Tennessee § 39-12-101 - Criminal attempt.

§ 39-12-101. Criminal attempt.

A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: Intentionally engages in action or causes a result that would constitute an offense, if the circumstances surrounding the conduct were as the person believes them to be; Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part; or Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense. Conduct does not constitute a substantial step under subdivision (a)(3), unless the person's entire course of action is corroborative of the intent to commit the offense. It is no defense to prosecution for criminal attempt that the offense attempted was actually committed. Acts 1989, ch. 591, § 1. Sentencing Commission Comments. Prior Tennessee law contained several attempt laws. One was quite general, covering an attempt to commit any felony. Others dealt with attempts to do specific offenses. This section creates a generic attempt law that punishes an attempt to commit any offense except a Class C misdemeanor. See § 39-12-107 . Criminal attempt is an offense directed at the individual whose intent is to commit an offense, but whose actions, while strongly corroborative of criminal intent, fail to achieve the criminal objective intended. Accordingly, the offense is basically one of criminal intent coupled with acts that clearly demonstrate the offender's proclivity toward criminality. Subsection (a) defines three varieties of the offense of criminal attempt; all three varieties retain the traditional requirement of specific intent to commit an offense. Thus, a person must either intentionally engage in criminal acts or intend to accomplish a criminal result. This requirement is consistent with common law. See Clark v. State, 86 Tenn. 511, 8 S.W. 145 (1888); State v. Johnson, 2 Shannon 539, 1 Leg. Rep. 324 (1877). Subdivisions (a)(1)-(3) are not intended to define mutually exclusive kinds of criminal attempt. Rather, these three subdivisions set out alternative statutory tests for determining if a course of conduct that does not produce a proscribed harm can be classified as an attempt to commit an offense. Subdivision (a)(1) is directed at a completed course of conduct, while subdivisions (a)(2) and (3) focus on conduct that is incomplete in the sense that it is cut short at some point in time before accomplishment of the intended criminal objective. Thus, a completed course of conduct constituting a criminal attempt under subdivision (a)(1) could also include conduct sufficient to establish attempt responsibility under subdivisions (a)(2) and (3). In addition to the elements required by subdivision (a)(1), (2) or (3), to be convicted of criminal attempt the offender must act “with the kind of culpability otherwise required” for the object offense. Subdivision (a)(1) makes criminally liable a defendant who intentionally engages in a course of conduct that, under the surrounding circumstances as perceived by the defendant, would constitute a completed offense but does not because the actual circumstances make commission of the offense impossible. Bandy v. State, 575 S.W.2d 278 (Tenn. 1979). Subdivision (a)(2) is a codification of the generally accepted “last proximate act” doctrine as a basis for imposing attempt responsibility. If an offense is defined in terms of causing a certain result, an individual commits an attempt at the point when the individual had done everything believed necessary to accomplish the intended criminal result. For example, a wife commits attempted murder when she replaces her husband's nightly sleeping pill with a cyanide tablet, intending to cause his death and believing he will take the tablet and die as a result. The fact that the husband does not take the tablet, or that he does not die following its ingestion, does not alter the wife's responsibility for attempted murder, since she believed her conduct would cause her husband's death without further conduct on her part. Subdivision (a)(3) formulates a general standard to determine at what point acts performed in the course of a criminal enterprise become punishable as a criminal attempt. This is the most difficult task in defining attempt responsibility. Although courts use various tests to resolve the question, the basic element traditionally required is that the individual's conduct must proceed beyond “mere preparation.” See Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959). Subdivision (a)(3) provides that the point of attempt responsibility, beyond mere preparation but short of the completed offense, is reached when an individual's intentional acts constitute a “substantial step toward the commission of the offense.” Because of the infinite variety of factual situations that can arise, subdivision (a)(3) leaves the issue of what constitutes a substantial step for determination in each particular case. As in subdivision (a)(1), subsection (b) prescribes an additional element to distinguish attempt from preparation: the individual's “entire course of action” must be corroborative of the intent to complete the offense. Subsection (c) expressly eliminates the defense that the offense has in fact been committed. Other defenses are provided in §§ 39-12-104 (renunciation) , 39-12-105 (lack of responsibility), 39-12-106 (multiple convictions barred). Sanctions for attempt are in § 39-12-107 . Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Attempt to procure criminal miscarriage, § 39-15-201 . Conspiracy, § 39-12-103 . Grading attempt, solicitation and conspiracy, § 39-12-107 . Incapacity, irresponsibility or immunity of party to attempt, solicitation or conspiracy, defenses, § 39-12-105 . Jury providing punishment for less than one year, § 40-20-103 . Perjury and aggravated perjury, §§ 39-16-702 , 39-16-703 . Sexual offender registration and monitoring, title 40, chapter 39. Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attempts and Solicitations, §§ 2, 5; 10 Tenn. Juris., Drugs and Druggists, § 5; 14 Tenn. Juris., Homicide, § 32; 16 Tenn. Juris., Intoxicating Liquors, §§ 14, 20, 21; 21 Tenn. Juris., Rape, § 8; 21 Tenn. Juris., Receiving Stolen Goods, § 5; 22 Tenn. Juris., Robbery, § 4. Law Reviews. Criminal Attempt — Murder Two: The Law in Tennessee After State v. Kimbrough (Barbara Kritchevsky), 28 U. Mem. L. Rev. 3 (1997). Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).