10.5Abandonment and Renunciation

Abandonment and renunciation are both affirmative defenses that are similar in concept but that differ in the specific crimes to which they apply. “‘An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it[.]’” People v Sorscher, 151 Mich App 122, 132 (1986), quoting 21 Am Jur 2d, Criminal Law, § 183, p 338.

A.Abandonment (Attempt Crimes)

Voluntary abandonment is an affirmative defense OKto criminal attempt under MCL 750.92.¹ People v Kimball, 109 Mich App 273, 286 (1981), mod on other grounds 412 Mich 890 (1981).^2,3 “‘Abandonment by the defendant is ‘voluntary’ when it is the result of repentance or a genuine change of heart.’” People v Cross, 187 Mich App 204, 206 (1991), quoting Dressler, Understanding Criminal Law, § 27.08, p 356. Voluntary abandonment is not a defense to conspiracy. People v Heffron, 175 Mich App 543, 547-548 (1988). In Heffron, the Court explained,

“it is not illogical to allow the defense of abandonment to the substantive offense but not the conspiracy. The substantive offense was not complete until the act of burning the house was carried out, while the conspiracy was complete upon formation of the unlawful agreement to burn the house regardless of whether the act was actually carried out.” Id. at 548.

Involuntary abandonment is not a defense to criminal attempt. Kimball, 109 Mich App at 287. Abandonment is not voluntary when:

“the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention or apprehension. Nor is the abandonment ‘voluntary’ when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective.” Id. at 286-287.

“[I]t is no defense that a defendant fails to carry through to completion the crime attempted because of the intervention of outside forces, because circumstances turn out to be different than expected, or because the defendant meets more resistance [than] expected.” Kimball, 109 Mich App at 280. “[A] victim’s entreaties or pleadings may constitute ‘unanticipated difficulties’ or ‘unexpected resistance[.]’” People v McNeal, 152 Mich App 404, 417 (1986), disagreed with on other grounds by People v Jaffray, 445 Mich 287 (1994).^4,5 In McNeal, the victim’s repeated appeals to let her go because she had tests to take at school and her promise not to tell anyone about the defendant’s criminal conduct amounted to “unanticipated difficulties” or “unexpected resistance” that negated the defendant’s claim of voluntary abandonment. McNeal, 152 Mich App at 409.

See Cross, 187 Mich App at 205, where the defendant was apprehended as he began climbing the prison’s inner fence in an apparent attempt to escape. According to the Cross Court, “abandonment is not voluntary where it is made in the face of apprehension or due to a realization that the attempted crime cannot successfully proceed. Indeed, to conclude otherwise would be to hold that a criminal who is caught in the act of committing a crime can avoid criminal punishment merely by ceasing the criminal attempt and surrendering to the authorities.” Id. at 210.

See also People v Stapf, 155 Mich App 491, 496 (1986), where the defendant hid under a dock near a lake after he dragged a minor female into the woods but let her go after he saw a flash and thought someone was coming. According to the Court, “defendant’s abandonment was not voluntary. . . . Defendant’s actions in going to the lake and hiding under a dock reinforced the idea that he abandoned his attempt because he thought someone was coming and he feared getting caught. . . . [C]ircumstances which increase the probability of apprehension negate the voluntariness of abandonment.” Id.

3.Burden of Proof

“Abandonment is an affirmative defense, and the burden is on the defendant to establish by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose.” People v Cross, 187 Mich App 204, 206 (1991); see also People v Kimball, 109 Mich App 273, 286 (1981), mod on other grounds 412 Mich 890 (1981).⁶ “[T]he trial court must evaluate whether the defendant has produced ‘some evidence from which the jury can conclude that the essential elements’ of affirmative defenses are present and determine if the jury must be instructed on the defenses.” People v Smith, 501 Mich 902, 902 (2017), quoting People v Lemons, 454 Mich 234, 246 (1997). Shifting the burden of proof to the defendant is not unconstitutional, because voluntary abandonment is an affirmative defense and does not negate an element of the offense. Kimball, 109 Mich App at 286 n 7.

4.Voluntary Abandonment Is a Jury Question

Whether voluntary abandonment has been established is usually a jury question, and any challenge to that determination goes to the weight of the evidence not the sufficiency of the evidence. People v McNeal, 152 Mich App 404, 415 (1986), disagreed with on other grounds by People v Jaffray, 445 Mich 287 (1994).⁷ “A trial court may direct a verdict if an affirmative defense is established by proofs presented by the prosecution.” McNeal, 152 Mich App at 416.

B.Renunciation (Solicitation Crimes)⁸

1.Statutory Authority

Renunciation is an affirmative defense to the crime of solicitation to commit a felony. MCL 750.157b(3)-(4). MCL 750.157b(4) states:

“It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to appropriate law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that conduct does not occur. The defendant shall establish by a preponderance of the evidence the affirmative defense under this subsection.”

2.Pertinent Caselaw

The affirmative defense of renunciation requires a defendant to

“(1) notify the solicitee of the solicitor’s intent to renounce the crime and either (2)(a) warn and cooperate with law enforcement officials or (2)(b) engage in other substantial efforts to prevent the event solicited from occurring.” People v Crawford, 232 Mich App 608, 618 (1998).

The crime of “[s]olicitation is complete when the solicitation is made. A contingency in the plan may affect whether the [intended crime will be committed], but does not change the solicitor’s intent that the [crime be committed].” Crawford, 232 Mich App at 616 (citation omitted). In Crawford, the Court of Appeals held that a defendant’s failure to pay the money for soliciting the murder of a witness scheduled to testify at the defendant’s embezzlement trial did not, without more, constitute notice of renunciation. Id. at 618. “[MCL 750.157b(4)] requires renunciation ‘under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose[.]’” Crawford, 232 Mich App at 618. The Court of Appeals determined that the

“defendant’s mere nonpayment may be attributed to other reasons: that defendant, though still intending that the witness die, was simply unable to obtain funds for the down payment; or . . . that defendant’s nonpayment . . . represented an attempt to obtain something for nothing.” Id.

The Court further explained “that defendant’s failure to make a down payment on the murder did not satisfy the required notice element of the renunciation defense.” Crawford, 232 Mich App at 618. Even if the defendant’s nonpayment constituted notice, the Court noted that “defendant completely failed to demonstrate any attempt to either warn and cooperate with law enforcement or engage in other substantial efforts to stop [the person solicited] from killing the witness.” Id. at 619.