Criminal Attempt Law In Missouri:
Death of a Tale of Two Theories

by H. Morley Swingle¹

Introduction

No area of Missouri criminal practice has been the subject of more confusion during the past decade than the law of criminal attempt. Fortunately, with a bold stroke of the pen, the law has suddenly become less complicated. In the most important criminal attempt case decided in Missouri since the enactment of the Criminal Code two decades ago, the Supreme Court of Missouri recently overruled 18 separate appellate attempt cases² while clarifying and simplifying the law of criminal attempt in Missouri. In State v. Withrow,³ the Court conclusively answered several complex and complicated questions that had vexed and perplexed criminal law practitioners throughout the 1990s. Withrow will remove the guesswork from prosecuting, defending and presiding over attempt prosecutions in Missouri.

The Elements Of The Crime

Missouri law is now clear that no matter how an attempt crime is charged, the offense "has only two elements: (1) . . . the purpose to commit the underlying [or target offense]; and (2) the doing of an act which is a substantial step toward the commission of that offense."⁴ This is true whether the crime is charged under § 564.011, RSMo, which creates the inchoate crime of criminal attempt, or whether it is charged under one of the numerous criminal statutes using the word "attempt" in the text of the statute as an alternate way of committing the target crime.⁵

The Short Life of a Theory That Failed

Missouri courts recognized two separate types of criminal attempt from 1993 to 1999. The first was the statutory "substantial step" inchoate offense of attempt created by the Missouri Criminal Code in § 564.011, RSMo. This is the Model Penal Code version of criminal attempt adopted in similar form in 25 states.⁶ The second was called "common law attempt." Its genesis was the now infamous Southern District case of State v. Reyes.⁷ Common law attempt referred to those instances where the statute criminalizing a completed offense also criminalized an attempt to commit that offense. These statutes are legion. The Supreme Court of Missouri recently identified more than 60 of them,⁸ including such common offenses as assault and manufacture of a controlled substance.

For a legal theory with such a short life span, the "common law attempt" interpretation of State v. Reyes produced a remarkably prodigious amount of confusion. It created numerous problems pertaining to every phase of an attempt prosecution from charging to sentencing.

The crux of the problem was the holding in Reyes that whenever a criminal statute used the word "attempt" without specifically referring to the statutory offense in § 564.011, the legislature meant for the old elements of pre-code "common law attempt" to apply.⁹ Under this interpretation, attempts charged under these statutes had four elements: "(1) the intent to commit the target crime; (2) an overt act toward its commission; (3) failure of consummation, and (4) the apparent possibility of commission."¹⁰ Reyes and its progeny also taught that common law attempt was a more difficult offense to prove in that it required an overt act nearly approaching consummation of the offense, not just a substantial step toward the completed offense.¹¹

All three districts of the Missouri Court of Appeals had followed Reyes.¹² Consternation and confusion over which type of attempt applied in a given case and what elements of the crime were to be submitted to the jury reigned throughout the state.¹³ Several cases "incorrectly merged" or "jumbled" the four elements of common law attempt into the substantial step test.¹⁴ Finally, in State v. Withrow,¹⁵ the Supreme Court of Missouri, which had never expressly embraced the Reyes interpretation of attempt law, explicitly and totally rejected the common law attempt theory. Common law attempt was finally and completely abolished in Missouri. All attempts, no matter how charged, are now substantial step attempts.

Substantial Step

The mental element of purposefulness can usually be proven by the circumstantial evidence constituting the substantial step itself.¹⁶ Thus, the battle in attempt cases will most often focus solely upon whether the acts committed by the defendant amounted to a substantial step toward committing the target offense. A substantial step is statutorily defined as "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense."¹⁷ Under the common law, in the words of Justice Oliver Wendell Holmes, the defendant's act had to "come pretty near to accomplishing" the target crime before it would constitute an attempt.¹⁸ By contrast, the "substantial step" approach lowers "the threshold needed to find the offense of attempt by shifting the emphasis away from what an actor still had to accomplish and refocusing instead upon what the actor had already done."¹⁹ The substantial step approach "does not require that a defendant's overt act be the ultimate step toward, or the last proximate or possible act in the consummation of the crime attempted."²⁰

The determination of what act will constitute a substantial step will depend upon the "facts of the particular case."²¹ Thanks to 20 years of caselaw under Missouri's inchoate offense statute, and thanks to the fact that so many other states have enacted virtually identical criminal attempt statutes,²² a large body of law exists to guide practitioners as to what amount of conduct constitutes a substantial step. Whether the target crime is murder,²³ rape,²⁴ robbery,²⁵ kidnapping,²⁶ sodomy,²⁷ sexual abuse,²⁸ assault,²⁹ felonious restraint,³⁰ false imprisonment,³¹ arson,³² burglary,³³ stealing without consent,³⁴ stealing by deceit,³⁵ stealing by coercion,³⁶ receiving stolen property,³⁷ driving while intoxicated,³⁸ escape,³⁹ bribery⁴⁰ or drug possession,⁴¹ delivery,⁴² manufacture⁴³ or possession with intent to deliver,⁴⁴ precedents can be found.

No matter what the target crime, the actions constituting a substantial step can usually be grouped into certain typical preliminary steps recognized in the Comment to Missouri's Criminal Code as normally sufficient as a matter of law to constitute a substantial step.⁴⁵ These scenarios include lying in wait for the victim, enticing the victim to go to the place contemplated for the crime, reconnoitering the place contemplated for the commission of the crime, unlawfully entering a place where the crime is to be committed, possessing materials specifically designed for the commission of a particular crime, possessing materials normally lawful under circumstances serving no lawful purpose, or soliciting an agent to commit the target crime.

Lying In Wait

"Lying in wait, searching for or following the contemplated victim of the offense" will normally constitute a substantial step.⁴⁶ Thus, a defendant who went to a motel searching for a particular motel manager with the intent to hit him with a wrench committed attempted assault even though the manager was not present.⁴⁷ An estranged husband found hiding in a ditch near his wife's home after making comments to others that he intended to kill her had performed the substantial step of lying in wait to murder her.⁴⁸ A defendant not yet lying in wait but in a car on his way to commit a burglary has committed a substantial step toward that burglary.⁴⁹

Enticing Victim To Particular Place

"[E]nticing or seeking to entice the contemplated victim of the offense to go to the place contemplated for its commission" will usually amount to a substantial step.⁵⁰ Trying to lure a young woman into a car at gunpoint constituted attempted kidnapping, even though she fled instead of getting into the car.⁵¹ Luring a 9-year-old girl into a shed where defendant intended to sodomize her constituted a substantial step.⁵² However, the proof of the crime the defendant plans to commit once he entices the victim to the particular place must amount to more than "sheer speculation."⁵³ Thus, the mere fact an adult male stranger ordered a 9-year-old girl to get into his car was insufficient proof of attempted kidnapping.⁵⁴

Reconnoitering The Place

"[R]econnoitering the place contemplated for the commission of the offense" will normally amount to a substantial step.⁵⁵ In Hollywood lingo, this is sometimes called "casing" the joint.⁵⁶ The rationale is that firmness of purpose is shown "when the actor proceeds to scout the scene of the contemplated crime in order to detect possible dangers and to fix on the most promising avenue of approach."⁵⁷

Unlawful Entry Of A Place

"[U]nlawful entry of a structure, vehicle or enclosure in which it is contemplated that the offense will be committed" will virtually always amount to a substantial step.⁵⁸ Thus, two men who climbed over a fence into a homeowner's yard and looked into his bedroom window, then tried to open his locked back door, were guilty of attempted burglary.⁵⁹ A defendant who was one of three people unlawfully inside a van whose stereo knobs had been removed was guilty of attempted stealing of the stereo.⁶⁰ A defendant who had previously stolen two cars from an automobile dealership and who was found on a later date hiding under a truck on the dealership's lot was guilty of attempted stealing.⁶¹ A defendant who "banged on the front door" of a residence with such force that he broke the door frame committed a substantial step toward burglarizing the home.⁶² A stranger with unzipped pants who barged into a young woman's home when she opened her door, grabbed her by the arm and covered her mouth as she began screaming committed a substantial step toward rape.⁶³

Possession of Materials Designed For Unlawful Use

"[P]ossession of materials to be employed in the commission of the offense, which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances" will normally amount to a substantial step.⁶⁴ These cases are relatively infrequent since they are limited to the possession of things like counterfeiting materials, which absolutely cannot have any legal purpose.⁶⁵

Possession of Legal Materials Under Circumstances Serving No Lawful Use

More common are cases where the defendant has been caught possessing items that are by themselves legal to possess, under circumstances suggesting his intent to use them to commit a crime.⁶⁶ The sufficiency of the evidence in cases of this sort will depend upon the circumstances of the particular case. The general view is that mere possession of non-illegal materials that can be employed in the commission of a crime does not constitute an attempt.⁶⁷ Two significant variables can push this preparation into the substantial step arena: (1) the nature of the materials, especially their distinctiveness as an instrumentality of the contemplated crime; and (2) the location of the materials -- whether they have been brought to the scene of the contemplated crime or have merely been acquired.⁶⁸ For example, possession of a drill, a dent-puller and other tools on a parking lot at 5:30 a.m. constituted a substantial step toward car theft, even though the tools unquestionably had legal uses as well.⁶⁹ An inmate's possession of a rope and hammer in an unused portion of a prison amounted to a substantial step toward escape.⁷⁰ A student's possession of rat poison in her purse at school after she'd told others she intended to poison her teacher's coffee amounted to a substantial step toward murder.⁷¹

Cases involving attempted manufacture of methamphetamine have become so numerous as to deserve special mention. Defendants actually caught in early⁷² or late⁷³ stages of the cooking process have been successfully prosecuted for attempted manufacture,⁷⁴ even under the higher common law attempt standard of proof; likewise for those who had gathered the materials under circumstances showing reasonable inferences that they intended using them to manufacture methamphetamine.⁷⁵ Since items like liquid fire, toluene and ephedrine pills are all sold commercially and are not illegal per se to possess, however, the mere possession of a group of some items used to manufacture methamphetamine without further proof of the defendant's criminal intent (such as a recipe, large quantities, co-defendant testimony, a confession or proof of prior methamphetamine manufacture) will often be insufficient to prove the mental element necessary for a criminal attempt.⁷⁶

Insufficiency of the evidence may also arise in attempt cases when the prosecution has difficulty establishing that this particular defendant actually or constructively possessed the materials.⁷⁷ "Actual" possession occurs when a person "has the substance on his person or within easy reach and convenient control."⁷⁸ "Constructive" possession occurs when a person "has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons."⁷⁹ Possession may be either sole or joint.⁸⁰ Problems with proof frequently occur in search warrant cases where several people are present upon the premises where materials used to manufacture methamphetamine are found, but the state cannot connect this defendant to the materials.⁸¹ The mere fact that a defendant is present upon the premises where the manufacturing process is occurring does not by itself make a submissible case.⁸²

Soliciting an Agent to Commit the Offense

The Model Penal Code⁸³ and several states⁸⁴ recognize solicitation to commit a target crime as being a crime specifically called solicitation. Missouri has no solicitation offense. Instead, solicitation amounting to a substantial step can constitute an attempt in Missouri.⁸⁵ The Comment to the Criminal Code points out that soliciting an agent to engage in conduct constituting an element of the offense amounts to a substantial step "if strongly indicative of the actor's criminal purpose."⁸⁶ Yet, more must be proven than a mere request to commit a crime. In the leading case of State v. Molasky,⁸⁷ proof that an imprisoned defendant asked another inmate to kill defendant's in-laws for $5,000 was held insufficient to support a conviction for attempted murder. Acknowledging that solicitation "can be the substantial step necessary for sustaining an attempt conviction," the Court noted that "something beyond conversation" must have occurred.⁸⁸ A substantial step is evidenced by "actions indicative of purpose, not mere conversation standing alone."⁸⁹ The act evidencing defendant's seriousness of purpose to commit murder might be money exchanging hands, concrete arrangements for payment, delivering a photograph of the proposed victim, delivering the address of the proposed victim, delivering a weapon, visiting the crime scene, waiting for the victim, or showing the hit man a victim's expected route of travel.⁹⁰ For example, a defendant who solicited an agent to burn a building indicated the firmness of his criminal purpose by taking the proposed "torchman" to the building to inspect its layout and by giving him his home phone number for future contacts.⁹¹ The Molasky Court concluded: "[W]e do not suggest solicitation can never be the substantial step necessary to support an attempt charge. Our statutory design has solicitation included in the crime of attempt, and given factually different circumstances, solicitation could support an attempt charge."⁹² This seems proper, since "[p]urposeful solicitation presents dangers calling for preventative intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability."⁹³ The mere fortuity that the person solicited does not agree to attempt the crime should not relieve the solicitor of criminal liability.⁹⁴ Additional Missouri caselaw has not yet developed. Meanwhile, prosecutors faced with proof of a solicitation accompanied by an act that is merely an overt act as opposed to a substantial step might be better off filing a charge of conspiracy rather than attempt.⁹⁵

Impossibility

Another issue recently resolved by the abolishment of common law attempt in Missouri is the inapplicability of the impossibility defense in all attempt cases. Impossibility of completion is expressly not a defense to statutory attempt,⁹⁶ while it was sometimes considered a viable defense to common law attempt.⁹⁷ This difference was especially important in police sting operations or in other cases where the defendant was mistaken as to the true facts. For example, a defendant who bought a television set from an undercover police officer, believing it to be stolen, would be guilty of receiving stolen property under statutory attempt; ⁹⁸ a defendant who thought he was paying a hit man to kill his wife but really handed his money to an undercover officer would be guilty of attempted murder;⁹⁹ a defendant who purchased a package of harmless white powder thinking he was buying cocaine would be guilty of attempting to possess cocaine;¹⁰⁰ a defendant who shoots a fake deer out of season has committed an attempted wildlife violation;¹⁰¹ and a defendant who intended to cook up a batch of methamphetamine and had gathered up many of the items needed except ammonia, but had not yet started the cooking process, would be guilty of attempted manufacture of methamphetamine.¹⁰² Many of these defendants would not have been guilty of common law attempt, however, since under the existing facts in each case the actual completion of each crime was impossible.¹⁰³

Abandonment

Approximately half of American jurisdictions statutorily recognize abandonment as a defense to attempt.¹⁰⁴ In those jurisdictions, abandonment is an affirmative defense and the defendant bears the burden of proof.¹⁰⁵ Similarly, the Missouri conspiracy statute specifically mentions that "[n]o one shall be convicted of conspiracy if, after conspiring to commit the offense, he prevented the accomplishment of the objectives of the conspiracy under circumstances manifesting a renunciation of his criminal purpose."¹⁰⁶ The attempt statute has no similar language, however, and it has been held that abandonment is not a defense to attempt in Missouri.¹⁰⁷ In the states where voluntary abandonment is recognized as a defense, it applies only when the abandonment is voluntary and occurs before commission of the intended crime.¹⁰⁸ Certainly, simply trying and failing to commit the crime will not constitute abandonment.¹⁰⁹ Thus, a male defendant who drove a female acquaintance home and pulled over, dragged her out of the car, struck her, exposed his penis and wrestled with her for 20 minutes trying unsuccessfully to remove her underwear, was convicted of rape even after he abandoned his efforts and drove her home.¹¹⁰ Likewise, a man who had already poured gasoline on the back of his intended victim's home but fled when he heard noises because he didn't "want to hurt nobody" was convicted of attempted arson.¹¹¹ A shoplifter who concealed merchandise under his clothing but then realized he had been spotted and dropped the items inside the store was still guilty of attempted stealing.¹¹² Some jurisdictions with statutes like Missouri's have held that, although abandonment is not a defense, it is an argument the defense can make when trying to persuade the trier of fact that a substantial step had never been taken.¹¹³

Successful Completion of Target Crime

Under common law attempt, a defendant could present the defense that he was not guilty of an attempt because the target crime had actually been completed. This was because failure of consummation was an element of the crime. Thus, a successful criminal carelessly charged could escape conviction because he had been more adept at committing the crime than the prosecutor had thought him to be. This absurd result was remedied by the statutory attempt statute.¹¹⁴ As the Comment to Missouri's Criminal Code notes: "By eliminating failure as an element of attempt, the [attempt] section avoids the problem of losing a conviction on a charge of attempt when the evidence shows that the offense was completed."¹¹⁵

Jury Instructions

The Withrow case has greatly simplified the preparation of jury instructions in criminal attempt cases. Reyes and its progeny had made participation in jury instruction conferences in attempt prosecutions something akin to walking over a beach infested with land mines. If a defendant had been charged with common law attempt, it was error to define attempt.¹¹⁶ If a defendant had been charged with statutory attempt rather than common law attempt, it was error not to define attempt.¹¹⁷ If the court mistakenly gave the range of punishment for statutory attempt rather than common law attempt, the error was grounds for reversal and a new trial.¹¹⁸

Post-Withrow, all attempt cases, no matter how charged, are statutory attempt cases and will include the definition of substantial step.¹¹⁹ This would include situations where an attempt verdict director was being given as a lesser-included instruction.¹²⁰

Another jury instruction issue involves the importance of correctly defining the underlying or target crime. If the crime is defined in MAI-CR 3d 333.00, it is error to depart from that definition.¹²¹ If, however, the attempt verdict director is being given as a lesser-included offense and the target crime has already been defined by its own verdict director, it is permissible to forgo defining the target crime in the attempt verdict director, as long as neither party objects.¹²² When burglary is the crime being attempted, it would also be error to fail to name the specific crime the burglar planned to commit inside the building had the burglary been successful.¹²³

Punishment

The Withrow case unambiguously answered the question of what punishment applies to various attempt cases. It has always been clear that attempt charges filed under the inchoate offense statute generally carry a punishment range a notch lower than the target crime "[u]nless otherwise provided."¹²⁴ An exception is that an attempt to commit a misdemeanor is always a class C misdemeanor.¹²⁵ Withrow holds that the language "unless otherwise provided" refers to those statutes in which the legislature has chosen to impose the same punishment for the attempted crime as for the consummated crime.¹²⁶ Thus, for the offenses formerly known as common law attempts the punishment is "intended to be greater than that specified in the general inchoate offense statute."¹²⁷

Conclusion

Prosecuting and defending attempt cases will never be simple. Determining the exact placement of the dividing line where preparation has reached the point it amounts to an attempt has been described as a legal "quagmire."¹²⁸ The last half of the Nineties, however, was truly the worst of times in trying to understand criminal attempt in Missouri. The death of the common law attempt doctrine could not have come too soon. In light of the comprehensive and authoritative Withrow decision, attempting to understand criminal attempt will no longer be such a trying proposition.

Endnotes

¹ Mr. Swingle is the prosecuting attorney of Cape Girardeau County. He is a 1980 graduate of the University of Missouri-Columbia School of Law.

² State v. Wurtzberger, No. WD56473, ___ S.W.2d ___ (Mo. App. W.D. 1999); State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999); State v. Mitchell, 999 S.W.2d 247 (Mo. App. W. D. 1999); State v. Frye, 998 S.W.2d 575 (Mo. App. S. D. 1999); State v. Morrow, 996 S.W.2d 679 (Mo. App. W. D. 1999); Holloway v. State, 989 S.W.2d 216 (Mo. App. W. D. 1999); State v. Bue, 985 S.W.2d 386 (Mo. App. E. D. 1999); State v. Little, 986 S.W.2d 924 (Mo. App. E. D. 1999); State v. Davis, 982 S.W.2d 739 (Mo. App. E. D. 1998); State v. Farr, 978 S.W.2d 448 (Mo. App. S. D. 1998); State v. Motley, 976 S.W.2d 502 (Mo. App. E. D. 1998); State v. Kenney, 973 S.W.2d 536 (Mo. App. W. D. 1998); State v. Mulder, 916 S.W.2d 346 (Mo. App. E. D. 1996); State v. McCrary, 900 S.W.2d 227 (Mo. App. W. D. 1995); State v. Reyes, 862 S.W.2d 377 (Mo. App. S.D. 1993); State v. Blaney, 801 S.W.2d 447 (Mo. App. E. D. 1990); State v. Hardy, 735 S.W.2d 153 (Mo. App. E. D. 1987); State v. Miller, 692 S.W.2d 339 (Mo. App. E. D. 1985).

³ 8 S.W.3d 75 (Mo. banc 1999).

⁴ State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999); State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989); State v. Graham, 2 S.W.3d 859, 863 (Mo. App. W.D. 1999); State v. Shivelhood, 946 S.W.2d 263, 265 (Mo. App. S.D. 1997).

⁵ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999).

⁶ Besides Missouri, twenty-two states have adopted the "substantial step" test by statute: Alaska Stat. § 11.31.100(a) (Lexis 1998); Ark. Code Ann. § 5-3-201(2) (Michie 1997); Colo. Rev. Stat. § 18-2-101(1) (1998); Conn. Gen. Stat. § 53a-49(a)(2) (1999); Del. Code Ann. tit. 11, § 531 (1995); Ga. Code Ann. § 16-4-1 (1999); Haw. Rev. Stat. § 705-500(1)(b) (1993); Ill. Comp. Ann. Stat. ch. 720, para. 5/8-4(a) (West 1993); Ind. Code Ann. § 35-41-5-1(a) (Lexis 1998); Ky. Rev. Stat. Ann. § 506.010(1)(b) (Lexis 1999); Me. Rev. Stat. Ann. tit. 17-A § 152 (West Supp. 1999); Minn. Stat. Ann. § 609.17 (1998); Neb. Rev. Stat. § 28-201(1)(b) (1995); N.H. Rev. Stat. Ann. § 629:1 (1996); N.J. Stat. Ann. § 2c: 5-1 (West 1995); N.D. Cent. Code § 12.1-06-01 (1997); Or. Rev. Stat. 161.405(1) (1997); Pa. Stat. Ann. tit. 18 § 901(a) (West 1998); Tenn. Code Ann. § 39-12-101 (1997); Utah Code Ann. § 76-4-101 (1999); Wash. Rev. Code Ann. § 9A.28.020 (West 1988); Wyo. Stat. Ann. § 6-1-301(a) (Lexis 1999). Rhode Island and Maryland have adopted the "substantial step" analysis solely through judicial action. State v. Latraverse, 443 A.2d 890 (R.I. 1982); Young v. State, 493 A.2d 352 (Md. 1985).

⁷ 862 S.W.2d 377 (Mo. App. S.D. 1993).

⁸ They are listed in an appendix to Withrow.

⁹ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999); State v. Reyes, 862 S.W.2d 377 (Mo. App. S.D. 1993).

¹⁰ Id.

¹¹ State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999); State v. Reyes, 862 S.W.2d 377, 382 (Mo. App. S.D. 1993); State v. Farr, 978 S.W.2d 448, 450 (Mo. App. S.D. 1998). See also State v. Molasky, 765 S.W.2d 597, 600 (Mo. banc 1989).

¹² State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998); State v. Farr, 978 S.W.2d 448 (Mo. App. S.D. 1998).

¹³ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999); State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999).

¹⁴ State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999); State v. Graham, 2 S.W.3d 859, 863 (Mo. App. W.D. 1999).

¹⁵ 8 S.W.3d 75 (Mo. banc 1999).

¹⁶ State v. Anderson, 814 S.W.2d 14, 16 (Mo. App. E.D. 1991); State v. Van Vleck, 805 S.W.2d 297 (Mo. App. E.D. 1991); State v. Berryhill, 673 S.W.2d 444, 445 (Mo. App. E.D. 1982); State v. Ware, 678 S.W.2d 863 (Mo. App. E.D. 1984).

¹⁷ Section 564.011.1, RSMo. 1994.

¹⁸ Commonwealth v. Kennedy, 48 N.E. 770 (1897).

¹⁹ State v. Molasky, 765 S.W.2d 597, 600 (Mo. banc 1989).

²⁰ State v. Anderson, 814 S.W.2d 14 (Mo. App. E.D. 1991); State v. Kendus, 904 S.W.2d 41, 43 (Mo. App. S.D. 1995); State v. Molkenbur, 723 S.W.2d 894, 895 (Mo. App. S. D. 1987); State v. Thomas, 670 S.W.2d 138, 139 (Mo. App. S.D. 1984).

²¹ State v. Gilliam, 618 S.W.2d 733, 734 (Mo. App. E.D. 1981).

²² See note 6 and accompanying text.

²³ State v. Molasky, 765 S.W.2d 597 (Mo. banc 1989); State v. Allison, 745 S.W.2d 178 (Mo. App. E.D. 1987); State v. Smith, 631 S.W.2d 353 (Mo. App. S. D. 1982); State v. Prince, 628 S.W.2d 920 (Mo. App. E. D. 1982); State v. Reeves, 916 S.W.2d 909 (Tenn. 1996) (defendant's possession of rat poison at place where she intended to put into victim's coffee cup was substantial step toward murder); State v. Vangerpen, 888 P.2d 1177 (Wash. 1995) (defendant's reaching for "loaded, cocked, concealed gun" was substantial step toward attempted murder of police officer). See generally Jeffrey F. Ghent, Annotation, What Constitutes Attempted Murder, 54 A.L.R.3d 612 (1974).

²⁴ State v. Frye, 998 S.W.2d 575 (Mo. App. S.D. 1999); State v. Johnson, 841 S.W.2d 298 (Mo. App. S.D. 1992); State v. Cummings, 838 S.W.2d 4 (Mo. App. W.D. 1992); State v. Anderson, 814 S.W.2d 14 (Mo. App. E.D. 1991); State v. Hart, 805 S.W.2d 234 (Mo. App. E.D. 1991); State v. Young, 781 S.W.2d 212 (Mo. App. E.D. 1989); State v. Parker, 738 S.W.2d 566 (Mo. App. E.D. 1987); State v. Truitt, 724 S.W.2d 646 (Mo. App. W.D. 1986); State v. Molkenbur, 723 S.W.2d 894 (Mo. App. S.D. 1987); State v. Duckett, 706 S.W.2d 241 (Mo. App. E.D. 1986); State v. Boschert, 693 S.W.2d 128 (Mo. App. E.D. 1985); State v. Ware, 678 S.W.2d 863 (Mo. App. E.D. 1984); State v. Roden, 674 S.W.2d 50 (Mo. App. W.D. 1984); State v. Thomas, 670 S.W.2d 138 (Mo. App. S.D. 1984); State v. Gilliam, 618 S.W.2d 733 (Mo. App. E.D. 1981).

²⁵ State v. Lyles, 996 S.W.2d 713 (Mo. App. E.D. 1999); State v. McNeal, 986 S.W.2d 176 (Mo. App. E.D. 1999); State v. Rogers, 959 S.W.2d 467 (Mo. App. E.D. 1997) (sufficient evidence even applying common law attempt elements); State v. McCrary, 900 S.W.2d 227 (Mo. App. W.D. 1995) (sufficient evidence even applying common law attempt elements); State v. Rhodes, 829 S.W.2d 41 (Mo. App. E.D. 1992); State v. Forister, 823 S.W.2d 504 (Mo. App. E.D. 1992); State v. Logan, 809 S.W.2d 135 (Mo. App. E.D. 1991); State v. Lucas, 809 S.W.2d 54 (Mo. App. E.D. 1991); State v. Taylor, 807 S.W.2d 672 (Mo. App. E.D. 1991); State v. Williams, 804 S.W.2d 408 (Mo. App. S.D. 1991); State v. Davis, 797 S.W.2d 560 (Mo. App. W.D. 1990); Clemons v. State, 755 S.W.2d 711 (Mo. App. S.D. 1988); State v. Robinson, 735 S.W.2d 80 (Mo. App. E.D. 1987); State v. Bell, 692 S.W.2d 313 (Mo. App. E.D. 1985); State v. Berry, 679 S.W.2d 868 (Mo. App. E.D. 1984); State v. Randle, 671 S.W.2d 789 (Mo. App. E.D. 1984); State v. Phillips, 668 S.W.2d 175 (Mo. App. E.D. 1984); State v. Foster, 665 S.W.2d 348 (Mo. App. S. D. 1984); State v. Rellihan, 662 S.W.2d 535 (Mo. App. W.D. 1983).

²⁶ State v. Keeler, 856 S.W.2d 928 (Mo. App. S.D. 1993); State v. Van Vleck, 805 S.W.2d 297 (Mo. App. E.D. 1991); Henderson v. State, 789 S.W.2d 498 (Mo. App. E.D. 1990); State v. Henderson, 743 S.W.2d 583 (Mo. App. E.D. 1988); State v. Billups, 813 P.2d 149 (Wash. Ct. App. 1991).

²⁷ State v. Gooden, 962 S.W.2d 443 (Mo. App. W.D. 1998); State v. Kendus, 904 S.W.2d 41 (Mo. App. S.D. 1995); State v. Smoot, 860 S.W.2d 799 (Mo. App. E.D. 1993); State v. King, 849 S.W.2d 706 (Mo. App. E.D. 1993); State v. Young, 801 S.W.2d 378 (Mo. App. E.D. 1990); State v. Walker, 743 S.W.2d 99 (Mo. App. E.D. 1988); State v. Bolen, 731 S.W.2d 453 (Mo. App. E.D. 1987).

²⁸ State v. Crooks, 884 S.W.2d 90 (Mo. App. W.D. 1994).

²⁹ State v. Zismer, 696 S.W.2d 349 (Mo. App. S.D. 1985); State v. J__R__N__, 687 S.W.2d 655 (Mo. App. S.D. 1987); State v. O'Dell, 684 S.W.2d 453 (Mo. App. S.D. 1984) (felony murder based upon attempted second degree assault); State v. Gonzales, 652 S.W.2d 719 (Mo. App. W.D. 1983).

³⁰ State v. Brokus, 858 S.W.2d 298 (Mo. App. E.D. 1993).

³¹ State v. Keeler, 856 S.W.2d 928, 931 (Mo. App. S.D. 1993).

³² State v. Bowles, 754 S.W.2d 902 (Mo. App. E.D. 1988); State v. Ailshire, 664 S.W.2d 630 (Mo. App. W.D. 1984).

³³ State v. Nolan, 872 S.W.2d 99 (Mo. banc 1994); State v. Tramble, 813 S.W.2d 83 (Mo. App. E.D. 1991); State v. Blaney, 801 S.W.2d 447 (Mo. App. E.D. 1990); State v. Bounds, 785 S.W.2d 586 (Mo. App. W.D. 1990); State v. Miller, 774 S.W.2d 578 (Mo. App. E.D. 1989); State v. Shelton, 770 S.W.2d 716 (Mo. App. E.D. 1989); State v. Echols, 742 S.W.2d 220 (Mo. App. E.D. 1987); State v. Hardy, 735 S.W.2d 153 (Mo. App. E.D. 1987); State v. Eidson, 692 S.W.2d 342 (Mo. App. E.D. 1985); State v. Berryhill, 673 S.W.2d 444 (Mo. App. E.D. 1982); State v. Nixon, 633 S.W.2d 292 (Mo. App. W.D. 1982) (evidence that defendant was near the scene of the burglarized building was insufficient for substantial step); State v. Jackson, 604 S.W.2d 832 (Mo. App. S.D. 1980).

³⁴ State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992); State v. Shivelhood, 946 S.W.2d 263 (Mo. App. S.D. 1997); State v. Friend, 936 S.W.2d 824 (Mo. App. S.D. 1996); State v. Merchant, 871 S.W.2d 102 (Mo. App. E.D. 1994); State v. White, 860 S.W.2d 805 (Mo. App. S.D. 1993); State v. Perkins, 826 S.W.2d 385 (Mo. App. E.D. 1992); State v. McNair, 719 S.W.2d 113 (Mo. App. S.D. 1986); State v. Blank, 705 S.W.2d 56 (Mo. App. W.D. 1985); State v. Souders, 703 S.W.2d 909 (Mo. App. E.D. 1985); State v. Benson, 703 S.W.2d 551 (Mo. App. S.D. 1985); State v. Ferguson, 678 S.W.2d 873 (Mo. App. E.D. 1984); State v. Gobble, 675 S.W.2d 944 (Mo. App. E.D. 1984). See generally Annotation, What Conduct Amounts to an Overt Act or Acts Done Toward Commission of Larceny so as to Sustain Charge of Attempt to Commit Larceny, 76 A.L.R.3d 842 (1977).

³⁵ State v. Watson, 947 S.W.2d 514 (Mo. App. W.D. 1997); State v. Freeman, 777 S.W.2d 324 (Mo. App. S.D. 1989); State v. Inman, 673 S.W.2d 483 (Mo. App. E.D. 1984); State v. Grubbs, 657 S.W.2d 380 (Mo. App. E.D. 1983); State v. Mullins, 637 S.W.2d 435 (Mo. App. W.D. 1982).

³⁶ State v. Cox, 752 S.W.2d 855 (Mo. App. E.D. 1988).

³⁷ State v. Torregrossa, 680 S.W.2d 220 (Mo. App. E.D. 1984); State v. Sample, 673 S.W.2d 61 (Mo. App. S.D. 1984); State v. Hunt, 651 S.W.2d 587 (Mo. App. E.D. 1983).

³⁸ State v. Henderson, 416 A.2d 1261 (Me. 1980) (intoxicated defendant is seated in driver's seat of truck, stuck in a ditch, accelerating its engine and complaining that he can't understand why it won't move); State v. Moores, 396 A.2d 1010 (Me. 1979) (where intoxicated defendant started a car and put it into reverse gear, causing it to move backwards for five feet, prosecutor had discretion to charge either driving while intoxicated or attempted driving while intoxicated); State v. Martin, 351 A.2d 52 (N.H. 1976) (intoxicated driver asleep in driver's seat at side of road with motor running committed substantial step toward DWI).

³⁹ State v. Niswonger, 721 S.W.2d 207 (Mo. App. E.D. 1986); State v. Hanks, 665 A.2d 102 (Conn. App. Ct. 1995) (defendant's overpowering of guard and getting key constituted substantial step even though he did not get out of the jail); People v. Willis, 561 N.E.2d 1376 (Ill. App. Ct. 1990) (defendant overpowered guards and got out of his cell and ran for exit before being caught and subdued); State v. Ring, 387 A.2d 241 (Me. 1978) (prisoner absent from cell found hiding in a dark and unused portion of prison with a rope and hammer); People v. Morissette, 589 N.E.2d 144 (Ill. App. Ct. 1992) (defendant obtained hacksaw blade to use during planned escape).

⁴⁰ People v. Wallace, 312 N.E.2d 263 (Ill. 1974).

⁴¹ People v. Maciel, 568 P.2d 68 (Colo. App. Ct. 1977) (defendant purchaser went to location where seller had dropped off the controlled substance and looked for it); State v. Otto, 717 A.2d 775 (Conn. App. Ct. 1998) (defendant asked to purchase heroin from police officer posing as drug dealer); State v. Lynn, 835 P.2d 251 (Wash. Ct. App. 1992) (defendant paid for and accepted delivery of white powder he believed was cocaine); State v. Wojtyna, 855 P.2d 315 (Wash. Ct. App. 1993) (defendant purchased white powder he believed was cocaine); State v. Grundy, 886 P.2d 208 (Wash. Ct. App. 1994) (defendant's conduct did not amount to substantial step toward possessing cocaine when all he did was say he would like "coke" when an officer approached him on the street and asked what he wanted).

⁴² State v. Gillespie, 428 N.E.2d 1338 (Ind. Ct. App. 1981) (believing it to be cocaine, defendant delivered crushed aspirin to undercover police officer); State v. Glover, 594 A.2d 1086 (Me. 1991) (believing it to be cocaine, defendant delivered baking soda to undercover police officer).

⁴³ For cases using the substantial step analysis see: State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999); State v. White, ____ S.W.3d ____, No. 54686 (Mo. App. W.D. 2000); State v. Morrow, 996 S.W.2d 679 (Mo. App. W.D. 1999); State v. O'Brien, 5 S.W.3d 532 (Mo. App. W.D. 1999); State v. Erban, 429 N.W.2d 408 (N.D. 1988). Several cases upheld convictions for defendants attempting to manufacture methamphetamine even under the common law analysis that they had nearly consummated the offense; thus, the actions of these defendants undoubtedly met the substantial step analysis as well: State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999); State v. Davis, 982 S.W.2d 739 (Mo. App. E.D. 1998) (incorrectly listed common law elements while purporting to apply substantial step test); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998) (incorrectly listing common law elements while purportedly applying the substantial step test); State v. Reyes, 862 S.W.2d 377 (Mo. App. S.D. 1993) (incorrectly applying common law attempt test while indicating evidence was sufficient to convict under substantial step test).

⁴⁴ People v. Lev, 519 N.E.2d 1168 (Ill. App. Ct. 1988) (defendant tried to buy 30 grams of cocaine from a police officer posing as a drug dealer); People v. Echols, 668 N.E.2d 35 (Ill. App.Ct. 1996) (defendant received in the mail a package containing 50 grams of cocaine and 3,950 grams of a sham substance which postal inspectors had substituted for a like amount of cocaine); State v. Allcock, 629 A.2d 99 (N.H. 1993) (defendant met with undercover police officer for purpose of buying marijuana for resale).

⁴⁵ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code, cited with approval in State v. Molasky, 765 S.W.2d 597, 600-601 (Mo. banc 1989).

⁴⁶ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁴⁷ State v. J__R__N__, 687 S.W.2d 655 (Mo. App. S.D. 1987).

⁴⁸State v. Allison, 745 S.W.2d 178 (Mo. App. E.D. 1987). See also State v. Newbern, 975 P.2d 1041, 1046 (Wash. Ct. App. 1999).

⁴⁹ State v. Pearson, 680 P.2d 406 (Utah 1984).

⁵⁰ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁵¹ State v. Van Vleck, 805 S.W.2d 297 (Mo. App. E.D. 1991); State v. Henderson, 743 S.W.2d 583 (Mo. App. E.D. 1988).

⁵² State v. Kendus, 904 S.W.2d 41 (Mo. App. S.D. 1995).

⁵³ State v. Keeler, 856 S.W.2d 928 (Mo. App. S.D. 1993).

⁵⁴ State v. Keeler, 856 S.W.2d 928 (Mo. App. S.D. 1993). The opposite result was reached using the same substantial step test in State v. Billups, 813 P.2d 149 (Wash. Ct. App. 1991).

⁵⁵ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code; State v. J__R__N__, 687 S.W.2d 655, 656 (Mo. App. S.D. 1987).

⁵⁶ Robert H. Dierker, Jr., 32 Missouri Practice, Missouri Criminal Law § 7.2 (1998).

⁵⁷ Herbert Wechsler, et al.The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 599 (1961).

⁵⁸ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code; State v. Blaney, 801 S.W.2d 447 (Mo. App. E.D. 1990) (permitting "an inference that one who attempts to forcibly break and enter a residence in the absence of the occupants is doing so with the intention of stealing").

⁵⁹ State v. Berryhill, 673 S.W.2d 444 (Mo. App. E.D. 1982).

⁶⁰ State v. Benson, 703 S.W.2d 551 (Mo. App. S.D. 1985).

⁶¹ State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992).

⁶² State v. Echols, 742 S.W.2d 220 (Mo. App. E.D. 1987).

⁶³ State v. Molkenbur, 723 S.W.2d 894 (Mo. App. S.D. 1987).

⁶⁴ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁶⁵ Herbert Wechsler, et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 602 (1961).

⁶⁶ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁶⁷ Herbert Wechsler, et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 602 (1961).

⁶⁸ Id. at 605-06; § 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁶⁹ State v. Ferguson, 678 S.W.2d 873 (Mo. App. E.D. 1984).

⁷⁰State v. Ring, 387 A.2d 241 (Me. 1978). See also People v. Morissette, 589 N.E.2d 144 (Ill. App. 1992) (hacksaw blade).

⁷¹ State v. Reeves, 916 S.W.2d 909 (Tenn. 1996).

⁷² U.S. v. Wagner, 884 F.2d 1090 (8th Cir. 1989); State v. Davis, 982 S.W.2d 739 (Mo. App. E.D. 1998) (using tougher common law test); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998) (common law test).

⁷³ State v. White, ___ S.W.3d ___, No. 54686 (Mo. App. W.D. 2000); State v. Cates, 3 S.W.3d 369 (Mo. App. S.D. 1999); State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999); State v. Farr, 978 S.W.2d 448 (Mo. App. S.D. 1998).

⁷⁴ State v. Little, 986 S.W.2d 924 (Mo. App. E.D. 1999); State v. Bue, 985 S.W.2d 386 (Mo. App. E.D. 1998); State v. Davis, 982 S.W.2d 739 (Mo. App. E.D. 1998); State v. Farr, 978 S.W.2d 448 (Mo. App. S.D. 1998); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998).

⁷⁵ State v. Davis, 982 S.W.2d 739 (Mo. App. E.D. 1998).

⁷⁶ State v. Morrow, 996 S.W.2d 679 (Mo. App. W.D. 1999); State v. O'Brien, 5 S.W.2d 532 (Mo. App. W.D. 1999). See also U.S. v. Weston, 4 F.3d 672 (8th Cir. 1993).

⁷⁷ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999); State v. Condict, 952 S.W.2d 784 (Mo. App. S.D. 1997).

⁷⁸ Section 195.010(32), RSMo Cum. Supp. 1999.

⁷⁹ Id.

⁸⁰ Id.

⁸¹ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999); State v. Condict, 952 S.W.2d 784 (Mo. App. S.D. 1997).

⁸² State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999).

⁸³ Model Penal Code § 5.02 (1985).

⁸⁴ State v. Molasky, 765 S.W.2d 597, 601 n. 8 (Mo. banc 1989).

⁸⁵ State v. Molasky, 765 S.W.2d 597, 601-602 (Mo. banc 1989).

⁸⁶ Section 564.011, V.A.M.S. Comment to 1973 Proposed Code.

⁸⁷ 765 S.W.2d 597 (Mo. banc 1989).

⁸⁸ 765 S.W.2d at 602.

⁸⁹ Id.

⁹⁰ Id.

⁹¹ State v. Jovanovic, 416 A.2d 961 (N.J. Super. Ct. 1980).

⁹² 765 S.W.2d at 602-03.

⁹³ Herbert Wechsler, et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 622 (1961).

⁹⁴ Id.

⁹⁵ See generally H. Morley Swingle, Criminal Conspiracy Law in Missouri, 48 J. Mo. Bar 451 (1992).

⁹⁶ Section 564.011.2, RSMo 1994.

⁹⁷ State v. Farr, 978 S.W.2d 448 (Mo. App. S.D. 1998). But to make matters even more confusing, some jurisdictions held that legal impossibility was a defense but factual impossibility was not. See generally Ira P. Robbins, Attempting the Impossible: The Emerging Consensus, 23 Harv. J. Legis. 377 (1986); Christopher Bello, Annotation, Construction and Application of State Statute Governing Impossibility of Consummation as Defense to Prosecution for Attempt to Commit Crime, 41 A.L.R.4th 588 (1985). This is another issue rendered moot by Withrow.

⁹⁸ State v. Torregrossa, 680 S.W.2d 220 (Mo. App. E.D. 1984); State v. Sample, 673 S.W.2d 61 (Mo. App. S.D. 1984); State v. Hunt, 651 S.W.2d 587 (Mo. App. E.D. 1983).

⁹⁹ State v. Prince, 628 S.W.2d 920 (Mo. App. E.D. 1982).

¹⁰⁰ State v. Wojtyna, 855 P.2d 315 (Wash. Ct. App. 1993).

¹⁰¹ State v. Guffey, 262 S.W.2d 152 (Mo. App. S.D. 1953); § 564.011, V.A.M.S. Comment to 1973 Proposed Code.

¹⁰² State v. Farr, 978 S.W.2d 448 (Mo. App. S.D. 1998); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998); State v. Davis, 982 S.W.2d 739 (Mo. App. E.D. 1998).

¹⁰³ See generally Ira P. Robbins, "Attempting the Impossible: The Emerging Consensus," 23 Harv. J. on Legis. 377 (1986).

¹⁰⁴ Michael H. Crew, Should Voluntary Abandonment be a Defense to Attempted Crimes?, 26 Am. Crim. L. Rev. 441, 444 (1988); Herbert Wechsler, et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 615 (1961).

¹⁰⁵ Crew at 460.

¹⁰⁶ Section 564.016.5(1), RSMo 1994.

¹⁰⁷ State v. Gilliam, 618 S.W.2d 733, 734 (Mo. App. E.D. 1981).

¹⁰⁸ Crew at 445.

¹⁰⁹ State v. Gilliam, 618 S.W.2d 733, 734 (Mo. App. E.D. 1981).

¹¹⁰ State v. Boschert, 693 S.W.2d 128 (Mo. App. E.D. 1985).

¹¹¹ State v. Bowles, 754 S.W.2d 902 (Mo. App. E.D. 1988).

¹¹² State v. Perkins, 826 S.W.2d 385 (Mo. App. E.D. 1992).

¹¹³ State v. Workman, 584 P.2d 382 (Wash. 1978).

¹¹⁴ State v. Carnahan, 912 S.W.2d 115 (Mo. App. W.D. 1995); State v. White, 860 S.W.2d 805 (Mo. App. S.D. 1993); State v. O'Dell, 684 S.W.2d 453 (Mo. App. S.D. 1984); State v. Kirkland, 684 S.W.2d 402, 407 (Mo. App. W.D. 1984); State v. Rank, 667 S.W.2d 461 (Mo. App. W.D. 1984).

¹¹⁵ Section 564.011, V.A.M.S., Comment to 1973 Proposed Code.

¹¹⁶ State v. Graham, 2 S.W.3d 859 (Mo. App. W.D. 1999); State v. Bue, 985 S.W.2d 386 (Mo. App. E.D. 1999); State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998).

¹¹⁷ State v. Roden, 674 S.W.2d 50 (Mo. App. W.D. 1984). In at least one instance, the failure to define substantial step was held nonprejudicial to the defendant. State v. Sample, 673 S.W.2d 61, 65 (Mo. App. S.D. 1984).

¹¹⁸ State v. Little, 986 S.W.2d 924 (Mo. App. E.D. 1999); State v. Reyes, 862 S.W.2d 377 (Mo. App. S.D. 1993).

¹¹⁹ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999). The applicable pattern jury instructions are in the process of being revised for a 2000 supplement to MAI-CR 3d.

¹²⁰ Section 556.046, RSMo 1994. Attempt is a lesser included offense when the evidence supports acquittal of the target offense but conviction of the attempt. State v. Rank, 667 S.W.2d 461, 462 (Mo. App. W.D. 1984).

¹²¹ State v. Nolan, 872 S.W.2d 99 (Mo. banc 1994); State v. Brokus, 858 S.W.2d 298 (Mo. App. E.D. 1993).

¹²² State v. Nolan, at 101.

¹²³ State v. Politte, 886 S.W.2d 946 (Mo. App. S.D. 1994).

¹²⁴ Section 564.011.3, RSMo 1994.

¹²⁵ Id.; State v. Blank, 705 S.W.2d 56, 59 (Mo. App. W.D. 1985).

¹²⁶ State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999). See also State v. Mitchell, 999 S.W.2d 247 (Mo. App. W.D. 1999).

¹²⁷ Withrow, at 79. See also State v. White, ___ S.W.3d ____ No. 54686 (Mo. App. W.D. 2000).

¹²⁸ State v. Latraverse, 443 A.2d 890, 893 (R.I. 1982).