State v. McElroy
1981 Ariz. LEXIS 170, 625 P.2d 904, 128 Ariz. 315 (1981)
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Rule of Law:
A person can be convicted of an attempt crime even if it was factually impossible to complete the underlying offense, as long as the person intended to commit the crime and engaged in conduct that would have constituted the crime if the circumstances were as they believed them to be.
Facts:
- A Yuma County Sheriff's deputy encountered the defendant, who was hitchhiking, and agreed to give him a ride.
- Pursuant to standard procedure, the deputy performed a pat-down search and found a plastic bag containing white pills in the defendant's shirt.
- The defendant identified the pills as 'speed' (amphetamines) and stated he had purchased them at a bar.
- The deputy later found a second bag of similar pills in the back of the patrol vehicle after the defendant had been seated there.
- After being advised of his Miranda rights, the defendant again stated that the pills were 'speed'.
- Subsequent chemical analysis by a chemist revealed the pills were not amphetamines or any other statutorily proscribed dangerous drug.
Procedural Posture:
- The defendant was tried in a court of first instance without a jury (a bench trial).
- At the close of the State's case, the defendant moved for a directed verdict.
- The trial court denied the defendant's motion.
- The trial court found the defendant guilty of attempted possession of dangerous drugs.
- The defendant appealed the conviction to the Supreme Court of Arizona.
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Issue:
Is a defendant guilty of attempting to possess dangerous drugs when the substance possessed is not actually a dangerous drug, but the defendant believes it is?
Opinions:
Majority - Cameron, Justice
Yes. A defendant is guilty of an attempt if, with the requisite criminal intent, the person engages in conduct which would constitute the offense if the attendant circumstances were as the person believes them to be. The court distinguished between factual impossibility, which is not a defense, and legal impossibility, which is a defense. Factual impossibility occurs when a crime is impossible to complete because of some physical or factual condition unknown to the defendant. Here, the defendant's inability to possess dangerous drugs was due to the factual reality that the pills were not drugs, a circumstance he was unaware of. The Arizona attempt statute, A.R.S. § 13-1001, explicitly covers this scenario by focusing on the defendant's subjective belief about the circumstances. Because the defendant intended to possess dangerous drugs and took the step of actually possessing pills he believed were drugs, he is guilty of the attempt.
Analysis:
This decision solidifies the legal principle in Arizona that factual impossibility is not a defense to an attempt charge, aligning the state with the modern trend in criminal law. By interpreting the state's attempt statute broadly, the court prioritizes the defendant's criminal intent (mens rea) and the substantial steps taken toward the crime's commission over external factors that may have prevented its completion. This ruling makes it easier for prosecutors to secure convictions in 'sting' operations or in cases where, by happenstance, the crime could not be successfully carried out, reinforcing the idea that criminal liability attaches to the intent and effort to break the law.
