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28-201 Criminal attempt; conduct; penalties.

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28-201. Criminal attempt;conduct; penalties.(1) A person shall be guiltyof an attempt to commit a crime if he or she:(a) Intentionally engages in conduct which would constitutethe crime if the attendant circumstances were as he or she believes them tobe; or(b) Intentionally engages in conduct which, under the circumstancesas he or she believes them to be, constitutes a substantial step in a courseof conduct intended to culminate in his or her commission of the crime.(2) When causing a particular result is an element of thecrime, a person shall be guilty of an attempt to commit the crime if, actingwith the state of mind required to establish liability with respect to theattendant circumstances specified in the definition of the crime, he or sheintentionally engages in conduct which is a substantial step in a course ofconduct intended or known to cause such a result.(3) Conduct shall not be considered a substantial step underthis section unless it is strongly corroborative of the defendant's criminalintent.(4) Criminal attempt is:(a) A Class II felony when the crime attempted is a ClassI, IA, IB, IC, or ID felony;(b) A Class III felony when the crime attempted is a ClassII felony;(c) A Class IIIA felony when the crime attempted is sexual assault in the second degree under section 28-320, a violation of subdivision (2)(b) of section 28-416, incest under section 28-703, child abuse under subsection(5) of section 28-707, or assaultby a confined person with a deadly or dangerous weapon under section 28-932;(d) A Class IV felony when the crime attempted is a ClassIII felony not listed in subdivision (4)(c) of this section;(e) A Class I misdemeanor when the crime attempted is a ClassIIIA or Class IV felony;(f) A Class II misdemeanor when the crime attempted is a ClassI misdemeanor; and(g) A Class III misdemeanor when the crime attempted is aClass II misdemeanor. SourceLaws 1977, LB 38, § 10; Laws 1997, LB 364, § 2; Laws 1998, LB 1266, § 3; Laws 2010, LB712, § 7; Laws 2010, LB771, § 2.Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB712, section 7, with LB771, section 2, to reflect all amendments.Note: Changes made by LB771 became effective July 15, 2010. Changes made by LB712 became operative July 15, 2010.Annotations1. Criminal attempt2. Lesser-included offense3. Miscellaneous1. Criminal attemptA person can intentionally attempt an act that does not require criminal intent to complete. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).The statutory elements of attempted first degree murder are a substantial step in a course of conduct intended to culminate in the commission of a purposeful, malicious, premeditated killing of another person. The statutory elements of attempted second degree murder are a substantial step in a course of conduct intended to culminate in the commission of an intentional killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).Within the offense of criminal attempt, an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).Within the offense of "criminal attempt," an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987).Although a gun is unloaded and thereby incapable of causing death or injury, a person may be guilty of attempted murder or assault if the person pulling the trigger believes the gun to be loaded. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).In order to constitute an attempt to commit a crime under this section, there must be an intentional act on the part of the defendant which would constitute a substantial step toward the completion of the allegedly attempted crime, assuming that the circumstances at the time were as the defendant believed them to be. State v. Sodders, 208 Neb. 504, 304 N.W.2d 62 (1981).Where a particular result is an element of the underlying crime, subsection (1)(a) and (b) require that the actor intended the result. Under subsection (2), the actor can be convicted of criminal attempt if he knows that his conduct will produce the result. In other words, the actor can be convicted of attempt if he is aware of the high probability that such result will occur. One cannot commit the crime of attempt where the underlying crime contains only a reckless mens rea. State v. Hemmer, 3 Neb. App. 769, 531 N.W.2d 559 (1995).2. Lesser-included offenseWhere a crime is capable of being attempted, an attempt to commit such a crime is a lesser-included offense of the crime charged. It is not necessary to charge a criminal defendant with the lesser-included offense of which the defendant may be found guilty because by charging the greater offense, the defendant is by implication charged with the lesser offense. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).Attempted first degree assault is not a lesser-included offense of unlawful discharge of a firearm, and unlawful discharge of a firearm is not a lesser-included offense of attempted first degree assault. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).Whether a particular offense is a lesser-included offense of the offense with which defendant is charged is determined by examining the allegations in the information and the evidence offered in support of the charge. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).Because an attempted crime as defined by this section may be committed without the crime itself being committed, no offense can be a lesser-included offense of an attempted crime prosecuted under this section. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).3. MiscellaneousA charge of a completed crime logically includes a charge of an attempt to commit it. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).Abandonment is not a defense to the commission of the crime of criminal attempt under Nebraska law. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).Instruction to jury on attempt phrased in the language of this section was not error. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).In the absence of a motion to quash, an information which alleges an attempt to commit an act or acts which, if successful, would constitute a statutory crime sufficiently charges an attempted crime so as to withstand a jurisdictional attack made for the first time on appeal. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).Prior to 1979, there was no general attempt statute in the Nebraska Criminal Code. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).Defendant who pled guilty to attempted murder was not precluded from challenging criminal attempt statute as unconstitutionally vague during habeas corpus proceeding. When examined in light of defendant's conduct, this section is not unconstitutionally vague. Sodders v. Parratt, 693 F.2d 811 (8th Cir. 1982).
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  • 28-201. Criminal attempt;conduct; penalties.(1) A person shall be guiltyof an attempt to commit a crime if he or she:(a) Intentionally engages in conduct which would constitutethe crime if the attendant circumstances were as he or she believes them tobe; or(b) Intentionally engages in conduct which, under the circumstancesas he or she believes them to be, constitutes a substantial step in a courseof conduct intended to culminate in his or her commission of the crime.(2) When causing a particular result is an element of thecrime, a person shall be guilty of an attempt to commit the crime if, actingwith the state of mind required to establish liability with respect to theattendant circumstances specified in the definition of the crime, he or sheintentionally engages in conduct which is a substantial step in a course ofconduct intended or known to cause such a result.(3) Conduct shall not be considered a substantial step underthis section unless it is strongly corroborative of the defendant's criminalintent.(4) Criminal attempt is:(a) A Class II felony when the crime attempted is a ClassI, IA, IB, IC, or ID felony;(b) A Class III felony when the crime attempted is a ClassII felony;(c) A Class IIIA felony when the crime attempted is sexual assault in the second degree under section 28-320, a violation of subdivision (2)(b) of section 28-416, incest under section 28-703, child abuse under subsection(5) of section 28-707, or assaultby a confined person with a deadly or dangerous weapon under section 28-932;(d) A Class IV felony when the crime attempted is a ClassIII felony not listed in subdivision (4)(c) of this section;(e) A Class I misdemeanor when the crime attempted is a ClassIIIA or Class IV felony;(f) A Class II misdemeanor when the crime attempted is a ClassI misdemeanor; and(g) A Class III misdemeanor when the crime attempted is aClass II misdemeanor. SourceLaws 1977, LB 38, § 10; Laws 1997, LB 364, § 2; Laws 1998, LB 1266, § 3; Laws 2010, LB712, § 7; Laws 2010, LB771, § 2.Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB712, section 7, with LB771, section 2, to reflect all amendments.Note: Changes made by LB771 became effective July 15, 2010. Changes made by LB712 became operative July 15, 2010.Annotations1. Criminal attempt2. Lesser-included offense3. Miscellaneous1. Criminal attemptA person can intentionally attempt an act that does not require criminal intent to complete. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).The statutory elements of attempted first degree murder are a substantial step in a course of conduct intended to culminate in the commission of a purposeful, malicious, premeditated killing of another person. The statutory elements of attempted second degree murder are a substantial step in a course of conduct intended to culminate in the commission of an intentional killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).Within the offense of criminal attempt, an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).Within the offense of "criminal attempt," an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987).Although a gun is unloaded and thereby incapable of causing death or injury, a person may be guilty of attempted murder or assault if the person pulling the trigger believes the gun to be loaded. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).In order to constitute an attempt to commit a crime under this section, there must be an intentional act on the part of the defendant which would constitute a substantial step toward the completion of the allegedly attempted crime, assuming that the circumstances at the time were as the defendant believed them to be. State v. Sodders, 208 Neb. 504, 304 N.W.2d 62 (1981).Where a particular result is an element of the underlying crime, subsection (1)(a) and (b) require that the actor intended the result. Under subsection (2), the actor can be convicted of criminal attempt if he knows that his conduct will produce the result. In other words, the actor can be convicted of attempt if he is aware of the high probability that such result will occur. One cannot commit the crime of attempt where the underlying crime contains only a reckless mens rea. State v. Hemmer, 3 Neb. App. 769, 531 N.W.2d 559 (1995).2. Lesser-included offenseWhere a crime is capable of being attempted, an attempt to commit such a crime is a lesser-included offense of the crime charged. It is not necessary to charge a criminal defendant with the lesser-included offense of which the defendant may be found guilty because by charging the greater offense, the defendant is by implication charged with the lesser offense. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).Attempted first degree assault is not a lesser-included offense of unlawful discharge of a firearm, and unlawful discharge of a firearm is not a lesser-included offense of attempted first degree assault. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).Whether a particular offense is a lesser-included offense of the offense with which defendant is charged is determined by examining the allegations in the information and the evidence offered in support of the charge. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).Because an attempted crime as defined by this section may be committed without the crime itself being committed, no offense can be a lesser-included offense of an attempted crime prosecuted under this section. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).3. MiscellaneousA charge of a completed crime logically includes a charge of an attempt to commit it. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).Abandonment is not a defense to the commission of the crime of criminal attempt under Nebraska law. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).Instruction to jury on attempt phrased in the language of this section was not error. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).In the absence of a motion to quash, an information which alleges an attempt to commit an act or acts which, if successful, would constitute a statutory crime sufficiently charges an attempted crime so as to withstand a jurisdictional attack made for the first time on appeal. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).Prior to 1979, there was no general attempt statute in the Nebraska Criminal Code. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).Defendant who pled guilty to attempted murder was not precluded from challenging criminal attempt statute as unconstitutionally vague during habeas corpus proceeding. When examined in light of defendant's conduct, this section is not unconstitutionally vague. Sodders v. Parratt, 693 F.2d 811 (8th Cir. 1982).

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