PART I. 
CRIMINAL ATTEMPT



 



INTRODUCTORY COMMENTARY



 



  This chapter deals with conduct which is designed to
culminate in the commission of a substantive offense but which fails to do so. 
The failure may be due to apprehension or intervention by law enforcement
officials or it may be due to some other miscalculation on the part of the
defendant.  In this sense attempt, solicitation, and conspiracy are
predominantly inchoate in nature and are grouped in this chapter for a unified
and integrated treatment.  While it is true that other offenses, such as
reckless endangering, forgery, kidnapping, property damage and burglary, have
incoate aspects, "attempt, solicitation and conspiracy have such
generality of definition and of application as inchoate crimes that it is
useful to bring them together in the Code and to confront the common problems
they present."[1]



 



§705-500  Criminal attempt.  (1)  A
person is guilty of an attempt to commit a crime if the person:



(a) Intentionally engages in conduct which would constitute
the crime if the attendant circumstances were as the person believes them to
be; or



(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be, constitutes a substantial step
in a course of conduct intended to culminate in the person's commission of the
crime.



(2)  When causing a particular result is an
element of the crime, a person is guilty of an attempt to commit the crime if,
acting with the state of mind required to establish liability with respect to
the attendant circumstances specified in the definition of the crime, the
person intentionally engages in conduct which is a substantial step in a course
of conduct intended or known to cause such a result.



(3)  Conduct shall not be considered a substantial
step under this section unless it is strongly corroborative of the defendant's
criminal intent. [L 1972, c 9, pt of §1; gen ch 1993]



 



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Introductory Commentary:



 



1.  M.P.C., Tentative Draft No. 10, comments at 24 (1960).



 



Cross References



 



  Definitions of states of mind, see §702-206.



 



COMMENTARY ON §705-500



 



  The proscription against criminal attempts is sometimes said
to be based on the dangerousness of the actor's conduct.  While this rationale
would support a result in many cases, in others it would not.  A defendant may
engage in conduct which itself cannot be said to be dangerous, but which, when
measured against the defendant's intent, would indicate that the defendant
himself is a dangerous person and the proper subject of the penal law.  The
Code therefore focuses on the defendant's disposition.  Our concern is not with
thought or disposition alone; but rather to clarify "what conduct, when
engaged in with a purpose to commit a crime or to advance towards the
attainment of a criminal objective, should suffice to constitute a criminal
attempt."[1]



  The nature of intent in attempt cases.  Subsection (1)
recognizes penal liability where the defendant's conduct is intentional and
consummation of the crime is prevented either by the defendant's erroneous
appraisal of attendant (i.e., those specified by the definition of the offense)
or other circumstances or by some intervening factor following a substantial
step in a course of conduct planned to culminate in the commission of the
crime.  It is easy to recognize penal liability in such cases, notwithstanding
the absence of a substantive offense, because the defendant's intent--the
defendant's conscious object--is commission of a crime.  The defendant's
disposition toward criminal activity thus established, attempt liability is
imposed, under subsection (1)(a), if the defendant's conduct has advanced so
far toward the criminal objective as to constitute the crime had the attendant
circumstances been as the defendant believed them to be, or, under subsection
(1)(b), if the defendant's conduct has advanced so far toward the criminal
objective as to constitute a substantial step in a course of conduct intended
to reach that objective.



  In subsection (2) liability is imposed on a defendant who has
intentionally engaged in conduct which is a substantial step in a course of
conduct intended or known to culminate in a prohibited result.  Thus, a
defendant who intends to destroy a building, and who regards the destruction of
its inhabitants as a regrettable by-product, could be convicted of attempted
murder (as well as attempted arson)[2] if the defendant intentionally performed
a substantial step (e.g., started a fire) which the defendant knew (i.e., was
practically certain) would result in death.  Attempt liability is provided for
a defendant who engages in such conduct because the defendant's manifestation
of dangerousness is of the same order as that of the defendant who engaged in
the intentional conduct of subsection (1).



  Subsection (2) also covers a relatively infrequent, but
nonetheless troublesome, occurrence in attempt cases.  A given crime may be so
defined that the attendant circumstances may be established by a nonintentional
state of mind (i.e., with respect to the attendant circumstances the actor may
act knowingly, recklessly, or negligently).  If such is the case, and the
defendant intentionally engages in conduct planned to culminate in the result,
attempt liability should exist if the defendant was otherwise culpable with
respect to the attendant circumstances.  Suppose, for example, that it is an
independent crime to intentionally kill a police officer and that recklessness
with respect to the victim's identity as a police officer is sufficient to
establish that attendant circumstance.  If a defendant attempts to kill a
police officer recklessly mistaken as to the intended victim's identity (e.g.,
the defendant recklessly believes the police officer to be a night security
guard), attempt liability ought to result.  Subsection (2) so provides.  It
would hardly make sense to hold that the defendant should be relieved of
attempt liability in the situation hypothesized because the defendant did not
intend that the victim be a police officer.  Furthermore, it would be anomalous
to hold that had the defendant succeeded, and the substantive crime been
consummated, the defendant would be guilty of the substantive crime but that,
upon the failure of the defendant's attempt, the defendant's lack of intent
with respect to an attendant circumstance precludes penal liability for the
attempt.



  It should be noted that the requirement of intentional
conduct, with respect to attempts, limits the application of the attempt
section to offenses which can be committed by intentional conduct.  For
example, if a given offense can be committed by intentional or reckless
conduct, reckless conduct which stops short of consummation of the offense is
not sufficient to constitute an attempt to commit the offense.  To constitute
an attempt, the inchoate behavior must be intentional, i.e., purposeful.  This
principle is illustrated by the following passage from the commentary to
Michigan's recent revision:



Thus, where criminal liability rests on the causation of a
prohibited result, the actor must have an intent to achieve that result even
though violation of the substantive offense may require some lesser mens rea. 
Reckless driving, for example, does not constitute attempted manslaughter.  A
person charged with the substantive crime of manslaughter may be liable as a result
of... recklessness causing death, but the same recklessness would not be
sufficient if the victim did not die and the actor were only charged with
attempt; here, the state would have to show an intent to achieve the prohibited
end result, death of the victim.  In this area, as in others if the substantive
crime requires only recklessness, the mens rea requirement for an attempt is
substantially higher than that for the substantive crime.[3]



  Substantial step.  Subsections (1)(b) and (2) also deal with
and resolve another problem which has troubled courts in deciding attempt
cases: the act or conduct sufficient to impose penal liability.  It is an old
saw that the penal law does not seek to punish evil thought alone.  However, in
attempt cases some decision must be made as to what conduct, when engaged in
with a criminal intent, will be sufficient for the imposition of criminal
liability notwithstanding the defendant's failure to commit a substantive
offense.  It seems clear that there is no difficulty in holding a defendant
penally liable for an attempt when the defendant's conduct would have
constituted the crime if the defendant had not been mistaken about the
attendant circumstances.  This is the easy case resolved by subsection (1)(a). 
In those cases where the defendant's intentional conduct does not constitute
the substantive crime either because of some mistake on the defendant's part
unrelated to specified attendant circumstances (e.g., mistake as to the
capability of the means used) or because the course of conduct has not
proceeded to its final objective, some principle must be articulated to
indicate when attempt liability initially obtains.  This is a most delicate
task.



  Accepting as we do the position of the Model Penal Code that
attempt liability is primarily concerned with the dangerous disposition of the
actor as manifested by conduct, this Code also follows the Model Penal Code in
rejecting any standard based on the proximity of the actor's conduct to the
culmination of the crime.[4]  Adherence to that standard would require that the
dangerousness of the defendant's conduct rather than the dangerousness of the
defendant be regarded as the determining factor.  The Code follows the Model
Penal Code standard in requiring in subsections (1)(a) and (2) that the
relevant conduct amount to a "substantial step in a course of
conduct" planned to culminate in the commission of the crime or intended
or known to cause a criminal result.



  Subsection (3) provides that conduct shall not be considered
a "substantial step" under subsections (1) and (2) unless it is
strongly corroborative of the defendant's criminal intent.  In excluding acts
which are not strongly corroborative, the Code seeks to provide an additional
safeguard in the application of the "substantial step" standard so
that law enforcement agencies and triers of fact will not put equivocal conduct
within its ambit.  There are, on the other hand, certain types of conduct
which, if strongly corroborative of the defendant's criminal intent, could
reasonably be held to constitute a "substantial step" and should not
be held insufficient on this issue as matter of law.  These types of conduct
are:  (a) lying in wait, searching for, or following the contemplated victim of
the crime; (b) enticing or seeking to entice the contemplated victim of the
crime to go to the place contemplated for its commission; (c) reconnoitering
the place contemplated for the commission of the crime; (d) unlawful entry of a
structure, vehicle, or enclosure in which it is contemplated that the crime
will be committed; (e) possession of materials to be employed in the commission
of the crime, which are specially designed for such unlawful use or which can
serve no lawful purpose of the actor under the circumstances; (f) possession,
collection, or fabrication of materials to be employed in the commission of the
crime, at or near the place contemplated for its commission, where such
possession, collection, or fabrication serves no lawful purpose of the actor
under the circumstances; and (g) soliciting an innocent agent to engage in
conduct constituting an element of the crime.[5]  Rather than propose
codification of these examples, we set them forth in the commentary to aid the
court in the interpretation of subsection (3).



  It can, of course, be argued that the Code's formulation
leaves an area of imprecision where preciseness is most needed.  As in other
areas of the Code,[6] the limits of what can be made precise must be
recognized.  It has been said that the genius of the Model Penal Code, from
which this Code is to a great extent derived, is demonstrated by its
recognition of the limits of precision in statutory language.[7]



The characteristic spirit of the Code's draftmanship inheres in
its adoption of the "Aristotelian axiom" that "it is the mark of
the educated man to seek precision in each class of things just so far as the
nature of the subject admits."  When precision is possible, the Code is
devastatingly precise.  When precision is not possible, it is not sought, nor
is there any pretense that it has been attempted.[8]



  While substantiality is obviously a matter of degree, it is
no more so in attempt cases than it is in recklessness, negligence, or
causation problems.  In each case the jury or the court (when it is trying the
facts) must address itself to the defendant's conduct and determine, with a
view to other stated criteria,[9] whether it should be condemned.



  The Code focuses on what is deemed to be the correct function
of the act requirement in attempt cases: to provide a standard which (a)
distinguishes between conduct which is highly equivocal from the external
standpoint and that which is not externally equivocal, or only slightly so, and
which (b) is oriented toward the actor's disposition or dangerousness rather
than toward proximity to consummation of the substantive crime.  In looking at
the substantiality of the defendant's step in a course of conduct, the Code
requires the trier of fact to measure what has already been done by the
defendant--not how much more the defendant must do before consummation of the
substantive crime is achieved.  To this extent, the shift in focus broadens the
scope of attempt liability.



  Rejection of defense of impossibility.  Focusing as it does
on the dangerousness of the actor, rather than on the dangerousness of the
actor's conduct, the Code rejects the defense of "impossibility" in
attempt cases.  The Code does not afford a defense to one who intends a
criminal course of conduct but who is mistaken as to certain circumstances
which make commission of the crime legally or factually impossible.



  Subsection (1) is addressed to the problem of the defendant's
mistake as to attendant circumstances (i.e., circumstances specified in the
definition of the offense).  It makes such mistake immaterial if the crime
would have been consummated had the attendant circumstances been as the
defendant believed them to be.  Thus, for example, a defendant would be guilty
of attempt to bribe a juror if the defendant offered a bribe to a person the defendant
believed to be a juror notwithstanding the fact that the object of the bribe
turned out not to be a juror.  A defendant would be guilty of attempted murder
if the defendant intentionally shot a corpse or tree stump believing it to be a
living person.  Of course, the conduct or result must be specified in the
definition of an offense; the actor's belief that it is criminal is not
sufficient.  For example, a person who seeks to give false testimony is not
guilty of attempted perjury if the testimony sought to be given is immaterial
and would not, if given constitute perjury.[10]



  Subsection (1)(b) is addressed in part to the problem of
impossibility.  A defendant may be mistaken as to circumstances other than
those specified in the definition of an offense and such mistake may render
actual commission of the offense impossible.  Thus, for example, a defendant
may aim and fire a gun at another mistakenly believing that it is loaded or the
defendant may set some sort of explosive trap unaware that the fuse is
defective and incapable of detonating the charge.  Also, the defendant may be
mistaken as to attendant circumstances and the defendant may have taken a
substantial step toward the defendant's criminal objective, but the defendant's
conduct has not advanced far enough to constitute the crime had the attendant
circumstances been as the defendant supposed.  For example, a defendant may set
a fatal trap near a corpse, believing it to be a living person.  In such cases,
subsection (1)(b) permits liability for the attempt.  In the examples stated
the defendant believed the means chosen to be sufficient or the attendant
circumstances to be present, and the defendant has obviously taken a
substantial step in a course of conduct planned to culminate in the commission
of a crime.  There is no reason to preclude liability for the attempt merely
because the defendant was mistaken as to some circumstance which made actual
commission of the substantive crime impossible.  Where the offense is defined
in terms of the result of conduct, subsection (2) would also cover the
situation.



  Previous Hawaii law.  The previous law of attempt, H.R.S.
§702-1 (as compiled prior to this Code) required intent plus some act towards
commission, as does the Code.  However, there was no requirement that the act
be a substantial step in furtherance of the commission.  There are apparently
no Hawaii cases dealing with this point.  Courts have usually dealt with the
evidentiary function of the actor's conduct in terms of whether it constituted
an act of perpetration rather than merely preparation.[11]  The Code focuses
more directly and clearly on the function of the requirement without seeking
precision where precision is not practicable.



  The problem of impossibility, which the Code deals with in
subsection (1) and (2), was not covered by any prior statute.  Moreover, there
is apparently no Hawaii case law on this point.  However, this section is in
accord with recent penal revisions in other jurisdictions.



 



Case Notes



 



  Evidence held sufficient to support attempted rape and
attempted assault.  56 H. 664, 548 P.2d 271.



  Intent being essential element of attempt, charge of attempt
to commit theft was insufficient where there was no allegation of intent.  61
H. 177, 599 P.2d 285.



  Instruction concerning "substantial step."  63 H.
105, 621 P.2d 381.



  Concealment of clothes in bag was a substantial step in the
course of attempted theft.  67 H. 581, 698 P.2d 293.



  Sexual assault in the fourth degree and attempted sexual
assault in the fourth degree are included offenses of attempted sexual assault
in the second degree, within the meaning of §701-109(4)(c).  79 H. 46, 897 P.2d
973.



  Defendant charged with attempted murder, in violation of
§707-701.5 and this section, may be convicted of attempted manslaughter, in
violation of this section and §707-702(2).  80 H. 27, 904 P.2d 912.



  This section combined with §707-702(1)(a) does not give rise
to the offense of attempted manslaughter.  80 H. 27, 904 P.2d 912.



  A person commits the offense of attempted prohibited
possession of a firearm, pursuant to subsections (1)(b) and (3), and §134-7(b),
if he or she intentionally engages in conduct that, under the circumstances as
he or she believes them to be, constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of the offense of prohibited
possession of a firearm.  93 H. 199, 998 P.2d 479.



  As the offense of attempted prohibited possession of a
firearm under §134-7 does not include a result-of-conduct element and
subsection (2) does not therefore apply, trial court instruction erroneously
defined the state of mind necessary to prove the offense of attempted
prohibited possession of a firearm as something less than intentional, as
required by subsection (1)(b).  93 H. 199, 998 P.2d 479.



  Pursuant to §§701-109(4)(b), 134-7(b), and subsections (1)(b)
and (3), attempted prohibited possession of a firearm is an included offense of
prohibited possession of a firearm.  93 H. 199, 998 P.2d 479.



  Crime of attempted manslaughter is an included offense of
attempted murder.  7 H. App. 291, 757 P.2d 1175.



  Trial court must instruct jury as to what specific facts jury
must find before it decides whether defendant is guilty of attempted sexual
assault in first degree.  77 H. 177 (App.), 880 P.2d 1224.



  Where there was no evidence, independent of defendant's
extrajudicial confession, of the corpus delicti of attempted sexual assault of
victim by defendant, defendant's conviction reversed.  103 H. 490 (App.), 83
P.3d 753.



  Trial court's omission of the "strongly
corroborative"  paragraph in the attempted assault in the second degree
instructions was presumptively prejudicial and omission was not harmless beyond
a reasonable doubt.  104 H. 517 (App.), 92 P.3d 1027.



  There was insufficient evidence that defendant took a
substantial step toward the distribution of at least one-eighth ounce of
methamphetamine in defendant's possession where there was no evidence that
defendant had engaged in negotiations, offered, or agreed to distribute any of
the methamphetamine found in defendant's possession.  107 H. 144 (App.), 111
P.3d 39.



  Discussed:  86 H. 1, 946 P.2d 955.



 



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§705-500 Commentary:



 



1.  M.P.C., Tentative Draft No. 10, comments at 26 (1960).



 



2.  Under this code conventional arson has been incorporated as
one form of criminal property damage, see Chapter 708.



 



3.  Prop. Mich. Rev. Cr. Code, comments at 82.



 



4.  M.P.C., Tentative Draft No. 10, comments at 39-43 (1960).



 



5.  M.P.C. §5.01(2), Proposed Official Draft 81-82 (1962).



 



6.  Cf., e.g., the definitions of "recklessness" and
"negligence" in §702-206.



 



7.  Packers, The Model Penal Code and Beyond, 63 Colum. L. Rev.
594, 601 (1963).



 



8.  Id. quoting from Kurland, Religion and the Law 15 (1962).



 



9.  E.g., the corroborative function stated in subsection (3).



 



10.  The person would, however, be guilty of having attempted a
lesser offense involving falsification.  See Chapter 710, Part V.



 



11.  See, for a general discussion, M.P.C., Tentative Draft No.
10, comments at 47-68.