This is a common law offense. Some statutes specifying particular offenses include attempt as a form of the offense (see the note on “Punishment,” below). Thus, before charging an attempt, one should check the appropriate offense that has been attempted to determine whether attempt is included as a form of the offense.
A person guilty of attempt to commit a crime,(1) while specifically intending to do something that is a crime,(2) performs an overt act calculated and designed to bring about the crime and(3) the act falls short of the completed offense.
Unless a different classification is specifically provided by statute, an attempt to commit a felony or misdemeanor is punishable under the next lower classification as the offense attempted, except that an attempt to commit a Class A or B1 felony is a Class B2 felony; an attempt to commit a Class B2 felony is a Class C felony; an attempt to commit a Class I felony is a Class 1 misdemeanor; and an attempt to commit a Class 3 misdemeanor is also a Class 3 misdemeanor. G.S. 14-2.5. For example, an attempt to commit a Class G felony is punishable as a Class H felony, and an attempt to commit a Class 1 misdemeanor is punishable as a Class 2 misdemeanor. An example of a statute providing a different classification for attempt is G.S. 14-288.22, punishing an attempt to injure another by the use of a nuclear, biological, or chemical weapon of mass destruction as a Class B1 felony when the completed offense is a Class A felony.
For a few offenses, the relevant statute provides that an attempt is punished as if the offense had actually been committed. When that is the case for an offense covered by this book, this issue will be specifically discussed. For example, G.S. 14-87 provides that attempted armed robbery is a Class D felony, like the completed offense, see “Armed Robbery” in Chapter 14 (Robbery, Extortion, and Blackmail), and G.S. 14-202.1 provides that an attempted indecent liberty is a Class F felony, like the completed offense, see “Indecent Liberties with a Child” in Chapter 10 (Sexual Assaults).
Generally. For the elements of attempt, see, for example, State v. Coble, 351 N.C. 448, 449 (2000), and State v. Mueller, 184 N.C. App. 553, 563 (2007).
Element (1). A defendant may attempt to commit either a felony or a misdemeanor. See, e.g., State v. Batson, 220 N.C. 411 (1941). In both situations, the defendant must have the specific intent to commit the crime that is attempted. Thus, if the charge is attempted rape, the defendant must have the specific intent to commit rape. State v. Farmer, 158 N.C. App. 699 (2003). The intent may be inferred from evidence of previous commissions of the crime attempted, State v. Edwards, 224 N.C. 527 (1944), or from the facts and surrounding circumstances, State v. Edwards, 174 N.C. App. 490 (2005) (sufficient evidence of intent to kill a child in an attempted murder case); State v. Owen, 159 N.C. App. 204 (2003) (in an attempted rape case, intent to commit rape properly inferred from the defendant’s actions); Farmer, 158 N.C. App. 699 (same).
For cases in which the evidence was sufficient to establish the requisite intent, see State v. Simpson, 187 N.C. App. 424 (2007) (intent to commit rape; the defendant, whose pants were unzipped, straddled the victim and tried to pull up her shirt), State v. Mueller, 184 N.C. App. 553 (2007) (intent to engage in vaginal intercourse; the defendant repeatedly asked the victim to have sex with him, told her that he wanted to be “inside [her]” and be “[her] first,” and performed sexual acts on her), and State v. Legins, 184 N.C. App. 156 (2007) (intent to commit robbery).
The precise nature of the intended crime need not be proved; for example, it is not necessary to prove the particular object a person charged with attempted larceny intended to take. State v. Utley, 82 N.C. 556 (1880).
An attempt charge cannot be based on an “attempt to attempt” or on an attempt to commit some other crime that is itself a form of attempt, State v. Hewett, 158 N.C. 627 (1912), such as assault, State v. Hefner, 199 N.C. 778 (1930); see also “Attempted assault,” below.
Element (2). In addition to the requisite intent, the person must commit an overt act toward commission of the offense. State v. Addor, 183 N.C. 687, 689 (1922). For example, in State v. Farrar, 179 N.C. App. 561 (2006), the court held that there was sufficient evidence of an overt act in an attempted armed robbery case. In that case, three men entered a house, one of them with a gun drawn. One of the men grabbed the victim’s pocketbook, asked if it contained any money, and dropped it only when he was told it contained none. Id. The court held that the grabbing of the pocketbook was an overt act. Id. For other cases in which there was sufficient evidence of an overt act, see State v. Lawrence, ___ N.C. App. ___, 706 S.E.2d 822 (2011) (the evidence was sufficient to prove attempted kidnapping and attempted robbery; to prove an overt act for these crimes, the State need not prove that the defendant was in the presence of his intended victim; the defendant and his accomplices stole get-away cars and acquired cell phones, jump suits, masks, zip ties, gasoline, and guns; additionally, the defendant hid in the woods behind the home of his intended victim, waiting for her to appear, fleeing only upon the arrival of officers and armed neighbors), review allowed, 710 S.E.2d 6 (N.C. 2011); State v. Legins, 184 N.C. App. 156 (2007) (attempted robbery), and State v. Henderson, 182 N.C. App. 406 (2007) (attempted first-degree sexual offense; the defendant removed his pants, walked into a room where the child victim was seated, stood in front of her, and asked her to put his penis in her mouth).
Element (3). To be sufficient to establish an attempt, the act must amount to the “commencement of the consummation” of the attempted crime; the act must be more than mere preparation. State v. Collins, 334 N.C. 54 (1993); State v. Addor, 183 N.C. 687 (1922); Legins, 184 N.C. App. at 159 (act need not be the last proximate act to the consummation of the offense but must go beyond mere preparation) (quotation omitted).
Attempted homicide. A person commits the crime of attempted first-degree murder if the person (1) specifically intends to kill another person unlawfully; (2) commits an overt act calculated to carry out that intent, beyond mere preparation; (3) acts with malice, premeditation, and deliberation; and (4) falls short of committing the murder. State v. Cozart, 131 N.C. App. 199 (1998). Neither assault with a deadly weapon inflicting serious injury, State v. Rainey, 154 N.C. App. 282 (2002), nor assault with a deadly weapon with intent to kill inflicting serious injury, State v. Peoples, 141 N.C. App. 115 (2000), is a lesser-included offense of attempted first-degree murder. A defendant may be convicted and punished for both attempted first-degree murder and an assault based on the same conduct. State v. Haynesworth, 146 N.C. App. 523 (2001) (attempted first-degree murder and assault with a firearm on a law enforcement officer); State v. Wright, ___ N.C. App. ___, 711 S.E.2d 797 (2011) (the defendant properly was convicted of attempted murder and assault as to each victim).
Although the crime of attempted second-degree murder does not exist, State v. Coble, 351 N.C. 448 (2000), attempted voluntary manslaughter is a recognized crime, Rainey, 154 N.C. App. at 289; State v. Bullock, 154 N.C. App. 234 (2002).
Attempted assault. Attempted assault is not a crime; because an assault includes an overt act or attempt, or the unequivocal appearance of an attempt, an attempted assault would be an attempt to attempt. State v. Barkdale, 181 N.C. App. 302 (2007); see also the note on Element (1), above.
Attempted statutory sexual offense. Attempted statutory sexual offense is a crime. State v. Sines, 158 N.C. App. 79 (2003).
Charging issues. An indictment charging a completed offense is sufficient to support a conviction for an attempt to commit the offense. See G.S. 15-170; State v. Slade, 81 N.C. App. 303, 306 (1986); State v. Gray, 58 N.C. App. 102, 106 (1982). This is true even if the completed crime and the attempt are not in the same statute. See Slade, 81 N.C. App. at 306 (discussing State v. Arnold, 285 N.C. 751, 755 (1974), and describing it as a case in which the defendant was indicted for the common law felony of arson but was convicted of the statutory felony of attempted arson). G.S. 15-144, authorizing the use of a short-form indictment for homicide, permits the use of the short-form indictment to charge attempted first-degree murder. State v. Jones, 359 N.C. 832, 834–38 (2005) (it is sufficient for the State to insert the words “attempt to” into the short-form language); State v. Reid, 175 N.C. App. 613, 617–18 (2006) (following Jones). The statutory short-form indictments for rape, G.S. 15-144.1, and sex offense, G.S. 15-144.2, expressly state that they cover certain attempts.
Impossibility. As a general rule, the fact that the defendant’s acts would not have constituted a crime even if they had been fully carried out does not prevent a conviction for attempt, provided that the defendant specifically intended to commit the crime and did all the acts necessary to commit an attempt. State v. Hageman, 307 N.C. 1 (1982); State v. Addor, 183 N.C. 687 (1922). For example, a defendant may be convicted of attempting to possess cocaine when the defendant intends to possess cocaine, drives to an area known for drug sales, approaches people believed to be cocaine dealers, and provides money for what the defendant thinks is cocaine but in fact are pieces of Brazil nut. State v. Gunnings, 122 N.C. App. 294 (1996). Also, the evidence can be sufficient to sustain a conviction on child sex charges even when the victim was actually an adult law enforcement officer, not a child. See State v. Ellis, 188 N.C. App. 820 (2008) (attempted indecent liberties where the defendant had the specific intent to take indecent liberties with a child he believed to be 12 years old but who was in fact a law enforcement officer; attempted solicitation of a child by computer to commit an unlawful sexual act where the person solicited was an undercover officer (note that G.S. 14-202.3 was later amended, making it possible to commit the substantive crime if the defendant solicited someone whom the defendant believed to be a child under 16)).
Related Offenses Not in This Chapter
“Discharging a Barreled Weapon or Firearm into Occupied Property” (attempt) (Chapter 7)“Simple Assault” and other assault crimes (Chapter 7) “Indecent Liberties with a Child” (attempt) (Chapter 10)“Armed Robbery” (attempt) (Chapter 14)“Safecracking” (attempt) (Chapter 15)“Obtaining Property by False Pretenses” (attempt) (Chapter 16)“Subornation of Perjury” (Chapter 21)Drugs (various offenses) (some of which cover attempts) (Chapter 27)See discussion of attempt under specific offenses throughout this book.Being found in a building with intent to commit any felony or larceny. G.S. 14-55.
For another case on the elements of attempt, see State v. Floyd, 369 N.C. 329 (2016).
Evidence that the defendant committed a completed crime is sufficient to support a conviction of an attempt to commit that crime. State v. Baker, ___ N.C. ___, 799 S.E.2d 816, 824 (2017) (evidence that a completed rape occurred was sufficient to support a conviction for attempted rape); State v. Primus, 227 N.C. App. 428, 431–32 (2013) (evidence that a completed larceny occurred was sufficient to support a conviction for attempted larceny).
In attempted rape cases, the State need not show that the defendant made an actual physical attempt to have intercourse. State v. Baker, ___ N.C. App. ___, 781 S.E.2d 851, 855 (2016), rev'd on other grounds, ___ N.C. ___, 799 S.E.2d 816, 824 (2017). Intent is established “if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part.” Id. (quotation omitted).
For cases where the evidence was sufficient to show an intent to engage in a sexual assault, see State v. Marshall, ___ N.C. App. ___, 784 S.E.2d 503, 505, 508–09 (2016) (the evidence was sufficient to establish attempted sex offense and attempted rape; after isolating the victim from her husband, one of the perpetrators said, “Maybe we should,” to which the other responded, “Yeah”; an accomplice then forced the victim to perform fellatio on him; after the defendant touched the victim, saying, “Nice,” the victim’s husband tried to protect her and was shot; a reasonable jury could infer that the defendant intended to engage in a continuous sexual assault involving both fellatio (like his accomplice) and rape and was thwarted only because of the husband’s intervention); State v. Minyard, 231 N.C. App. 605, 616–17 (2014) (“The act of placing one’s penis on a child’s buttocks provides substantive evidence of intent to commit a first degree sexual offense, specifically anal intercourse.”); State v. Miles, 237 N.C. App. 170, 173–74 (2014) (the defendant’s conduct before and after his request that the victim perform fellatio on him sufficiently established that he intended to commit a sexual offense by force and against her will).
For a case where the evidence was insufficient to show an intent to engage in a sexual assault, see State v. Baker, ___ N.C. App. ___, 781 S.E.2d 851, 855–56 (2016) (the defendant sat next to the victim, touched her shoulder and chest, and tried to get her to lie down), rev’d on other grounds, ___ N.C. ___, 799 S.E.2d 816, 824 (2017).
The crime of attempted first-degree felony murder does not exist under North Carolina law. State v. Marion, 233 N.C. App. 195, 202 (2014).
For another case holding that assault with a deadly weapon with intent to kill inflicting serious injury is not a lesser-included offense of attempted first-degree murder and that a defendant may be convicted of and punished for both offenses, see State v. Rogers, 219 N.C. App. 296, 307–08 (2012).
In State v. Floyd, 369 N.C. 329 (2016), the supreme court held that attempted assault is a crime in North Carolina; it reversed the court of appeals, which had held that attempted assault with a deadly weapon inflicting serious injury is not a recognized crime because it constituted an attempt of an attempt. Id. The Floyd court concluded that “[a]ttempted assault is not an attempt of an attempt because assault may be defined by the show-of-violence rule,” a form of assault that “does not involve an attempt to cause injury to another person, but is based upon a violent act or threat that causes fear in another person.”