As I've outlined in most of my posts, there are a great deal of valid Georgia Criminal Defenses that a knowledgable and experienced Georgia Criminal Defense Lawyer can utilize to defend someone who has been accused of a crime in Georgia.
Today, I'd like to focus on the defense of Abandonment of Effort to Commit a Crime in Georgia. This defense is considered an affirmative defense.
What is an affirmative defense?
An affirmative defense is technically a legal excuse for committing a crime. Utilizing an affirmative defense will mean that the accused person actually admits to the crime they are being accused of committing, but that there is an explanation, justification, or excuse for the commission of the crime. The explanation, justification, or excuse will actually limit the accused person's culpability or moral responsibility. If the affirmative defense is used correctly, it could result in reducing the accused person's legal liability meaning that the charges could be dropped altogether or lowered to a lesser charge.
What about Abandonment of Effort to Commit a Crime?
According to Georgia law, a person can use the affirmative defense of Abandonment of Effort to Commit a Crime when he “abandoned his effort to commit the crime or in any other manner presented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose” (O.C.G.A. §16-4-5). The Georgia Code goes on to explain by stating that a belief that one might get caught, something happens that makes the crime more difficult to commit, or mere postponement of the crime do not constitute a voluntary and complete renunciation as stated in the statute.
What is the burden of proof?
In order to use Abandonment of Effort to Commit a Crime, the accused person bears the burden of proof. In Georgia, all affirmative defenses shift the burden of proof to the defendant. That means that the defendant has to prove that he or she abandoned his or her effort to commit the crime, and that it was a voluntary and complete renunciation. Therefore, it is not the state's burden to prove that the defendant did not abandon his or her effort to commit the crime.
Examples in Georgia Case Law
In Cowart v. State, 136 Ga. App. 528 (1975), Cowart was charged with attempt to commit statutory rape. He argued the affirmative defense of Abandonment of Effort to Commit a Crime. The evidence demonstrated, however, that Cowart's renunciation was neither voluntary or complete and that he did not prove that he did not have a belief of increased probability of detection or made a decision to postpone the conduct until another time. The Court found that Cowart actually attempted to commit statutory rape, and he was indicted on that charge.
In Muse v. State, 323 Ga. App. 779 (2013), Muse was charged with attempted child molestation. He also argued the affirmative defense of Abandonment of Effort to Commit a Crime. The evidence demonstrated that he abandoned his effort because he saw task force agents nearby, and therefore, Muse was attempting to flee, and it was not a voluntary abandonment. The Court held that Muse was guilty of attempted child molestation.
As you can see, the defense of Abandonment of Effort to Commit a Crime is difficult to prove. However, if it's applicable to your case, a talented Georgia Criminal Defense Attorney will know how to best utilize this defense. If you or a loved one has been charged with a crime, contact us today.