Chapter 22 Attempt

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 22 Attempt

A. Attempt

South Carolina has no statutory provision that proscribes "attempt" as a distinct crime; instead, it relies on the common law. McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 456 (6^th ed. 2013) (emphasis in original) (hereafter, McAninch, Fairey, and Coggiola (2013)). However, some statutes include attempts of specific offenses as crimes; generally, those statutes provide for lesser sentences than for the completed crime. See, e.g., S.C. Code Ann. § 44-53-420 (setting forth attempt and conspiracy penalties for controlled substances). The crime of attempted murder has been codified at S.C. Code Ann. § 16-3-29. This crime is discussed in Chapter 1, Homicide.

Pursuant to S.C. Code Ann. § 16-1-80: Offense of attempt punished as principal offense:

A person who commits the common law offense of attempt, upon conviction, must be punished as for the principal offense.

"Where an attempt crime exists, it is properly considered a lesser included offense of the completed offense, so long as the completed offense is a felony." State v. Green, 753 S.E.2d 259, 261 (S.C. Ct. App. 2014) (internal quotations and citation omitted).

1. Definition

At common law, a person may be guilty of an attempt to commit a crime if "with the specific intent to engage in conduct or achieve a result proscribed by that criminal offense," the person "commits an act in furtherance of that intent, which act goes beyond mere preparation." McAninch, Fairey, and Coggiola, 456 (2013) (emphasis in original).

2. Elements

To prove attempt, the State must show that a defendant intended to commit the substantive offense and that the defendant took some overt act beyond mere preparation, in furtherance of the intent to commit the crime. See State v. Reid, 713 S.E.2d 274, 276 (S.C. 2011) (citation omitted).

The defendant must also have an actual or present ability to complete the crime. State v. Nesbitt, 550 S.E.2d 864, 866 (S.C. Ct. App. 2001) (citations omitted).

a. Specific intent to commit the crime

Specific intent, in the context of attempt crimes, is present when "the defendant consciously intended the completion of acts comprising the choate offense ... the completion of such acts is the defendant's purpose." Sutton v. State, 532 S.E.2d 283, 285 (S.C. 2000) (citation omitted). An attempt to commit some crimes may require a higher level of mens rea than that of the completed crime. See State v. King, 810 S.E.2d 18, 22 (S.C. 2017). Moreover, because...