Ark. Code Ann. » Title 5 Chapter 02
Arkansas Code Annotated

Ark. Code Ann. § 5-2-404 (2020)

Defenses

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  1. Unless otherwise provided by the statute defining the offense, a person is not an accomplice in an offense if:
    1. The person is a victim of the offense; or
    2. The offense is defined so that the person's conduct is inevitably incident to the commission of the offense.
  2. It is an affirmative defense to a prosecution for an offense respecting which the liability of the defendant is based on the conduct of another person that the defendant terminates his or her complicity prior to the commission of the offense and:
    1. Wholly deprives his or her complicity of effectiveness in the commission of the offense;
    2. Gives timely warning to an appropriate law enforcement authority; or
    3. Otherwise makes a proper effort to prevent commission of the offense.

History. Acts 1975, No. 280, § 305; 1977, No. 474, § 1; A.S.A. 1947, § 41-305.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Case Notes

Conduct Incident to Offense.

The person who purchased a controlled substance from defendant was not an accomplice, whether or not the buyer solicited the sale. Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976).

Conspiracy.

Where an individual agreed to join conspiracy and provided funds for the accomplishment of its purpose, he did not withdraw as an accomplice when he retrieved his money; the conspiracy was in effect at the time he joined it, and his act of putting money into the scheme sealed his status as an accomplice and co-conspirator. Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985).

Victim of Offense.

If the “victim” of incest is in fact a victim, she, or he, is not an accessory. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

The incest statute existed to protect the minor stepdaughter, even assuming that she was a willing participant; therefore the stepdaughter was a victim, not an accomplice, and corroboration of her testimony was not required. Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991), overruled, Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995), overruled in part, Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995).

Cited: Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977); Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984); Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986); Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).

Notes of Decisions
Cited in 3 cases, 1991–1996 · leading case: Miller v. State, 887 S.W.2d 280 (Ark. 1994).
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Miller v. State, 887 S.W.2d 280 (Ark. 1994). · cites it 4× “Ark. Code Ann. § 5-2-404 (Repl. 1993). But, in addition, to hold that a twelve-year-old victim of rape is an accomplice would eviscerate the legislative purpose behind making it a crime to engage in sexual intercourse with a person less than fourteen years of age.”
Mobbs v. State, 821 S.W.2d 769 (Ark. 1991). · cites it 4× “Ark. Code Ann. § 5-2-404 (a)(1) (1987); see also Johnson v.”
Wilkins v. State, 918 S.W.2d 702 (Ark. 1996). · cites it 2× “He further raised the affirmative defense found in Ark. Code Ann. § 5-2-404 (b), arguing that he terminated his complicity of effectiveness in the commission of the offense.”
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