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Court’s expansion of “attempt” vexes criminal lawyers

Under MN law, the crime of “attempt” occurs when a person, with the intent to commit a specified crime, “does an act which is a substantial step toward, and more than preparation for, the commission of the crime.”Conduct constituting a substantial step is not defined by statute but is rather illustrated by caselaw. The facts of each case must be examined on an individual basis in light of earlier caselaw.

In January 2019, the Court of Appeals seems to have expanded what constitutes the crime of attempted third-degree criminal sexual conduct (sexual penetration of a minor). In State v. Wilkie, the defendant was arrested, charged with, and convicted of the attempted offense. The Court of Appeals upheld the conviction, finding that exchanging text messages with a police decoy, arranging a meeting with the decoy, traveling to the agreed-upon location, and knocking on the door were sufficient “substantial steps” toward “achieving [the defendant’s] intended goal—sexual penetration of a juvenile.”

The problem this case presents is that the defendant was arrested at a stage when he could still have abandoned his plan: He was preparing to commit the crime. The defendant had admitted the requisite intent, but he had not gone far enough in the process to make this an attempt under the law as it stoodprior to the court’s opinion. As Chief Judge Cleary noted in his dissent, “The caselaw illustrating ‘attempt’ in sex-related crimes involves physical contact, words delivered in person, or an attack” — much more than merely knocking on a door. By holding that a door knock was enough, the majority — as the Chief Judge wrote — “expand[ed] the caselaw and characterize[d] historically preparatory conduct as an overt act.”

In this case, there were plenty of other crimes with which the defendant could have been (and actually was) charged,based on his actions up to,and including, knocking on the door. Charges of attempted criminal sexual conduct in the third degree simply did not fit the factsof the defendant’s offense under existing law.Look for this case to be reconsidered by the Minnesota Supreme Court in the coming months.

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