2006 Nebraska Revised Statutes - § 28-201 — Criminal attempt; conduct; penalties.

Section 28-201
Criminal attempt; conduct; penalties.

(1) A person shall be guilty of an attempt to commit a crime if he or she:

(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he or she believes them to be; or

(b) Intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime.

(2) When causing a particular result is an element of the crime, a person shall be guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he or she intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.

(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.

(4) Criminal attempt is:

(a) A Class II felony when the crime attempted is a Class I, Class IA, or Class IB felony;

(b) A Class III felony when the crime attempted is a Class II felony;

(c) A Class IIIA felony when the crime attempted is assault in the first degree under section 28-308, sexual assault in the second degree under section 28-320, manufacturing, distributing, delivering, dispensing, or possessing with intent to manufacture, distribute, deliver, or dispense controlled substances listed in Schedule I, II, or III of section 28-405 under section 28-416 except for an exceptionally hazardous drug, incest under section 28-703, child abuse under subsection (5) of section 28-707, assault on an officer in the second degree under section 28-930, or assault by a confined person with a deadly or dangerous weapon under section 28-932;

(d) A Class IV felony when the crime attempted is a Class III felony not listed in subdivision (4)(c) of this section;

(e) A Class I misdemeanor when the crime attempted is a Class IIIA or Class IV felony;

(f) A Class II misdemeanor when the crime attempted is a Class I misdemeanor; and

(g) A Class III misdemeanor when the crime attempted is a Class II misdemeanor.

Source:

Laws 1977, LB 38, § 10

Laws 1997, LB 364, § 2

Laws 1998, LB 1266, § 3

Annotations:

Whether a particluar offense is a lesser-included offense of the offense with which defendant is charged is determined by examining the allegations in the information and the evidence offered in support of the charge. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).

Within the offense of criminal attempt, an attempt to commit a particluar crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).

Within the offense of "criminal attempt," an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987).

Because an attempted crime as defined by this section may be committed without the crime itself being committed, no offense can be a lesser-included offense of an attempted crime prosecuted under this section. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).

Although a gun is unloaded and thereby incapable of causing death or injury, a person may be guilty of attempted murder or assault if the person pulling the trigger believes the gun to be loaded. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

Abandonment is not a defense to the commission of the crime of criminal attempt under Nebraska law. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).

Instruction to jury on attempt phrased in the language of this section was not error. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).

In the absence of a motion to quash, an information which alleges an attempt to commit an act or acts which, if successful, would constitute a statutory crime sufficiently charges an attempted crime so as to withstand a jurisdictional attack made for the first time on appeal. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).

Prior to 1979, there was no general attempt statute in the Nebraska Criminal Code. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).

In order to constitute an attempt to commit a crime under this section, there must be an intentional act on the part of the defendant which would constitute a substantial step toward the completion of the allegedly attempted crime, assuming that the circumstances at the time were as the defendant believed them to be. State v. Sodders, 208 Neb. 504, 304 N.W.2d 62 (1981).

Defendant who pled guilty to attempted murder was not precluded from challenging criminal attempt statute as unconstitutionally vague during habeas corpus proceeding. When examined in light of defendant's conduct, this section is not unconstitutionally vague. Sodders v. Parratt, 693 F.2d 811 (8th Cir. 1982).

~Revised Statutes Cumulative Supplement, 2006