Abandonment

• With respect to a charge under IC 35-41-2-4 [aiding, inducing, or causing an offense], IC 35-41-5-1 [attempt], or IC 35-41-5-2 [conspiracy], it is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.

IC 35-41-3-10

Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010)(quoting IC 35-41-3-10)(“The defense of abandonment is set forth in Indiana Code section 35-41-3-10, which states . . . .”)

• Abandonment is a legal defense with respect to a charge of aiding or inducing another to commit a crime, attempting to commit a crime, or conspiracy to commit a felony.

Land v. State, 470 N.E.2d 697, 699 (Ind. 1984)(citing IC 35-41-3-10)

• Abandonment relieves an accused of criminal responsibility when “a criminal enterprise is cut short by a change of heart, desertion of criminal purpose, change of behavior, and rising revulsion for the harm intended.”

Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986)(quoting Pyle v. State, 476 N.E.2d 124, 126 (Ind. 1985))

Cf. Munford v. State, 923 N.E.2d 11, 15 (Ind. Ct. App. 2010)(“[E]ven though the ‘rising revulsion’ language does not appear in the abandonment statute itself, it has been used repeatedly by our courts in describing the abandonment defense. We are therefore unwilling to say that the use of this language in an instruction is an incorrect statement of the law.”)

Rationales

• Deterrence and absence of dangerous conduct are the rationales underlying the defense of abandonment.

Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986)

• Deterrence is achieved because perpetrators have an opportunity to avoid criminal liability by abandoning an inchoate offense. Abandonment would thus increase the likelihood of avoiding the substantive harm of the attempted crime.

Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986)(citation omitted)

• Renunciation of criminal purpose also tends to negate dangerousness. Society seeks to punish persons with culpable state of minds who have demonstrated their dangerousness. When the actor demonstrates renunciation of criminal purpose, criminal liability should not be imposed.

Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986)(citation omitted)

Limitations of the defense

• Abandonment may be asserted as a defense only to attempt, conspiracy, and aiding, inducing or causing an offense.

Sheckles v. State, 501 N.E.2d 1053, 1056 n. 4 (Ind. 1986)(citing IC 35-41-3-10)(emphasis added)

• [A]bandonment does not constitute a defense to a felony-murder charge when death occurs during the attempted commission of a felony.

Sheckles v. State, 501 N.E.2d 1053, 1056 (Ind. 1986)

Availability of the defense: In general

• The defense of abandonment is available only when a defendant voluntarily abandons his effort to commit the crime and voluntarily prevents its commission.

Estep v. State, 716 N.E.2d 986, 987 (Ind. Ct. App. 1999)(citing IC 35-41-3-10)

Patterson v. State, 729 N.E.2d 1035, 1041 (Ind. Ct. App. 2000)(citing Estep v. State, 716 N.E.2d 986, 987 (Ind. Ct. App. 1999))

See Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986)(citing IC 35-41-3-10)(“One who asserts this defense must establish that he voluntarily abandoned his effort to commit the crime and voluntarily prevented commission of the crime.”)

Availability of the defense: Voluntariness

• “[T]o be considered voluntary, the decision to abandon must originate with the accused and not be the product of extrinsic factors that increase the probability of detection or make more difficult the accomplishment of the criminal purpose.”

Gravens v. State, 836 N.E.2d 490, 497 (Ind. Ct. App. 2005), trans. denied(quoting Smith v. State, 636 N.E.2d 124, 127 (Ind. 1994))

Weida v. State, 778 N.E.2d 843, 848 (Ind. Ct. App. 2002)(quoting Estep v. State, 716 N.E.2d 986, 987 (Ind. Ct. App. 1999))(“To be considered voluntary, the decision to abandon must originate with the defendant, not as a result of extrinsic factors that increase the probability of detection.”)

See Babin v. State, 609 N.E.2d 3, 5 (Ind. Ct. App. 1993), reh’g denied, trans. denied (“[A]n abandonment that is the product of extrinsic factors is not voluntary.”)

See also Barnes v. State, 378 N.E.2d 839, 843 (Ind. 1978)(“For an abandonment to be considered voluntary, it must in no way be attributable to the influence of extrinsic circumstances.”)

E.g., Peak v. State, 520 N.E.2d 465, 468 (Ind. Ct. App. 1988), reh’g denied)(“The evidence showed that [the defendant] abandoned the attempt to break into the house only because he and his co-offenders were unable to break down the door and because a police officer was spotted.”)

• Stated differently, abandonment is not voluntary if it is the result of “unanticipated difficulties in carrying out the criminal plan.”

Gravens v. State, 836 N.E.2d 490, 497 (Ind. Ct. App. 2005), trans. denied

• [W]hether a defendant’s abandonment of a criminal effort is voluntary is a question of fact for the jury to decide.

Gravens v. State, 836 N.E.2d 490, 495 (Ind. Ct. App. 2005), trans. denied

• [T]he defense of abandonment is available to one who, through his own actions, withdraws his aid and encouragement and wholly and effectively detaches himself, from the criminal enterprise.

Norton v. State, 408 N.E.2d 514, 535-36 (Ind 1980)(citing Barnes v. State, 378 N.E.2d 839, 843 (Ind. 1978))

• There was some testimony that, after the robbery had been consummated, defendant stated that the victims should be immediately released; however, such fact, standing alone, does not show abandonment.

Brownlow v. State, 400 N.E.2d 1374, 1375 (Ind. 1980)(citing IC 35-41-3-10)

Availability of the defense: The requirement of preventing commission of the crime

• One of the requirements of the abandonment defense, as expressly provided by the statute relied upon by defendant, is that the accused shall have prevented the commission of the crime. Assuming arguendo that defendant did attempt to dissuade [his co-participant], his efforts were unsuccessful. [The victim] was killed in a felony venture. The defense of abandonment was not available.

Brownlow v. State, 400 N.E.2d 1374, 1375 (Ind. 1980)

Availability of the defense: Availability to co-participants

• [T]he defense is intended to be available only to the person who actually physically and mentally abandons the enterprise. This defense is not intended to protect a co-participant of the one who abandons, especially when the co-participant is not aware of the abandonment and takes no steps on his own to detach himself or withdraw his aid and encouragement from the crime.

Norton v. State, 408 N.E.2d 514, 536 (Ind. 1980)

E.g., Haskett v. State, 467 N.E.2d 32, 35 (Ind. Ct. App. 1984), reh’g denied, trans. denied (“We see no evidence indicating that [the defendant] at any time abandoned his desire to have [his co-participant] complete the robbery . . . . Consequently, in light of Norton and the evidence, any defense of abandonment based on [the co-participant’s] activities is unavailable to [the defendant].”)