2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 28 - Initiatory Crimes
Section 30-28-1 - Attempt to commit a felony.

Universal Citation: NM Stat § 30-28-1 (2018)
30-28-1. Attempt to commit a felony.

Attempt to commit a felony consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.

Whoever commits attempt to commit a felony upon conviction thereof, shall be punished as follows:

A. if the crime attempted is a capital or first degree felony, the person committing such attempt is guilty of a second degree felony;

B. if the crime attempted is a second degree felony, the person committing such attempt is guilty of a third degree felony;

C. if the crime attempted is a third degree felony, the person committing such attempt is guilty of a fourth degree felony; and

D. if the crime attempted is a fourth degree felony, the person committing such attempt is guilty of a misdemeanor.

No person shall be sentenced for an attempt to commit a misdemeanor.

History: 1953 Comp., § 40A-28-1, enacted by Laws 1963, ch. 303, § 28-1.

ANNOTATIONS

Single intent crime. — The crime of attempt to commit a felony requires the specific intent to commit the underlying crime. State v. Villa, 2003-NMCA-142, 134 N.M. 679, 82 P.3d 46, aff'd in part, rev'd in part, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017.

Legal adequacy. — If a jury could have found a defendant guilty of attempted second degree murder without determining that he intended to kill his ex-wife, it could have convicted him of an attempt to commit reckless or unintentional second degree murder, a crime that does not exist. State v. Carrasco, 2007-NMCA-152, 143 N.M. 62, 172 P.3d 611, cert. quashed, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.

Child abuse. — There is such a crime as attempt to commit child abuse when the theory of the case is intentional child abuse. State v. Herrera, 2001-NMCA-073, 131 N.M. 22, 33 P.3d 22, cert. denied, 131 N.M. 64, 33 P.3d 284, 182.

Sufficient evidence. — Where a videotape of a transaction in which the victim's ATM card was inserted into an ATM machine showed that the person using the ATM machine had tattoos on the person's arms, the jury was able to compare stills of the videotape with the tattoos on defendant's arms; and several days after the victim's purse had been stolen, the victim's driver's license was found in defendant's vehicle, and defendant told a police offer that defendant tried to use the victim's ATM card, but the machine ate it, the evidence was sufficient to support defendant's conviction for attempt to commit unauthorized use of an ATM card of another. State v. Verdugo, 2007-NMCA-095, 142 N.M. 267, 164 P.3d 966, cert. quashed, 2008-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Where defendant purchased nine gallons of iodine and possessed over 5,000 pseudoephedrine pills, a quart of acetone, scales, and an air purifier; and most of the pills had been removed from their blister packs, the evidence was sufficient to support defendant's conviction for attempted trafficking in methamphetamine by manufacturing, even though defendant did not possess all of the materials necessary to manufacture methamphetamine. State v. Brenn, 2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050, cert. denied, 2005-NMCERT-010, 138 N.M. 494, 122 P.3d 1263.

Where the evidence showed that defendant purchased thirty-five boxes of matches from several different stores, one right after the other; the matchboxes contained red phosphorous, a key ingredient in the manufacture of methamphetamine; defendant bought the boxes of matches for her sister and turned them over to her sister; defendant knew that the matchboxes were scraped for red phosphorous and that the substance was used in the manufacture of methamphetamine; the matchboxes were going to be used in the manufacture of methamphetamine; and together with her sister, defendant purchased or financed the purchase of Coleman fuel and distilled water, which are ingredients commonly used in the manufacture of methamphetamine, there was substantial evidence to convict defendant of attempted manufacture of methamphetamine. State v. Kent, 2006-NMCA-134, 140 N.M. 606, 145 P.3d 86, cert. denied, 2006-NMCERT-010, 140 N.M. 674, 146 P.3d 809.

Sufficient evidence of attempted second degree murder. — Where the defendant rapidly accelerated his vehicle toward the police officer who had been pursuing him in a high speed chase after the officer got out of his car and the defendant pointed a rifle or a shotgun at the officer after the defendant had already fired three shots at the officer, the evidence was sufficient to sustain the court's finding that the defendant committed attempted second degree murder. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Double jeopardy. — Defendant's convictions for aggravated battery with a deadly weapon and attempted murder arising out of unitary conduct did not violate the double jeopardy clause. State v. Armandarez, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Where defendant intended to steal the property of only one victim and defendant used separate and discrete acts of force and threats against two victims, defendant's convictions for two counts of attempted armed robbery did not violate the double jeopardy clause. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

The crime of attempted CSP III is subsumed within assault with attempt to commit CSP. State v. Schackow, 2006-NMCA-123, 140 N.M. 506, 143 P.3d 745, cert. denied, 2006-NMCERT-009, 140 N.M. 542, 144 P.3d 101.

Since defendant was not tried on charge of attempt to commit aggravated battery, which charge was dismissed before any evidence was presented, there was no issue as to double punishment or merged offenses when defendant was tried and convicted of aggravated burglary. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Crime of attempt to commit a felony (burglary) did not merge with the crime of possession of burglary tools, as the "overt act" required in the attempt statute did not necessarily involve possession of burglary tools; hence defendant's sentence for each crime did not constitute double punishment. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger, 2000-NMCA-015,128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Convictions of aggravated battery upon a peace officer and attempted first degree murder violated double jeopardy. — Where defendant, who was imprisoned in a county detention center, attacked and stabbed a correctional officer five times with a metal shank, defendant's convictions for attempted murder and aggravated battery of a peace officer did not violate double jeopardy. State v. Urquizo, 2012-NMCA-113, 288 P.3d 919, cert. granted, 2012-NMCERT-011.

Convictions of attempted murder and aggravated battery violated double jeopardy. — Where defendant was convicted of attempted murder and aggravated battery with a deadly weapon; defendant's conduct was unitary; the indictment for attempted murder required the state to prove that defendant attempted to commit murder and "began to do an act which constituted a substantial part of murder" but failed to commit the offense; the indictment for aggravated battery required the state to prove that defendant touched or applied force to the victims with a deadly weapon intending to injure the victims; the state's theory of the case to support both charges was that defendant beat, stabbed, and slashed the victims; and the state offered the same testimony to prove both charges, the aggravated battery elements were subsumed within the attempted murder elements and defendant's convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Statute is general law, inapplicable if special law covers same matter. — Albuquerque's ordinance making it unlawful for any person under the influence to operate a vehicle is enforceable under and consistent with state law. The fact that the ordinance defines an attempted misdemeanor does not render it invalid under this section, which is a general law not applicable if a special law covers the same matter. Moreover, former 64-15-7, 1953 Comp. (similar to 66-7-8 NMSA 1978), specifically authorized Albuquerque to adopt additional traffic regulations. City of Albuquerque v. Chavez, 1978-NMCA-032, 91 N.M. 559, 577 P.2d 457, cert. denied, 91 N.M. 610, 577 P.2d 1256.

Overt act necessary. — To constitute an attempt, defendant must do an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.

An attempt has been accomplished when an overt act, in furtherance of and tending to effect the commission of the felony, has been performed or undertaken with intent to commit the felony. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178).

Attempted murder does not require that victim be injured. State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Overt act described. — Overt act required hereunder must be more than preparation; it must be in part execution of the intent to commit the crime, and slight acts in furtherance of that intent will constitute an attempt. State v. Trejo, 1972-NMCA-019, 83 N.M. 511, 494 P.2d 173; State v. Stettheimer, 1980-NMCA-023, 94 N.M. 149, 607 P.2d 1167.

Purpose and effort involved. — The word "attempt" was more comprehensive than the word "intent," implying both the purpose and the actual effort to carry that purpose into execution. State v. Grayson, 1946-NMSC-025, 50 N.M. 147, 172 P.2d 1019.

Nature of attempted act. — If the intended act is not criminal there can be no criminal liability for an attempt to commit it. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.

Attempt under this section requires intent to commit felony; therefore, this is a specific intent crime and the statutory language states this requisite intent. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.

Specific intent required for attempted first degree murder. — Where defendant shot at officers to escape apprehension during prison break, there was insufficient evidence that defendant had formed a specfic intent to kill as opposed to mere impulsive reactions; there was, therefore, insufficient evidence to convict him for attempted first degree murder. State v. Hernandez, 1998-NMCA-167, 126 N.M. 377, 970 P.2d 149, cert. denied, 126 N.M. 533, 972 P.2d 352.

Sufficient evidence of unlawful transportation of a firearm. — Where defendant was convicted of unlawful transportation of a firearm, and where defendant admitted that he was a felon at the time of the charged offense, and where the state presented evidence at trial that he was driving his accomplice around town and was aware that his accomplice had brought a gun into the car, there was sufficient evidence for a jury to find that defendant transported a firearm. State v. Torres, 2018-NMSC-013.

Sufficient evidence of first-degree murder and attempted first-degree murder. — Where defendant was convicted of first-degree murder and attempted first-degree murder, and where the state presented evidence at trial that defendant spent the day before the murder with another man who had a motive to kill the victim, that defendant secured for himself and the other man a ride to the apartment complex where the victim lived, that defendant and the other man disappeared from sight before gunshots were heard, that defendant and the other man were seen running back to their vehicle before driving off, and that occupants of the vehicle testified that defendant smelled like burnt matches, which is similar to the smell of gunpowder, there was sufficient evidence to support a jury finding that defendant had the deliberate intent to kill the victim, that he helped in the planning of the crime, and that he actively participated in the actual attempt to kill the victim. State v. Torres, 2018-NMSC-013.

Intent must be corroborated by objective facts. — To convict a defendant of an attempt, the required criminal intent must be sufficiently corroborated by objective facts. Such corroboration is required to prevent conviction on the basis of criminal intent alone. State v. Lopez, 1983-NMSC-069, 100 N.M. 291, 669 P.2d 1086.

Instruction on intent essential. — Since specific intent to murder was gist of crime of attempt to commit murder under Laws 1853-1854, p. 92 (former 40-6-10, 1953 Comp.), refusal to instruct on question of intent constituted error. State v. Grayson, 1946-NMSC-025, 50 N.M. 147, 172 P.2d 1019.

Intent instruction. — The crime of attempted sodomy (now criminal sexual penetration, Section 30-9-11 NMSA 1978) was a specific intent crime, and where there were no instructions regarding the element of specific intent, conviction would be reversed. State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949.

Factual impossibility not defense. — A defense of impossibility is not available to a defendant charged with an attempt to traffic in a controlled substance, i.e., cocaine, where the defendant received money for what he represented as cocaine, but which due to a circumstance unknown to him, in fact was not. State v. Lopez, 1983-NMSC-069, 100 N.M. 291, 669 P.2d 1086.

Section does not apply to attempts regarding controlled substances. — The legislature intended to punish attempts regarding controlled substances under 30-31-25A(3) NMSA 1978 specifically as felonies and consequently, this section does not apply to such attempts covered by 30-31-25A(3) NMSA 1978. State v. Mirabal, 1989-NMCA-057, 108 N.M. 749, 779 P.2d 126, cert. denied, 108 N.M. 713, 778 P.2d 911.

"Attempt" inconsistent with completed crime. — For an attempt under this section, the perpetrator must have failed to effect commission of the crime, and if the evidence is of the completed crime, then the crime of "attempt" is not involved. State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754.

Evidence of completed crime. — An attempt to commit a felony is an act done with intent to commit such crime but which fails of completion. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.

To instruct on an "attempt" where there is no evidence tending to establish failure to complete the crime would present a false issue to the jury. State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754.

Attempted burglary. — The jury, after it had found that the defendant shattered grocery store window, validly inferred that the window was broken in an attempt to enter and unlawfully take property from inside the store. State v. Serrano, 1964-NMSC-161, 74 N.M. 412, 394 P.2d 262.

Attempted forgery. — It is possible to have a physical act which is an attempt to transfer one's interest in forged item but to have such an attempt thwarted at some stage of perpetration. State v. Tooke, 1970-NMCA-068, 81 N.M. 618, 471 P.2d 188, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.

Evidence that defendant represented himself as being person named as payee of check, and presented identification to this effect, supported conviction for attempted forgery, regardless of fact that state did not undertake to prove that the checks if presented to drawee bank would not have been paid, or that defendant did not have the right to use the payee's name. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.

Attempted trafficking in cocaine. — Defendant failed to effect the crime of possession with intent to distribute because he never actually possessed the package containing cocaine which was addressed to him; nevertheless, the fact that he never actually possessed the package did not negate his intent to possess the package, as evidenced by his attempting to pick up the package, nor did it negate his intent to distribute the cocaine, as is evidenced by the amount of cocaine found in the package. Therefore, he was properly convicted of attempted trafficking under this section and 30-31-20A(3). State v. Curry, 1988-NMCA-031, 107 N.M. 133, 753 P.2d 1321, cert. denied, 107 N.M. 132, 753 P.2d 1320.

Defendant was properly convicted for attempted trafficking in cocaine since he committed the overt acts of accepting a sizeable amount of cash from an undercover narcotics officer and engaging in prior discussion of the illicit transaction. State v. Green, 1993-NMSC-056, 116 N.M. 273, 861 P.2d 954.

Attempted sodomy. — Defendant's beating of minor, partially stripping him and straddling him with his fly open constituted active efforts to consummate the crime of sodomy (now criminal sexual penetration) and were more than mere preparation. State v. Trejo, 1972-NMCA-019, 83 N.M. 511, 494 P.2d 173.

Murder during attempt to commit felony. — Felony-murder provision is applicable once conduct in furtherance of the commission of a felony has progressed sufficiently to constitute an attempt to commit the felony. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.

There was ample evidence to support a finding that defendant had accomplished an attempt to unlawfully take decedent's automobile before the bullet struck decedent in the head, and that defendant, at the time he killed decedent, was in the act of committing at least this felony. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.

Transferred intent applicable to attempted murder. — The doctrine of transferred intent applies to both murder and attempted murder. State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Multiple counts proper where there are multiple victims. — The single violent act of firebombing a residence with six people inside gives rise to six counts of attempted second degree murder. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.

No such crime as attempted "depraved mind" murder. — The crime of attempted "depraved mind" murder does not exist since in order to convict for such an offense, the jury would have to find that the defendant intended to perpetrate an unintentional killing, a logical impossibility. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.

Attempted second degree murder of unintended victims. — If defendant committed an act, intending to kill someone but knowing that his act created a strong probability of death or great bodily harm to others, he is guilty of attempted second degree murder as to the others. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.

Information adequate. — Information charging defendant with attempting to break and enter a certain grocery in the nighttime with intent to take property therefrom, alleged a felony offense, and since under the applicable statutory sections, theft of property of any value would have been a felony, value need not have been specified in the information. State v. Serrano, 1964-NMSC-161, 74 N.M. 412, 394 P.2d 262.

Information insufficient. — An information that merely stated that crime was committed by assault failed to charge an attempt to commit the crime of murder by poisoning, drowning or strangling contemplated under Laws 1854-1855, p. 92 (former 40-6-10, 1953 Comp.). State v. Grayson, 1946-NMSC-025, 50 N.M. 147, 172 P.2d 1019 (decided under prior law).

Circumstantial evidence. — A conviction of poisoning with intent to kill or injure under Laws 1854-1855, p. 94 (former 40-6-11, 1953 Comp.) could be had on circumstantial evidence. State v. Holden, 1941-NMSC-017, 45 N.M. 147, 113 P.2d 171.

Inadmissible hearsay. — In prosecution for murder and attempted murder admission of extra-judicial statements attributed to children of victims was error where the children were not called as witnesses because defendant was denied his constitutional right of confrontation, being deprived of opportunity to cross-examine. State v. Lunn, 1971-NMCA-048, 82 N.M. 526, 484 P.2d 368.

Instruction on abandoned intent not warranted. — Where defendant was charged with aiding and abetting in an attempted rape, and the evidence was uncontradicted that codefendant ripped off victim's shirt and attempted to take off her pants before he stopped his aggression, that the defendant had been in the automobile prior to this action, and was in close proximity at the time, having left the automobile at the request of codefendant, therefore implicating himself in and giving his tacit consent to codefendant's actions, defendant's requested instruction on abandonment of criminal intent was properly refused. State v. LeMarr, 1971-NMSC-082, 83 N.M. 18, 487 P.2d 1088.

Instruction on attempted rape. — In prosecution under federal act for rape on an Indian reservation, the federal court had jurisdiction to instruct on lesser included offenses under state law, and it was error not to instruct on attempted rape and other lesser offenses for which there was some evidence. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Defendant could not create provocation which would reduce attempted murder to attempted manslaughter, and his requested instruction on attempted voluntary manslaughter was therefore properly refused. State v. Durante, 1986-NMCA-024, 104 N.M. 639, 725 P.2d 839.

Instruction on aggravated battery as lesser included offense. — Where there is no showing that the defendant either intended to scare or intended to injure the victim, but the facts clearly show that the defendant intended to kill the victim, the trial court is correct in rejecting an aggravated battery instruction as a lesser included offense of attempted murder with a firearm. State v. Simonson, 1983-NMSC-075, 100 N.M. 297, 669 P.2d 1092.

In a prosecution for attempted murder, the trial court properly instructed the jury on aggravated battery as a lesser included offense at the state's request, because the elements of the lesser crime were a subset of the elements of the charged crime and, further, the defendant could not have committed the greater offense in the manner charged in the indictment without also committing the lesser offense. State v. Meadors, 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731.

Evidence sufficient to sustain conviction of attempted fraud. — Because of defendant's intimate knowledge of the workings of the county government he had recently been county manager the jury could properly find that defendant made knowingly false representations. This information coupled with the testimony of two commissioners contradicting defendant's testimony was found sufficient for conviction of attempted fraud. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For note, "Criminal Law - The Use of Transferred Intent in Attempted Murder, a Specific Intent Crime: State v. Gillette," see 17 N.M.L. Rev. 189 (1987).

For annual survey of New Mexico Criminal Law, see 20 N.M.L. Rev. 265 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 158 to 160, 601.

Assault: attempt to commit assault as criminal offense, 79 A.L.R.2d 597.

Receiving stolen goods: attempts to receive stolen property, 85 A.L.R.2d 259.

Escape from prison, attempt to escape or commit prison breach as affected by means employed, 96 A.L.R.2d 520.

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

Woman upon whom abortion is committed or attempted as accomplice for purposes of rule requiring corroboration of accomplice testimony, 34 A.L.R.3d 858.

Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution or for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.

Duress, necessity, or conditions of confinement as justification for escape from prison, 69 A.L.R.3d 678.

Drunken driving: attempt to commit crime as to driving, being in control of, or operating a motor vehicle while intoxicated, 93 A.L.R.3d 7.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

22 C.J.S. Criminal Law §§ 114, 116 to 121.

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