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finding that the evidence supported the theory of abandonment, and therefore, an instruction on the affirmative defense of abandonment should have been given
Summary of this case from O'Shaughnessy v. PeopleOpinion
No. 77-150
Decided July 20, 1978. Opinion modified and as modified petition for rehearing denied August 10, 1978.
From conviction of attempted second degree burglary and criminal mischief, defendant appealed.
Affirmed in Part, Reversed in Part.
1. CRIMINAL LAW — Defenses — Abandonment — Evidence Supports Theory — Jury Instructions — Should Have Been Given — Issue of Renunciation — For Jury. Where witness' testimony indicated that defendant approached house on bicycle and broke window, but then rode away, and where he was apprehended a short time later some two blocks away but heading in the direction of the same house, the evidence supported defendant's theory of abandonment of the crime of attempted second degree burglary and therefore the jury should have been instructed on that affirmative defense, and the factual issue of whether the crime had been merely temporarily postponed or completely renunciated should have been submitted to the jury.
2. Defenses — Abandonment — Available — Attempt Crimes — Specific Statutory Terms — Renunciate Criminal Intent. Although, in strict analytical sense, the crime of attempt is complete once the actor intentionally takes a substantial step towards the commission of the substantive crime, nevertheless, by specific statutory terms, abandonment is an affirmative defense to an attempt crime and thus is present if the actor perpetrating the attempt thereafter voluntarily renunciates his criminal intent.
Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Richard T. Casson, Deputy State Public Defender, for defendant-appellant.
Defendant, Warren L. Johnson, appeals his jury conviction of attempted second degree burglary and criminal mischief. We affirm the criminal mischief conviction, but reverse the conviction for criminal attempt.
The People's principal witness testified that on the night of June 7, 1976, she saw someone on a light colored bicycle ride up the sidewalk and driveway of the house across the street. During a brief period when the bicycle rider was out of the witness' sight, the witness heard what sounded to her like breaking glass. A few seconds later, she saw the cyclist ride back down the sidewalk and leave. At this point, the witness called the police. The police officer who responded to the call testified that, after obtaining a description of the cyclist from the witness, he located defendant some two blocks north of the scene, heading south. Other officers at the scene discovered a broken window on the southwest corner of the house.
We agree with defendant's contention that the trial court erred in not instructing the jury on the affirmative defense of abandonment, a recognized defense to criminal attempt. Sections 18-2-101(3), and 18-2-401, C.R.S. 1973.
[1] Since the evidence supports defendant's theory of abandonment, an instruction should have been given. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). We disagree with the People's contention that, because defendant was proceeding in the general direction of the house when he was apprehended, the defense of abandonment was unavailable to him under § 18-2-401(1), C.R.S. 1973. Whether defendant was only temporarily postponing the crime, or whether he had abandoned his efforts under circumstances manifesting a complete renunciation, is a matter for the trier of fact to decide after being properly instructed. See § 18-2-101(3), C.R.S. 1973.
Nor do we accept the People's argument that abandonment is no defense since defendant had already committed the crime of attempted burglary before his abandonment. The People misconceive the nature of the affirmative defense of abandonment.
[2] By the specific terms of the statute, § 18-2-101(3), C.R.S. 1973, abandonment is an affirmative defense to an attempt crime. Consequently, even though, in a strict analytical sense, the crime of attempt is complete once the actor intentionally takes a substantial step towards the commission of the crime, nevertheless, the defense of abandonment is present if he thereafter voluntarily renunciates his criminal intent. See § 18-2-101(1), C.R.S. 1973 (amended, effective July 1, 1977, 1977 Colo. Sess. Laws ch. 224, p. 960).
We have considered the balance of defendant's contentions, and find them to be without merit.
Defendant's conviction of attempted second degree burglary is reversed, and the cause is remanded for further proceedings consistent with this opinion. Because there is evidence in the record to support defendant's conviction of criminal mischief (§ 18-2-501, C.R.S. 1973), and because abandonment is no defense to this completed crime, we affirm that conviction. See People v. Mayfield, 184 Colo. 399, 520 P.2d 748 (1974).
JUDGE RULAND concurs.
JUDGE VAN CISE concurs in part and dissents in part.