Availability of the defense: The requirement of complete abandonment
• [T]he defense of abandonment is available only to the person who physically and mentally abandons the enterprise . . . .
• 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.
• 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.
• 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.”
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.”)
• Deterrence and absence of dangerous conduct are the rationales underlying the defense of abandonment.
• 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.
• 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.
Limitations of the defense
• Abandonment may be asserted as a defense only to attempt, conspiracy, and aiding, inducing or causing an offense.
• [A]bandonment does not constitute a defense to a felony-murder charge when death occurs during the attempted commission of a felony.
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.
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.”
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.”)
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.”
• [W]hether a defendant’s abandonment of a criminal effort is voluntary is a question of fact for the jury to decide.
Timeliness of abandonment
• [T]he defendant must have forsaken the criminal plan before completion of the underlying crime or before it became inevitable.
• [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.
• 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.
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.
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.
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].”)
See Babin v. State, 609 N.E.2d 3, 5 (Ind. Ct. App. 1993), reh’g denied, trans. denied(citing Sheckles v. State, 501 N.E.2d 1053, 1055 (Ind. 1986))(“The defendant must have renunciated the criminal plan prior to the completion of the underlying crime or before it became inevitable.”)
See also Pyle v. State, 476 N.E.2d 124, 126 (Ind. 1985)(citing Hedrick v. State, 98 N.E.2d 906, 908 (Ind. 1951))(“Abandonment must occur before the criminal act charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed.”)
• [A]bandonment must occur before the crime is completed or the harm is done.
• Where attempt is at issue, an accused will be relieved of criminal responsibility if, subsequent to taking a substantial step towards committing a crime but prior to its consummation, he voluntarily abandoned his efforts.
See Sheckles v. State, 501 N.E.2d 1053, 1056 (Ind. 1986)(footnote and internal citation omitted)(“The accused must have actually engaged in the prohibited conduct, that is, taken a substantial step toward the attempted crime. The conduct constituting abandonment must occur after commencement of the substantial step, but prior to completion of the attempted crime.”)
Raising the defense
• [W]e find no statutory or case law requirement that the defense of abandonment be formally pleaded . . . .
• We deem necessary the assertion of the defense in some manner. Were it otherwise, the trier of fact would not know to consider the defense in its deliberations of a defendant’s guilt . . . .
Overcoming the defense
• If there is support in the evidence for the defense of abandonment, the burden is on the State to disprove the defense beyond a reasonable doubt.