In Season 6, Episode 5 of “The Simpsons“, Sideshow Bob was lamenting to a radio station from his prison phone about serving a term of incarceration due to his unsuccessful murder of Krusty the Clown. “Attempted murder!”, he declared, “Now, honestly, what is that? Do they give a Nobel Prize for attempted chemistry? Do they?” The joke is worth a few laughs but it does raise an important concept. Can someone be convicted of attempting a crime if he or she doesn’t even pull it off? Can you go to prison for attempted murder if nobody is actually hurt or killed? In Michigan, you certainly can be punished for an attempt crime by fine, probation, jail or even prison.
An individual is guilty of attempting to commit a crime if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 9.1):
- First, that the individual intended to commit a crime. Any attempt to commit an offense is a specific intent crime. People v Langworthy, 416 Mich 630, 644-645, 331 NW2d 171 (1982).
- Second, that the defendant took some action toward committing the alleged crime, but failed to complete the crime. It is not enough to prove that the defendant made preparations for committing the crime. Things like planning the crime or arranging how it will be committed are just preparations; they do not qualify as an attempt. In order to qualify as an attempt, the action must go beyond mere preparation, to the point where the crime would have been completed if it had not been interrupted by outside circumstances. To qualify as an attempt, the act must clearly and directly be related to the crime that the defendant is charged with attempting and not some other objective.
A conviction for attempt to commit a crime is punishable as follows:
- If the offense is attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting the crime of assault with intent to murder, the person convicted shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years. MCL 750.91.
- If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year. MCL 750.92(2).
- If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed 1/2 of the greatest punishment which might have been inflicted if the offense so attempted had been committed. MCL 750.92(3).
It should be noted that the attempt to commit an offense is not an element of the completed offense, meaning that the defendant is not entitled to have attempt instructed to the jury on every crime as a lesser included offense. Since attempt is a specific intent crime, the judge is not required to instruct the jury on attempt “unless there is evidence, or on jury view a lack of evidence, indicating that only an attempt was committed.” People v Adams, 416 Mich 53, 59; 330 NW2d634 (1982). In other words, a criminal defendant has no entitlement to have the jury consider an attempt option during deliberations unless it is supported by the evidence.
Impossibility is not a defense to attempt. For example, if an individual tried to allegedly distribute obscene material to a minor, but it turned out to be an adult, then it doesn’t matter that a crime could not be completed even if the distribution to the adult was successful. The notion of “impossibility” is irrelevant because the prosecutor only needs to prove that the individual possessed the requisite specific intent to commit a crime and that he or she engaged in some act “towards the commission” of the intended offense. People v Thousand, 465 Mich 149; 631 NW2d 694 (2001).
Voluntary abandonment may be a defense to attempt provided that the individual freely and completely gave up the idea of committing the crime. It is an affirmative defense that requires the defendant to show by a preponderance of the evidence that he abandoned his attempt to commit a crime. However, the following should be considered:
- “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.” People v Kimball, 109 Mich App 273; 311 NW2d 343 (1981). For example, a defendant did not voluntarily abandon a kidnapping where he grabbed the victim but let her go after a short time because he believed someone was coming. People v Stapf, 155 Mich App 491, 496; 400 NW2d 656 (1986). If the defendant believed he was going to be caught unless he stopped immediately, then the abandonment was not done freely.
- Abandonment is not 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.” People v Kimball, 109 Mich App 273; 311 NW2d 343 (1981). If the defendant stops the current criminal activity because he or she intends to commit the offense at a later time with a different victim, then the abandonment is not complete.
The prosecutor has a very powerful tool at his disposal to charge someone with attempting to commit a crime. Even if the defendant failed to complete the offense, he or she can still be facing conviction if the prosecutor can show the judge or jury that significant steps were taken to pull a crime off or that it would have been completed but for outside interference. This may involve a lot of speculation, but the stakes are the livelihood and freedom of the accused. The assistance of a criminal defense lawyer is absolutely essential to protect your rights.
If you or a loved one are accused of any crime, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.