Scheb and Scheb, Scheb and Scheb, Criminal Law and ProcedureCriminal Law and Procedure

77thth edition edition

Chapter 5:

Inchoate Offenses

Inchoate Offenses Inchoate Offenses

The word “inchoate” means The word “inchoate” means underdeveloped or unripened. underdeveloped or unripened.

Thus, an inchoate offense is one Thus, an inchoate offense is one involving activity or steps directed involving activity or steps directed toward the completion of a crime. toward the completion of a crime.

Although preparatory to commission Although preparatory to commission of other offenses, they are separate of other offenses, they are separate and distinct crimes. and distinct crimes.

Inchoate Offenses

There are inchoate offensesThere are inchoate offensesAttemptAttemptSolicitationSolicitationConspiracyConspiracy

AttemptAttempt

A criminal attempt consists of an A criminal attempt consists of an intent to commit a specific offense intent to commit a specific offense coupled with an act that goes beyond coupled with an act that goes beyond mere preparation toward the mere preparation toward the commission of that offense.commission of that offense.

Attempt is the most frequently Attempt is the most frequently charged of the inchoate crimes.charged of the inchoate crimes.

AttemptAttempt As the Tennessee Supreme Court has As the Tennessee Supreme Court has

explained, “An attempt, by nature, is explained, “An attempt, by nature, is a failure to accomplish what one a failure to accomplish what one intended to do.” intended to do.” State v. Kimbrough, State v. Kimbrough, 924 S.W.2d 888 924 S.W.2d 888

(Tenn. 1996) (Tenn. 1996) State penal codes often specifically State penal codes often specifically

provide for attempts to commit the provide for attempts to commit the most serious crimes, such as murder. most serious crimes, such as murder.

The remaining offenses are then The remaining offenses are then covered by a general attempt statute. covered by a general attempt statute.

AttemptAttempt A typical statute that covers all attempts A typical statute that covers all attempts

provides that “[w]hoever attempts to commit an provides that “[w]hoever attempts to commit an offense prohibited by law and in such attempt offense prohibited by law and in such attempt does any act toward the commission of such an does any act toward the commission of such an offense, but fails in the perpetration or is offense, but fails in the perpetration or is intercepted or prevented in the execution of the intercepted or prevented in the execution of the same, commits the offense of criminal attempt.” same, commits the offense of criminal attempt.” West’s Fla. Stat. Ann. § 777.04(1). West’s Fla. Stat. Ann. § 777.04(1).

The “act” requirement contemplates an overt The “act” requirement contemplates an overt act that constitutes a substantial step toward act that constitutes a substantial step toward the commission of an offense. the commission of an offense.

Although the quoted statute makes no Although the quoted statute makes no distinction between felony or misdemeanor distinction between felony or misdemeanor offenses, statutes in some states limit the crime offenses, statutes in some states limit the crime of attempt to attempts to commit felonies or of attempt to attempts to commit felonies or certain specified crimes.certain specified crimes.

SolicitationSolicitation

By the 1800s, the English common law By the 1800s, the English common law specified that a person who counseled, specified that a person who counseled, incited, or solicited another to commit incited, or solicited another to commit either a felony or a misdemeanor either a felony or a misdemeanor involving breach of the peace involving breach of the peace committed the offense of solicitation. committed the offense of solicitation.

A person who solicited another to A person who solicited another to commit a crime was guilty of commit a crime was guilty of solicitation even if the crime counseled, solicitation even if the crime counseled, incited, or solicited was not committed. incited, or solicited was not committed.

SolicitationSolicitation The offense of solicitation is now The offense of solicitation is now

defined by statute in most American defined by statute in most American jurisdictions. jurisdictions. Numerous federal statutes define Numerous federal statutes define

solicitation as a crime in various contexts. solicitation as a crime in various contexts. A person commits solicitation when, A person commits solicitation when,

with intent that an offense be with intent that an offense be committed he commands, encourages, committed he commands, encourages, or requests another to commit the or requests another to commit the offense.offense. It is not necessary that the solicited crime It is not necessary that the solicited crime

be committed.be committed.

T.C.A. § 39-12-102. SolicitationT.C.A. § 39-12-102. Solicitation

Whoever, by means of oral, written or Whoever, by means of oral, written or electronic communication, directly or electronic communication, directly or through another, intentionally through another, intentionally commands, requests or hires another to commands, requests or hires another to commit a criminal offense, or attempts commit a criminal offense, or attempts to command, request or hire another to to command, request or hire another to commit a criminal offense, with the commit a criminal offense, with the intent that the criminal offense be intent that the criminal offense be committed, is guilty of the offense of committed, is guilty of the offense of solicitation. solicitation.

Plucked from the news….Plucked from the news…. ““On May 25, the Loudoun Sheriff¹s Office was On May 25, the Loudoun Sheriff¹s Office was

contacted by the parent of a 13-year-old female. The contacted by the parent of a 13-year-old female. The teenager was running a lemonade stand in Leesburg teenager was running a lemonade stand in Leesburg when Hugo Antonio Callejas, 42, approached her. when Hugo Antonio Callejas, 42, approached her.

The subject allegedly stopped several times during The subject allegedly stopped several times during the day and bought lemonade from the juvenile. the day and bought lemonade from the juvenile. During one of the encounters, the subject gave the During one of the encounters, the subject gave the juvenile his first name and phone number, and asked juvenile his first name and phone number, and asked her to give him a call. her to give him a call.

An investigation resulted in the arrest of Callejas, who An investigation resulted in the arrest of Callejas, who was charged with one count of solicitation of a minor was charged with one count of solicitation of a minor less than 15-years-of-age for sex or sodomy.”less than 15-years-of-age for sex or sodomy.”

Loudoun (VA) IndependentLoudoun (VA) Independent, Thursday, 11 June 2009 , Thursday, 11 June 2009

QuestionQuestion

Is solicitation a Is solicitation a misdemeanor or a felony?misdemeanor or a felony?

NC General Statutes § 14-2.6. NC General Statutes § 14-2.6. Punishment for solicitation to commit a felony or misdemeanorPunishment for solicitation to commit a felony or misdemeanor

(a) Unless a different classification is expressly stated, (a) Unless a different classification is expressly stated, a person who solicits another person to commit a a person who solicits another person to commit a felony is guilty of a felony that is two classes lower felony is guilty of a felony that is two classes lower than thethan the

felony the person solicited the other person to felony the person solicited the other person to commit, except that a solicitation to commit a Class A commit, except that a solicitation to commit a Class A or Class B1 felony is a Class C felony, a solicitation to or Class B1 felony is a Class C felony, a solicitation to commit a Classcommit a Class

B2 felony is a Class D felony, a solicitation to commit B2 felony is a Class D felony, a solicitation to commit a Class H felony is a Class 1 misdemeanor, and a a Class H felony is a Class 1 misdemeanor, and a solicitation to commit a Class I felony is a Class 2 solicitation to commit a Class I felony is a Class 2 misdemeanor.misdemeanor.

(b) Unless a different classification is expressly stated, (b) Unless a different classification is expressly stated, a person who solicits another person to commit a a person who solicits another person to commit a misdemeanor is guilty of a Class 3 misdemeanor. misdemeanor is guilty of a Class 3 misdemeanor.

ConspiracyConspiracy At common law, conspiracy consisted of an At common law, conspiracy consisted of an

agreement by two or more persons to agreement by two or more persons to accomplish a criminal act or to use unlawful accomplish a criminal act or to use unlawful means to accomplish a noncriminal means to accomplish a noncriminal objective. objective.

Federal law requires an overt act in a Federal law requires an overt act in a conspiracy to commit an offense or defraud conspiracy to commit an offense or defraud the United States. the United States.

A number of states also require proof of an A number of states also require proof of an overt act in order to convict someone for overt act in order to convict someone for conspiracy.conspiracy.

T.C.A. §39-12-103(a). T.C.A. §39-12-103(a). Criminal conspiracyCriminal conspiracy

““The offense of conspiracy is committed The offense of conspiracy is committed if two (2) or more people, each having if two (2) or more people, each having the culpable mental state required for the culpable mental state required for the offense which is the object of the the offense which is the object of the conspiracy and each acting for the conspiracy and each acting for the purpose of promoting or facilitating purpose of promoting or facilitating commission of an offense, agree that commission of an offense, agree that one (1) or more of them will engage in one (1) or more of them will engage in conduct which constitutes such conduct which constitutes such offense.”offense.”

T.C.A. §39-12-103(d). T.C.A. §39-12-103(d). Criminal conspiracyCriminal conspiracy

““No person may be convicted of No person may be convicted of conspiracy to commit an offense conspiracy to commit an offense unless an overt act in pursuance of unless an overt act in pursuance of such conspiracy is alleged and such conspiracy is alleged and proved to have been done by the proved to have been done by the person or by another with whom the person or by another with whom the person conspired.”person conspired.”

T.C.A. §39-12-104. T.C.A. §39-12-104. Renunciation defense.Renunciation defense.

““It is an affirmative defense to a charge It is an affirmative defense to a charge of criminal attempt, solicitation or of criminal attempt, solicitation or conspiracy that the person, after conspiracy that the person, after committing the criminal attempt, committing the criminal attempt, solicitation or conspiracy, prevented the solicitation or conspiracy, prevented the successful commission of the offense successful commission of the offense attempted, solicited or conspired, under attempted, solicited or conspired, under circumstances manifesting a complete circumstances manifesting a complete and voluntary renunciation of the and voluntary renunciation of the person’s criminal purpose.”person’s criminal purpose.”

Plucked from the news…Plucked from the news… FARGO, N.D. (AP) - The last of more than 60 FARGO, N.D. (AP) - The last of more than 60

people charged in a major federal drug people charged in a major federal drug conspiracy case has been sentenced in Fargo.conspiracy case has been sentenced in Fargo.

Louis Lopez was sentenced Wednesday to 10 Louis Lopez was sentenced Wednesday to 10 years in prison for conspiracy to distribute a years in prison for conspiracy to distribute a controlled substance. Prosecutor Chris Myers controlled substance. Prosecutor Chris Myers said the 23-year-old Lopez, of Wapato, Wash., said the 23-year-old Lopez, of Wapato, Wash., helped bring drugs from Washington state to the helped bring drugs from Washington state to the Red River Valley.Red River Valley.

Prosecutors said the conspiracy had ties to a Prosecutors said the conspiracy had ties to a violent drug cartel in Mexico and moved violent drug cartel in Mexico and moved methamphetamine, cocaine, and marijuana to methamphetamine, cocaine, and marijuana to North Dakota and other states.North Dakota and other states. Associated Press - September 9, 2009 6:14 PM Associated Press - September 9, 2009 6:14 PM

ET ET