What is an Attempt Crime Under Minnesota Law?
Minnesota, like many other states, criminalizes the attempt to commit certain crimes. The laws governing attempt crimes vary by state, but an attempt crime under Minnesota law has a very specific, and until recently, well-settled definition. We say “until recently,” because, as we will discuss below, a recent Minnesota case appears to have broadened the definition of an attempt crime in the context of third-degree criminal sexual conduct.
Under Minnesota Statutes, an attemped crime is defined as follows:
“Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”
The Requirement of “Intent”
Under Minnesota law, an attempt crime requires that the actor have an intent to perform the act or acts and attain a result which if accomplished would constitute the crime. Thus, to constitute a criminal “attempt,” the act or acts must “unequivocally demonstrate” that the actor had such intent and would have committed the crime excepting for the intervention of another person or some other factor. According to a treatise on criminal law, which has been cited favorably by Minnesota courts, the word “attempt” means to try, and it implies an effort to bring about a desired result. Hence an attempt to commit a crime requires a “specific intent” to commit that particular offense.
Because the law contains a “specific intent” element, it is not possible to be guilty of an attempt to a commit a crime when the crime itself is based in negligence or recklessness. Crimes like second-degree manslaughter, for example, do not require the government to prove that a person intended to cause death, but that one person’s death resulted from another person’s “culpable negligence.” In such a case, there is no intent element. It follows that one cannot “attempt” to commit a crime that is the result of an accident or a person’s negligence.
Contrast second-degree manslaughter with second-degree murder. In the case of the latter, the law requires the government to prove that a person acted with the specific intent to cause the death of another. It is not possible to be guilty of second-degree murder when a person is killed accidentally. Rather, the government must prove beyond a reasonable doubt that the defendant acted with the specific intent to bring about the death of another and in fact caused the death of another.
The Requirement of a “Substantial Step”
In addition to the requirement that a defendant possess the specific intent to bring about the act, to be convicted of an attempt crime, a defendant must also take a “substantial step” toward the commission of the crime itself. Conduct that constitutes a “substantial step” toward the crime is not defined in the attempt statute. However, in State v. Dumas (a case from 1912), the Minnesota Supreme Court stated that “no definite rule, applicable to all cases, can be laid down as to what constitutes an overt act or acts tending to accomplish a particular crime, within the meaning of our statute. Each case must depend largely upon its particular facts and the inferences which the jury may reasonably draw therefrom.” The court in Dumas went on to say that, as a general proposition, an attempt to commit a crime requires “an intent to commit [a crime], followed by an overt act or acts tending, but failing, to accomplish it,” and that the overt act must “directly tend in some substantial degree” to accomplish the intended crime. Against this backdrop, the court in Dumas was careful to note that while the overt acts, if not interrupted, would necessarily result in the commission of a crime, they must be something more than mere preparation. In the Dumas case, the court held that that the defendant’s acts of hiring others to start a fire, purchasing supplies and tools to accomplish this aim, and entering the building to be burned constituted a “substantial step” toward committing the crime of arson.
Both the attempt statute and the caselaw can be synthesized to define an attempt crime as containing two parts: (1) the intent requirement; and (2) the substantial step toward requirement. If a particular fact pattern lacks one or both, a defendant will not be guilty of an attempt crime.
A Recent Case Involving the Issue of a “Substantial Step”
On January 28, 2019, the Minnesota Court of Appeals issued a 2-1 decision in a case where the defendant was convicted of third-degree criminal sexual conduct. In that case, State v. Wilkie, law enforcement undertook a sting operation by posting a “decoy” profile of a young male on “Grindr,” a social media platform. The defendant contacted the decoy, and the two communicated intermittently online over the course of seven hours. The defendant initiated the online conversation by asking, “What are you doing tonight? Want to meet,” and “Any pics.” The decoy sent a “selfie” photograph depicting the head and torso of a youthful-looking male in a tank-style t-shirt. The defendant responded, “Any nudes” and “Better pic sweetie,” and sent the decoy two close-up nude photographs. The decoy responded, “I’m 14… Is that ok?” The defendant again sent two close-up nude photographs. The defendant asked the decoy if he was “really 14” and if he had “had sex before,” and urged him repeatedly to send “nudes.” When the decoy asked the defendant what he wanted to do the next day, the defendant answered “F–k” and “Sex.” The decoy answered, “Really!,” and the defendant responded, “Yes Do u.” The decoy wrote “cool.” The defendant wrote again, “Do u.” The decoy answered, “Sure!,” and the defendant wrote, “Ok Sweet.” The two arranged to meet the next day, and the decoy gave the defendant his cell phone number.
The next day, the defendant and the decoy resumed their conversation on Grindr. They arranged a time to meet at the decoy’s purported family home, and the defendant reiterated that he wanted to “have fun.” They also used their cell phones to have a live conversation. The decoy eventually sent the defendant his home address, telling the defendant that he could meet there because his mother would not be home from work until later. The defendant expressed concern about getting in trouble, and the decoy responded that he would make sure his mom would not come home early. When the defendant texted to indicate he had arrived at the address, the decoy responded, “K. Open doir Door.” The defendant walked up to the home and knocked on the door, and the police opened the door and arrested him.
Among other crimes, the defendant was charged with attempted third-degree criminal sexual conduct. The defendant waived his right to a jury trial, and proceeded to trial before the district court judge. After the close of evidence, the district court judge found the defendant guilty of, among others, attempted third-degree criminal sexual conduct. On appeal, the defendant challenged the sufficiency of the evidence, arguing that his conduct did not constitute a substantial step toward committing third-degree criminal sexual conduct.
To be guilty of third-degree criminal sexual conduct, the government must prove that a person engaged in “sexual penetration” with a complainant who is “at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant.” “Sexual penetration” is defined to include “sexual intercourse, cunnilingus, fellatio, or anal intercourse; or … any intrusion however slight into the genital or anal openings.” In the Wilkie case, the defendant argued that the government had evidence of his intent to commit third-degree criminal sexual conduct, but the government lacked sufficient evidence to show his substantial step toward committing that conduct.
A divided court of appeals sided against the defendant. In affirming his conviction, a majority of the court of appeals wrote as follows:
We acknowledge that the cases upon which Wilkie relies involve physical contact, words delivered in person, or an attack. But we are not convinced that these factual distinctions preclude a determination that Wilkie took a substantial step toward achieving his intended goal—sexual penetration of a juvenile. The advent of social media has abbreviated or eliminated some of the courtship rituals in our society, including how people initiate sexual relationships and arrange for sexual encounters. Actions that historically demonstrated a substantialstep toward commission of a sex crime, such as preliminary physical contact, may no longer apply when social media is used to initiate the sexual encounter. But we are persuaded that other actions by a perpetrator in furtherance of a sexual offense may establish that a substantial step was taken. Such is the case here.
The evidence shows that Wilkie orchestrated a sexual encounter with a juvenile through extensive social media contact and phone conversation; the only purpose of their in-person meeting was to consummate the sex act itself—for Wilkie to ‘f–k’ the juvenile. Wilkie concedes that he intended to commit this crime. After exchanging sexually explicit messages and graphic photos, Wilkie arranged to meet with the decoy in private at a particular time and location. Wilkie obtained the decoy’s address, drove to the home at the agreed-upon time, confirmed the two would be alone in the home, parked his car, walked up the steps, and knocked on the door. At that point, the only thing left to take place was sexual penetration. Applying the principles articulated in Dumas, we conclude that Wilkie’s acts were not remote in time or location from the intended criminal sexual conduct and ‘directly tend[ed] in some substantial degree to accomplish’ the crime.
Wilkie’s conduct, commencing with a social media contact involving explicit sexual innuendo, leading to an agreement to engage in sexual penetration, and culminating with a knock on the victim’s door at an arranged time, is sufficient to prove that Wilkie did more than prepare to commit a crime. These circumstances establish that he took a substantial step toward committing third-degree criminal sexual conduct.
Chief Judge Cleary dissented in the Wilkie case, writing that the defendant’s conduct did not amount to the “substantial step” toward the commisison of third-degree criminal sexual conduct. In pertinent part, Chief Judge Cleary’s dissent was as follows:
In the instant case, [Wilkie’s] conduct falls short of this standard, and instead, remains in the realm of ‘mere preparation.’ [Wilkie] initially exchanged messages and photographs with the decoy on a social media application. After the communications continued, he arranged to meet the decoy at a certain time and location. He arrived at the agreed-upon location and knocked on the front door. While these actions do constitute illegal solicitation of someone the [Wilkie] believed to be a minor, they amount to preparation for, not an attempt to commit, the act of third-degree criminal sexual conduct, a crime that involves ‘sexual penetration.’ To hold otherwise is to greatly expand the legal definition of ‘attempt’ in the context of felonious sexual assault, an expansion the majority concedes when it suggests the ‘factual distinctions’ found in the relevant caselaw do not ‘preclude’ a different determination here.
While I concede that ‘the advent of social media has abbreviated or eliminated some of the courtship rituals in our society,’ such technological changes cannot be allowed to eviscerate constitutional protections in an effort to convict suspected sex offenders without sufficient proof of the elements of the crime charged. In this case, a knock on the front door is insufficient to establish that the [Wilkie] took a substantial step toward committing a crime that requires sexual penetration.
In holding that his conduct amounts to a substantial step, the majority conflates [Wilkie’s] intent to commit the crime – which he has conceded – with his conduct in arriving at the decoy’s house and knocking on the front door. In so doing, the majority expands the caselaw and characterizes historically preparatory conduct as an overt act. And while [Wilkie’s] conduct was repugnant and illegal, other charges are available to address his predatory behavior, as evidenced by his solicitation convictions… which more accurately and more specifically address his criminal conduct. I would affirm those convictions and reverse [Wilkie’s] conviction for attempted third-degree criminal sexual conduct.
The Wilkie case highlights the divergence in legal interpretation that can divide a court on the issue of what constitutes a “substantial step” toward the commission of a crime. As of this writing, the defendant in Wilkie has not petitioned the Minnesota Supreme Court to review the decision of the court of appeals. A defendant has 30 days from the date the court of appeals decision is filed to seek review by the Minnesota Supreme Court. Given the divide at the court of appeals, and the importance of the issue decided, we anticipate that the defendant in Wilkie will petition the Minnesota Supreme Court for review. It remains an open question, however, whether or not the Minnesota Supreme Court will grant review.
Lundgren & Johnson, PSC | Minnesota Attempt Crime Lawyers
Attempt crimes are usually serious, and often involve the possibility of imprisonment. We take our jobs seriously, and we have achieved successful results in attempt crime cases. The lawyers at Lundgren & Johnson, PSC, are experienced in difficult and complex cases involving attempt crimes. If you have been charged with an attempt crime, you need dedicated legal advocacy. You can reach David R. Lundgren or Adam T. Johnson 24 hours a day at 612-767-9643 or by entering your information on this website. At our firm, we fight hard for you.