Even if you didn’t complete a crime, you can still be charged with one. In order for an act to qualify as criminal attempt, you have to intend to commit the charged crime. However, intent alone is not enough to convict a person of a crime. You can’t be found guilty of an attempted crime for merely intending to do it. Some of us may be relieved to know that it’s not possible to criminalize thoughts of committing a crime.
The line begins to blur when we start talking about when something begins to qualify as criminal attempt. The attempt statute requires that an act be performed along with an intent to commit the crime. Once a person intends to commit a crime, and performs an act that furthers that intent, a crime of attempt has been committed.
In order for a prosecutor to prove that an individual is guilty of attempting to commit a crime, there must be a specific crime that the individual intended to commit. One cannot be guilty of attempting general criminal activity, the prosecutor must prove that the individual intended to commit the listed crime.
The prosecutor must also prove that the individual took some action toward committing the alleged crime, even though he or she failed to complete the crime. Making preparations to commit the crime, like planning or arranging how it will be committed, are not enough to prove attempt. The action must go beyond preparation, to the point where the crime would have been completed if it had not been interrupted by outside circumstances. The action must also be directly related to the crime, and not some other objective.
A person can be found guilty of attempting to commit a crime even if it would have been impossible to complete the crime. If circumstances turned out to be different than expected or if he or she was stopped before completing the crime, it can still qualify as attempt. For instance, if the individual is on trial for attempt to commit larceny on a person, it is not a defense that there was nothing in the pocket that the individual was attempting to pick.
One of the defenses to attempt is abandonment. The individual must prove that he or she voluntarily abandoned the idea of committing the crime. If abandonment is proven, the individual is not guilty of the crime of attempt, even if the prosecutor has proven it occurred beyond a reasonable doubt.
The decision to abandon the commission of the crime must be of the individual’s free will. So, if the individual gave up the idea because of unexpected problems or an event that made it more likely to be caught, it will not have been of free will. The abandonment must also be complete. If the individual just decided to complete it another time or in a different manner, it would not qualify as complete abandonment. The abandonment can occur any time before completion, unless it is impossible to avoid completing it. If the individual started something that can’t be stopped, he or she cannot claim abandonment.
In some cases, where the prosecutor is proceeding on the underlying offense, if there is evidence of less than a completed offense, the judge or jury may consider an attempt to commit that offense as an option. Also, during the plea-bargaining process, a judge has the discretion to accept a plea of guilty to an attempt to commit the named crime, even if the offense was completed. The purpose is to facilitate plea bargaining where a lesser maximum sentence is advisable.
An attempt to commit a crime is considered a separate, substantive offense that is punishable under its own statute. The punishment depends on the underlying crime that the individual is attempting to commit. The punishment cannot be more than half of the maximum penalty for the underlying crime. For instance, if an individual is charged with a misdemeanor that is punishable by 93 days, then the maximum penalty for an attempt is 46 days.
If you find yourself charged with attempting to commit a crime, you will need an experienced attorney. Give us a call to discuss your case and explore how we
