O'Shaughnessy v. People, 269 P.3d 1233

Defendant Michael O’Shaughnessy attacked Geri David in a grocery-store parking lot, stabbing her multiple times with a hunting knife and demanding money.
David testified to being stabbed six times, wounded on neck, throat, thigh, and hand, while she fought back during the attempted robbery.
O’Shaughnessy was convicted 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 denied O’Shaughnessy’s request for a jury instruction on the affirmative defense of abandonment.
The court of appeals held there was an unauthorized restriction on abandonment by denying the instruction when the defendant had sustained injuries to the victim.
The Colorado Supreme Court held that to obtain a jury instruction on abandonment, a defendant must present some credible evidence; injury to the victim does not automatically foreclose abandonment, but in this case the evidence was insufficient for an instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether abandonment requires credible evidence for jury consideration	O’Shaughnessy argues abandonment should be available when evidence supports renunciation	State maintains abandonment requires credible evidence to raise the defense	Yes; some credible evidence required for jury instruction
Whether injury defeats abandonment in attempted murder/robbery	Injury could be consistent with abandonment in some circumstances	Injury does not automatically negate abandonment, but facts here show no credible abandonment	Injury alone did not establish abandonment here; no credible evidence supported abandonment for instruction

People v. Johnson, 41 Colo.App. 220, 585 P.2d 306 (Colo. 1978) (evidence can raise abandonment when credible)
Traubert v. People, 625 P.2d 991 (Colo. 1981) (abandonment not available after completion of attempt)
Scialabba v. People, 55 P.3d 207 (Colo. App. 2002) (abandonment in tampering case not available after attempt)
Nicholas v. People, 950 P.2d 634 (Colo. App. 1997) (abandonment defense evaluated on evidence)
Nicholas v. People, 978 P.2d 1218 (Colo. 1999) (reaffirmed evaluation of abandonment evidence)
Hill v. People, 934 P.2d 821 (Colo. 1997) (some credible evidence standard governs abandonment instruction)
Lybarger v. People, 807 P.2d 570 (Colo. 1991) (affirmative defenses require credible evidence to submit to jury)
Saavedra-Rodriguez v. People, 971 P.2d 223 (Colo. 1998) (scintilla/credible-evidence standard for defenses)
Gandiaga v. People, 70 P.3d 523 (Colo. App. 2002) (abandonment defense evaluated in attempted offenses)