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Criminal Jury Instructions

Criminal Jury Instructions Home

3.2-1 Attempt -- § 53a-49 (a) (1)

Revised to December 1, 2007 (modified April 23, 2010)

The defendant is charged [in count ___] with attempt to commit <insert substantive offense>. The statute defining attempt reads in pertinent part as follows:

a person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, (he/she) intentionally engages in conduct which would constitute the crime if attendant circumstances were as (he/she) believes them to be. 

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: 

Element 1 - Intent
The first element is that the defendant had the kind of mental state required for commission of the crime of <insert substantive offense>. The intent for that crime is the intent to <insert intent required for substantive offense>.

Element 2 - Conduct
The second element is that the defendant intentionally engaged in conduct that would constitute the crime of <insert substantive offensive> if attendant circumstances were as (he/she) believed them to be. 

Conclusion

If, upon all the evidence, you conclude beyond a reasonable doubt that the defendant had formed in (his/her) mind the intention to commit <insert substantive crime> as it has been defined for you, you must next consider whether (he/she) intentionally did anything that would constitute the crime if the circumstances were as (he/she) believed them to be. In other words, the state must prove both intent and conduct beyond a reasonable doubt to obtain a conviction.

Commentary

"There are two essential elements of an attempt under this statute. They are, first, that the defendant had a specific intent to commit the crime as charged, and, second, that he did some overt act adapted and intended to effectuate that intent." State v. Gilchrist, 25 Conn. App. 104, 110, cert. denied, 220 Conn. 905 (1991).

General Statutes § 53a-49 (a) (1) applies "when the evidence indicates that a perpetrator failed to accomplish or complete all the elements of a particular crime solely because the 'attendant circumstances' were not as the perpetrator believed them to be, rendering the commission of the crime impossible." State v. Gonzalez, 222 Conn. 718, 724 (1992). The court may, if it so chooses, give an example of "attendant circumstances." For example, "a violation of § 53a-49 (a) (1) would be a pickpocket's failure to commit a larceny because his hand was in an empty pocket, or an attempt by an accused to bribe a juror but mistakenly approaching a nonjuror." Id.

If the state does not indicate which of the subsections of § 53a-49 (a) it is relying on, the court may wish to clarify this before instructing the jury on attempt.  In State v. Cox, 293 Conn. 234 (2009), the court instructed on "attendant circumstances" when the evidence only supported "substantial steps."  Because the state did not object to the instruction, the conviction was reversed for insufficient evidence.  Id., 244 n.8.

 


 

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