Week 10 - Attempt: Actus Reus

Modern crime of attempt punishes…

steps taken before the completion of another crime, even when the basic crime itself already covers incomplete (“inchoate”) behavior.

• Ex: can be guilty of attempting larceny (unlawful taking and carrying away of someone else's personal property with the intent to permanently deprive), even though larceny itself is already defined in “inchoate” (not fully completed) terms.

One question in every attempt case is…

whether there has been enough conduct to justify criminal punishment

Attempt is always….

tied to a specific crime (the “object offense”).

• There is no “attempt” by itself; there must be an attempt to commit murder, rape, larceny, or some other main crime.

What are minimum conduct rules?

Legal standards defining sufficient actions required to support a conviction for attempt in criminal law.

When does a attempt occur?

when the person takes steps toward completing that crime

What are the key questions for attempt?

• How much action is enough?

• How far must the person go toward committing the main crime before they can be punished for attempt?

Doctrinally, where does the law draw the line?

ine between:

• Preparation (not punishable), and

• Attempt (punishable).

Where does criminal liability begin?

point at which the conduct is no longer just “getting ready” and has become a punishable attempt.

When answering how much conduct is enough, we assume

• All other requirements of attempt law have been satisfied, especially the mental state requirement.

For attempt, what is the required mental state?

usually purpose:

• The person must consciously want or intend to complete the criminal conduct.

In attempt, the fact-finder must be…

sure beyond a reasonable doubt that the person had this purpose.

In People v. Bowen and Rouse why was the intent to commit larceny not enough to amount to attempted larceny?

Issue(s):

• Whether the defendants’ conduct (coming to/entering Miss Gatzmeyer’s house with intent to commit larceny) constituted an overt act sufficient to support a conviction for attempted larceny in a building.

• Whether the trial judge’s jury instruction on attempt was legally correct, especially regarding the need for an overt act beyond mere preparation.

Facts (include arguments):

• The elderly homeowner, Miss Gatzmeyer, let the defendants and two women enter her house one evening.

• The defendants were in the back of the house and near the basement steps; the women were talking with Miss Gatzmeyer.

• The bedroom was in a mess (drawers pulled out, items on the bed); two rings were later found under the TV and a necklace was found on the staircase.

• There was evidence that Bowen had been in the house before as a handyman and had sometimes taken or been accused of taking things.

• The prosecution argued the jury could infer the defendants ransacked the bedroom, took the jewelry, and tried to hide from police—showing purpose to commit larceny.

• The defense argued the evidence did not prove beyond a reasonable doubt that the defendants entered the house with intent to commit larceny, and that any forbidden acts were not adequately described or found by the jury.

Procedural posture:

• The defendants were convicted at trial of attempted larceny in a building.

• The trial judge originally charged the jury on larceny in a building, but later decided to submit only the lesser included offense of attempt.

• The defendants appealed the conviction to the Michigan Court of Appeals.

Judgment:

• The Court of Appeals reversed the convictions and remanded for a new trial.

Applicable Rules and Precedent:

• Attempt requires (1) purpose/felonious intent to commit a specific crime and (2) an overt act that goes beyond mere preparation and is not ambiguous or equivocal.

• In People v. Coleman, the Michigan Supreme Court held an attempt is not proven unless the defendant has gone beyond acts of an ambiguous nature.

• Drawing from Turner’s article and Commonwealth v. Peaslee, an act is sufficient if it is unambiguous and can be reasonably understood as pointing only to committing the specific crime (i.e., it “speaks for itself”).

• In People v. Pippin and People v. Youngs, Michigan courts held that certain detailed planning steps (inviting a boy into a car, or arming oneself and preparing for a burglary) were still only preparation, not attempt.

Holding:

• The defendants’ mere coming to or entering Miss Gatzmeyer’s house with intent to commit larceny was not an overt act sufficient to constitute attempted larceny, because their entry was permitted, consistent with Bowen’s prior visits, and therefore ambiguous.

Reasoning:

• The court assumed, for argument, that the jury could properly infer the defendants had felonious intent to commit larceny.

• However, the overt‑act requirement is not just about proving intent; it is about showing that the defendant converted that intent into clear, unambiguous action.

• In this case, the defendants were invited guests; their entry was not by force or stealth and looked like a normal visit.

• The acts that might have been unambiguous (ransacking the bedroom, hiding jewelry) were not specifically found by the jury, and the judge had improperly suggested that simply entering the house with intent was enough.

• The court held that mere presence in the house, even with bad intent, is not enough; there must be some later, clear, non‑ambiguous act directed toward actually committing larceny (e.g., searching drawers, concealing stolen items in a way that clearly shows attempt).

Rule of Law:

• An attempt to commit a crime requires both a purpose to commit a specific offense and an overt act that is unambiguous and goes beyond mere preparation and is clearly referable to committing that crime.

• Mere entry into a premises, even with intent, is not automatically an overt act in the attempt context when the entry is permitted and consistent with lawful activity.

Key takeaway:

• Courts treating attempt will distinguish sharply between innocent‑looking or ambiguous conduct (like entering a house that the defendant is allowed to enter) and clear, unambiguous acts that unmistakably point to committing the crime (like ransacking rooms or hiding stolen items).

• Here, the court reversed the conviction because the only clearly charged act—entering the house—was too ambiguous; the actual suspicious acts were not clearly tied to an overt‑act finding by the jury.

What test do many court use to define attempt?

“physical‑proximity” test:

• The key is not what the person has already done, but how close they are to finishing the crime.

• The test looks at how much time, distance, or extra steps remain before the crime is completed.

Under the “physical‑proximity” test, when does a attempt exist?

if the person is very close to completing the crime.

Why in People v. Rizzo did the court not find attempt despite defendent being armed and driving around in pursuit of victim?

• court said this was not attempt because they were still searching and had not gotten near enough to actually take the money.

• The court said you’re not guilty of attempt if you:

  • Plan a burglary and get arrested while still looking for the building, or

  • Arm yourself and go out to find a victim to kill but can’t locate them

What is the “dangerous proximity” test?

• Instead of just physical closeness, ask whether the conduct created a dangerous proximity to success.

• This approach considers:

  • How serious the threatened harm is,

  • How much fear or alarm the conduct creates, and

  • How likely it is that the person would have finished the crime if not stopped

What does the Res ipsa loquitur approach to attempt focus on?

whether the act itself clearly shows criminal intent—the conduct must “speak for itself” as criminal.

Unlike proximity tests, the Res ipsa loquitur approach…

looks at what the person has already done, not what they still need to do.

What is the goal of the Res ipsa loquitur approach?

to punish the dangerous person who has shown a resolute commitment to crime, not just the dangerousness of near‑completed conduct

The idea of the Res ipsa loquitur approach is….

Once someone does an act that unequivocally reveals a firm criminal purpose, they can be punished for attempt, even if the crime isn’t completed

What does the Res ipsa loquitur approach require?

clear, outward conduct that shows guilty intent, not just a confession, mere thoughts, or vague statements

• test tries to avoid punishing people based on weak or unreliable signs of intent

Example of Res ipsa loquitur approach

• Buying matches with intent to burn a haystack is not an attempt because buying matches is, by itself, an innocent‑looking act with many lawful purposes.

• But going to a haystack, lighting a match, and then blowing it out when you see someone watching is treated as an attempt because the act is much more clearly referable to arson.

Issues with the Res ipsa loquitur approach ?

• It depends on predicting who is truly dangerous, and there is a risk of over‑predicting (punishing people who might not have followed through).

• Critics ask: Does any act truly “speak for itself”? Often there are other innocent explanations for the same behavior.

What does Glan Williams argue we can and should sometimes rely on for attempt?

subjective evidence (like credible confessions) to show that the person was truly committed, even if the act looks ambiguous.

What is the MPC standard for attempt?

• A person can be guilty of attempt if they do any act or omission that is a “substantial step” in a planned course of conduct meant to end in committing the crime.

What is a “substantial step” according to the MPC?

act must strongly show that the person really has a criminal purpose (it must be strongly corroborative of intent).

What are examples by the MPC that are enough by law to be a substantial step?

• Lying in wait for the victim.

• Searching for or following the victim.

• Trying to lure the victim to the planned crime scene.

• “Casing” or reconnoitering the place where the crime will happen.

• Entering a building, vehicle, or enclosure unlawfully when the crime is planned there.

• Having tools or materials specially designed for the crime that can’t reasonably be used for anything lawful.

• Gathering or making such materials at or near the planned crime scene when there’s no lawful reason to have them.

• Asking or hiring an innocent person to do something that’s part of the crime.

How does MPC broaden attempt liability compared with “proximity” tests?

• does not require that the person be “very close” to finishing the crime.

• As long as what they’ve done is a substantial step that strongly shows criminal intent, they can be guilty of attempt.

What does the MPC focus on ?

what the person has already done, not on how much is left to do, which:

• Lets the criminal law intervene earlier and helps stop crimes before they are completed.

• Strengthens the social control function of punishment (preventing dangerous behavior and dangerous people).

How does the MPC rationale siilar to the res ipsa loquitur test?

• Both want to avoid speculative guesses about what’s in a person’s mind.

• Both want clear, outward conduct to prove the person has a firm criminal purpose.

How is the MPC less strict than res ipsa loquitur?

• It does not require that the act be in itself clear and complete proof of intent.

• It only requires that the act strongly supports the intent, which can be shown by other evidence (like statements, circumstances, or later behavior).

In US v. Harper, why did the appellate court not find a “substantial step”?

Facts: Police found Harper and two others in a rented car in a bank parking lot at night, shortly after Harper used an ATM card (that wasn’t his) and left money in the machine, creating a “bill trap.”

• Nearby, police found:

  • Two loaded guns under a bush,

  • Duct tape, a stun gun, and latex gloves in the car,

  • Extra ammunition that matched the gun ammo,

  • Small amount of cash and the ATM card used earlier.

• The theory was that they wanted ATM service technicians to come fix the machine, then rob the technicians of the money inside the ATM.

Holding: held they had not taken a “substantial step” toward the crime yet

Reasoning:

Causing a bill trap is equivocal: it can be innocent or part of a scam/repair situation.

• They never moved toward the bank or the technicians; they were just sitting in the car waiting.

• Citing Buffington and Still:

  • In Buffington, defendants watched the bank and stood armed nearby, but never moved toward it → no attempt.

  • In Still, defendant sat in a van with fake bomb, note, wig, and scanner → still only preparation, not attempt.

• Distinguishing Moore:

  • In Moore, the defendant was walking toward the bank in a mask, with gloves, pillowcases, and a loaded gun → that was a substantial step/attempt.

How would Harper and the cited cases be decided under the MPC?

• MPC focuses on what has been done, not mere “how close” they are.

• As long as conduct is a substantial step that strongly shows criminal purpose, it can be attempt even if they haven’t moved toward the bank yet.

• Harper:

  • Under MPC, Harper’s conduct is very likely attempt:

    • Using another person’s ATM card, causing a bill trap, with knowledge of how the system works.

    • Being in a bank parking lot at night with guns, duct tape, stun gun, gloves, and extra ammo designed for hiding identity and committing a robbery.

    • This looks like strongly corroborative, substantial‑step activity → probable conviction for attempted robbery under MPC.

  • Still:

    • Sitting in a van with fake bomb, demand note, scanner, and wig; planning to rob the bank → strongly corroborative.

    • MPC would likely call this attempt, while the court in Still did not.

What do Bowen and Rouse reasoning for attempt require ?

purpose + an overt act that clearly shows criminal intent, not just innocent‑looking or ambiguous conduct.

Why did the court in UNITED STATES V. GLADISH state that sexually chatting with a agent posing as a underage girl was not an “attempt”?

• Facts:

  • Brian Gladish chatted online with a government agent posing as a 14‑year‑old girl (“Abagail”) in an Indiana chat room and sent her sexually explicit messages and a video of himself masturbating.

  • They discussed him possibly traveling to meet her in a couple of weeks, but no concrete plans were made, and he was arrested before doing anything else.

• Issue:

  • Was his online sexual talk and masturbation video enough of a “substantial step” to make him guilty of attempting to persuade/entice a minor into sex under 18 U.S.C. § 2422(b)?

• Holding:

  • The Seventh Circuit reversed his conviction and ordered acquittal.

  • Thinking and talking about sex with a minor is not enough; the law requires an overt act that clearly shows dangerous intent and moves toward the crime, not just “hot air.”

• Reasoning:

  • Under attempt law, you must have intent plus a substantial step that is adapted to, approximates, and in the ordinary course would lead to the crime if not interrupted.

  • In typical “child‑sex‑sting” cases, the defendant travels to meet the minor or at least makes firm arrangements (time, place, travel, hotel, etc.), which is treated as a substantial step.

  • Here, Gladish only sent explicit messages and a video to a stranger; he did not firmly plan a meeting, book travel, or take clearly concrete steps toward in‑person contact.

  • His words were not “harmless banter”, but they were also consistent with fantasy or vicarious sexual gratification, not proven real‑world action.

  • Treating mere sexual speech as the “substantial step” would erase the requirement entirely and punish people just for talking, even if they never act.

• One‑sentence takeaway:

  • Under Gladish, sexually explicit internet chat alone—without concrete arrangements to meet or travel—is not enough to be a “substantial step” for attempt under § 2422(b); the defendant must do something that clearly shows he is moving toward real‑world criminal conduct, not just fantasy talk.