2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 4 - Criminal Attempt, Conspiracy, and Solicitation
§ 16-4-1. Criminal Attempt

Universal Citation: GA Code § 16-4-1 (2020)

A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.

(Code 1933, § 26-1001, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For review of 1996 criminal attempt, conspiracy, and solicitation legislation, see 13 Ga. St. U. L. Rev. 105 (1996).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Application

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided prior to codification of this principle by Ga. L. 1968, p. 1249, § 1, are included in the annotations for this Code section.

Relationship to other laws.

- Defendant's prior conviction for attempted armed robbery pursuant to an Alford plea qualified as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because the record showed that the defendant's plea was knowing and voluntary, and supported by a factual basis. United States v. Wade, 551 Fed. Appx. 546 (11th Cir. 2014), overruled on other grounds, Wade v. United States, Nos. 1:15-CV-1712-RWS-JSA, 1:11-CR-337-RWS-JSA-1, 2016 U.S. Dist. LEXIS 29169 (N.D. Ga. 2016)(Unpublished).

Essential elements of criminal attempt are that the act (substantial step) be such as would be proximately connected with completed crime, and there must be apparent possibility to commit the crime in manner proposed. Fears v. State, 152 Ga. App. 817, 264 S.E.2d 284 (1979).

Attempt to commit crime consists of three elements: first, intent to commit crime; second, performance of some overt act towards commission of crime; and third, failure to consummate its commission. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

To constitute attempt, there must be act done in pursuance of intent, and more or less directly tending to commission of crime. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Act must be one done in pursuance of intent to commit crime and must tend toward commission of the crime. R.L.T. v. State, 159 Ga. App. 828, 285 S.E.2d 259 (1981); Adams v. State, 178 Ga. App. 261, 342 S.E.2d 747 (1986).

Attempt requires act done with intent to commit crime, and tending to, but falling short of its commission. Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933).

Sufficient evidence.

- Defendant's conviction of criminal attempt to commit burglary was affirmed because, while the defense presented a different theory of events and claimed that defendant did not act with the intent to commit a theft, it was the jury's province to assess witness credibility, resolve the conflicts in the evidence, and determine whether there was a reasonable hypothesis of innocence favorable to defendant. Anthony v. State, 317 Ga. App. 807, 732 S.E.2d 845 (2012).

Acts going beyond preparation and towards final commission of crime.

- Acts which go towards final commission of crime and are carried beyond mere preparation, although falling short of ultimate design, do constitute attempt to commit crime. Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933).

Intent necessary.

- In order to constitute an attempt to commit a crime, where no crime is actually committed, an intention to commit the particular crime is essential. Jenkins v. State, 53 Ga. 33, 21 Am. R. 255 (1874); Nowell v. State, 94 Ga. 588, 21 S.E. 591 (1894); Chelsey v. State, 121 Ga. 340, 49 S.E. 258 (1904).

Commission means act of committing, doing, or performing; the act of perpetrating. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Criminal attempt defined only in conjunction with substantive crime involved in attempt. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).

Uniform Commercial Code definition of "negotiable instrument" did not apply as an additional element in a prosecution for criminal attempt to commit the crime of theft by taking. Thogerson v. State, 224 Ga. App. 76, 479 S.E.2d 463 (1996).

Issue is whether accused has gone past preparation and has begun perpetration. Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978).

Mere preparation is insufficient. J.E.T. v. State, 151 Ga. App. 836, 261 S.E.2d 752 (1979).

Act must be more than mere preparation and must be inexplicable as a lawful act. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); R.L.T. v. State, 159 Ga. App. 828, 285 S.E.2d 259 (1981).

Mere acts of preparation, not proximately leading to consummation of intended crime, will not suffice to establish attempt to commit such crime. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

It cannot be said that no preparations can amount to an attempt, rather, it is a question of degree, and depends upon circumstance of each case. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Nature of act required to constitute attempt.

- In general, to constitute an attempt, there must be an act done in pursuance of the intent, and more or less directly tending to commission of crime. Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 282 S.E.2d 305 (1981); J.E.T. v. State, 151 Ga. App. 836, 261 S.E.2d 752 (1979).

Substantial step toward commission of crime suffices.

- Substantial step made toward commission of crime, even though it might not be ultimate step or last possible act to consummation of offense attempted, is sufficient evidence to support verdict of guilty of criminal attempt. Lett v. State, 150 Ga. App. 132, 257 S.E.2d 37 (1979).

Defendant's acts, including telephoning a known drug dealer about purchasing cocaine, and driving to an agreed location to make the transaction, sufficiently constituted a substantial step under Jackson v. Virginia to convict the defendant of attempting to possess cocaine Massey v. State, 267 Ga. App. 482, 600 S.E.2d 437 (2004).

In an attempt to traffic in cocaine case under O.C.G.A. §§ 16-4-1 and16-13-31, the defendant was not entitled to a directed verdict of acquittal because the state did not prove the purity of the cocaine that the defendant intended to purchase; proof of purity was unnecessary given that all that was needed was a substantial step towards the crime of trafficking, not completion of the crime. Davis v. State, 281 Ga. App. 855, 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007).

Because sufficient evidence was presented which showed that the defendant took substantial steps to arouse the defendant's own sexual desires in soliciting both the defendant's child and the child's cousin, showing the cousin indecent photos, discussing masturbation with both, and trying to kiss the defendant's child between the legs, the defendant's attempted child molestation convictions were upheld on appeal. Carey v. State, 281 Ga. App. 816, 637 S.E.2d 757 (2006).

Based on a victim's testimony, the jury could have concluded that had the victim consented to the defendant's request for oral sex, the defendant would have performed oral sex on the victim, thereby committing aggravated child molestation; consequently, the jury could have found that the defendant asking the victim about engaging in oral sex constituted a substantial step towards the commission of that crime. Johnson v. State, 284 Ga. App. 147, 643 S.E.2d 556 (2007).

Count 1 in the indictment was not defective and trial counsel was not deficient in failing to attack the count as the defendant was sufficiently informed of the charges against the defendant and also protected from subsequent prosecution for the same crime because, although Count 1 did not track the criminal attempt statute exactly, read as a whole, Count 1 asserted that, with intent to commit armed robbery, the defendant committed a substantial step toward commission of the crime by pointing a gun at the victim and grabbing the victim's person; and, although Count 1 referenced an attempt to commit robbery, it clearly alleged use of a gun, and armed robbery occurred when a person committed a robbery by use of an offensive weapon. Wilson v. State, 344 Ga. App. 285, 810 S.E.2d 303 (2018).

Mere preparatory acts not proximately leading to consummation of offense do not constitute attempt. Groves v. State, 116 Ga. 516, 42 S.E. 755 (1902); Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933).

What acts constitute attempt may be governed by specific statute.

- Indefinite nature of offense at common law of attempt to commit a crime, has induced enactment of many statutes in England and this country, setting forth, in express terms, what acts shall constitute an attempt to commit crimes referred to in such statutes. In such cases, the statute, of course, will govern. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Indictment for attempt to steal cattle was sufficient.

- Indictment for attempt to steal cattle which charged the accused with attempting to steal the cattle of a named person located in that person's pasture, without further specifying the cattle intended to be stolen, was sufficiently certain, for where there is only an attempt, it is not always possible to say what particular cattle the would-be thief meant to steal. Davis v. State, 66 Ga. App. 877, 19 S.E.2d 543 (1942).

Indictment sufficient with regard to Internet sting operation allegations.

- With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257, 744 S.E.2d 1 (2013).

Inclusion of additional acts in indictment is mere surplusage.

- Because O.C.G.A. § 16-4-1 requires proof of only one act which is a substantial step toward the commission of the crime, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded. Ranson v. State, 198 Ga. App. 659, 402 S.E.2d 740, cert. denied, 198 Ga. App. 898, 402 S.E.2d 740 (1991).

Indictment sufficient.

- Trial court did not err by denying the defendant's motion for a new trial on the ground that the indictment was defective for failing to allege the essential element of intent to commit a theft because the indictment clearly charged that the defendant attempted to commit a burglary, not that the defendant completed the crime. Coleman v. State, 318 Ga. App. 478, 735 S.E.2d 788 (2012), recons. denied; overruled on other grounds by State v. Heath, 2020 Ga. LEXIS 362 (Ga. 2020).

Trial court properly denied the defendant's motion for arrest of judgment because the indictment charged attempted aggravated child molestation based on the defendant's act of asking the victim if the victim performed a certain sexual action and referred to the statutory language for attempt and aggravated child abuse as well as specifically alleged that the victim was under the age of sixteen, thus, the indictment sufficiently placed the defendant on notice of the charges. Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013).

No fatal variance in indictment.

- Even if there was a deviation between the allegations in the indictment and the evidence adduced at trial, there was no fatal variance because the defendant was sufficiently informed of the nature and substance of the charge of criminal attempt to commit armed robbery and failed to show that the defendant was unable to present a viable defense. Brown v. State, 307 Ga. 24, 834 S.E.2d 40 (2019).

Purpose of "substantial step" requirement.

- In addition to assuring firmness of criminal purpose, requirement of substantial step will remove very remote preparatory acts from ambit of attempt liability and relatively stringent sanctions imposed for attempts; on the other hand, by broadening liability to extent suggested, apprehension of dangerous person will be facilitated and law enforcement officials and others will be able to stop criminal effort at an earlier stage - thereby minimizing risk of substantive harm - without providing immunity to offender. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Denial of motion to sever.

- In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse its discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006).

"Substantial step" language shifts emphasis from what remains to be done to what has been done; the fact that further step must be taken before crime can be completed does not preclude finding that steps already undertaken are substantial and, it is expected, in normal case, that this approach will broaden scope of attempt liability. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); Adams v. State, 178 Ga. App. 261, 342 S.E.2d 747 (1986); Smith v. State, 189 Ga. App. 27, 375 S.E.2d 69, cert. denied, 189 Ga. App. 913, 375 S.E.2d 69 (1988); Brown v. State, 242 Ga. App. 858, 531 S.E.2d 409 (2000).

Effective assistance of counsel in attempted rape trial.

- Defendant was not prejudiced by trial counsel's failure to object to testimony speculating as to the defendant's state of mind because there was no reasonable likelihood that the testimony contributed to the guilty verdict on the lesser charge of attempted rape; the testimony regarding the victim's belief as to why the defendant was following the van in which the victim was traveling was not relevant to the consideration of the charges against the defendant, rape or attempted rape. Gomez-Oliva v. State, 312 Ga. App. 105, 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017).

Cited in Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973); Wade v. State, 132 Ga. App. 600, 208 S.E.2d 613 (1974); Mealor v. State, 135 Ga. App. 682, 218 S.E.2d 683 (1975); J.A.T. v. State, 136 Ga. App. 540, 221 S.E.2d 702 (1975); Rolland v. State, 235 Ga. 808, 221 S.E.2d 582 (1976); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977); Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977); Brooks v. State, 144 Ga. App. 97, 240 S.E.2d 593 (1977); Dunbar v. State, 146 Ga. App. 136, 245 S.E.2d 486 (1978); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Brooks v. State, 151 Ga. App. 384, 259 S.E.2d 743 (1979); Maddox v. State, 152 Ga. App. 384, 262 S.E.2d 636 (1979); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980); Rollins v. State, 154 Ga. App. 585, 269 S.E.2d 81 (1980); Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980); Conroy v. State, 155 Ga. App. 576, 271 S.E.2d 726 (1980); McKenzie v. State, 248 Ga. 294, 282 S.E.2d 95 (1981); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103 (1981); Davis v. State, 165 Ga. App. 440, 301 S.E.2d 659 (1983); Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984); Lester v. State, 173 Ga. App. 300, 325 S.E.2d 912 (1985); Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Battle v. State, 178 Ga. App. 655, 344 S.E.2d 477 (1986); Cox v. State, 180 Ga. App. 820, 350 S.E.2d 828 (1986); Mathis v. State, 184 Ga. App. 455, 361 S.E.2d 856 (1987); Dawson v. State, 186 Ga. App. 718, 368 S.E.2d 367 (1988); Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989); United States v. Ward, 808 F. Supp. 803 (S.D. Ga. 1992); Keener v. State, 215 Ga. App. 117, 449 S.E.2d 669 (1994); Painter v. State, 219 Ga. App. 290, 465 S.E.2d 290 (1995); Busch v. State, 234 Ga. App. 766, 507 S.E.2d 868 (1998); Sewell v. State, 244 Ga. App. 449, 536 S.E.2d 173 (2000); Mann v. State, 263 Ga. App. 131, 587 S.E.2d 288 (2003); Fernandez v. State, 263 Ga. App. 750, 589 S.E.2d 309 (2003); Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003); Drammeh v. State, 285 Ga. App. 545, 646 S.E.2d 742 (2007); Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008); DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 668 S.E.2d 737 (2008); Simon v. State, 320 Ga. App. 15, 739 S.E.2d 34 (2013); State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819 (2014); Rollf v. Carter, 298 Ga. 557, 784 S.E.2d 341 (2016).

Application

Sufficiency of indictment.

- Indictment stating offense charged, attempted armed robbery, in terms and language of O.C.G.A. § 16-4-1 suffices. Miller v. State, 155 Ga. App. 54, 270 S.E.2d 466 (1980).

Indictment for attempted child molestation was sufficient without alleging the specific intent of child molestation under O.C.G.A. § 16-6-4. Livery v. State, 233 Ga. App. 332, 503 S.E.2d 914 (1998).

Indictment for attempted child molestation alleging that defendant took a substantial step toward commission of the crime of child molestation by (1) engaging in sexually-explicit conversations over the internet and (2) driving to an arranged meeting place was not fatally defective in that it failed to allege the commission of a crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).

Although an indictment for attempting to commit the offense of enticing a child for indecent purposes did not allege actual asportation, it did allege that defendant arranged to meet the victim for the purpose of committing indecent acts and, accordingly, did not fail to allege the taking of a substantial step toward the commission of the crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).

Trial court properly denied the defendant's motion to dismiss the indictment accusing the defendant of criminal attempt to traffic in cocaine in violation of O.C.G.A. §§ 16-4-1 and16-13-31(a)(1); purity did not have to be alleged in an attempt case, particularly since there was no cocaine involved in the instant case, the indictment satisfied O.C.G.A. § 17-7-54(a) by tracking the applicable statutes in a manner that was easily understood and by apprising the defendant of both the crime and the manner in which the crime was alleged to have been committed, and if the defendant admitted the allegations precisely as set forth in the indictment, the defendant would have been guilty of criminal attempt to traffic in cocaine. Davis v. State, 281 Ga. App. 855, 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007).

Trial court erred in granting the defendant's specific demurrer to an indictment charging the defendant with criminal attempt to entice a child for indecent purposes in violation of O.C.G.A. §§ 16-4-1 and16-6-5(a) because the indictment contained the elements of the crime, informed the defendant of the charges against the defendant, and was specific enough to protect the defendant from double jeopardy, and the language in the indictment tracked the legislative language used in and cited directly to § 16-6-5(a); the crime charged in and of itself alerted the defendant to the fact that the defendant was being accused of acting with the intent of engaging in illicit sexual conduct with a minor, and because the defendant was indicted with criminal attempt to commit the crime of enticing a child for indecent purposes, by definition, the defendant fell short of the crime's commission, and any evidence of defendant's criminal intent was necessarily implicit. State v. Marshall, 304 Ga. App. 865, 698 S.E.2d 337 (2010).

Defendant was properly convicted of criminal attempt to commit burglary, O.C.G.A. §§ 16-4-1 and16-7-1, because prosecution for that crime was not time-barred; the crime for criminal attempt to commit burglary was substituted in lieu of a count of burglary charged in the original indictment, and the same evidence could be used to prove both the crime and criminal attempt to commit that crime. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).

Trial court did not err in granting the defendant's special demurrer and dismissing the indictment charging the defendant with attempted child molestation, O.C.G.A. §§ 16-4-1 and16-6-4, attempted aggravated child molestation, §§ 16-4-1 and16-6-4(c), and computer pornography, O.C.G.A. § 16-12-100.2(d), because the indictment contained inadequate information as to the alleged victim; attempted child molestation, attempted aggravated child molestation, and computer pornography are crimes against a particular person and require the victim to be identified in the indictment, even if the victim was a police officer using a pseudonym. State v. Grube, 315 Ga. App. 885, 729 S.E.2d 42 (2012).

Offense of enticing.

- Offense of enticing does not require that lewd act be accomplished or even attempted, merely that it was intended as motivation for enticement. Thus, standards for proving criminal attempt are not applicable. Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981).

Crime of enticing is complete when the defendant asports the victim with the intent to commit an indecent act, regardless of whether the act is actually committed; when, however, the defendant attempts to entice a child but is unsuccessful with respect to the asportation element, the defendant is properly charged with criminal attempt. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).

Defendant's conviction for criminal attempt to entice a child for indecent purposes, under O.C.G.A. §§ 16-4-1 and16-6-5(a), was reversed because: (1) the victim's compliance with the defendant's request to send the defendant a naked picture of the victim would not have satisfied the element of asportation since the request did not try to entice the victim to go to another place; (2) without evidence that the defendant tried to move the victim "any place whatsoever," the state did not prove the defendant had the requisite intent to commit the crime of enticing a child and that the defendant took a substantial step toward committing that crime; so (3) the state presented insufficient evidence to prove all elements of the only crime with which the state charged the defendant. Heard v. State, 317 Ga. App. 663, 731 S.E.2d 124 (2012).

Misdemeanor attempt, not felony, escape sentencing was proper when defendant was jailed for parole violation.

- Defendant should have been sentenced for misdemeanor attempted escape under O.C.G.A. § 16-10-52(b)(4) since the defendant was in jail for a parole violation, not for a charge on another crime, when the defendant attempted to escape; because the defendant was not charged with any crime at the time the defendant was incarcerated for the parole violation when the defendant attempted to escape from custody, the defendant was erroneously sentenced for a felony under § 16-10-52(b)(2) and was entitled to resentencing for misdemeanor attempted escape under § 16-10-52(b)(4). Green v. State, 283 Ga. App. 541, 642 S.E.2d 167 (2007).

Attempted obstruction.

- Because an investigative stop of the defendant matured into a de facto arrest when the officers transported the defendant, without consent, to a police investigative site, the officers needed probable cause to arrest the defendant for a criminal drug activity, and, based on what the officers knew at the time of the de facto arrest, probable cause did not exist to arrest the defendant for such an activity; however, the defendant lied to the officers, providing probable cause to arrest the defendant for attempted obstruction under O.C.G.A. §§ 16-4-1 and16-10-24(a) and therefore, the seizure of the defendant's person was not illegal, and the evidence gathered as a result of the seizure was not suppressed. United States v. Virden, 417 F. Supp. 2d 1360 (M.D. Ga. 2006), aff'd, 488 F.3d 1317 (11th Cir. 2007).

Jury instruction upheld.

- Trial court did not err in giving the jury an instruction on conspiracy when the offense charged was not conspiracy but attempted bribery. Since the instruction was free of confusion or other error, it follows that there was no "possibility" or "real probability" that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than of attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634, 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79, 310 S.E.2d 912 (1984).

To the extent the defendant sought review under O.C.G.A. § 17-8-58(b), of the trial court's charge to the jury on the jury's consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury's verdict. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).

Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and16-6-3(a), because the court's instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim's grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011).

When the evidence showed a completed crime, there was no error in refusing to charge on attempt or abandonment of attempt. Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983).

Abandonment defense disproved.

- With regard to the defendant's convictions for attempted child molestation, the state sufficiently defeated the defendant's defense of abandonment because while the defendant did leave the motel parking lot, it was not until the defendant viewed the task force agents wearing identifying t-shirts, communications through open car windows about the defendant's identification were already had, and the defendant left at a high rate of speed in an attempt to flee. Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013).

Failure to give adequate charge.

- Since an adequate charge on criminal attempt to commit armed robbery was not given to the jury, that crime cannot serve as a basis for defendant's felony murder convictions. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).

Evidence held sufficient.

- See Laidler v. State, 180 Ga. App. 213, 348 S.E.2d 739 (1986) (attempted rape); Walker v. State, 193 Ga. App. 446, 388 S.E.2d 44 (1989) (attempted armed robbery);; Harrison v. State, 201 Ga. App. 577, 411 S.E.2d 738 (1991) (attempted felony bail jumping); Criswell v. State, 186 Ga. App. 823, 368 S.E.2d 579 (1988) (attempted criminal escape); Perkins v. State, 224 Ga. App. 63, 479 S.E.2d 471 (1996) (attempted child molestation) Alford v. State, 224 Ga. App. 451, 480 S.E.2d 893 (1997); Hollis v. State, 225 Ga. App. 370, 484 S.E.2d 54 (1997) (attempted burglary); Sweeney v. State, 233 Ga. App. 862, 506 S.E.2d 150 (1998) (attempted rape); Heath v. State, 240 Ga. App. 492, 522 S.E.2d 761 (1999) (attempt to possess cocaine); Salters v. State, 244 Ga. App. 219, 535 S.E.2d 278 (2000) (attempt to escape); Jackson v. State, 247 Ga. App. 273, 543 S.E.2d 770 (2000); Davis v. State, 249 Ga. App. 579, 548 S.E.2d 678 (2001) (attempted armed robbery);(attempted armed robbery).

Evidence insufficient to convict for attempt to commit armed robbery.

- Several counts of the defendant's robbery and burglary convictions were reversed as was one count of criminal attempt to commit armed robbery because the finding of the proceeds of some of the robberies at an apartment did not show that the defendant was in possession of the property taken and no witness testified connecting the defendant with some of the home invasions; thus, the evidence did not exclude the reasonable possibility that the defendant did not participate in some of the crimes. Cisneros v. State, 334 Ga. App. 659, 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016).

Evidence was insufficient to convict the defendant of criminal attempt to commit armed robbery because, although the evidence presented supported a finding that the defendant performed certain acts in preparation for an armed robbery, the defendant's acts were merely preparatory acts and did not amount to an attempt to commit the crime of armed robbery as the defendant was not in possession of a weapon or device having the appearance of a weapon; furthermore, there was no evidence that the defendant gave the robbery notes to anyone or concealed the defendant's hands in any way as if to hide a weapon. Rainey v. State, 338 Ga. App. 413, 790 S.E.2d 106 (2016).

Conviction for attempted rape and aggravated assault.

- Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011).

Denial of merger.

- Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016).

No merger of attempted burglary and conspiracy to commit armed robbery.

- Because attempted burglary and conspiracy to commit armed robbery each required different statutory elements and, thus, required proof of a fact the other did not, the offenses did not merge. Owens v. State, 353 Ga. App. 616, 838 S.E.2d 909 (2020).

Inconsistent verdict claim rejected.

- Defendant's claim that the defendant's attempted armed robbery verdict and three armed robbery verdicts should have been vacated as the defendant was acquitted of the firearms offenses related to those crimes was rejected; although the defendant claimed to have argued that the verdicts were mutually exclusive, the defendant in fact argued that the verdicts were inconsistent and Georgia has abolished the inconsistent verdict rule. Ray v. State, 273 Ga. App. 656, 615 S.E.2d 812 (2005).

Sentencing.

- Convictions for possession of methamphetamine and criminal attempt to manufacture methamphetamine merged as a matter of fact since the state used the same conduct to establish commission of both crimes, namely the same methamphetamine oil found in a toilet; therefore, though it was permissible to prosecute defendant for each crime, defendant could not be convicted for both offenses and a possession conviction and sentence were vacated by operation of law on appeal. Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848 (2008).

Trial court erred in sentencing the defendant to 20 years to serve on the criminal attempt to commit robbery count because the maximum sentence the defendant could have received was 10 years as convicted of the offense of criminal attempt to commit a felony, not punishable by death or life imprisonment, could be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which the defendant could have been sentenced if the defendant had been convicted of the crime attempted; the maximum sentence for robbery was 20 years and half that time was 10 years. Ranger v. State, 330 Ga. App. 578, 768 S.E.2d 768 (2015).

Prior out-of-state convictions.

- Defendant's case was remanded for resentencing after a conviction for criminal attempt to manufacture methamphetamine because the trial court considered an uncertified Arkansas docket sheet in aggravation of sentence and a Tennessee conviction that might not qualify as a prior felony in Georgia under the recidivist statute. Elliot v. State, 274 Ga. App. 73, 616 S.E.2d 844 (2005).

Defendant's conviction for criminal attempt to manufacture methamphetamine was supported by the evidence because: (1) the defendant's spouse informed law enforcement authorities that the defendant was manufacturing methamphetamine; (2) the defendant was discovered at a motel and was arrested; and (3) a forensic chemist testified that the items found in the defendant's motel room were those used in the manufacture of methamphetamine. Elliot v. State, 274 Ga. App. 73, 616 S.E.2d 844 (2005).

1. Offenses Against Property

Evidence of criminal attempt to enter automobile sufficient.

- Evidence that defendants discussed theft of a car stereo, possessed tools to aid in the commission of such a crime, and that they drove to a shopping center parking lot in search of a specific car to enter was sufficient to find them guilty of criminal attempt to enter an automobile. Evans v. State, 216 Ga. App. 21, 453 S.E.2d 100 (1995).

There was sufficient evidence to support the defendant's conviction for criminal attempt to commit the felony of entering an automobile as the state presented circumstantial evidence that the defendant attempted to enter the victim's vehicle with the intent to commit a theft, including the victim's testimony that the victim observed the defendant attempting to lift the door handle of the victim's car. In the Interest of M. F., 353 Ga. App. 737, 839 S.E.2d 291 (2020).

Evidence that the defendant's DNA was on the steering wheel of a vehicle identified as being at the scene of the offenses, that the defendant and the accomplice were together either the day after the murder or the next day, and that the defendant was driving the car on the day of the murder was sufficient to support the conviction for entering one automobile and attempting to enter a second automobile and the jury's rejection of the theory that someone else was with the accomplice was not insupportable. Chestnut v. State, 353 Ga. App. 530, 838 S.E.2d 605 (2020).

Attempt to enter an automobile did not merge with loitering.

- Merging of sentences for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and16-8-18, and loitering under O.C.G.A. § 16-11-36, was not warranted because loitering required proof of presence in a place at a time or in a manner not usual for law-abiding individuals, and attempt to enter an automobile required performance of an act which constituted a substantial step toward the commission of entering an automobile, both elements not required by the other crime. Brown v. State, 312 Ga. App. 489, 718 S.E.2d 847 (2011).

Evidence sufficient for conviction of attempt to commit burglary.

- Breaking window of door and reaching inside in attempt to open the door does not constitute entry for purposes of O.C.G.A. § 16-7-1 and will only sustain conviction for criminal attempt to commit burglary. Hampton v. State, 145 Ga. App. 642, 244 S.E.2d 594 (1978).

Presence of valuables inside premises, evidence of defendant's flight, presence of a cement block under a broken window, and a positive identification of defendant were sufficient to support defendant's conviction of criminal attempt to commit burglary. Methvin v. State, 189 Ga. App. 906, 377 S.E.2d 735 (1989).

Circumstantial evidence was sufficient to sustain defendant's conviction of criminal attempt to commit burglary, where defendant was found walking about a quarter of a mile from the burglarized premises within about a half hour of the attempted burglary, lied about defendant's identity, and was wearing boots and was carrying a knife with a piece of wire on it, and there was evidence that a bootprint was found at the premises and that the telephone line had been cut. Ware v. State, 198 Ga. App. 24, 400 S.E.2d 384 (1990).

Evidence was sufficient to support convictions for attempted burglary after police officers who responded to an alert by a security company of an irregular noise at a warehouse found defendants with tools covered with cinder block dust along with a four foot hole in the back cinder block wall of the warehouse. Climpson v. State, 253 Ga. App. 485, 559 S.E.2d 495 (2002).

Insertion of a crowbar into the locked door to a business with the intent of prying open the door, and exerting pressure on the crowbar in such a manner that the striker plate on the door was bent and damaged, constituted a substantial step toward the commission of the crime of burglary to support a conviction for attempted burglary. Flanagan v. State, 265 Ga. App. 122, 592 S.E.2d 894 (2004).

Evidence was sufficient to support the defendant's conviction for attempted burglary as the evidence showed that the defendant took the substantial step of prying open the carport door of the house of another person, the exterior of which was 100 percent complete, so that the defendant could steal the valuable construction tools inside, and that the defendant was caught in the act while doing so. Weeks v. State, 274 Ga. App. 122, 616 S.E.2d 852 (2005).

Evidence supported the defendant's conviction for attempted burglary after the defendant admitted trying to break into a gas station to steal beer and cigarettes. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219 (2005).

Sufficient evidence, including that the defendant took a substantial step of knocking off the victim's shed door handle, without authority, with the intent to steal valuable goods therein, supported an attempted burglary conviction; moreover, although the defendant denied any intention to commit a theft, the credibility of the witnesses and the questions as to the reasonableness of the defendant's actions were issues for the factfinder to decide. Minor v. State, 278 Ga. App. 327, 629 S.E.2d 44 (2006).

Sufficient evidence supported the defendant's conviction of criminal attempt to commit burglary since the defendant, who had a history of sexual assaults, went to a hotel alone, late at night, wearing a mask, since, after visiting the hotel parking lot once before in the evening, and following a female hotel employee until the employee ran, the defendant approached the office door where that same lone female hotel employee had returned to work, and attempted to open the locked door, since, when the locked door would not open, the defendant continued to shake the door violently, still wearing the mask, and since, when the defendant saw the hotel employee pick up the phone and dial9-1-1, the defendant fled; in light of this evidence, the jury was authorized to conclude that the defendant took a substantial step toward entering the hotel office without authority to commit a sexual felony therein. Swint v. State, 279 Ga. App. 777, 632 S.E.2d 712 (2006).

Defendant was properly sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual § 4B1.1(a) based upon a Georgia attempted burglary of a dwelling conviction under O.C.G.A. §§ 16-4-1 and16-7-1 because the defendant failed to object to the factfindings at sentencing, which conclusively established that the defendant was in fact convicted of attempting to commit a generic burglary within the meaning of 18 U.S.C. § 924(e); thus, because that offense was an enumerated violent felony, the crime of attempting to commit that offense was also a violent felony, permitting the court to use the conviction as a predicate offense under the Armed Career Criminal Act after the defendant pled guilty to violating 18 U.S.C. § 922(g). United States v. Wade, 458 F.3d 1273 (11th Cir. 2006).

There was sufficient evidence to support defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon; in addition to testimony by a codefendant and eyewitness testimony by the victim's spouse, the victim's blood was on the defendant's clothes, the defendant had the victim's keys, and the knife used to kill the victim and a pistol were discovered near the site of the defendant's arrest in some woods near the scene of the crime. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).

Despite a sufficiency challenge to an adjudication on a charge of criminal attempt to commit burglary, the court of appeals upheld the finding because the juvenile's conduct including: (1) repeatedly ringing the victim's doorbell; (2) hiding in the backyard; (3) furtive observation of the victim's house; (4) telephone contact with the other juvenile who was at the victim's front door; and (5) climbing over a basketball goal to reach a window at the back of the house was suspicious and undoubtedly consistent with preparation for a daylight burglary. Moreover, the juvenile's actions, as well as evidence of a bent window screen, constituted evidence of a substantial step towards entering the victim's house without authority and inconsistent with a lawful purpose. In the Interest of R.C., 289 Ga. App. 293, 656 S.E.2d 914 (2008).

Evidence supported a conviction of criminal attempt to commit burglary. The victim heard knocking at the victim's sliding glass door and saw the defendant, a neighbor, crouched down holding a crowbar and beating the bottom track of the door; when the victim asked what the defendant was doing, the defendant said, "Oh, you're home," and asked to borrow the victim's shovel, then said that the defendant had just wanted to make sure the victim was okay and left without the shovel; when police asked the defendant what had gone on, the defendant said, "I didn't have a crowbar in my hand. I had a screwdriver in my hand"; and during an interview with police, the defendant gave differing explanations for the defendant's actions. Rudnitskas v. State, 291 Ga. App. 685, 662 S.E.2d 729 (2008).

Evidence was sufficient to show that the defendant, who was convicted of attempted burglary under O.C.G.A. §§ 16-4-1 and16-7-1, had the intent to rob the sawmill in question. The defendant and others set out early on a Saturday and entered the property in an unusual way; and the defendant drove the getaway truck, lied to police, and failed to produce a flashlight when asked to empty the defendant's pockets. Armour v. State, 292 Ga. App. 111, 663 S.E.2d 367 (2008).

Trial court did not err in denying a defendant's motion for a directed verdict of acquittal on a charge of attempted burglary in violation of O.C.G.A. §§ 16-4-1 and16-7-1(a) because the evidence was sufficient to authorize the jury to conclude that the defendant took a substantial step toward entering an owner's apartment to commit a felony; the defendant's inculpatory statement that the defendant intended to enter the owner's apartment to get money was direct evidence of the defendant's guilt, and this statement, combined with a witness's testimony that the witness heard the defendant and the defendant's brother discuss entering the owner's apartment through the window, saw them on the owner's porch, and then heard the window breaking, provided ample evidence to support the defendant's conviction of attempted burglary beyond a reasonable doubt. Durham v. State, 295 Ga. App. 734, 673 S.E.2d 80 (2009).

With regard to the defendant's conviction for attempted burglary, sufficient evidence supported the conviction because the jury evaluated the nature of the circumstances of the morning's events, as well as the daughter's eyewitness testimony identifying the defendant and, although the defendant explained that it was mistakenly the wrong house, the jury was authorized to come to a different and reasonable conclusion based on the state's case. White v. State, 323 Ga. App. 660, 744 S.E.2d 857 (2013).

Evidence was sufficient to sustain the defendant's attempted burglary conviction since the victim testified that, after the victim woke and saw the defendant outside, the victim found the screen to an open window on the hood of the victim's car and found a piece of carpet the victim had left in the window sill for the victim's cat to sit on in the yard. The jury thus could have found that the defendant removed the screen in an attempt to gain entrance into the house. Dillard v. State, 323 Ga. App. 333, 744 S.E.2d 863 (2013).

Evidence that the defendant rang the doorbell, made a motion in which the defendant appeared to adjust a gun, and that two other people stood to the defendant's side, one wearing a mask and holding a sawed-off shotgun and the other crouched behind the defendant with a pistol was sufficient to support the defendant's conviction for criminal attempt to commit burglary. Owens v. State, 353 Ga. App. 616, 838 S.E.2d 909 (2020).

Evidence sufficient for criminal attempt to commit theft by receiving stolen property.

- Evidence that the informant told the defendant that the items being pawned were not "hot, hot," the defendant's failure to put serial numbers of the items on the pawn tickets or property-tracking website, the defendant's instructions to the informant to remove the packaging of one of the new items, and the defendant's admission that the defendant had been suspicious of the informant was sufficient to support the defendant's conviction for criminal attempt to commit theft by receiving stolen property. Miller v. State, 323 Ga. App. 412, 744 S.E.2d 926 (2013).

Rule of lenity did not apply.

- Trial court did not err in not applying the rule of lenity with regard to the defendant's conviction for criminal attempt to commit burglary because the crimes of criminal trespass and criminal attempt to commit a burglary did not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime; thus, the rule of lenity did not apply. Snow v. State, 318 Ga. App. 131, 733 S.E.2d 428 (2012).

Trial court did not err by not applying the rule of lenity in sentencing the defendant on criminal attempt to commit a felony, rather than on aggravated assault, because the statutory language and indictment showed that the two counts did not address the same criminal conduct as the criminal attempt (of murder) included the substantial step of pulling the trigger of the handgun aimed at the victim's head, which additional step was not required for the commission of aggravated assault. Gonzalez v. State, 352 Ga. App. 83, 833 S.E.2d 727 (2019).

Attempt to push open door sufficient for attempted burglary.

- Defendant's attempted burglary conviction, O.C.G.A. § 16-4-1, was supported by evidence that the victim heard someone "snatching" at and "pushing on" the victim's door. When the victim observed the defendant and another person outside the victim's house, the victim threatened to shoot them; they fled in a car that they had parked close enough to the house that they could have stood on the car and climbed through a window. Mock v. State, 306 Ga. App. 93, 701 S.E.2d 567 (2010).

Severance from separate charge of armed robbery.

- Attempted armed robbery conviction was upheld on appeal, as severance from a separate charge of armed robbery was not required, given that the two crimes were part of a series of connected acts, committed within a short period of time, in the same area, with the same weapon, and involved a similar modus operandi. Fields v. State, 283 Ga. App. 208, 641 S.E.2d 218 (2007).

Evidence sufficient for criminal attempt to commit armed robbery.

- Since the victim testified that, while threatening the victim with a loaded gun and after telling the victim that defendant wouldn't hesitate to kill the victim, defendant asked, "do you got any money in here?", the evidence provided a sufficient basis for the jury's determination that defendant was guilty of criminal attempt to commit armed robbery. Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001).

Evidence was sufficient to support the defendant's conviction of criminal attempt to commit armed robbery because the defendant surreptitiously watched others at a fast food restaurant, wore a mask, and drew a BB handgun that resembled a semi-automatic weapon when the defendant was confronted by a police officer. New v. State, 270 Ga. App. 341, 606 S.E.2d 865 (2004).

Evidence supported the defendant's conviction for armed robbery, attempted armed robbery, burglary, and one firearms offense because: (1) the defendant confessed to the crimes; (2) a companion wore distinctive shoes that matched those of an armed robber; (3) two dust-free ski masks, similar to those worn by the armed robbers, were found in the defendant's very dusty utility closet; and (4) a small red car was parked near a restaurant that was robbed, officers stopped the defendant two hours later, and the defendant drove the same car to the police station when the defendant came for voluntary questioning. Ray v. State, 273 Ga. App. 656, 615 S.E.2d 812 (2005).

Evidence supported a conviction for criminal attempt to commit armed robbery because the defendant jumped over the counter at a restaurant, held a knife to a waitress' neck and, after fleeing the scene and being caught by police, admitted to the crime. Lemming v. State, 272 Ga. App. 122, 612 S.E.2d 495 (2005), overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009).

Armed robbery, attempted armed robbery, and possession of a firearm during the commission of a crime convictions were upheld on appeal, based on sufficient evidence supporting the defendant's guilt, specifically, a security surveillance videotape, eyewitness testimony, and the defendant's voluntary admission to police. Smith v. State, 281 Ga. App. 587, 636 S.E.2d 748 (2006).

Evidence was sufficient to convict the defendant of criminal attempt to commit armed robbery, even though the defendant never said the defendant was going to rob a store or demanded money, as the jury was authorized to find that, having spent all of the defendant's money, the defendant took the substantial step of entering the store with a knife with the intent to commit robbery. Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008).

Evidence supported the defendant's convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant's hand in the defendant's pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (2011).

Victim's testimony that the defendant was one of the two men who came into the victim's house, beat the victim with fists and a flashlight, and demanded the victim's keys and money authorized the jury to find the defendant guilty of burglary, aggravated battery, and criminal attempt to commit armed robbery. Garmon v. State, 317 Ga. App. 634, 732 S.E.2d 289 (2012).

Evidence including testimony as to the gang's criminal activities, corroborating the defendant's participation in the armed robberies; the defendant's admission to participating in two murders; and a gun the defendant used in the attempted armed robbery of the first victim was sufficient to support the defendant's convictions for criminal street gang activity, criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. Morris v. State, 322 Ga. App. 682, 746 S.E.2d 162 (2013).

Sufficient evidence supported the defendant's convictions for two counts of armed robbery with respect to two victims at the first residence, attempt to commit armed robbery with respect to one of the victims at the first residence, and two counts of burglary with respect to the two residences because the accomplice testimony was sufficiently corroborated by one of the witnesses, who identified the defendant. Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013).

Evidence that men ultimately identified as the defendant and the codefendant broke into the victims' home, held all three victims at gunpoint while demanding drugs and money, and began loading electronics and other valuables from the home into the victims' vehicle before fleeing the premises was sufficient to support the defendant's three attempted armed robbery convictions. Issa v. State, 340 Ga. App. 327, 796 S.E.2d 725 (2017).

Jury was authorized to conclude that the defendant used a firearm to attempt to take money from the victim given the victim's testimony that the defendant pulled out a gun and asked the victim what the victim had in the victim's pockets. Green v. State, 304 Ga. 385, 818 S.E.2d 535 (2018).

Circumstantial evidence was sufficient to convict the defendant of felony murder predicated on criminal attempt to commit armed robbery because the victim was found dead from gunshot wounds; the victim's wallet was missing when the victim was found; the suspect fled the scene in a small, silver sedan; the defendant's co-indictee was driving a vehicle matching that description in the area at the time of the murder; and the defendant stated in a jailhouse telephone conversation that the defendant was involved in the week-long crime spree. Perdomo v. State, 307 Ga. 670, 837 S.E.2d 762 (2020).

Evidence that the defendant approached the victim with a handgun, pointed the gun at the victim while demanding money, and ultimately shot the victim was sufficient to support the defendant's convictions for armed robbery, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Cooke v. State, Ga. App. , S.E.2d (Sept. 15, 2020).

Evidence insufficient to convict for attempt to commit theft by taking as a fiduciary.

- Evidence was insufficient to convict the defendant of criminal attempt to commit theft by taking by a fiduciary as the relationship between the defendant and the employer was merely that of employer-employee because, although the defendant was responsible for creating invoices, the defendant did not have authority to act for the employer beyond weighing the metals and assigning to the weight a dollar amount that had been previously fixed by the employer; and the defendant could not negotiate with the customers or independently determine how much the metals were worth; thus, although the conviction for criminal attempt to commit theft by taking stood, the felony sentence, based on the defendant being a fiduciary, was reversed. Scott v. State, 344 Ga. App. 412, 810 S.E.2d 613 (2018).

Criminal attempt not included in offense of shoplifting.

- Trial court did not err in refusing to instruct on criminal attempt as a lesser included offense of theft by shoplifting where the evidence showed that defendant concealed shirts in defendant's pants while in the store and the only issue for the jury was whether defendant had the requisite intent to shoplift; if the jury had not found such intent, it would have been required to acquit defendant. Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995).

Possession of firearm did not merge with attempted armed robbery conviction.

- Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

Criminal attempt to commit theft from vehicle.

- There was no merit to argument of juvenile defendant that circumstantial evidence was insufficient to prove the acts of entering an automobile and criminal attempt to commit theft from a vehicle since, during the early morning hours, defendant was in the area where a car stereo was stolen and the attempted theft of tire rims occurred, a driver's license bearing the false name defendant gave was found at the crime scene, defendant returned to the car that defendant was driving with a car stereo, and car stereo parts were found in the car defendant was driving. In the Interest of C.M., 290 Ga. App. 788, 661 S.E.2d 598 (2008).

Defendant's act of repeatedly pulling at a vehicle's door handle in a sorority house parking lot at 2:00 A.M. amounted to more than a mere preparatory act, and was instead an act proximately leading to the consummation of the crime of entering an automobile, supporting the defendant's conviction for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and16-8-18. Brown v. State, 312 Ga. App. 489, 718 S.E.2d 847 (2011).

Attempt to hijack a motor vehicle.

- Given that a defendant repeatedly stabbed a victim in the throat in a parking lot to attempt to force the victim to get inside the victim's car, the trial court could find that the defendant rejected the car keys when the victim offered the keys because the defendant intended to abscond with both the car and the victim as needed to prove attempted hijacking of a motor vehicle under O.C.G.A. §§ 16-4-1 and16-5-44.1(b). Hickman v. State, 311 Ga. App. 544, 716 S.E.2d 597 (2011).

Abandonment of robbery not found.

- Trial court properly denied the defendant's motion for a directed verdict, on a charge of criminal attempt to commit armed robbery, as the mere fact of the fortuitous arrival of the police while the defendant and another were about to commit the actual robbery did not constitute an abandonment of the act. Level v. State, 273 Ga. App. 601, 615 S.E.2d 640 (2005).

Charge on attempted first-degree arson was authorized, since the jury would have been authorized from the evidence to conclude that the defendant intended to set fire to a house and that defendant set fire to clothing as a substantial step toward the commission of that crime. Plemons v. State, 194 Ga. App. 554, 390 S.E.2d 916 (1990).

Evidence was sufficient to support the defendant's conviction of criminal attempt to commit arson, even though the defendant testified that the defendant poured the gasoline on the floor as an experiment to get rid of insects, when a victim testified that the defendant poured gasoline on the floor after getting angry with the defendant's spouse, a neighbor testified that the victim and the victim's parent smelled like gasoline, the police chief testified that the odor of gasoline was so strong that the defendant called the fire department, and the defendant testified that the defendant overreacted when the defendant heard the defendant's spouse and child laughing and that the defendant told them that they thought that the defendant was wrong about burning the house down. Waller v. State, 267 Ga. App. 608, 600 S.E.2d 706 (2004).

When the facts demonstrated that the defendant threatened to burn down a restaurant and then proceeded to pour gasoline onto the restaurant's tables and carpet in front of numerous eyewitnesses, such was sufficient evidence to allow a rational jury to convict defendant of attempt to commit arson and terroristic threats; moreover, the defendant's act of damaging the tables and carpet by pouring gasoline on them was sufficient to support a conviction of first-degree criminal damage to property. Robinson v. State, 288 Ga. App. 219, 653 S.E.2d 810 (2007).

Fingerprint evidence sufficient.

- Evidence was sufficient to adjudicate the defendant juvenile delinquent for acts that, if committed by an adult, would constitute the offenses of burglary and attempted burglary because, for purposes of the first burglary, it appeared to the investigating officers that the burglar had entered through a kitchen window at the rear of the house, and the officers found the defendant's palm prints on the outside of the bottom lower window pane of that window; for purposes of the second burglary, the officers found the defendant's palm prints on the outside of three windows at the back of the house; and the only reasonable hypothesis was that the defendant's palm prints were impressed at the time of the burglaries. In the Interest of S. B., 348 Ga. App. 339, 822 S.E.2d 835 (2019).

2. Offenses Against Individuals

Kidnapping not converted to mere criminal attempt when victim did not obey all of the assailant's commands. Padgett v. State, 170 Ga. App. 98, 316 S.E.2d 523 (1984).

In a prosecution for enticing a child for indecent purposes, there was no error in the trial court's refusal to charge the jury on the offense of criminal attempt. Morris v. State, 179 Ga. App. 228, 345 S.E.2d 686 (1986).

Enticement and intended motivation must be shwon to support attempt to entice a child for indecent purposes.

- Defendant's convictions for criminal attempt of enticing a child for indecent purposes were reversed because the state failed to present any evidence to show that an act of indecency or child molestation was the intended motivation behind the defendant's apparent attempts to entice the victims into the defendant's vehicle when the defendant drove by the alleged victims or asked one to put their bike in the truck. Phillips v. State, 354 Ga. App. 88, 840 S.E.2d 165 (2020).

Asportation of child is not essential element of attempted child molestation. Wittschen v. State, 189 Ga. App. 828, 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448, 383 S.E.2d 885 (1989).

Delinquent attempted aggravated child molestation.

- In order to find juvenile defendant guilty of the delinquent act of attempted aggravated child molestation, the court must find defendant attempted aggravated child molestation with intent to satisfy defendant's own desires. Whether the juvenile defendant had the sexual intent or knowledge of an adult would be irrelevant. In re W.S.S., 266 Ga. 685, 470 S.E.2d 429 (1996).

Defendant's conviction of attempted child molestation was affirmed on evidence showing that defendant drove a van up to two young girls who were roller-skating on a street, held up dollar bills and asked them if they would like to have the money, and when one girl responded affirmatively, made a lewd suggestion. Wittschen v. State, 189 Ga. App. 828, 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448, 383 S.E.2d 885 (1989).

When there was undisputed evidence that the defendant entered the 12-year old victim's house with the intent to engage in sexual activity and that the defendant sat nude on the victim's bed while the victim was in the bed, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant was guilty of criminal attempt to commit child molestation. Garmon v. State, 192 Ga. App. 250, 384 S.E.2d 278 (1989).

Evidence that defendant undressed himself and a 14-year-old girl and then climbed into bed with her was more than sufficient to sustain defendant's conviction of criminal attempt to commit child molestation in violation of O.C.G.A. §§ 16-4-1 and16-6-4(a). Colbert v. State, 255 Ga. App. 182, 564 S.E.2d 787 (2002).

Defendant could be convicted of criminal attempt to commit child molestation since defendant had definitely gone beyond mere preparation as the undisputed evidence showed that defendant repeatedly visited the victim and offered the victim money, defendant stuck a hand in the front pocket of the victim's pants, carried a picture of the victim in defendant's wallet, and gave the victim a note that expressly stated that defendant wanted to make love to the victim. Lopez v. State, 258 Ga. App. 92, 572 S.E.2d 736 (2002).

Evidence was sufficient to support conviction for attempted child molestation under O.C.G.A. § 16-4-1 when defendant: (1) wrapped defendant's body around a child so as to restrain the child's arms; (2) rubbed and kissed the child's back, placing defendant's feet in the child's crotch; and (3) asked where the child had been all defendant's life. Tanner v. State, 259 Ga. App. 94, 576 S.E.2d 71 (2003).

Evidence supported the defendant's attempted child molestation conviction as the defendant showered a 13-year-old victim with gifts and marijuana to induce the victim to have sexual intercourse with the defendant. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Evidence supported the defendant's conviction of child molestation and criminal attempt to commit child molestation because: (1) the nine-year-old victim testified that on multiple occasions the defendant fondled the victim's breasts and private parts; (2) the victim further testified that the defendant attempted to have the victim touch the defendant's genitals; and (3) the victim initially informed the victim's mother of the defendant's actions and shortly thereafter repeated the details of the incidents to a therapist and two child services agency case workers. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005).

Despite allegations that: (1) the victim's testimony was contradicted by the victim's mother; and (2) the victim had a motive to lie about the defendant, the appeals court refused to disturb the jury's determination as to the same, given the jury's province to resolve the conflicts in the evidence; hence, the defendant's cruelty to children and attempted aggravated and child molestation convictions were upheld on appeal. Chalker v. State, 281 Ga. App. 305, 635 S.E.2d 890 (2006).

Sufficient evidence supported the defendant's convictions of aggravated child molestation under O.C.G.A. § 16-6-4(c), attempted aggravated sodomy under O.C.G.A. §§ 16-4-1 and16-6-2(a), and statutory rape under O.C.G.A. § 16-6-3(a); the victim testified that the defendant put the defendant's privates inside the victim's privates and attempted to put the defendant's privates in the victim's behind, and the nurse practitioner testified that the physical examination of the victim indicated injuries consistent with the victim's testimony. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Rational trier of fact could have found the defendant guilty of attempted child molestation beyond a reasonable doubt because whether the defendant's actions were immoral or indecent and done with the requisite intent were questions for the jury. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).

Evidence that the defendant, age 35, met a girl online whom the defendant believed was 15, that the defendant made numerous comments about how the defendant could get in trouble or go to jail, that the defendant engaged in sexually explicit conversations and directed the child to pornography sites showing black men having sex with white women, that the defendant drove to an arranged meeting place, and, that, when officers appeared, the defendant fled, was sufficient to convict defendant of violating O.C.G.A. §§ 16-4-1 (attempt),16-6-4 (child molestation),16-6-5 (enticement of a child), and16-10-24 (obstruction). Smith v. State, 306 Ga. App. 301, 702 S.E.2d 211 (2010).

Evidence that the defendant raised the subject of masturbation with the child victim and asked her to perform that act upon him was sufficient to support the defendant's conviction of attempted child molestation. Pendley v. State, 308 Ga. App. 821, 709 S.E.2d 18 (2011).

Evidence that the defendant sent email communications to a person the defendant believed to be the mother of a 14-year-old girl, arranged to pay for a night of "companionship" with the girl, and traveled to the arranged meeting place was sufficient to show that the defendant took a substantial step toward committing the crime of child molestation and supported the conviction for attempted child molestation. Schlesselman v. State, 332 Ga. App. 453, 773 S.E.2d 413 (2015).

Evidence that the defendant communicated with someone the defendant believed was a 15-year-old girl, asked the alleged child repeatedly for nude photos, told the child the defendant was a horny and dirty old man, and told the child they could play and get all worked up and be ready for fun before meeting, arranged a meeting, and traveled to the arranged meeting place was sufficient to support the defendant's conviction for attempt to commit child molestation. Reid v. State, 349 Ga. App. 196, 825 S.E.2d 555 (2019).

Evidence was sufficient to convict the defendant of the remaining counts of aggravated child molestation, child molestation, attempted child molestation, and cruelty to children, not included in Count 3, based on the video-recordings of the children's forensic interviews; testimony about the children's various disclosures; the children's testimony; and the neighbors' testimony that the neighbors observed bruises and other injuries on the children, and saw the defendant kick one of the children. Shepherd v. State, 353 Ga. App. 228, 836 S.E.2d 221 (2019).

Conviction of criminal attempt to commit child molestation and to entice a child upheld; the defendant had sexual contact with his daughters when they were children, with one of the daughters giving birth to two of his children, he touched the victim (his 10-year-old granddaughter) inappropriately, and he gave her a note asking to lie in bed with her and caress her. Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).

Sexual offenses with minors initiated over the Internet.

- Defendant was not entrapped by law enforcement because: (1) the defendant, via electronic communications, asked an undercover officer who was posing as a teenage girl to engage in sexual intercourse and oral sodomy with the defendant, even after the "teenage girl" told the defendant that the teenage girl was 14 years old; (2) the defendant initiated the conversation during which a meeting was arranged and the defendant described in detail the sex acts which the defendant wished to perform on the teenage girl at the park where the two discussed meeting for sex; (3) when the defendant arrived at the park, the defendant possessed a condom on the defendant's person; and (4) when the officers who stopped the defendant at the park explained that the officers were with a task force for Internet crimes against children, the defendant immediately responded that the defendant was at the park to counsel a 14-year-old girl about the dangers of meeting men from the Internet. Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302, cert. denied, No. S11C1101, 2011 Ga. LEXIS 579, cert. denied, 132 S. Ct. 823, 181 L. Ed. 2d 533 (2011).

When the defendant was charged with using the Internet to seduce, solicit, lure, or entice a child or a person believed to be a child to commit an illegal sex act, under O.C.G.A. § 16-12-100.2(d)(1), attempted aggravated child molestation, under O.C.G.A. §§ 16-4-1 and16-6-4(c), and attempted child molestation, under O.C.G.A. §§ 16-4-1 and16-6-4(a), it was not error to deny the defendant's motion for a directed verdict of acquittal, based on entrapment, because the jury's determination that entrapment did not occur was supported by evidence that: (1) the defendant continued communicating with a person the defendant believed to be 14 years old, including having sexually explicit conversations with the person in which the defendant stated the defendant wanted "a lot of oral," after the defendant learned that the person was 14 years old; (2) the defendant discussed with the person how the person could meet the defendant if the person could not drive, inquired whether the person had ever snuck away from home before, and stated that the defendant believed the union would be legal if the defendant were 16 years old, instead of the defendant's actual age; (3) the defendant left the defendant's home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with the person, which the defendant admitted in the defendant's statements to officers; and (4) the defendant brought condoms with the defendant, which the defendant stated were to prevent any "accidents" in the event the defendant was able to have sex with the person. Millsaps v. State, 310 Ga. App. 769, 714 S.E.2d 661 (2011).

Sufficient evidence supported the defendant's conviction for criminal attempt to entice a child for indecent purposes based on the evidence that the defendant thought the intended victim was a 15-year-old girl with whom the defendant continued to contact, engaged in sexually explicit conversations, and arranged to meet for a sexual encounter, and although the defendant introduced some evidence in the form of an e-mail to support the claim that defendant believed the defendant was dealing with an adult, that evidence was not conclusive and it was for the jury to determine defendant's truthfulness. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).

Evidence that the defendant traveled from Tennessee to an arranged location in Georgia to have sexual intercourse with a person the defendant thought to be a 14-year-old girl, a substantial step toward committing the offense of criminal attempt to commit child molestation, was sufficient to support the defendant's conviction for attempt to commit child molestation. The fact that the girl did not actually exist and, thus, the defendant was never in the child's presence did not preclude the defendant's conviction. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).

Evidence of guilt overwhelming despite attempt to commit felony murder not recognized crime.

- Assuming without deciding that attempt to commit felony murder is not a recognized crime in Georgia, the evidence supporting the defendant's other convictions was overwhelming; thus, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury's consideration of guilt as to the other counts in the indictment. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).

Assault with automotive water pump.

- Evidence that the defendant approached the victim from behind and struck the victim after the victim received cash in payment for delivering pizza and that the defendant attempted to use an automotive water pump to hit the victim was sufficient to support the defendant's convictions for aggravated assault and criminal attempt to commit armed robbery. Simmons v. State, 342 Ga. App. 853, 805 S.E.2d 615 (2017).

Evidence insufficient to support conviction for attempt to influence public official.

- Defendant corrections officer's conviction of an attempt to influence the defendant's supervisor not to charge an inmate with possession of marijuana by an inmate could not stand for lack of evidence showing that the officer took any action, substantial or otherwise, to improperly influence the defendant's supervisor to such end. Beard v. State, 300 Ga. App. 146, 684 S.E.2d 306 (2009).

Completed attempt to commit armed robbery.

- Attempt to commit armed robbery was completed when defendant entered bank armed with gun and wearing disguise, with manifest intent to commit theft. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Failing to charge the jury on the lesser included offense of criminal attempt to commit armed robbery was not error since, if the jury believed any combination of defendant's statements, the defendant either was a party to the completed crime of armed robbery or defendant lacked any intent to be a party to the crime. Spivey v. State, 243 Ga. App. 785, 534 S.E.2d 498 (2000).

No merger of crimes of attempted child molestation and computer child exploitation.

- Because the offenses of criminal attempt to commit child molestation and computer child exploitation each required proof of a fact the other did not, the trial court did not err in sentencing the defendant on both convictions. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).

Crimes of attempted armed robbery and aggravated assault are separate and distinct, and separate sentences may be imposed. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Aggravated assault is not included in attempted armed robbery as a matter of law, although these two offenses may as a matter of fact merge if the same facts are used to prove both offenses. However, where the underlying facts show that one crime was completed prior to the second crime, so that the crimes are separate as a matter of law, there is no merger. Gaither v. Cannida, 258 Ga. 557, 372 S.E.2d 429 (1988).

When a defendant pulled out a gun and demanded money from a cab driver, the offense of criminal attempt armed robbery was complete, and the defendant's subsequent acts, including striking the driver on the head, were not necessary to prove that offense; thus, the attempt offense did not merge with aggravated assault offenses for sentencing purposes. Duncan v. State, 290 Ga. App. 32, 658 S.E.2d 780 (2008).

Defendant was properly denied merger of a charge of criminal attempt to commit armed robbery and aggravated assault of a store victim as the offense of attempted armed robbery under, inter alia, O.C.G.A. § 16-4-1 was complete when the defendant pointed the gun at the victim and aggravated assault occurred when the victim was struck in the face with the gun. Stubbs v. State, 293 Ga. App. 692, 667 S.E.2d 905 (2008).

Aggravated assault conviction merged with attempted armed robbery.

- Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

Attempted armed robbery did not merge with aggravated assault.

- Because an attempted armed robbery began when the defendant kicked down the victim's door, entered the victim's home with a firearm, and demanded that the victim give it up, and continued as the victim and a co-defendant struggled outside; after the victim was able to run away, the co-defendant shot the victim twice; the robbery and aggravated assault were separate offenses and did not merge. Cuyler v. State, 344 Ga. App. 532, 811 S.E.2d 42 (2018), cert. denied, No. S18C0874, 2018 Ga. LEXIS 482 (Ga. 2018).

Trial court erred in failing to merge the defendant's convictions for attempted armed robbery and aggravated assault because the aggravated assault charge did not require proof of any fact that was not also required to prove the attempted armed robbery, as that offense could have been proved under the indictment in the current case; and the conduct involved in the attempted armed robbery count and aggravated assault count arose out of the same act or transaction as both counts alleged that the defendant pointed the gun at the victim, and the victim indicated that the gun was directed at the victim one time. Wilson v. State, 344 Ga. App. 285, 810 S.E.2d 303 (2018).

Attempted armed robbery is lesser included offense of felony murder. Farley v. State, 238 Ga. 181, 231 S.E.2d 761 (1977).

Later, additional crimes did not merge with attempted armed robbery.

- Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

Criminal attempt to commit rape.

- When, instead of stopping as requested, defendant drove past the fire station, grabbed the victim by the hair and told her she could not get out until she gave defendant a kiss, and that she would have to do some other stuff, too, defendant's statements to the victim and his actions in the car indicate that he was attempting to rape the victim, and the evidence was sufficient to support defendant's conviction. Helton v. State, 166 Ga. App. 662, 305 S.E.2d 592 (1983).

Criminal attempt to commit murder.

- Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343, 411 S.E.2d 276 (1991).

Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described defendant's uncle's location was sufficient to support defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750, 697 S.E.2d 867, cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010).

Jury was authorized to find that the defendant was a party to the crimes of attempted murder and first degree arson based on evidence that the defendant and an accomplice intended to rob the victim and then kill the victim to avoid detection and hitting the victim with a machete and setting fire to the victim's residence were done in execution of that purpose. Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842 (2019).

In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypothesis that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).

Aggravated battery merged with attempted murder.

- Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012).

Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).

Criminal attempt to commit statutory rape.

- Nineteen-year-old's defendant's admission that the defendant and a 14-year-old child of the opposite sex took off their clothes and got onto the bed together, and that the defendant "got on" the child was sufficient to sustain the defendant's conviction for attempted statutory rape, even though the defendant testified, in contravention to the victim's testimony, that they did not have sexual intercourse. Neal v. State, 264 Ga. App. 311, 590 S.E.2d 168 (2003).

Attempted rape required sex offender registration.

- In pleading guilty to criminal attempt to commit rape, a defendant admitted that the defendant intended to commit the specific crime of rape and took a substantial step toward that end. Because the crime attempted was related to a sexually violent offense, namely rape, the defendant was properly required to comply with the registration requirements of O.C.G.A. § 42-1-12, and the trial court did not err in convicting the defendant for violating the registry statute. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).

Attempted kidnapping.

- Convictions of criminal attempt to commit kidnapping, O.C.G.A. § 16-5-40(a), and aggravated assault with intent to rape, O.C.G.A. § 16-5-21(a)(1), were supported by sufficient evidence since the victim positively identified the defendant as the attacker when the defendant was captured and again at trial, and since a store owner also identified the defendant at trial and testified that the store owner maintained sight of the defendant from when the store owner saw the defendant attacking the victim until the defendant's capture; additionally, since the defendant made no attempt to take the victim's purse or keys, and the evidence showed that the defendant had pornographic photos of a person who looked similar to the victim, the jury was authorized to find that the defendant had the requisite intent to detain, abduct, and rape the victim as charged. Mobley v. State, 279 Ga. App. 476, 631 S.E.2d 491 (2006).

Evidence that the defendant entered an occupied motor vehicle and commanded the driver to "drive or die," while wielding a rock in a sock supported the defendant's conviction for criminal attempt to commit kidnapping. Hughes v. State, 323 Ga. App. 4, 746 S.E.2d 648 (2013).

Attempted kidnapping shown with use of non-filed criminal charges.

- Defendant's convictions for kidnapping, attempted kidnapping, and criminal trespass were erroneously reversed as the fact that the state did not file criminal charges against the defendant based directly on three prior pool incidents with young children did not mean that those incidents were non-criminal or not indicative of the defendant's state of mind. State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016).

Attempted statutory rape merged into child molestation.

- Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act, removing the victim's and the defendant's clothing, the victim's age was less than 16, and the defendant's intent to arouse or satisfy the defendant's own or the child's sexual desires; thus, the state used up the evidence that the defendant committed attempted statutory rape in establishing that the defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Defendant's convictions for child molestation, attempted statutory rape, and burglary were supported because: (1) the defendant entered the 14-year-old victim's room through a window, uninvited; (2) told the victim to push the bed against the door; (3) removed the victim's panties and the defendant's own pants and laid on top of the victim, but the victim prevented the defendant from penetrating the victim; (4) defendant fondled the victim's breasts and touched the victim's nipples; and (5) on a prior occasion, the defendant made the victim touch the defendant's penis with the victim's hand. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Sex offender registration.

- Defendant was properly ordered to register as a sex offender because defendant's convictions constituted criminal offenses against a victim who was a minor, pursuant to O.C.G.A. § 42-1-12(a)(9)(B) and, as attempt convictions pursuant to O.C.G.A. § 16-4-1 were covered within the registration requirement; defendant was convicted of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, in violation of O.C.G.A. §§ 16-6-4(a) and16-6-5(a), respectively, after defendant communicated over the Internet with a police officer who was disguised as a 14-year-old child, and arranged to meet the alleged child, and the fact that an actual child was not involved did not negate the offense or the need for the registration, as there was no impossibility defense. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).

Attempted aggravated sodomy.

- There was sufficient evidence presented for the jury to find the defendant guilty of criminal attempt to commit aggravated sodomy because the state presented sufficient evidence via the victim's testimony that the defendant attempted to force the victim to perform oral sodomy; the victim testified that the defendant moved her to the bedroom of her home while holding a knife and told her to perform oral sex on him and that when she explained that she could not engage in the act the defendant, while still standing over her, moistened and fondled himself and then forced her to fondle him. Williams v. State, 300 Ga. App. 839, 686 S.E.2d 446 (2009).

Trial court did not err in convicting the defendant of criminal attempt to commit aggravated sodomy in violation of O.C.G.A. §§ 16-4-1 and16-6-2 because a reasonable trier of fact could have found that the defendant had the necessary criminal intent to commit aggravated sodomy when the evidence presented at trial showed that the defendant forced the victim's mouth into close proximity with the defendant's sex organs while the victim screamed for help, kicked, and fought the defendant; a reasonable trier of fact could have found that had the victim not been able to escape, the defendant would have forced the victim to engage in sodomy, thereby demonstrating that the defendant had taken a substantial step toward committing aggravated sodomy even though the defendant had not spoken, touched either the defendant's or the victim's sex organs, or exposed the defendant's genitals when the violent acts occurred. English v. State, 301 Ga. App. 842, 689 S.E.2d 130 (2010).

Attempted aggravated child molestation and attempted aggravated sodomy did not merge.

- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).

Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that defendant had penned, was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376, 628 S.E.2d 104 (2006).

Because sufficient evidence showed that the defendant, by posing as a police officer and driving the victims to remote locations, used fear and intimidation to ensure that the victims would cooperate and agree to have sex, the defendant was not entitled to an acquittal as to the charges of impersonating an officer, aggravated sodomy, attempted aggravated sodomy, aggravated assault and rape; furthermore, though both victims willingly got into the defendant's car, after the victims pleaded to be let go and the defendant refused to grant those pleas, that act amounted to a kidnapping. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).

Based on the defendant's concession that the state's evidence tended to show an inference of the defendant's guilt in making a false claim against the county as to money the county allegedly owed to the defendant, and despite a claim that the facts supported the conclusion that the county's aquatic center director was the culpable party, when the defendant pointed to no evidence proving such, convictions for criminal attempt to commit theft by taking and first-degree forgery were supported by the evidence. Brown v. State, 285 Ga. App. 453, 646 S.E.2d 289 (2007), cert. denied, No. S07C1503, 2007 Ga. LEXIS 672 (Ga. 2007).

There was sufficient evidence to support an adjudication for delinquency based on criminal attempt to commit robbery under O.C.G.A. §§ 16-4-1 and16-8-40; a rational trier of fact was authorized to find that the defendant, in "reaching at" the victim and grabbing the victim's jacket prior to shooting the victim, attempted to take the victim's cigarettes by force, intimidation, or sudden snatching. In the Interest of B.S., 284 Ga. App. 680, 644 S.E.2d 527 (2007).

Despite a juvenile's challenge to the sufficiency of the evidence, an adjudication entered by the juvenile court on a charge of attempted rape was proper because the charge was supported not only by the testimony of the victim, but also by the corroborating testimony offered by both the victim's neighbor, who witnessed the attack, and the victim's sister, who chased the juvenile away from the scene. In the Interest of J.L.H., 289 Ga. App. 30, 656 S.E.2d 160 (2007).

Sufficient evidence existed to support defendant's conviction for criminal attempt to manufacture methamphetamine, and defendant's challenge to the sufficiency of the evidence based upon the uncorroborated testimony of defendant's accomplice alone failed, as the incriminating testimony by the accomplice was adequately corroborated by independent evidence, including defendant's possession of essential items for manufacturing methamphetamine; defendant's statement to a passenger in the back of the patrol car that a store likely had ratted about the matchbook purchases; and the large quantity of matchbooks found discarded along the route defendant had just traveled. Kohlmeier v. State, 289 Ga. App. 709, 658 S.E.2d 261 (2008).

Evidence was sufficient for the jury to find beyond a reasonable doubt that defendant was guilty of criminal attempt to manufacture methamphetamine based on evidence that defendant was processing and in possession of methamphetamine oil and that defendant performed an act (processing and possession of methamphetamine oil) which constituted a substantial step toward commission of that crime. Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848 (2008).

There was sufficient evidence to support a defendant's conviction for attempting to possess marijuana based on the evidence that the defendant solicited undercover officers and asked for marijuana and attempted to pay for the marijuana. The defendant's rejection of the first bag the undercover officers gave did not establish abandonment of the crime since the defendant asked for a second bag. Collins v. State, 297 Ga. App. 364, 677 S.E.2d 407 (2009).

Sufficient evidence was presented to the jury to support the defendant's convictions for armed robbery, aggravated assault, burglary, criminal attempt to commit aggravated sodomy, and possession of a knife during the commission of a crime because the victim's testimony alone was sufficient to support the convictions; regardless of any inconsistencies in the victim's testimony, it was for the jury to assess witness credibility, and the jury chose to believe the victim's identification of the defendant as the individual who committed the crimes Williams v. State, 300 Ga. App. 839, 686 S.E.2d 446 (2009).

There was sufficient evidence to infer that a defendant had taken a substantial step, in violation of O.C.G.A. § 16-4-1, toward the manufacturing of methamphetamine by transporting most of the chemicals, tools, and supplies necessary to commit that crime. Davenport v. State, 308 Ga. App. 140, 706 S.E.2d 757 (2011).

Evidence was sufficient to support the defendant's conviction for attempted rape in violation of O.C.G.A. §§ 16-4-1 and16-6-1(a)(1) because the victim's testimony as to the defendant forcing his penis into her vagina against her will sufficed to sustain the attempted rape conviction. Gomez-Oliva v. State, 312 Ga. App. 105, 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017).

Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault and attempted rape because under the circumstances the jury was authorized to conclude that the defendant's actions, although circumstantial insofar as intent was concerned, provided sufficient evidence to establish that the defendant attempted to rape the victim; the defendant knocked the victim down and attempted to pull the victim into an isolated vacant lot and continued to do so despite the victim's struggles and attempted escape. Wright v. State, 314 Ga. App. 353, 723 S.E.2d 737 (2012).

Evidence that the defendant owned the house where the ingredients and equipment were found, the defendant talked to the codefendant about whether the codefendant should abscond and bought the codefendant a truck, and the defendant made a list of pharmacy directions for the codefendant so that the codefendant could avoid legal restrictions on the purchase of ingredients was sufficient to support a conviction for attempt to manufacture methamphetamine. Taylor v. State, 320 Ga. App. 596, 740 S.E.2d 327 (2013).

Sufficient evidence supported the defendant's conviction for criminal attempt to commit child molestation based on the evidence that the defendant thought the intended victim was a 15-year-old girl with whom the defendant continued to contact, engaged in sexually explicit conversations, and arranged to meet for a sexual encounter, and although the defendant introduced some evidence in the form of an e-mail to support the claim that the defendant believed the defendant was dealing with an adult, that evidence was not conclusive, and it was for the jury to determine the defendant's truthfulness. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).

3. Drug Offenses

Attempted drug trafficking.

- Evidence was sufficient to support a conviction of attempted trafficking in marijuana. A codefendant's testimony at the codefendant's trial and the codefendant's statement to the police were admissible as prior inconsistent statements and constituted substantive evidence of the defendant's participation in the attempted drug trafficking; furthermore, the codefendant's statements were sufficiently corroborated under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) by the testimony of a case agent that a loaded pistol was found at the defendant's feet and that a bag containing the currency used in the drug transaction was found within arm's reach of the defendant. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348 (2009).

Sufficient evidence supported the defendant's conviction for criminal attempt to commit trafficking in cocaine based on the trial evidence establishing that the defendant negotiated for and attempted to purchase one kilogram of cocaine from an undercover investigator, that the defendant took substantial steps and actively participated in the attempted drug offense by meeting with the undercover investigator at the designated location and at the arranged time for the purpose of conducting the transaction and by executing the bill of sale for a vehicle in exchange for the drug purchase, and by taking possession of the package of cocaine and cutting the package open to examine the contents. Tehrani v. State, 321 Ga. App. 685, 742 S.E.2d 502 (2013).

Sufficient evidence existed to support the defendant's conviction for attempted trafficking by manufacturing methamphetamine based on the evidence that the defendant lived at the residence wherein the meth lab was discovered as shown by the owner's testimony and another witness who testified that the defendant slept at the home nightly and material used in the red phosphorous process for manufacturing methamphetamine was seized from the residence. Franks v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).

Evidence was sufficient to support both the defendants' convictions for attempted trafficking by manufacturing methamphetamine because the evidence connected the defendants to the house and the rooms in which the manufacturing components and the items containing methamphetamine residue were found; the police found lantern fuel in the house, which was commonly used as a solvent in methamphetamine labs; the chief of police, who was qualified as an expert witness, testified that the items seized appeared to have been used in the red phosphorous process for manufacturing methamphetamine; and a chemical odor associated with methamphetamine labs lingered around the house. Long v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).

Evidence insufficient to support a conviction for criminal attempt to manufacture methamphetamine.

- Defendants were stopped for a traffic violation and had possession of an unopened bottle of Heet, one pack of cold pills containing pseudoephedrine, a large unopened bottle of iodine, and some plastic tubing which an officer testified that, based on training and experience, were ingredients used in the manufacture of methamphetamine. All of the items in defendants' possession had recognized legal uses and were only a small portion of the ingredients and materials necessary to manufacture methamphetamine, and the quantity of each item was also only a small portion of the amount needed. Defendants' possession of materials used in the manufacture of methamphetamine constituted mere preparation to commit the crime and was insufficient to support convictions for attempt to manufacture methamphetamine. Thurman v. State, 295 Ga. App. 616, 673 S.E.2d 1 (2008).

Criminal attempt to sell drugs.

- It was not error to charge the jury on attempt because there was evidence regarding defendant's attempt to sell cocaine in the county in which defendant was charged before completing a purchase and sale in another county. Singleton v. State, 229 Ga. App. 135, 493 S.E.2d 556 (1997).

Likelihood of success in concelaing drug evidence.

- Evidence that defendant tried to slide a bag of marijuana into a pool table pocket in order to conceal it was sufficient to sustain conviction for attempting to tamper with evidence, and defendant's reasonable ability to conceal the marijuana was irrelevant; the test was whether defendant performed an act which constituted a substantial step toward concealing the evidence, not whether defendant was likely to succeed. Taylor v. State, 260 Ga. App. 890, 581 S.E.2d 386 (2003).

Similar transaction evidence admissible in drug trial.

- Based on the defendant's position that the defendant was not involved with a methamphetamine laboratory, as well as the similarity of the defendant's prior drug crime with criminal attempt to manufacture methamphetamine, the trial court did not abuse the court's discretion in admitting the evidence of the defendant's prior attempts to manufacture methamphetamine for the purpose of showing the defendant's bent of mind and course of conduct; the trial court was authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect, and the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95 (2012).

Trial court did not abuse the court's discretion in admitting evidence of the defendant's prior attempts to manufacture methamphetamine because the state needed the evidence of the defendant's prior drug conviction to show the defendant's bent of mind and course of conduct with respect to the methamphetamine offense at issue, criminal attempt to manufacture methamphetamine in violation of O.C.G.A. §§ 16-4-1 and16-13-30(b); the defendant disclaimed any involvement with or knowledge of a methamphetamine laboratory. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95 (2012).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 149 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, § 150 et seq.

ALR.

- What constitutes attempt to commit robbery, 55 A.L.R. 714.

Offense of larceny, embezzlement, robbery, or assault to commit robbery, as affected by defendant's intention to take or retain money or property in payment of, or as security for, a claim, or to collect a debt, or to recoup gambling losses, 116 A.L.R. 997.

Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 131 A.L.R. 1322.

Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.

Attempts to receive stolen property, 85 A.L.R.2d 259.

Attempts to commit offenses of larceny by trick, confidence game, false pretenses, and the like, 6 A.L.R.3d 241.

What constitutes attempted murder, 54 A.L.R.3d 612.

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.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

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