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Do Attempted Murder and Attempted PCS Merge? Why very different attempt crimes might only result in a single conviction

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by: Ryan • December 28, 2010 • no comments

Sometimes in law, the analysis can be perfectly logical but the result unintended. When it happens, it's usually because of the mash-up of two different principles that no one had ever applied simultaneously before.

Take merger. There are many situations where counts merge, but perhaps the most unappreciated is when two crimes come from the same statutory provision, regardless of the fact that each has an element the other does not. The difficulty, usually, is that it's not always obvious when two crimes are from the same statutory provision. In the example today, however, the COA has already determined that two very different attempt crimes come from the same statutory provision, although you have to be aware of a relatively obscure 2000 COA opinion to be aware of it.

Jump now to "attempt" crimes. Attempted assault does not come out of the assault statutes in Chapter 163, which is why the Chapter 163 assessment does not apply to attempted assault. Rather, attempted assault comes from the attempt statute. State v. Becker. In fact, all attempt crimes arise out of the attempt statute (leaving aside those crimes, like DCS or felony attempt to elude, where "attempt" is an element of the completed offense).

Because all attempt crimes come from the same statute, by definition all attempt crimes arise from the same statutory provision. Therefore, all attempt crimes merge, assuming the other requirements of merger are met (no more than one actual victim, same criminal episode, no sufficient pause between offenses). This doesn't come up often but in a case of attempted kidnapping and attempted assault or attempted rape in the first degree and attempted sexual abuse in the first degree, the counts merge. The logic is sound even if the result was never contemplated.

As for the requirement that there can't be a sufficient pause between crimes, this might not be much of a hurdle. When does an "attempt" crime end and another begin? Almost by definition, attempt crimes continue until the goal is abandoned.