In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take or attempt to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue.
Is attempted armed robbery a separate offense? The first issue that arises is whether attempted armed robbery is a separate offense from armed robbery, or whether there is just one offense – armed robbery – that may be committed through an attempted taking or a completed taking. The state supreme court initially suggested that there might be only a single offense. See State v. Black, 286 N.C. 191 (1974) (“There must be an actual taking of property for there to be the crime of common-law robbery, whereas under G.S. 14-87 the offense is complete if there is an attempt to take property by use of . . . [a] dangerous weapon. . . . [T]he verdict of guilty of an attempt to commit robbery with a dangerous weapon has the same effect as a verdict of guilty of robbery with a dangerous weapon.”). Later, however, the court ruled definitively that attempted armed robbery and armed robbery are separate crimes. State v. White, 322 N.C. 506 (1988) (reviewing precedent and declaring that “[a]ttempted armed robbery, although defined in [G.S.] 14-87 along with armed robbery, is clearly a separate offense”). In keeping with the court’s ruling, there are separate pattern jury instructions for the two offenses: N.C.P.I. – Crim. 217.20 for armed robbery and 217.25 for attempted armed robbery. The Administrative Office of the Courts also tracks the two offenses separately. In 2015, more than 5,000 completed armed robberies were charged, as were nearly 1,000 attempted armed robberies.
Notwithstanding White, courts have not always drawn a bright line between the two offenses. See, e.g., State v. Curry, 203 N.C. App. 375 (2010) (“The crime of robbery with a dangerous weapon . . . includes within the definition of the crime an attempt to commit the crime; that is, the State may present evidence that defendant either completed the crime or that he attempted the crime, but either way the evidence would be sufficient that defendant may be found guilty of robbery with a dangerous weapon.”); State v. Van Trusell, 170 N.C. App. 33 (2005) (finding no error where the state was allowed to amend the indictment from attempted armed robbery to armed robbery; the court stated that “[a]s a showing of a taking is not a necessary element of the crime of robbery with a dangerous weapon, an indictment amended from attempted robbery with a dangerous weapon to robbery with a dangerous weapon sufficiently apprises the defendant of the charge against him”); State v. Davis, 165 N.C. App. 905 (2004) (unpublished) (the defendant was convicted of felony murder and appealed, arguing that attempted armed robbery couldn’t serve as the predicate for felony murder because he didn’t complete the taking; the reviewing court affirmed and stated that “[w]hether denominated robbery with a dangerous weapon or attempted robbery with a dangerous weapon is . . . a distinction without a difference in this case”).
Is attempted armed robbery a lesser-included offense? Having determined that attempted armed robbery is distinct from armed robbery, the next issue is whether it is a lesser-included offense of armed robbery. Generally, an attempted offense is a lesser-included offense of the completed crime. See, e.g., State v. Canup, 117 N.C. App. 424 (1994) (“Evidence that this defendant continued to pursue his malevolent purpose and achieved penetration does not decriminalize his prior overt acts. The completed commission of a crime must of necessity include an attempt to commit the crime.”); State v. Primus, 227 N.C. App. 428 (1993) (applying Canup and affirming the defendant’s conviction of attempted larceny where the evidence established a completed larceny); Ljutica v. Holder, 588 F.3d 119 (2d Cir. 2009) (“Because an attempt to commit a substantive crime is a lesser included offense of that substantive crime . . . the facts that support a conviction for the completed crime also support a conviction for attempt.”); 42 C.J.S. Indictments § 317 (June 2017 update) (“It is a general rule that every completed crime necessarily includes an attempt to commit it, so that, under a charge of a completed offense, an accused may be convicted of the lesser offense of attempting to commit the crime charged.”).
Nonetheless, in State v. McCoy, 207 N.C. App. 378 (2010) (unpublished), the court of appeals ruled that “attempted robbery with a dangerous weapon is not a lesser-included offense of robbery with a dangerous weapon.” Accordingly, it reversed the attempted armed robbery conviction of a defendant who completed an armed robbery, finding insufficient evidence of the inchoate offense. The court seems to have based its conclusion on the fact that the two offenses are the same punishment class, i.e., that attempted armed robbery is “punished as severely” as the completed crime and so can’t be a lesser included offense. Id., quoting White, 322 N.C. at 515. For whatever it may be worth, I don’t agree with that line of thinking. Whether one offense is a lesser included of another should be determined by the elements of the offenses, not by their punishment levels. But it appears that there may be some support for this approach in a few other jurisdictions. See Mark M. Dobson, Criminal Law: 1996 Survey of Florida Law, 21 Nova L. Rev. 101, 123 n.111 (1996) (“Where an attempted crime is punished to the same degree as the completed offense, the attempted crime is not considered a lesser included offense of the completed crime. In such a situation, it is error to instruct a jury on both the completed offense and the attempted offense.”).
Right or wrong, McCoy has proven troublesome in practice. In cases whether there is a dispute about whether a taking was completed, should the state charge both offenses? If the state charges only armed robbery, may the trial judge instruct the jury on both the completed offense and the attempt? If the state charges only armed robbery and the parties agree that the defendant will plead guilty to attempted armed robbery, is the original charge sufficient to support the plea?
What did the General Assembly just do? Apparently in response to McCoy, the General Assembly enacted S.L. 2017-31, which adds a new subsection (a1) to G.S. 14-87, effective December 1, 2017. The new language provides: “Attempted robbery with a dangerous weapon shall constitute a lesser included offense of robbery with a dangerous weapon, and evidence sufficient to prove robbery with a dangerous weapon shall be sufficient to support a conviction of attempted robbery with a dangerous weapon.” I think that remedies the state of affairs described above and brings armed robbery back in line with the general practice regarding completed offenses and attempts. However, if readers think there are ambiguities or defects in the new legislation, please post a comment.
Did the state supreme court beat the legislature to the punch? Even if the General Assembly hadn’t acted, the state supreme court cast doubt on McCoy last month in State v. Baker, __ N.C. __, 799 S.E.2d 816 (2017). In Baker, the court considered a defendant who was charged with, and convicted of, attempted rape, even though the victim testified to a completed rape. The court of appeals followed the path it had taken in McCoy: it vacated the conviction based on insufficient evidence, reasoning that “while [the victim’s] . . . testimony . . . could support a conviction for a completed rape, the State failed to present any substantive evidence of attempted rape.” The supreme court reversed, citing Canup, Primus, and the older case of State v. Roy, 233 N.C. 558 (1951), and stating that “the record evidence tending to show that a completed rape had occurred . . . sufficed to support defendant’s conviction for attempted rape.” Of course, attempted rape and rape are not the same offense class, so it is possible to distinguish Baker from McCoy – but in light of Baker, I think that any argument that evidence of a completed offense is insufficient to support a conviction for attempt is on thin ice.