Questions frequently arise about the requirements to charge the various types of general crimes like attempt, conspiracy, and accessory. A related question is whether the theory of liability, such as acting in concert or aiding and abetting, must be specifically pled. For defenders new to felony work, it can come as an unwelcome surprise to discover the jury is being instructed on an unexpected theory not identified in the pleading. This post lays out the basics for pleading general crimes and theories of liability of participants in the crime and links to the jury instructions for each.
attempt
Can Solicitation Become Attempt?
That in effect was the question presented in the recent N.C. Supreme Court decision in State v. Melton (Dec. 7, 2018), where the court vacated an attempted murder conviction in a murder-for-hire case. Before getting into the case, let’s review the elements of solicitation and attempt.
Convictions for Attempted Armed Robbery Based on Evidence of the Completed Crime
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.
Attempted Assault Is a Crime
Reversing the Court of Appeals, the NC Supreme Court recently held, in State v. Floyd, that attempted assault is a crime in North Carolina.
Attempting to Drive While Impaired
Is it a crime to attempt to drive while impaired? Consider these facts. Suppose a law enforcement officer sees a person stumble to a car outside of a bar, unlock the car, and sit down in the driver’s seat. While the person fumbles with his keys in an attempt to put the correct one in … Read more
Attempted Assault
I’ve had a couple of questions lately about whether attempted assault is a crime. Nationally, there appears to be a split of authority on this issue. 6 Am. Jur. 2d Assault and Battery § 11 (noting that “[t]he authorities are in conflict whether an attempt to commit an assault is a criminal offense”); Marjorie A. … Read more