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February 21, 2014

Attempted Offenses

CaseState of Tennessee v. Jeremy Wendell Thorpe

Issues:  Was attempted sexual battery a lesser included offense of sexual battery under the facts?  Does evidence of a completed offense render insufficient the evidence for an attempt conviction?

Facts:  The Defendant was charged with illegally kissing and touching the victim.  At trial, the court charged attempted sexual battery as a lesser included offense of sexual battery.  The Defendant objected on the ground that the Victim’s testimony suggested a completed offense, not just an attempt.  After conviction of the attempt offense, the Defendant appeals contending that the evidence is insufficient because the evidence did not show that he tried and failed to commit the offense.

Appellate Decision: The intermediate court upheld the conviction, finding no error in the instruction.  The court noted that lesser included offenses are to be liberally given to let the jury have an opportunity to weigh the evidence without an “all or nothing dichotomy.”  The court added that the failure to complete an offense is not an element of an attempt offense, so nothing forbids issuance of an attempt instruction as long as the evidence reasonably supported that offense.  Similarly, evidence of completion did not render the evidence insufficient for an attempt offense; all that is needed is intent and an act in furtherance.

Review Granted:  February 11, 2014.

Prediction:  Ben thinks the Supreme Court is likely to affirm.  As noted by the intermediate court, its opinion conflicted with a prior holding in State v. Kevin Fritz Edwards, No. E2010-01731-CCA-R3-CD (Tenn. Crim. App. May 18, 2012), so the court will attempt to reconcile these decisions.  David thinks that T.C.A. 39-12-101 applies, saying the completion of an offense is not a defense to an attempt.