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Chapter 7: Attempt, Conspiracy, and Solicitation

7.1. People v. Terrell, 459 N.E.2d 1337 (Ill. 1984). Virginia defines an attempt as an act committed "with intent to commit a specific offense." A defendant must possess the undertake an "act which constitutes a substantial step towards the commission of the offense." The defendants were discovered behind the service station, presumably awaiting the arrival of the attendants before robbing the station. It is not a defense to attempted robbery that the robbers misapprehended the facts and that the service attendant was not yet on duty when the defendants first arrived at the station. Terrell was hiding in the weeds close to the service station which was about to open. He had a stocking mask and loaded revolver. The Illinois Supreme Court concluded that "faced with these facts, we find it incredulous that defendant had any intent other than the armed robbery of the service station."

The defendant was arrested while "lying in wait," only twenty-five to thirty feet from the service station. He was in possession of the materials required to carry out an armed robbery and a loaded revolver, a disguise and was arrested together with an accomplice who was in possession of an identical disguise. These facts all suggest a prearranged plan that only was abandoned following the arrival of the police. The actions of the defendant are similar to those listed in the Model Penal Code as constituting an attempt.

The dissent argued that the facts only indicate a general intent. The facts do not strongly corroborate and prove beyond a reasonable doubt the actor's intent to commit an armed robbery. The state has only established preparation to commit a crime involving a business in the area.

The defendants could have intended to commit a crime involving any number of area businesses. There was no attendant at the service station at the time of the arrest and there was no evidence indicating when the service station was scheduled to be opened. The facts are equally as consistent with burglary, which is defined as the breaking and entering into a building for purposes of a felony. The dissent concluded that the majority was punishing attempt based on "mere preparation and undefined intent."

7.2. Williams v. Commonwealth, 2004 Va.App. LEXIS 154. Williams does not contest that he possessed the intent to commit the crime. However, he contends that he did not commit an overt act towards the commission of a bank robbery.

The prosecution is required to establish an overt, ineffectual act which ‘must go beyond mere preparation and be done to produce the intended result." The act must establish an "actual intent" to commit the crime. Williams testified that he heard Cooper, talking about robbing a bank the day before the attempted robbery. Williams parked his car in an isolated area and the two stood outside the bank talking with each other and then pulled bandanas over their faces. Williams had his hand inside his knapsack and two walked towards the entrance to the bank. As they spotted Daughtery staring at them, they pulled down their bandanas, Williams threw his bag across his back and the two men continued walking towards the bank. They stopped at the entrance and at the last minute walked away.

The trial court judge observed that the two defendants would have carried out the robbery had they not been observed by Daughtery. The Virginia Court of Appeals concluded that the "evidence is credible and sufficient for the fact finder to conclude that Williams did an overt act toward realizing the ultimate purpose of the robbery."

7.3. United States v. Duran, 96 F.3d 1495 (D.C.App. 1996). An attempt to kill the President of the United States is punishable by a term of years or by life imprisonment. Duran argues that his conviction should be reversed because he shot at Dennis Basso rather than at President Bill Clinton.

The federal courts follow the Model Penal Code in requiring a purpose to commit a crime together with a "substantial step in a course of conduct planned to culminate in…[the] commission of the crime." Duran expressed his strong desire to kill the President on numerous occasions and purchased a rifle, ammunition and a coat large enough to conceal the rifle. He traveled to Washington D.C. and stood outside the White House with a rifle and ammunition. There was sufficient evidence for a jury to conclude that Duran's possessed a purpose to assassinate President Clinton and that he had taken substantial steps towards this purpose. The federal court concluded that Duran had already completed the crime of attempted assassination of President Clinton before he began firing at Dennis Basso. The identity of Duran's target is "irrelevant, given the overwhelming evidence that…he engaged in numerous ‘substantial steps' towards his objective of assassinating the President."

Basso strongly resembled President Clinton and Duran's attack strongly corroborated his intent to assassinate the President. The court avoided confronting whether the fact that Duran fired at Basso meant that Duran did not have the intent to assassinate the President and failed to take a step in furtherance of this objective.

7.4. State v. Herron, WL 715445 (Ohio Ct.App. 1996). Ohio law provides that an attempt occurs when an individual engages in a "substantial step" towards the commission of a crime with the requisite intent. Herron contended that he completely and voluntarily abandoned his criminal purpose and that this did not arise out of a fear of arrest. Abandonment is an affirmative defense and the burden is on the accused to establish this defense by a preponderance of the evidence. The Ohio Court of Appeals held that Herron presented evidence that he abandoned any attempted sexual intercourse with his stepdaughter after realizing that he had mistaken her for his wife. The court reasoned that the jury could conclude that Herron voluntarily and completely renounced his criminal purpose. The trial court was in error in accepting the prosecutions argument that an individual who completes an attempt cannot abandon his or her purpose and in refusing to issue a jury instruction on voluntary abandonment.

7.5. Everritt v. State, 588 S.E.2d 691 (Ga. 2003). The Georgia Supreme Court held that Everrit entered a conspiracy to commit arson with McDuffie and Cox. The Supreme Court, however, rejected the contention that McDuffie killed Cox to conceal the conspiracy to commit arson and that Everritt therefore should be held criminally responsible. The court explained that Cox's murder could not be reasonably forseen as a necessary, probable consequence of the conspiracy to commit arson. "Simply put, conspiracy to commit arson…does not naturally and necessarily, and probably result in the murder of one co-conspirator by another." As noted by the Model Penal Code, law would lose all sense of "just proportion" if a conspiracy might result in liability for ""thousands of additional offenses of which he was completely unaware and which he did not influence at all.'" Everritt should have been acquitted of the murder of Roosevelt Cox.

7.6. State v. McGrath, 574 N.W.2d (Minn.Ct.App. 1998). A conviction for solicitation requires an intent to solicit an individual to engage in criminal conduct and an act of solicitation to achieve this objective. Appellant McGrath contends that while his language his inappropriate that he did not solicit D.W. to engage in inappropriate sexual conduct. The Court of Appeals ruled that solicitation may be both verbal and non-verbal. McGrath's intent to solicit D.W. may be inferred from his reference to the fact that he was "horny" when younger; his reference to his ability to ejaculate in a short period of time; and the bumping of his hips into D.W. McGrath contended that obtained sexual gratification from the explicit language that he was using and that he had no intent to solicit D.W. to engage in sexual conduct.