2012 (September Term)
United States v. Schell, 72 M.J. 339 (unlike some simple military offenses, attempt is a more complex, inchoate offense that includes two specific elements designed to distinguish it from mere preparation: (1) the intent to commit the substantive offense, and (2) taking a substantial step toward committing the substantive offense).
2011 (September Term)
United States v. Norwood, 71 M.J. 204 (in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense; in this regard, Article 134 predicate offenses should not be treated differently in pleadings under Article 80 or 81 from the enumerated offenses in Articles 83 through 132).
(a specification expressly alleged the elements of attempted adultery by alleging that appellant, a married man, attempted to commit adultery by having intercourse with the victim, who was not his wife, and he did so by trying to place his penis inside her vagina and have sexual intercourse with her).
United States v. King, 71 M.J. 50 (to constitute an attempt, there must be a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose; preparation consists of devising or arranging the means or measures necessary for the commission of the offense; the overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense).
(during a Skype Internet conversation, appellant’s request to his 14-year-old stepdaughter to expose her breasts so that he could observe them utilizing the web camera constituted an attempt to commit an indecent act; appellant’s request was an overt act that constituted direct movement toward the commission of an indecent act; but for his stepdaughter’s refusal to lift her shirt, appellant would have viewed his stepdaughter’s breasts).
United States v. Winckelmann, 70 M.J. 403 (there is an elusive line separating mere preparation from a substantial step in an attempt prosecution; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances).
2008 (September Term)
United States v. Miller, 67 M.J. 87 (an attempt requires an act tending to effect the commission of the intended offense).
United States v. Mitchell, 66 M.J. 176 (appellant’s admissions during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, established all the elements of attempted distribution of marijuana).
United States v. Roeseler, 55 MJ 286 (attempted conspiracy to commit a crime under the Uniform Code of Military Justice is a military offense under Article 80, UCMJ).
(the offense of attempted conspiracy to murder fictitious persons did not require agreement or a shared intent among the expected conspirators with respect to the object of the alleged conspiracy; it was appellant’s belief or understanding that was critical to establish his guilt of this attempt offense).
(the military judge’s explanations of a charged conspiracy and a charged attempted conspiracy, taken together, were sufficient to inform appellant that conspiracy, unlike attempted conspiracy, required that the alleged conspirators actually share the same criminal intent or mental state).
(the defense of impossibility of the crime attempted or conspired is not a defense to a charge of attempt or conspiracy under military law; therefore, because the impossibility of the offenses is not a defense to either attempt or conspiracy, it is not a defense to the charge of attempted conspiracy).
(with respect to the offense of attempt under Article 80, an accused should be treated in accordance with the facts as he or she supposed them to be; "A person who purposely engages in conduct which would constitute an offense in the attendant circumstances were as that person believed them to be is guilty of an attempt" (para. 4c(3), Part IV, MCM, 1984)).
United States v. Smith, 50 MJ 380 (where accused admits in providence inquiry that acts went beyond mere preparation and points to a particular action that satisfies himself on this point, it is neither legally nor logically well-founded to say that actions that may be ambiguous on this point fall short of the line “as a matter of law” so as to be substantially inconsistent with guilty plea).(accused’s