Can a criminal defendant be convicted of attempted felony murder when no death resulted from the attempt? That was the question posed to us – the Ohio Supreme Court – in a case involving a man named Bobby D. Nolan.
After a jury trial, Nolan was found guilty of several charges, including felonious assault, possessing a firearm that he was not permitted to have, and attempted felony murder. Nolan appealed his convictions, and he initially claimed that there were three mistakes, or errors, in his trial. In the language of the law, we say that he “asserted three assignments of error.”
The court of appeals concluded that each of those assignments of error was without merit. But, prior to issuing its opinion, the court of appeals determined that a separate question needed to be reviewed. Accordingly, the court ordered supplemental briefing, and Nolan – through his attorney – presented an additional assignment of error on the following issue:
“Whether as a matter of law, the appellant (Nolan) can be convicted of attempted felony murder when there was no resultant death.”
The court resolved this issue by concluding that attempted felony murder “is not a viable criminal offense” under Ohio law, because it “constitutes a logical impossibility.” The court of appeals therefore reversed the conviction for attempted felony murder.
After that, the case came before us for a final review of the issue.
In challenging the court of appeals’ judgment, the State of Ohio argued that the court of appeals made an error in finding attempted felony murder by means of a deadly weapon is not a viable criminal offense in Ohio because that decision was in conflict with a case decided by our court in 2010 called State v. Williams.
But in reviewing the case, we concluded that the court of appeals’ decision did not conflict with State v. Williams, for the simple reason that our court’s majority opinion in that case did not discuss attempted felony murder.
Even though the state claims that in Williams, “this Court expressly found a defendant may be found guilty of attempted felony murder,” our court’s majority opinion in Williams never used the term “attempted felony murder.”
Our majority opinion did use a version of the term “attempted murder,” with and without a hyphen, more than 40 times, but did not use the term “attempted felony murder.” Thus, it is quite clear that the propriety of a conviction for attempted felony murder was not at issue in Williams.
The opinion of the dissenting justice in Williams used the term “attempted felony murder” twice in passing, but also did not consider the propriety of a conviction for that offense. And our research indicated that those are the only two times any opinion of our court has ever used the term “attempted felony murder.”
Therefore, the issue in this case was not whether the court of appeals issued a decision in conflict with Williams, but whether it is possible to commit “attempted felony murder” in Ohio.
So what is a “felony murder?” Ohio’s felony-murder law states: “No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree…”
Now, what about the “attempt” element? The attempt statute states: “No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.”
One obvious requisite of the “attempt” statute is that a person cannot commit an attempt offense unless he has acted purposely or knowingly. Thus, to be convicted of an “attempt” crime, a defendant must be shown to have attempted to commit the crime and to have acted with the “specific intention to cause a certain result” or the “specific intention to engage in conduct” of a certain nature, or to have acted when “aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
So the “attempt” statute – which requires specific intention – stands in contrast with the “felony-murder” statute, which imposes what is in essence strict liability. Though intent to commit the predicate felony is required, intent to kill is not required.
It has been noted in prior court decisions that the felony-murder law “does not contain a mens rea component.” “Mens rea” is Latin – as so many legal terms are – meaning “a guilty mind” or “criminal intent.”
As one court put it, “The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing. By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though not intended and not in the common design of the felons, as an intentional killing.”
Thus, to sum things up – an “attempt” crime must be committed purposely or knowingly and intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended.
Which means that Nolan’s case devolves to a sort of circuitous question: Can a person be guilty of attempting to cause an unintended death?
We concluded that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly we determined – by a seven-to-zero vote – that attempted felony murder is not a viable criminal offense under Ohio law.
Paul E. Pfeifer is a judge in the Ohio Supreme Court.
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