Attempt

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Last updated 3/3/2015
 
R.C. 2923.02 -- Attempt.
 
State v. Nolan, ___ Ohio St.3d ____, 2014-Ohio-4800, ____N.E.3d ____--Attempted felony murder is not a cognizable crime in Ohio.
 
 
State v. Taylor, 113 Ohio St. 3d 297, 2007-Ohio-1950 -- Syllabus: "An attempted possession of illegal drugs is a drug abuse offense, and an individual convicted of an attempted drug abuse offense is subject to the mandatory sentencing provisions of R.C. 2925.11." Majority reaches this conclusion by finding the attempt statute to be a general provision and the drug abuse statute a specific provision, and thus controlling. Dissent views attempt as a separate offense. Thus the defendant is not subject to mandatory time and may be granted judicial release. Matters are complicated by the fact the defendant began by challenging the voluntariness of his plea and the prosecutor is advancing the interpretation advocated by the dissent.
 
State v. Hutchinson (1999), 135 Ohio App. 3d 459 -- Attempted aggravated murder conviction premised on attempted anal intercourse by a defendant who knows he is HIV positive affirmed.
 
State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, ¶90-107 -- Acknowledging the majority view that merely soliciting another to commit a crime does not constitute an attempt, court finds the defendant did more, including offering a large sum of money and a reciprocal favor, and provided instructions on how to make a firebomb.
 
State v. Adrian, 168 Ohio App. 3d 300, ¶35 -- "The purported offense of attempted complicity to commit kidnapping is not equivalent to complicity to commit kidnapping. While the complicity and attempt statutes contemplate complicity to commit an attempted offense where the offense is not actually committed, they do not contemplate the offense of attempted complicity."
 
State v. Andrews, 171 Ohio App. 3d 332, 2007-Ohio-2013 -- After discussing authority for the proposition that an attempt to commit an attempt is not a crime, the court concludes importuning is not an attempt offense. The word attempt does not appear in the statute. Importuning does not involve an attempt to engage in the sexual activity. The offense is premised on the asking. Here the offense was an attempt because the defendant mistakenly believed the person he chatted with was underage, though in fact it was an adult civilian working though "Perverted Justice." The court also rejects a First Amendment attack on attempted importuning as a cognizable offense.
 
State v. Woods (1976), 48 Ohio St. 2d 127, 357 N.E. 2d 1059 -- Paragraph one of the syllabus: "A 'criminal attempt' is when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of criminal purpose. (R.C. 2923.02[A] construed.)" Also see State v. Austin (December 13, 1979), Franklin Co. App. No. 79AP-581, unreported (1979 Opinions 3900, 3903-3904).
 
State v. Green (1997), 122 Ohio App. 3d 566, 570 -- "Neither the intent to commit a crime nor mere preparation constitutes an attempt...Instead, the focus is upon a defendant's conduct or overt acts after the intention has been formulated and preparation has been made...The conduct necessary for a criminal attempt 'need not be the last proximate act prior to the consummation of the felony.'" Attempted aggravated murder shown where defendant decided an apparent stranger must die, hid in the back of her van in a K-Mart parking lot with his knife open, and planned to stab her and drink her blood.
 
State v. Reed -- (1981), 65 Ohio St. 2d 117, 122 -- Peering through a window, without further proof of an intent to commit a theft offense, is not sufficient to establish an attempted to commit a theft offense.
 
State v. Porter (May 29, 1980), Franklin Co. App. No. 80AP-50, unreported (1980 Opinions 1560, 1563) -- The mere act of unzipping leaves it a matter of speculation whether defendant intended sexual conduct (rape) or sexual contact (GSI).
 
State v. Curry (1975), 43 Ohio St. 2d 66, 71 -- "Action is not criminally punishable as an attempt to commit a particular crime unless the accused had the intent to commit that crime."
 
State v. Arnold (1983), 9 Ohio Misc. 2d 14 -- Abandonment is not a defense to a charge of attempt if renunciation of criminal purpose was not voluntary. Also see State v. Swanson (March 14, 1978), Franklin Co. App. No. 77AP-687, unreported (1978 Opinions 621).
 
State v. Williams (May 15, 1997), Franklin Co. App. No. 96APA08-1077, unreported (1997 Opinions 1757) -- There is no such offense as attempted involuntary manslaughter, since the definition of the offense of involuntary manslaughter encompasses attempt, thus making the general attempt statute inapplicable.
 
State v. Anderson (1979), 62 Ohio Misc. 1 -- Headnote: "An offense of soliciting under R.C. 2907.24 necessarily constitutes an attempt to commit an offense of prostitution under R.C. 2907.25, and therefore there can be no such offense as attempted soliciting under the general attempt statute, R.C. 2923.02."
 
State v. Gates (1981), 2 Ohio App. 3d 485 -- Attempted theft by threat is a lesser-included offense of robbery.
 
State v. Fann (1976), 2 Ohio Ops. 3d 87 -- Jury should be instructed of attempted theft in addition to theft, though defendant has claimed failure to exert control over property.
 
State v. Phillips (1991), 77 Ohio App. 3d 663 -- Since felonious assault encompasses an attempt to cause physical harm to another by means of a deadly weapon, no instruction on attempted felonious assault is required.
 
State v. Moaning (1996), 76 Ohio St. 3d 126 -- Syllabus: "An individual who is convicted of attempted drug abuse is prohibited from acquiring, having, carrying or using a firearm or dangerous ordinance pursuant to R.C. 2923.23(A)(3)."
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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