What is an Incomplete Crime?

When we think of crime, we usually assume that the criminal’s intentions were successfully carried out — drugs were trafficked, the victim was assaulted. However, sometimes people may only try to complete a criminal act and fail to do so, for one reason or another. These actions that fall short of committing an actual crime, in many cases, are considered a crime themselves. These crimes, referred to as attempts, conspiracies, and solicitations, are referred to as incomplete crimes.

In North Carolina, the way an incomplete crime is handled in proceedings versus a complete crime can be fairly complicated. Here we outline the types of incomplete crimes and how they may differ in treatment and punishment.

grand jury in session, with witness called by grand jury subpoena or target letter

Attempt

A person is guilty of attempt to commit a crime if they:

  1. while specifically intending to do something that is a crime,
  2. perform an overt act calculated and designed to bring about the crime, and
  3. the act falls short of the completed offense.

In essence, when a person intends to do something criminal, then performs a plainly seen act to commit such crime but fails to complete the act they intended, they are making an “attempt”. For example, if a person carries a weapon and pursues another person with the intent to shoot and kill them, then fires shots but misses the other person, they are attempting a murder.

Generally, an attempt to commit a crime in North Carolina, whether felony or misdemeanor, is punished as one class below the complete crime, with the following exceptions:

  • Attempted Class A felonies are a Class B2 felony.
  • Attempted Class I felonies are a Class 1 misdemeanor.
  • Attempted Class 3 misdemeanors are a Class 3 misdemeanor.

There are exceptions where an attempt is punished the same, such as indecent liberties with a child and armed robbery.

Caveats and Exceptions to Attempted

Depending on how a crime is defined or performed, the idea of attempting such crime has to be treated with additional nuance. Below are some interesting caveats:

  • Attempt is Included in the Original Crime: Some crimes are defined to include an attempted act, so there cannot be an attempted version of that crime, as it would be an attempt of an attempt, which is not a crime. For example, assault is defined to include attempted or threatened violent acts, so there is no “attempted assault” crime.
  • Attempt is Impossible due to Lack of Intent: As an attempted crime requires intention, one cannot attempt a crime that is defined as lacking intent. For example, you cannot attempt second-degree murder, because the intent to murder makes the crime not second-degree. 
  • Crime Could not Possibly be Completed: Even if the circumstances would mean the crime could not possibly be fully completed, a person could still be guilty of attempting such crime. For example, if a person attempts to solicit children for sex through an online chat service, but the person they were speaking to was in law enforcement, they cannot possibly complete the crime but will still be guilty of an attempt.

Solicitation

A person is guilty of soliciting a crime if they:

  1. entice, advise, counsel, incite, induce, order, or command another to commit a crime,
  2. with the specific intent that the other person commit the crime.

Generally, a solicitation to commit a felony is punished 2 classes lower, while solicitation of a misdemeanor is punished as a class 3 misdemeanor, with the following exceptions:

  • Solicitation to a Class A felony is a Class C felony
  • Solicitation to a Class H felony is a Class 1 misdemeanor.

As with attempt, there are several caveats depending on the circumstances of the case. For example, as solicitation does not require the other person solicited to actually carry out the crime, you can still be guilty of solicitation even if no crime is committed or even attempted. This comes to play in cases , for example, where a law enforcement official is solicited, but has no intention to commit the crime.

Conspiracy

A person is guilty of conspiracy to commit a crime if they:

  1. enter into an agreement with at least one other person
  2. to commit an unlawful act
  3. with intent that the agreement is carried out.

The important aspects of this crime that differ from attempted crime is that conspiracy requires more than one person and there only needs to be an agreement or plan, but not necessarily an overt act. For example, if two people planned to stage a hit on a victim for a gang-related dispute, but they get side-tracked and do not show up to attempt the hit, they may still be guilty of conspiracy.

There are several caveats to conspiracy crimes, including:

  • Form of Agreement: Agreements can take many forms, including written, spoken word, or non-verbal acts, but all people involved must have agreed. If, for example, a person only pretended to agree but had no intent to carry out a crime, then there is no conspiracy tying that person into the crime.
  • Marriage: Common law typically treats spouses as one entity, but in this case they can be viewed as separate people able to enter into a conspiracy.
  • Multiple Parties: A conspiracy only requires two people, so even if several people appeared to be involved but turned out to not be in agreement, as long as two people were in agreement to commit a crime, those two people may be guilty of conspiracy.

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