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Criminal Attempt Charge Upheld

In Tennessee, a 'criminal attempt' to commit a crime can itself be a criminal act, and is sometimes charged as a lesser included offense. It is generally a lesser offense than completion of the crime, and carries reduced punishment. Criminal attempt to commit a specific crime occurs when a person, acting with the culpability required to commit the offense, takes action toward the completion of the offense, believing the action will cause that result. Questions sometimes arise about whether to charge criminal attempt as a lesser included offense in a trial where the defendant is accused of completing a particular offense. In the recent Tennessee case of State v. Thorpe, M2012-02676-CCA-R3-CD (Tenn.Crim.App. 9-27-2013), the Court of Criminal Appeals upheld the trial court's decision to charge attempted sexual battery by an authority figure as a lesser included offense.

In the Thorpe case, the defendant was charged with multiple counts of sexual battery by an authority figure arising from accusations of inappropriate contact upon his girlfriend's minor daughter. The count in question alleged the defendant, acting with parental authority, had kissed the girl's inner thighs, after having sent her a text message telling her "I want to kiss on them thighs when I get back," and that she should wear shorts. According to the victim's testimony, she was wearing long pants when the defendant returned home and initially resisted his demands that she change. He allegedly threatened to punish her if she did not put on shorts. She testified that after she changed into shorts, the defendant did proceed to kiss her thighs up to her "bikini area." Forensic examination of the defendant's phone confirmed he had sent the girl a message stating "I want to kiss on them thighs when I get back" and a message asking her to wear shorts.

The defense objected to the state's request for the criminal attempt lesser included charge, arguing that there was either a completed act of sexual battery or no crime at all. Neither side claimed that the defendant attempted to kiss the victim's inner thighs and failed. He either committed the act or he didn't. Ultimately, the jury convicted him of attempt.

In analyzing the issue of whether it was error to charge attempt, the Court of Criminal Appeals noted that it is not reversible error to fail to charge attempt where the evidence shows a completed act. However, they further concluded that it is also not reversible error to charge it where the evidence shows a completed act. The Court concluded that failure to complete an act is not an element of the offense of criminal attempt, and that a person may be guilty of attempting to do something which was also completed.

For more information on the charge of criminal attempt, contact Hindman & Associates.

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