Kohlmeier v. State
8 Fulton County D. Rep. 694, 289 Ga. App. 709, 658 S.E.2d 261 (2008)
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Rule of Law:
An act constitutes a "substantial step" toward the commission of a crime, sufficient for a criminal attempt conviction, if the act is more than mere preparation and, in light of the circumstances, is inexplicable as a lawful act.
Facts:
- A Food Lion merchant reported to the sheriff's department that customers had purchased a large quantity of matches and left in a specific truck.
- Nicholas A. Kohlmeier was driving this truck with two passengers, one male and one female.
- The female passenger had purchased cold medicine containing pseudoephedrine from a CVS store and two boxes of matches from Food Lion.
- The male passenger had purchased three additional boxes of matches from Food Lion.
- Kohlmeier had acquired two bottles of HEET brand fuel treatment, a form of methanol, from a Fred's store.
- While driving, the male passenger tossed a shopping bag containing approximately 5,000 matchbooks out of the truck window.
- The group also possessed a Coleman camping stove and kerosene, and they planned to manufacture methamphetamine in a wooded area.
- A patrol officer observed that the truck Kohlmeier was driving had a non-working tag light.
Procedural Posture:
- Nicholas A. Kohlmeier was arrested and charged with drug crimes in a Georgia trial court.
- Following a trial, a jury found Kohlmeier guilty of criminal attempt to manufacture methamphetamine.
- Kohlmeier, as appellant, appealed his conviction to the Court of Appeals of Georgia, challenging the sufficiency of the evidence, the legality of the traffic stop, and his arrest.
- The State of Georgia is the appellee.
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Issue:
Does the possession of numerous legal but essential items for manufacturing methamphetamine, combined with corroborating evidence of criminal intent, constitute a 'substantial step' sufficient to support a conviction for criminal attempt?
Opinions:
Majority - Phipps, Judge.
Yes, the possession of numerous legal but essential items for manufacturing methamphetamine, combined with corroborating evidence of intent, constitutes a substantial step sufficient for an attempt conviction. The court reasoned that a 'substantial step' is an act that is more than mere preparation and tends directly toward the commission of a crime. In this case, Kohlmeier and his passengers had gathered pseudoephedrine, a heat source (stove), and methanol (HEET), all essential for making methamphetamine. Their concurrent possession of a massive quantity of matches (containing red phosphorus) made their collective actions 'inexplicable as a lawful act.' The testimony of the female passenger, an accomplice, was sufficiently corroborated by other evidence, including the discovery of the discarded matches along their route and a recorded statement where Kohlmeier worried that a store had 'ratted' on them. The court also found the traffic stop was lawful because the officer observed a traffic violation (a broken tag light), and the subsequent arrest was supported by probable cause based on the BOLO, the items found in the truck, and a drug dog's alert.
Analysis:
This decision clarifies the 'substantial step' requirement for the crime of attempt, emphasizing that a series of individually legal acts can collectively constitute a criminal attempt when viewed in context. It affirms that the standard does not require the preparatory act itself to be illegal, but rather that the act, combined with other circumstances, points strongly toward the commission of a crime. The case also reinforces the legal principle that an officer's subjective motive for a traffic stop is irrelevant as long as an objective, lawful basis for the stop exists. For future cases, this provides a strong precedent for convicting individuals in the preparatory stages of a crime, particularly in drug manufacturing cases where suspects accumulate legal precursor chemicals and equipment.
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