Attempt to Commit a Crime
Attempt is its own crime, and Nevada gives you a clean two-part definition: an act done with the intent to commit a crime, that tends toward but fails to accomplish it.
9. Attempt to Commit a Crime
Under Nevada law, a criminal attempt is “an act done with intent to commit a crime, and tending but failing to accomplish it.” NRS 193.153.
- States vary in the way they define attempt. The Nevada FLE tests Nevada’s definition.
- The Nevada Supreme Court has held that an attempt requires some acts beyond preparation, but that these can be “slight acts” if the intent is clear. Van Bell v. State, 105 Nev. 352, 355, 775 P.2d 1273, 1275 (1989).
- Attempt requires proof of specific intent: the defendant must have intended to commit a specified crime.
- An attempt may exist even if it would have been physically impossible for the defendant to commit the crime. The requisite intent and some acts beyond preparation are sufficient to establish attempt.
- Test-takers will not be expected to know Nevada case law discussing attempt in the context of particular crimes.
Attempt is its own crime: an act done with the intent to commit a crime, that tends toward but fails to accomplish it. You are always asking two questions, about the specific intent and about an act beyond preparation.
- 1Did the defendant act with the specific intent to commit a particular crime? Attempt is a specific-intent offense, so a careless or reckless state of mind is never enough; the defendant has to have meant to bring about that specific crime.
- 2Did the defendant take some act beyond mere preparation that tended toward completing it? Nevada is generous here: the acts can be slight, so long as the intent is clear. A defendant who has plainly decided to commit the crime does not have to get very far before the conduct crosses from planning into an attempt.
The flip side matters just as much: thinking about a crime, talking about it, or buying ordinary supplies, standing alone, is preparation, not an attempt, until the defendant does something that actually tends toward carrying it out.
The last piece is impossibility. Factual impossibility is no defense. If the defendant intended to commit the crime and took acts beyond preparation, it does not matter that completing it was physically impossible. The pickpocket who reaches into an empty pocket, the would-be poisoner who uses a substance that turns out to be harmless, both still attempted, because the intent and the acts beyond preparation are what the law punishes, not the lucky failure.
Did the defendant intend a specific crime? (specific intent, recklessness never counts)
Did the defendant take some act beyond preparation?
Acts can be 'slight' if the intent is clear.
'Intended but impossible still attempted.' Factual impossibility is no defense; the empty-pocket pickpocket still attempted.
Preparation is not attempt.
Buying ordinary supplies or planning, alone, is not enough until a slight act tends toward carrying it out.
A man decides to break into a neighbor's home to steal jewelry. He pries open a window with a crowbar and begins to climb through, but a passing patrol car spots him and he is arrested before he reaches anything inside. He is charged with attempt.
He is guilty of attempt. Now change one fact: suppose the jewelry had already been moved and the house was empty, so completing the theft was impossible. He is still guilty, because factual impossibility is no defense where the intent and the acts beyond preparation are present.
An option that restates the act element with the wrong threshold, such as requiring the defendant to come 'dangerously close,' or that treats mere preparation as enough.
Nevada requires some act beyond preparation, but the acts can be slight if the intent is clear; planning and ordinary supplies alone are preparation, not attempt.A 'not guilty' option that rests on the crime being impossible to complete, or on the absence of any actual harm to the victim.
An attempt may exist even where completing the crime was physically impossible, and no actual harm is required; both facts are true but irrelevant.An option that finds or rejects attempt based on recklessness or general intent rather than the defendant's specific intent to commit the crime.
Attempt is a specific-intent crime; the defendant must have intended to commit the specified crime.A correct-outcome option that justifies the result by the failure, the risk, or collateral damage instead of by intent plus an act beyond preparation.
Name the operative reason: specific intent plus an act beyond preparation; the outcome label alone is not the rule.the stem hands you someone who set out to commit a crime but did not finish, and then dresses the facts with either a small step taken or a reason the crime could never have worked.
The moment you see an unfinished crime, run the two-question check: did the actor specifically intend that crime, and did the actor do something beyond preparation that tended toward it?
If both are yes, it is an attempt, and any answer that frees the actor because completion was impossible or because the act was 'only slight' is a distractor.
If the actor only planned or gathered ordinary supplies and did nothing tending toward the crime, it stays at preparation and there is no attempt.
A man planned to steal a painting from a private gallery after closing. One night he drove to the gallery, used a glass cutter to remove a pane from a side window, and reached his arm through to unlatch the lock. A security guard inside grabbed his arm before he could open the window, and he was arrested without ever entering the building or touching the painting. He is charged with attempt to commit the theft.
Is the man guilty of attempt?
A woman wanted to kill her business partner and obtained a vial of what a supplier assured her was a lethal poison. She poured the entire vial into the partner's coffee and watched him drink it, intending to cause his death. Unknown to her, the supplier had given her a harmless powder, and the partner suffered no ill effects at all. She is charged with attempt to commit the killing.
Is the woman guilty of attempt?
A man was furious at a rival and spent an evening telling friends he intended to burn down the rival's warehouse. The next day he drove to a hardware store and bought a can of gasoline and a box of matches, then returned home and put the items in his garage. He took no further steps that day, and police, tipped off by a friend, arrested him that evening at his home. He is charged with attempt to commit arson.
Is the man guilty of attempt?
A man decided to rob a convenience store. He waited across the street until the last customer left, then walked to the door with a demand note in his pocket and his hand on a concealed toy pistol, intending to threaten the clerk and take the cash. As he pushed on the door, he found it locked because the clerk had just closed early, and a passing officer who had been watching detained him on the spot. He is charged with attempt to commit the robbery.
Is the man guilty of attempt?
A woman intended to forge a check drawn on a wealthy acquaintance's account. Sitting at her kitchen table, she practiced copying the acquaintance's signature on scrap paper and gathered a blank check she had taken from the acquaintance's home. Before she wrote anything on the actual check, she changed her mind, threw the scrap paper away, and returned the blank check the next day. A roommate later reported what she had seen, and the woman was charged with attempt to commit the forgery.
Is the woman guilty of attempt?