The law of attempt will of course vary from state to state, and I don’t know the specifics of Ohio’s rules. That said, I can talk about the general principles surrounding inchoate crimes.
An “inchoate” offense is the crime of preparing, planning, agreeing, offering or seeking to commit a criminal act. Conspiracy is the inchoate crime of agreeing with others to commit a criminal act. Solicitation is the inchoate crime of offering to commit a criminal act.
Then we have attempt. Attempt is the inchoate crime of seeking or preparing to commit a crime. In order for the crime of attempt to be complete, generally the rule is that the accused must have the requisite mens rea - the guilty mental state - that he intends to commit the underlying crime. He must take a step towards the crime that goes beyond the merely prepatory, some step strongly proximate to the actual commission of the crime.
Renunciation is an affirmative defense to the crime of attempt. Renunciation is the voluntary abandonment of the criminal purpose by the accused before the completion of the underlying crime. “Voluntary” is the key word here. Renunciation may not be forced upon the accused by any outside event, or even by the realization that it now seems more likely that the accused will be detected or caught, or the objective seems more difficult than it did at the beginning of the course of conduct. Renunciation does not happen if the accused merely decides to shift the time, location, or target of his criminal intent.
Generally, the burden to prove renunciation is on the accused, and he must prove it by preponderance of the evidence.
The initial intent and the prepatory act(s) must be proved by the prosecution beyond a reasonable doubt, and the question of whather the prepatory act is sufficiently proximate to the intended underlying crime is a question of fact for the fact-finder (the jury, or the judge in a bench trial) to resolve.
With that as a background on attempt and the possible defense thereto, let’s look at what happened here.
The accused donned a long fake beard, a dark baseball cap, sunglasses and a blazer. He wrote a note that said, “This is a robury Give me all the money in both dawers No one will get hurt!!! [sic” He walked into a bank.
If the fact-finder believes these facts, it seems to me pretty obvious that they may infer the intent to rob the bank, and that they may find these acts were prepatory and sufficiently proximate to the actual crime as to meet the requirement for attempt. With no other evidence, this record is legally suffficient to convict for the crime of attempted robbery, in my opinion.
Of course, the accused may claim that he intended to renounce his attempt. This will, in my opinion, be a difficult sell for the fact-finder to accept, given his back-and-forth, in-and-out. The prosecution will argue that he merely felt nervous about the chances of success at each juncture, not that he had abandoned his criminal purpose. They will point to his re-entry of the first bank to show that his first departure was not an abandonment, and his journey to the third bank to show that his second departure was not abandonment, and then ask why should we believe that his third course was any different?
Since he must prove his abandonment by preponderance of the evidence, he must convince the fact finder that, in the end, he decided to abandon his criminal act, not just because it seemed more difficult or because it seemed more likely he would be caught, but out of a genuine desire not to commit the crime. Since he apparently told the police that he “chickened out,” the prosecution will argue that he was afraid of getting caught or hurt, not that he wanted to abandon his crime voluntarily.
It’s certainly possible for the fact-finder to credit the accused’s testimony and find that he abandoned his criminal purpose. But I find it more likely that they would not.
In any event, in my view that finding would be an uphill battle, certainly not a case that “Any decent first year law student could get tossed,” as jtgain suggested. So I’m very curious to hear jtgain’s analysis of the situation, and see what I might have missed in my own analysis.
