criminal sexual abuse when he:

         "[C]ommits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim." 720 ILCS 5/12-16 (d) (West 1998).

         We first address whether any rational trier of fact could have found that defendant possessed the requisite intent to commit aggravated criminal sexual abuse. Intent need not be expressed, but may be inferred from the defendant's conduct and the surrounding circumstances. Here, the evidence shows that defendant and Rachel sent each other dozens of e-mails, the vast majority of which were not sexual in nature. Although defendant had brought up the possibility of meeting, he dropped the issue, and it was not brought up again until Rachel raised it at Detective Burton's instigation. Even at that point, Rachel insisted that her best friend be present; defendant agreed and said in his written statement that he looked forward to "a lunch with an email/internet friend and her best friend." Rachel even described the clothing that she and her friend would be wearing. Rachel's remark, also instigated by Burton, that there was a hotel near the McDonald's, drew the noncommittal response, "That sounds interesting. That may be a possibility." There was no other discussion of a sexual nature. Defendant found the telephone numbers of a hotel and a motel in Harvard, and evidently called one of the establishments for price information. However, there was no evidence that he knew the address of either establishment or made a reservation, and he did not bring the information with him to Harvard.

         Defendant's written statement to the police was vague. While defendant acknowledged his thoughts about having sex with Rachel, and also acknowledged the trouble he would be in if he did so, he filled the statement with phrases such as, "Just in case," "if I did follow through," "I would only go through with it if," "I decided against action, unless," and "I had no intention of sleeping with a 16 year old unless" (all emphases added). This does not clearly indicate intent; it is at most conditional.

             In Scott, a detective went into an on-line chat room, pretending to be a 12-year-old boy named "Ricky." The defendant and Ricky chatted, including references to sexual matters, and agreed to meet later that day. The defendant did not appear at the meeting, but he e-mailed Ricky the next day. They engaged in a sexually suggestive dialogue for about one hour. The defendant mentioned the possibility that he could get into trouble if he had sex with Ricky; nevertheless, he wanted to meet and become acquainted with him. Ricky then requested that the defendant send him pictures of men engaged in sexual conduct. The defendant complied, sending two computer images of nude young males, including one image of sexual penetration.

Scott, 318 Ill.App.3d at 53, 251 Ill.Dec. 630, 740 N.E.2d 1201. The two then agreed to meet the following day. The defendant was arrested when he appeared at the agreed-upon location. The defendant stated that he knew that "Ricky" was 12 years old and further stated that he would have had sex with him if Ricky had wanted to do so. This court found an unambiguous intent to engage in an act of sexual penetration. However, while the facts in the case before us appear similar, one fact from this case stands out and casts ambiguity upon defendant's intent: Rachel's best friend was to be present at the planned meeting. This fact places all of defendant's conduct in a different context. In light of the planned presence of Rachel's friend, defendant's research of Harvard hotels (already of questionable import because the information was not taken to Harvard and there was no evidence that any reservation was made) and his purchase of condoms appear to suggest wishful thinking and fantasy, as opposed to actual planning and intent. Hope and fantasy do not equal intent, even if they lead to actions that could make the fantasy come true. Every man going on a blind date with a condom in his wallet might hope to have sex, but that does not mean he intends to have sex; this is especially so where the circumstances of the date are not conducive to privacy. The impossibility of completing the offense attempted is not a defense; similarly, the mere possibility of completing an offense is not proof of intent to commit the offense.

         None of this is to make light of the situation or to dismiss defendant's actions as some adolescent fantasy. Defendant seems to have appreciated the inappropriateness of his sexual conversations with Rachel and the potential legal implications of any sexual activity with her. Yet, he continued his contact with her. It is true that the sexual aspects of their conversations ceased after mid-June until Rachel, at Burton's behest, brought up the existence of a nearby hotel. Defendant's response was noncommittal, but it should have been adamant that there would be no sex. Defendant should have acted like a responsible adult; instead, he acted like an irresponsible teenager and led both Rachel and himself on. But while defendant's conduct was pathetic, inappropriate, and ill-advised, we conclude that it falls short of demonstrating an actual intent to have sex.

         Even if we were to conclude that the trial court's finding of intent was supported by the evidence, we would still conclude that defendant did not take a "substantial step" toward the commission of the offense of aggravated criminal sexual abuse. While it is not necessary for a defendant to complete the last proximate act in order to be convicted of attempt, mere preparation is insufficient to be considered a substantial step.         
     In Patterson, Scott, and the case before us, the defendant was to meet the potential victim in a restaurant. No sexual act would occur in the public portion of the restaurant. Any sexual act would have required the defendant and the victim to go to another location, such as a bathroom at the restaurant, the defendant's car, or a hotel. Here, where the arranged meeting, already planned to occur in a public place, was to include Rachel's best friend, and where the communications leading up to the meeting were not explicitly about sexual matters, merely showing up at the restaurant does not lead to the inevitable conclusion that a sexual act would occur. Had the meeting been arranged to take place in a hotel, a private residence, a highway rest stop bathroom, or merely in defendant's car in a parking lot, a substantial step toward the commission of the offense could reasonably be found. However, under these facts, merely driving to a meeting in a very public place falls short of such a substantial step. Defendant's actions, though ill-advised, did not constitute a substantial step toward the commission of the offense of aggravated criminal sexual abuse.

         Because of our disposition of this issue, we need not address defendant's contention that the trial court admitted evidence in error.

         For these reasons, the judgment of the circuit court of McHenry County is reversed.

         Reversed.

         Justice GILLERAN JOHNSON, dissenting:

         I respectfully dissent. The evidence in this case was more than sufficient to prove that the defendant committed an act of attempted aggravated criminal sexual abuse. The State proved, beyond a reasonable doubt, that the defendant intended to commit an act of aggravated criminal sexual abuse and that he took a substantial step toward the commission of that offense.

         In this case, a rational trier of fact could have found that the defendant intended to commit aggravated criminal sexual abuse. Intent, in attempt cases, is a mental state seldom susceptible of direct proof, but which often must be inferred from circumstantial evidence. Such evidence existed in this case. The defendant here, a 24-year-old man, corresponded via e-mail with a 16-year-old girl. Many of the e-mails were sexually explicit. In one such e-mail, the defendant fantasized about meeting an Internet "pen-pal" in a restaurant and then having sex with her in a movie theater and again later in a hotel room. In another e-mail, the defendant described a sexual encounter that he would like to have with the victim, involving condoms, oral sex, and showering together. In yet another e-mail, the defendant talked about being the victim's first sexual partner and having sex with both the victim and her friend at the same time.

         After inappropriately corresponding with the victim for a month, the defendant arranged to meet the victim and her friend at a McDonald's restaurant. In preparation for the meeting, the defendant obtained the names and telephone numbers of a hotel and a motel near the restaurant. He called the hotel for price information. In one of his e-mails, the defendant suggested to the victim that he would be willing to spend more than a couple of hours with her. On the scheduled date and time, the defendant arrived at the restaurant with condoms that he had purchased that morning. The defendant admitted to the police that he had bought the condoms "just in case" he had sex with the victim that day. Given these facts, the trial court found that the defendant intended to have sex with the victim. The trial court's finding was not improbable or implausible.

         Furthermore, a rational trier of fact certainly could have found that the defendant took a substantial step toward committing aggravated criminal sexual abuse. The defendant asked the victim to meet him, he arrived at the agreed-upon meeting place at the arranged time, and he came prepared to have sex with the victim.

         In summary, the evidence was more than sufficient to prove that the defendant committed an act of attempted aggravated criminal sexual abuse. The record reveals that the defendant both intended to commit the offense and took a substantial step in its commission. The trial court's finding of guilt should not be disturbed.

         Raymond F. Everritt hired John Henry McDuffie to burn down Everritt’s financially unprofitable service station. McDuffie recruited his teenage grandson, Jamie Weeks, to assist him. This effort proved unsuccessful; McDuffie then hired Roosevelt Cox, and together they burned down the station. Everritt’s insurance company refused to pay based on the suspicious circumstances surrounding the fire. As a result, McDuffie was unable to pay Cox the $1,500 he had promised and was worried that Cox “would not keep quiet.” McDuffie lured Cox into a meeting and killed him with an axe. Weeks assisted McDuffie in disposing of the body. Everritt’s insurance claim was later settled for $123,065.

         Nine years later, Everritt, McDuffie, and Weeks were charged with Cox’s murder. Weeks, who was twenty-six at the time of the trial, testified that shortly after the murder, Everritt had given McDuffie a set of tires to conceal the fact that McDuffie had used his truck to transport the victim’s body. Everritt later reportedly warned Weeks to “keep his mouth shut.” The prosecution argued that Cox’s murder was necessary to conceal the conspiracy to commit arson, and Everritt therefore should be considered responsible.

         Was the murder “reasonably foreseeable as a necessary or natural consequence of the unlawful agreement”? See Everritt v. State, 588 S.E.2d 691 (Ga. 2003).

         Everritt v. State, 588 S.E.2d 691 (Ga. 2003). The Georgia Supreme Court held that Everritt entered a conspiracy to commit arson with McDuffie and Cox. The Supreme Court, however, rejected the contention that McDuffie killed Cox to conceal the conspiracy to commit arson and that Everritt therefore should be held criminally responsible. The court explained that Cox’s murder could not be reasonably foreseen as a necessary, probable consequence of the conspiracy to commit arson. “Simply put, conspiracy to commit arson . . . does not naturally and necessarily, and probably result in the murder of one co-conspirator by another.” As noted by the Model Penal Code, law would lose all sense of “just proportion” if a conspiracy might result in liability for “’thousands of additional offenses of which he was completely unaware and which he did not influence at all.’” Everritt should have been acquitted of the murder of Roosevelt Cox.

         Defendant, sixteen-year-old Lauren Elizabeth Crowe, was indicted for the first-degree murder of her mother, Janet Evangeline Crowe Mundy, and for soliciting Christopher Albert Tarantino to commit the felony of first-degree murder, and for conspiring with Tarantino to commit first-degree murder. She entered pleas of not guilty. A jury found defendant not guilty of first-degree murder and guilty of solicitation to commit first-degree murder and conspiracy to commit first-degree murder.

         On the morning of July 10, 2004, Crowe’s mother was fatally shot and stabbed in her home. She suffered four gunshot wounds and multiple stab wounds and was found partially clothed lying on top of some bedding in the doorway between the kitchen and her bedroom. The house appeared to have been ransacked. Crowe called 911 at 5:01 a.m. to report her mother’s murder. Crowe reported that she had been in bed asleep and had heard a car drive up to the house and a window break, and as she came down the stairs to investigate, she had found her mother dead on the floor. Crowe later told the investigators that she had hidden in the closet bedroom when she heard the gunshots. She reportedly saw a tall, slim African American male get into a vehicle with a Tennessee license plate and an orange sticker on the back. She also later told investigators that her stepfather was responsible for the murder and recounted a fight that her stepfather had had with her mother earlier in the day.

         Crowe then changed her story and told investigators that Tarantino, her former boyfriend, arrived at her mother’s home at 4:15 a.m. with a gun. She met him outside and “knew what was going to happen.” Tarantino entered the house and shot her mother. Crowe followed him into the home and found her mother lying on the floor pleading for help. Crowe then left the house, and Tarantino stabbed her mother to death.

         Crowe claimed that Tarantino forced her to help him clean up, gave her a flashlight, and told her to break out a window to make it look like a break-in. She testified that Tarantino threatened to “go and get [her] grandmother” if she did not help him and told her she “was next.” Crowe and her mother had obtained a domestic violence order against Tarantino in May. Crowe and Tarantino “repeatedly” disregarded the order and Crowe asked her mother to have the order lifted, because she liked Tarantino and wanted to start seeing him again. A book entitled Anatomy of Motive was found in Crowe’s bedroom; it had a place-holding indentation on a section referencing “someone killing their mother” through the use of a nine-millimeter pistol. Several nine-millimeter shell casings and a bullet were recovered at the scene at and around the victim’s body.

         Crowe contended that the trial court committed an error by denying her motion to dismiss the charge of solicitation to commit murder at the close of the prosecution’s evidence and that this charge should not have been presented to the jury. The prosecution offered into evidence written reports of two interviews with Crowe on July 10 and July 11, 2004, taken by Detective Dwayne Anders and Agent Tom Frye. The July 11, 2004, report stated as follows:

         “[Defendant] said she wasn’t supposed to be . . . [at home with her mother when Tarantino arrived on the night he killed defendant’s mother], that was the plan. [Defendant] said she shouldn’t have let [Tarantino] in because she knew what was going to happen. . . . [Defendant] said she knew that there was a chance that [Tarantino] was coming that night. . . . [Defendant] said she had remorse about thinking up such a thing and not stopping it. [Defendant] said she could have stopped it.

         “[Defendant] said it was supposed to happen Friday. . . . [Defendant] said [Tarantino] asked her what time he could come over and if 1:30 or 2:00 [a.m.] would be ok. [Defendant] said [Tarantino] said he was going to do it and [defendant] said she . . . told [Tarantino] to do just whatever he wanted to do because she was tired of living like this.”

         The State also presented the testimony of Shane Reid, a friend of Crowe and Tarantino. Reid testified that Crowe had stated on two occasions that “she wanted her mother gone.” Reid testified that she had told this to Tarantino and to a group of her friends in the springtime.

         Did Crowe solicit Tarantino to kill her mother? See State v. Crowe, 656 S.E.2d 688 (N.C. App. 2008).

State v Crowe, 656 SE.2d 688 (N.C.App. 2008).

         Solicitation of another to commit a felony is a crime in North Carolina . . . under the common law in this [S]tate." "The gravamen of the offense of soliciting lies in counseling, enticing or inducing another to commit a crime." "Solicitation is complete when the request to commit a crime is made, regardless of whether the crime solicited is ever committed or attempted." "[T]o hold a defendant liable for the substantive crime of solicitation, the State must prove a request to perform every essential element of the [underlying] crime. "The underlying felony in the present case is first degree murder. Therefore to hold defendant liable for solicitation, the State must prove that defendant counseled, enticed, or induced another to commit each of the following: "(1) an unlawful killing; (2) with malice; (3) with the specific intent to kill formed after some measure of premeditation and deliberation."

              In the present case, in support of its contention that defendant conceived of a plan to have her mother murdered, the State offered into evidence written reports of two interviews with defendant on 10 July and 11 July 2004 taken by Detective Dwayne Anders of the Cherokee County Sheriff's Office and Agent Tom Frye of the Multiple Agency Narcotics Unit. The 11 July 2004 Report of Interview stated:

         [Defendant] said she wasn't supposed to be . . . [at home with her mother when Tarantino arrived on the night he killed defendant's mother], that was the plan. [Defendant] said she shouldn't have let [Tarantino] in because she knew what was going to happen. . . . [Defendant] said she knew that there was a chance that [Tarantino] was coming that night. . . . [Defendant] said she had remorse about thinking up such a thing and not stopping it. [Defendant] said she could have stopped it.

[Defendant] said it was supposed to happen Friday. . . . [Defendant] said [Tarantino] asked her what time he could come over and if 1:30 or 2:00 [a.m.] would be ok. [Defendant] said [Tarantino] said he was going to do it and [defendant] said she . . . told [Tarantino] to do just whatever he wanted to do because she was tired of living like this.

         The State further offered evidence, through the testimony of Shane Reid, that defendant had stated "she wanted her mother gone." Reid, who was a friend of both defendant and Tarantino, testified as follows:

         A. Up at Sonic. [Defendant] said that she wanted her mother gone.

Q. Do you remember generally approximately when that was?

A. No, sir.

Q. Who was around?

A. I don't recall.

. . . .

Q. Did something happen at school?

A. Yes. [Defendant] said that she wanted her mother gone.

Q. When did that conversation take place?

A. With me and [Tarantino] and a group of my friends before the bell rang.

Q. Do you remember approximately what time of year it was in?

A. Spring time.

Q. Do you remember who was around?

A. No, sir.

Q. Do you remember what exactly she said?

. . . .

A. She said she wanted her mother gone.

The State cites no other evidence to support the charge of solicitation to commit murder, nor does our close review of the five-volume trial transcript reveal any other evidence to support the charge. Thus, at the close of the State's case, the only evidence the State relied upon to argue that defendant solicited Tarantino to kill her mother was the defendant's "plan" to have her mother killed, her agreement with Tarantino about the time that he should arrive at her house to kill her mother, and Reid's testimony that defendant made two statements that she "wanted her mother gone" to one or more of her peers. Although "[a] defendant's conviction of criminal solicitation may properly be based on the defendant's statements and corroborative evidence, including circumstantial evidence showing the defendant's seriousness," in the present case, the State presented no evidence that defendant "counsel[ed], entic[ed,] or induc[ed]" Tarantino to murder defendant's mother. Therefore, we find that the trial court erred by denying defendant's motion to dismiss the charge of solicitation to commit murder at the close of the State's evidence, and we must reverse defendant's conviction on this charge.

Two young boys, twelve-year-old D.W. and four-year-old R., were passed on the sidewalk by James McGrath. McGrath walked alongside the boys, bumping into D.W.’s hip, pointing to his own genitals and observing that when he was D.W.’s age that he did not have hair on his testicles. He also stated that he enjoyed ejaculating when he was fourteen and could accomplish this five times in a ten-minute period, and when he was sixteen his testicles were the size of fists, his hormones were hyperactive, and that he was “horny.” McGrath was indicted and convicted under a solicitation statute that declared that it is a felony for a person eighteen years of age or older “to solicit a child to engage in sexual conduct with intent to engage in sexual conduct.” Sexual conduct is defined as entailing various forms of sexual contact. McGrath was sentenced to fifteen months in jail. Was McGrath guilty of solicitation of a child for sexual conduct? Would your answer differ in the event that the prosecution was permitted to introduce McGrath’s five prior convictions for sexual conduct, two of which were for indecent sexual conduct involving enticing and forcibly performing oral sex on young males? See State v. McGrath, 574 N.W.2d 99 (Minn.Ct.App. 1998).

          State v. McGrath, 574 N.W.2d (Minn.Ct.App. 1998). A conviction for solicitation requires an intent to solicit an individual to engage in criminal conduct and an act of solicitation to achieve this objective. Appellant McGrath contends that while his language his inappropriate that he did not solicit D.W. to engage in inappropriate sexual conduct. The Court of Appeals ruled that solicitation may be both verbal and non-verbal. McGrath's intent to solicit D.W. may be inferred from his reference to the fact that he was "horny" when younger; his reference to his ability to ejaculate in a short period of time; and the bumping of his hips into D.W. McGrath contended that obtained sexual gratification from the explicit language that he was using and that he had no intent to solicit D.W. to engage in sexual conduct.  

 Appellants William Buffington, Ceariaco Cabrellis, and Booker T. Cook appealed their convictions for attempted bank robbery. An informant told the Sacramento Police Department that appellants Buffington, Ceariaco Cabrellis, and Jimmy Cabrellis planned to rob a bank in the shopping center at Florin Road and Franklin Boulevard, and that appellant Cabrellis would be dressed as a woman. On December 17, 1982, a police officer observed two vehicles driving around the Farmers Bank. He concluded that Cabrellis was one of the drivers and that the vehicle was registered under his name. Five days later, two men, identified as Buffington and Cook, and a third person appearing to be a woman, later identified as Cabrellis, entered the shopping center in a white automobile.
      The automobile travelled down one aisle of parking and slowly went past Bay View Federal Savings. The car then exited the parking lot and drove down a street behind the bank. After a U-turn, the car reentered the parking lot and drove past Bay View Federal. The occupants continued to look toward the bank. Buffington, parked the vehicle about one hundred fifty feet from a shoe store “which was about the same distance from the bank.” Buffington entered the shoe store and walked to a window which overlooked Bay View Federal. He did not look at any shoes and after three minutes, walked over and stood in a cashier line.
     Cook, about two minutes after Buffington exited the vehicle, left the car and stood by the car door. He wore a large coat, a hat, and a long scarf. The government concedes that the weather as "inclement." Cabrellis, who was dressed in women's clothes also left the car and stood by the door. Both Cook and Cabrellis were facing Bay View.
    A major power outage then occurred. Margaret Morningstar, a Bay View Federal teller, walked to the front door of the bank, and locked the door. She noticed Cook wrapping the scarf over his face. Morningstar mentioned to a security guard that the man would be unable to rob the bank because she had just locked the door. All three men returned to the car. They drove out of the parking area, passing Police Officer Torres, who used a photograph to identify the female as Cabrellis. Police officers then stopped the vehicle and ordered the three occupants to exit the car at gunpoint. Police found a revolver on Cook's person and a revolver on the left rear floorboard of the vehicle. Officers discovered that Cook was wearing four to five coats or jackets.
    Appellants were subsequently indicted by a United States grand jury on and charged with attempted bank robbery along with other offenses. The court excluded the informant’s tip from evidence. The issue was “whether the evidence, exclusive of any reliance upon the communications supplied by the informant, was sufficient to sustain their convictions for . . . attempted federal bank robbery . . . Did the defendants take a substantial step toward the commission of a bank robbery? See U.S. v. Buffington, 815 F.2d 1292 (9th Cir. 1987).

        

United States v. Buffington, 815 F.2d 1292 (9th Circ. 1987), Poole

POOLE, Circuit Judge:

Appellants William Buffington, Ceariaco Cabrellis and Booker T. Cook appeal their convictions of conspiracy to commit bank robbery, attempted bank robbery, use of a firearm in commission of a federal felony and being felons in possession of a firearm. They raise a series of objections to pretrial proceedings as well as events at trial. For reasons set forth below, we affirm in part and reverse in part.
     An informant told the Sacramento Police Department that appellants Buffington, Ceariaco Cabrellis, and Jimmy Cabrellis planned to rob a bank in the shopping center at Florin Road and Franklin Boulevard, and that appellant Cabrellis would be dressed as a woman. On December 17, 1982, a police officer observed two vehicles driving slowly around the Farmers Bank. He believed one of the drivers to be appellant Cabrellis, to whom one of the vehicles was determined in fact to be registered. Five days later on December 22, about 4:20 p.m., two men, later identified as Buffington and Cook, and a third person appearing to be a woman, later identified as appellant Cabrellis, driving a white Pontiac, entered the shopping center.
      The Pontiac proceeded down one aisle of parking and slowly went past Bay View Federal Savings, toward which the occupants of the vehicle seemed to be looking. They then drove out of the parking area, onto an adjacent street behind the bank. After a U-turn, the car slowly returned down another aisle of parking past the bank, and the occupants again looked toward Bay View Federal. The driver, Buffington, parked the vehicle about one hundred fifty feet from a Payless Store, which was about the same distance from the bank. Buffington left the car, entered Payless, and walked to a window which overlooked Bay View Federal. He did not purchase, inspect goods, or shop, but after three minutes, walked over and stood in a cashier line.
      About two minutes after Buffington left the vehicle, Cook also emerged and stood by the car door. He wore a large pea coat, a hat, and a long scarf. The government concedes that the Sacramento weather on that December day was "inclement." The person dressed in women's clothes, Cabrellis, also exited the car and stood by the door. Both persons were facing Bay View.
    By sheer coincidence, a major power outage then occurred affecting the shopping center area. Shortly afterwards, Margaret Morningstar, a Bay View Federal teller, walked to the front door of the bank and locked the door, at which time she noticed Cook wrapping the scarf over his face so that only his glasses showed. She mentioned to a security guard that the man would be unable to rob the bank because she had just locked the door. Buffington, meanwhile, returned to the car, which he, Cabrellis and Cook reentered. Buffington drove out of the parking area, passing Police Officer Torres, who identified the female as Cabrellis from a photograph. Police officers then stopped the vehicle, ordered the appellants to exit the car at gunpoint, and forced them to lie face down on the pavement. Police found a revolver on Cook's person and a revolver on the left rear floorboard of the vehicle. Appellants were then arrested. Officers later discovered that Cook was wearing four to five coats or jackets.
    Appellants were subsequently indicted by a United States grand jury on four counts. Count I of the indictment charged them with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. Count II charged attempted unarmed bank robbery, 18 U.S.C. § 2113(a). Count III charged them with use of a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(2), ³ and Count IV charged them with being felons in possession of a firearm under 18 U.S.C. App. § 1202(a)(1). ⁴
     We must next determine whether the evidence, exclusive of any reliance upon the communications supplied by the informant, was sufficient to sustain their convictions for the charges of conspiracy to commit federal bank robbery, attempted federal bank robbery, and the use of a firearm in the commission of a federal offense. . . .
    A conviction for attempt requires the government to prove (1) culpable intent, and (2) conduct constituting a substantial step toward commission of the crime that is in pursuit of that intent. A substantial step consists of conduct that is strongly corroborative of the firmness of a defendant's criminal intent. Mere preparation does not constitute a substantial step. The issue then is whether the evidence presented at trial was sufficient of itself to prove intent and a substantial step toward bank robbery.
      The government contends that appellants' intent to rob Bay View Federal may be inferred from the following circumstantial evidence:

(1) the assemblage and possession of materials necessary to commit the crime—two handguns, female clothing and a makeup disguise for Cabrellis, and a multi-layered clothing disguise for Cook;
 (2) the two visits to the location of the crime, Cabrellis' on Dec. 17 and all three appellants' presence on Dec. 22; and
(3) certain actions allegedly taken to effectuate the plan, namely, twice driving slowly by the bank while staring into it, driving to the rear of the bank, Buffington's behavior in the Payless Store, and the fact that Cook and Cabrellis were armed when they exited the vehicle and stood with their attention directed toward the bank.

              The above constitutes little more than a summary of the evidence; it does not answer the question whether the requisite elements of the offense were shown to exist beyond a reasonable doubt. If the prosecution could bring to these bare allegations the light shed by the informant, a reasonable jury could find at least the substantially unequivocal intent to rob someone or some institution. But the government's solemn commitment to avoid that light, and the trial court's ruling that it must be avoided, forbids resolving the ambiguities with that help. Thus unaided, the circumstances fall short of showing the intent to rob a federal bank. If intent to rob existed at all, it could easily have been directed against the Payless market, or the nearby state bank.
    Of course, circumstantial evidence is fully admissible in criminal cases, including bank robbery cases. It is permissible to infer intent from a defendant's conduct and the surrounding circumstances. For example, in Rumfelt v. United States, 445 F.2d 134 (7th Cir.), cert. denied, 404 U.S. 853, 92 S. Ct. 92, 30 L. Ed. 2d 94 (1971), the Seventh Circuit sustained a conviction of attempted bank robbery where intent to rob was shown by circumstantial evidence. In Rumfelt, the court noted that actual entry into the bank was not required to find that an attempt occurred. The defendant's presence in front of a bank while wearing a ski mask, and his use of a rifle to intimidate a passerby into trying to open the door to the bank for him were sufficient to infer an intent to steal. That is not comparable to this case.
      Other cases that have permitted the inference of an intent to rob a bank have involved testimony by informants or co-conspirators. . . . Evidence of the defendants' intent here has no such background upon which to rely. There was no admissible testimony concerning defendants' intent by an informant or co-conspirator. No defendant came within 50 yards of the bank. The suggestion that they were "casing" something could be true, but is supported by little more than speculation. The evidence is focused no more on Bay View than on other nearby institutions. Even viewing the evidence in as favorable a light to the government as we may, the evidence presented to the jury could reasonably generate no more than suspicion, and is certainly not sufficient for a rational trier of fact to find intent to commit bank robbery beyond a reasonable doubt.
     Moreover, even if sufficient intent to rob were shown, the conduct fell short of constituting a substantial step toward the commission of a robbery. For conduct to be "strongly corroborative of the firmness of the defendant's criminal intent,". . . preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature…

              The government argues the generality that movement toward a bank is not required to show attempt, citing United States v. Snell, 627 F.2d 186 (9th Cir. 1980). . . . But that case is distinguishable upon several grounds. In Snell, the defendants planned to kidnap a bank manager and his wife, and to hold her hostage while forcing the manager to go to the bank to obtain money. They went to the house and knocked on the door, but the plan was frustrated when the wife came to the door accompanied by a Great Dane. One of the co-conspirators later revealed the plan to the police. Snell was convicted of attempted robbery of a federal bank. The court observed that Snell's entry into the home was "factually precedent but so far as the total scheme is concerned is analytically little different than entry into the bank itself." There is no comparable entry, nor movement toward the bank in this case. The conduct in Snell was unequivocal; that here is entirely tentative and unfocused. . . . not only did appellants not take a single step toward the bank, they displayed no weapons and no indication that they were about to make an entry. Standing alone, their conduct did not constitute that requisite "appreciable fragment" of a bank robbery, nor a step toward commission of the crime of such substantiality that, unless frustrated, the crime would have occurred. 

Michael Dennis Joyce was convicted in federal district court of one count of attempting to possess cocaine with the intent to distribute and of and one count of traveling in interstate commerce to facilitate an unlawful activity. The trial court sentenced Joyce to a term of ten years imprisonment on Count I and a term of five years probation on Count II. The question for you to consider is whether the evidence presented a trial was sufficient to sustain Joyce’s conviction.                        
     In 1980, the St. Louis Police Department conducted a "reverse sting operation," in which undercover police officers posed as drug sellers and actively solicited unlawful narcotics transactions with reputed drug dealers. In late September and in early October, government informant James Gebbie called Joyce and told him that a shipment of drugs was expected to arrive in St. Louis. They agreed to talk when the drugs were available. On October 20, 1980, Gebbie contacted Joyce by telephone and informed him that a shipment of cocaine had been delivered. Joyce indicated that he had twenty-two thousand dollars and would be in St. Louis the following day. Gebbie and Joyce agreed that twenty-two thousand dollars would be more than enough money to purchase a pound of cocaine.
     On October 21, 1980, Joyce flew from Oklahoma City, Oklahoma to St. Louis, Missouri. In St. Louis, Joyce met with Gebbie and with undercover officer Robert Jones, who was posing as a cocaine dealer. They went to a hotel room where Joyce asked to inspect the cocaine. Jones told Joyce that the cocaine was not in the hotel room, but could be obtained by Jones if Joyce was “interested in dealing rather than merely talking.” Joyce stressed that he was interested in purchasing cocaine. Jones listed the prices for various quantities of cocaine and Joyce said that he could "handle" a pound of cocaine for twenty thousand dollars. Officer Jones then went to his office and returned to the hotel room with the cocaine.
     Officer Jones returned to the hotel room and handed Joyce a duct-tape wrapped plastic package which Jones said contained a kilogram of cocaine. Jones did not unwrap the tape and Joyce immediately returned the package explaining that he could not see any cocaine. Jones then unwrapped about half of the tape covering the plastic package and handed the package back to Joyce. Joyce then once again returned the package to Jones and asked Jones to open up the package so that Joyce could examine the cocaine. Jones answered that he would only open the plastic package if Joyce produced the money to purchase the narcotics. Joyce replied that he would produce his money after Jones opened up the plastic package. Jones continued to insist that Joyce produce the money. Joyce once again refused and stated that he would not deal with Jones no matter how good the cocaine. Jones concluded that Joyce was not going to produce his money or purchase the cocaine and Jones told Joyce to leave. Joyce was arrested by federal agents as he left the hotel. Twenty-two thousand dollars were seized in his luggage. Was Joyce guilty of attempted purchase of cocaine? See United States v. Joyce, 693 F.2d 838 (8th Cir. 1983).

         United States v. Joyce, 693 F.2d 838 (8^th Cir. 1983).

         The government argues that Joyce's attempt to possess cocaine was established by evidence that he traveled from Oklahoma City to St. Louis with twenty-two thousand dollars pursuant to a previously discussed drug purchase arrangement, that he expressed an initial willingness to deal with Jones, and that he agreed with Jones on the price for a pound of cocaine. Furthermore, the government adds, Joyce would have purchased the cocaine had it not been for the disagreement between Joyce and Jones resulting from Jones' refusal to open the plastic bag containing the purported cocaine until Joyce first showed his money. The government points out that Jones was acting in compliance with DEA guidelines which prohibit illegal drugs from going into the physical possession of persons under investigation.
     Joyce, on the other hand, contends that his conduct did not rise to the level of an attempt to possess cocaine because while he admittedly possessed sufficient money to purchase the cocaine at the agreed upon price, he ultimately refused either to purchase the cocaine or to produce his money. He thus had abandoned any designs he might have had of obtaining cocaine and distributing it before taking the necessary and overt steps of producing the money and obtaining the cocaine.
     Although there is no comprehensive statutory definition of attempt in federal law, federal courts have rather uniformly adopted the standard set forth in Section 5.01 of the American Law Institute's Model Penal Code. The requisite elements of attempt are (1) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial step" towards the commission of the substantive offense which strongly corroborates the actor's criminal intent. The cases universally hold that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in the commission of the particular crime.

              With this in mind, we conclude that even assuming Joyce went to St. Louis intending to purchase cocaine, there was clearly insufficient evidence to establish that he engaged in conduct constituting a "substantial step" toward the commission of the crime of possession of cocaine with the intent to distribute. Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. Joyce had the opportunity to purchase the cocaine at the agreed upon price, unambiguously refused either to produce his money or to purchase the cocaine. This effectively negated the government's effort to consummate the sale.
    This case is comparable to the case of People v. Miller, 2 Cal.2d 527, 42 P.2d 308 (1935) where the defendant announced his intention to kill another, obtained a.22 caliber rifle, pursued his intended victim into an open field carrying the.22 caliber rifle, and after loading the rifle apparently changed his mind and voluntarily surrendered the rifle to a third person standing nearby. The Supreme Court of California concluded that the defendant's conduct did not rise to the level of an attempted murder. The government, however, urges that Joyce's initially expressed interest in purchasing a pound of cocaine from Jones at the stated price and his momentary possession of the wrapped package said to contain a kilogram of cocaine constituted a substantial step toward possession of cocaine with the intent to distribute. We disagree. While Joyce professed a desire to purchase cocaine during his preliminary discussions with Jones, Joyce never attempted to carry through with that desire by producing the money necessary to purchase and hence ultimately possess the cocaine. And, although Jones gave Joyce the sealed and wrapped package said to contain a kilogram of cocaine, Joyce did not open the package but immediately returned the package to Jones who in turn refused to open the package because Joyce refused to produce the money necessary to effectuate the purchase of a pound of cocaine. Thus, all we have here is a preliminary discussion regarding the purchase of cocaine which broke down before Joyce had committed any "overt act adapted to, approximating, and which in the ordinary and likely course of things [would] result in the commission of the [crime of possessing cocaine with the intent to distribute]"
  We also find unpersuasive the government's claim that Joyce would have purchased the cocaine had it not been for Jones' refusal to open the package of cocaine. We simply fail to see why Joyce's motive for refusing to commit a "substantial step" toward possession of the cocaine is particularly relevant. Joyce's motive for refusing to purchase the cocaine here is no different than had he refused to purchase because he disagreed with Jones as to the price for which the cocaine was offered. And, while we may agree with the government's suggestion that Joyce, who was presumably "street-wise," may have been tipped off that Jones was a DEA undercover agent when Jones refused to open the package, we fail to see how an increased awareness of the risk of apprehension converts what would otherwise be "mere preparation" into an attempt.
      Finally, the government makes the rather novel suggestion that because Joyce was only one act away from the completed offense of possession of cocaine with the intent to distribute, he must, therefore, be guilty of attempting to commit the completed offense. First, Joyce was two acts, not one act, away from the completed offense. Before Joyce could have committed the offense of possessing cocaine with the intent to distribute he had to first produce the money necessary to effect the purchase of the cocaine and second take actual physical possession of, or exercise dominion and control over, the cocaine. He obviously could not distribute the cocaine before obtaining either actual or constructive possession of it. Nevertheless, whether conduct may be characterized as being one act or two acts away from the completed offense is not particularly helpful in determining if an attempt has been committed. For example, the defendant in Miller who while carrying a rifle pursued his intended victim into the open field was only one overt act away from committing the completed offense of murder; all he had left to do was shoot the intended victim. However, the defendant in Miller, as Joyce here, had not yet committed an overt act strongly corroborative of the firmness of his criminal purpose. Thus, in Miller and in this case the conduct which remained to be done, whether characterized as one act or two acts, was the very conduct which separated mere preparation from a substantial step toward commission of the completed offense. 

Rodney Herron was stopped by the police for driving under the influence of alcohol at 2:19 a.m. He was processed at the police station and dropped off at home at 4:00 a.m. He walked into the dimly lighted living room and noticed an individual lying on the couch whom he believed to be his wife, who had been regularly sleeping on the sofa. The individual was facing the back of the couch, and her face was partially covered with a sheet. Herron unzipped his pants, but left them on, and lay down behind the person on the couch. He unbuttoned the individual’s pants and slightly pulled them down. He placed the other person’s hand on his penis, touched the person’s backside and may have kissed her. Herron heard the other person “whimpering” and realized that the individual on the couch was his stepdaughter rather than his wife. He was charged with attempted sexual battery, an uninvited sexual molestation of his stepdaughter. Is Herron guilty of an attempted sexual battery? Did he abandon his attempt? See State v. Herron, 1996 WL 715445 (Ohio Ct. App.).

         State v. Herron, WL 715445 (Ohio Ct.App. 1996). Ohio law provides that an attempt occurs when an individual engages in a “substantial step” towards the commission of a crime with the requisite intent. Herron contended that he completely and voluntarily abandoned his criminal purpose and that this did not arise out of a fear of arrest. Abandonment is an affirmative defense and the burden is on the accused to establish this defense by a preponderance of the evidence. The Ohio Court of Appeals held that Herron presented evidence that he abandoned any attempted sexual intercourse with his stepdaughter after realizing that he had mistaken her for his wife. The court reasoned that the jury could conclude that Herron voluntarily and completely renounced his criminal purpose. The trial court was in error in accepting the prosecutions argument that an individual who completes an attempt cannot abandon his or her purpose and in refusing to issue a jury instruction on voluntary abandonment.