Have You Been Charged With Attempt In Kentucky?

KENTUCKY LAW ON ATTEMPT AND DEGREES OF ATTEMPT

Attempt is defined by the Kentucky Penal Code under KRS §506.010. 

Attempt is a crime separate from the crime which a defendant was trying to commit. It is what is known as an inchoate crime, or a crime that was not completed. When a person attempts to commit a crime, as defined by the statute, they intend to commit the crime, engage in conduct which would normally result in the crime having been committed, and complete a substantial step in the course of conduct planning to culminate in the commission of the crime being attempted. 

In order for conduct to be considered a substantial step, there has to be an act or omission which would no reasonable doubt as to the defendant’s intention to commit the crime for which he is charged with attempting. Additionally, a person can be found guilty of attempt if he helped another person commit a crime, but the person committing that crime did not actually complete that crime. 

CRIMES RELATED TO ATTEMPT 

• Solicitation
• Conspiracy
• Facilitation

ELEMENTS OF ATTEMPT 

The elements of a crime are what must be proven in order to be convicted of that crime. There are three elements of attempt which must be proven: 

(1) the person acted with the kind of culpability otherwise required for the commission of the crime and 

(2) intended to engage in the conduct which normally would constitute the crime if the crime had been completed, or 

(3) committed a substantial step in a course of conduct planned to culminate in the commission of the crime. 

PENALTY FOR ATTEMPT IN KENTUCKY 

Penalties for attempt vary significantly because a person can attempt to do a variety of crimes. The class of the crime indicates what the penalty range is for any particular crime. Criminal attempt is normally one criminal class lower than the class designated to the crime that was attempted. Thus, if a person unsuccessfully tries to commit bribery of a public official or unsuccessfully tries to commit a Class B felony, then a criminal attempt is a Class C felony. If a person attempted a Class A felony or capital offense, then the attempt will charged as a Class B felony… and so on. 

The penalty range for a

• Class A felony or capital offense is 20-50 years to life
• Class B felony is 10-20 years 
• Class C felony is 5-10 years 
• Class D felony is one to five years 
• Class A misdemeanor is not more than 12 months in jail or a fine of not more than $500.00, or both county jail and a fine 
• Class B misdemeanor is not more than 90 days in jail or a fine of not more than $250.000 or both jail and a fine 
• Violation is not more than $250.000 

ATTEMPT  AS SEEN THROUGH CASE LAW 

Because nearly any crime can be attempted, examples help to illustrate how attempt works as its own separate crime. 

Where the crime charged is attempted is murder, evidence establishing that the defendant intended to kill the victim sufficient to support a conviction for murder would support a conviction for attempted murder. Stieritz v. Commonwealth, 671 S.W.3d 353 (Ky. 2023). However, there is no such crime as attempted manslaughter because a manslaughter conviction does not require an intent to kill the victim – there cannot be an intention to commit an unintentional act. Prince v. Com., 987 S.W.2d 324 (Ky. 1997). 

An overt act or a substantial step towards committing the crime is one of the elements that may be required in order to show attempt. The substantial steps that are required must demonstrate that the defendant’s purpose is to commit a crime, as observed by witnessing officers who then may have intervened to prevent the crime from being commission. Com., v. Prather, 690 S.W.2d 396 (Ky. 1985). The overt act that is sufficient forms one of the natural series of acts which is required for full execution of the crime. Gilley v. Commonwealth, 133 S.W.2d 67 (Ky. 1939). 

For example, where a defendant tried but failed to obtain merchandise with a stolen credit card, the defendant could not be convicted of fraudulent use of a credit card but instead would only be able to be convicted of attempted fraudulent use of a credit card. Jackson v. Com., 972 S.W.2d 286 (Ky. App. 1997). 

DEFENSES 

If the defendant completely renounced the crime and abandoned the effort to complete the crime, then this abandonment can be a defense to attempt under KRS §506.020. The renunciation must be voluntary and complete such that the defendant abandoned his effort to commit the crime. If the abandonment was not sufficient to prevent abandonment of the crime, then the defendant must have taken necessary steps to prevent the crime from occurring. 

However, a renunciation is not voluntary and complete in either one of two circumstances. If the defendant was motivated in whole or in part by fear of being apprehended or detected, then there is still an attempt. Also, if the defendant was motivated in whole or in part by a decision to postpone the criminal conduct to another time or to transfer the criminal effort to another victim or another but similar purpose, there is still an attempt.