O'Shaughnessy v. People

• Decision Date: 13 February 2012
• Docket Number: No. 10SC350.,10SC350.
• Parties: Michael P. O'SHAUGHNESSY, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

2012 CO 9

269 P.3d 1233

Michael P. O'SHAUGHNESSY, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 10SC350.

Supreme Court of Colorado, En Banc.

Feb. 13, 2012.

Office of the State Public Defender, Douglas K. Wilson, State Public Defender, Andrew C. Heher, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

Office of the Attorney General, John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

I. Introduction

¶ 1 We granted certiorari in this case to review whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment when it held that a defendant was not entitled to a jury instruction on abandonment when charged with attempted first degree murder with a deadly weapon or with attempted aggravated robbery once the defendant injured the victim. People v. O'Shaughnessy, ––– P.3d ––––, –––– – ––––, 2010 WL 1491646 (Colo.App.2010). We hold that to present an affirmative defense of abandonment of an attempt crime for jury consideration the defendant must present “some credible evidence” on the issue. Further, we hold that having injured the victim does not necessarily foreclose the affirmative defense of abandonment. Nonetheless, we agree that here the defendant was not entitled to a jury instruction on the affirmative defense of abandonment because the defendant failed to present sufficient evidence. Accordingly, we affirm.

II. Facts and Proceedings Below

¶ 2 Uncontroverted evidence presented at trial showed that Geri David was attacked in the parking lot of a grocery store on the morning of September 13, 2004, by a man she later identified as Michael O'Shaughnessy. She was approached from behind by O'Shaughnessy, who was brandishing a six-inch hunting knife with a serrated blade. He held the knife to her face and ordered her into her car. She sat in the driver's seat with her feet outside of the car and kicked at her assailant to ward off the attack. As she lashed out at him, he stabbed her with the knife, causing injury to the right and left sides of her neck and throat, to her left thigh, and to her hand.

¶ 3 At that point, O'Shaughnessy said, “You're going to die,” and demanded her money. David told him she did not have any money and turned toward the floor of the passenger seat to look for her purse. When she turned back, O'Shaughnessy was gone. He did not reach for or take the purse.

¶ 4 A jury convicted O'Shaughnessy of attempted first degree murder with a deadly weapon, attempted aggravated robbery, second degree assault, false imprisonment, reckless endangerment, and a violent crime sentence enhancer. The trial court imposed consecutive sentences for the crimes of attempted murder, attempted aggravated robbery, and second degree assault. During the course of the trial, O'Shaughnessy requested a jury instruction on the affirmative defense of abandonment. The trial court denied the request.

¶ 5 We granted certiorari to determine whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment.

III. Analysis

¶ 6 The issue before this Court is whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment when it held that a defendant is not entitled to a jury instruction on abandonment when charged with attempted first degree murder with a deadly weapon, or with attempted aggravated robbery, once the defendant has injured the victim. We hold that a defendant must present “some credible evidence” on the issue involving the claimed defense in order to merit a jury instruction on the affirmative defense of abandonment for criminal attempt. We additionally hold that evidence showing that the defendant injured the victim does not necessarily foreclose the defendant's ability to present the abandonment defense to the jury. Nonetheless, we agree with the court of appeals' conclusion that here the defendant was not entitled to a jury instruction on the affirmative defense of abandonment because the defendant failed to present sufficient evidence.

A. Section 18–2–101—Attempt Crimes

¶ 7 Under section 18–2–101(1), C.R.S. (2011), a person commits criminal attempt if “he engages in conduct constituting a substantial step toward the commission of the offense.” A substantial step is any conduct “which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.” Id.

¶ 8 The statute goes on to provide that a defendant may assert the affirmative defense of abandonment to the crime of attempt when the defendant “abandon[s] his effort to commit the crime or otherwise prevent[s] its commission ... under circumstances manifesting the complete and voluntary renunciation of his criminal intent.” ¹ § 18–2–101(3).

¶ 9 Thus, under the statute, though the crime of attempt is complete once the actor takes a substantial step toward the commission of the crime, the affirmative defense of abandonment applies if the actor completely and voluntarily renunciates his criminal intent thereafter. § 18–2–101(1), (3). See also People v. Johnson, 41 Colo.App. 220, 585 P.2d 306, 308 (1978).

¶ 10 This tension between completion by a substantial step and a subsequent complete voluntary renunciation of criminal intent gives rise to the issue before this Court. Though the abandonment defense “may apply at various stages, early and late, in the commission of attempted crimes,” it is not unlimited. See People v. Gandiaga, 70 P.3d 523, 528 (Colo.App.2002) (finding that the facts of the case did not support an abandonment defense). Once the attempt has been completed by putting into motion forces the actor can no longer stop, it cannot be abandoned. Id. (quoting Model Penal Code and Commentaries § 5.01 cmt. at 360 (1985)). See also People v. Traubert, 625 P.2d 991, 992 (Colo.1981) (deciding that a defendant should not have been granted a motion for judgment of acquittal based on his affirmative defense of abandonment because the People had presented sufficient evidence to raise a question for the jury); People v. Scialabba, 55 P.3d 207, 210 (Colo.App.2002) (abandonment is not available as an affirmative defense to tampering with a witness once the defendant attempted to influence a witness because the charged crime was complete by the attempt); People v. Nicholas, 950 P.2d 634, 637 (Colo.App.1997) rev'd on other grounds by Nicholas v. People, 973 P.2d 1213 (Colo.1999) (finding that the facts of the case did not support an abandonment defense); Johnson, 585 P.2d at 307–08 (finding that the evidence supported the theory of abandonment, and therefore, an instruction on the affirmative defense of abandonment should have been given). Volumes of scholarly work could be devoted to the topic,² but the core of the issue before this Court is: what evidence must the defendant put forth to raise an affirmative defense of abandonment? To address that issue, we look to section 18–1–407, C.R.S. (2011).

B. Section 18–1–407—Affirmative Defenses

¶ 11 “The General Assembly is vested with constitutional authority not only to define criminal conduct and to establish the legal components of criminal liability but, as well, to delineate statutory defenses and bars to criminal prosecution.” Lybarger v. People, 807 P.2d 570, 580 (Colo.1991) (citation omitted). Thus, in construing defenses to crimes, we first look to the criminal code. Section 18–1–407(1) mandates what a defendant must establish to raise an affirmative defense:

“Affirmative defense” means that unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue.

(emphasis added). See also People v. Garcia, 113 P.3d 775, 783 (Colo.2005) (holding that, in order to submit the affirmative defense to the jury, a defendant must offer proof which constitutes “some credible evidence” of the affirmative defense of involuntary intoxication); Lybarger, 807 P.2d at 579. When defense counsel has raised the issue of an affirmative defense, the prosecution must establish the guilt of the defendant beyond a reasonable doubt as to that issue as well as to all other elements of the offense. § 18–1–407(2); Lybarger, 807 P.2d at 579.

¶ 12 The “some credible evidence” standard requires little evidence for submitting an affirmative defense to the jury. For example, in People v. Saavedra–Rodriguez, 971 P.2d 223, 227–28 (Colo.1998), the Court used the terms “a scintilla of evidence” and “[s]ome credible evidence” interchangeably when considering the quantum of evidence necessary to raise an affirmative defense of an independent intervening act relieving the defendant of liability for criminal homicide.

¶ 13 The question of whether the defendant has presented “some credible evidence” of an affirmative defense is a question of law and thus must be resolved by the trial court. Lybarger, 807 P.2d at 579. Therefore, if the trial court determines as a matter of law that no evidence exists in the record to support an affirmative defense, then the instruction need not be presented to the jury because there is no issue of fact for the jury to resolve. People v. Hill, 934 P.2d 821, 826 (Colo.1997). This Court reviews such determinations de novo. See Traubert, 625 P.2d at 993.

C. Application

¶ 14 We now turn to whether the defense presented some credible evidence to support an instruction on the affirmative defense of abandonment in the case at hand. At the close of evidence, O'Shaughnessy requested that the jury be given an instruction on the affirmative defense of abandonment which read:

It is an affirmative defense to the crime of criminal attempt that the defendant abandoned his effort to commit the crime or otherwise prevent its commission, under circumstances manifesting the complete and voluntary renunciation...