NOTE 1: Applicability of this instruction. The following instruction will ordinarily apply to all attempts under Article 80 except attempted murder (use Instruction 3A-4-2) and attempted voluntary manslaughter (use Instruction 3A-4-3). Also, do not use this instruction in the following cases: assault by attempt (use instructions for appropriate assault offense tailored for attempt), attempted desertion (use Instruction 3A-9-4), attempted mutiny (use Instruction 3A-21-6), attempting to compel surrender (use Instruction 3A-28-2), attempted espionage (use Instruction 3A-32-2), attempting to aid the enemy (use Instruction 3A-33-2) and attempting to kill an unborn child (use Instruction 3A-58-3).
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For attempt offenses, the confinement category is dependent on the underlying offense.
a. MAXIMUM PUNISHMENT: That authorized for commission of the offense attempted, except (1) in no case shall the death penalty be adjudged, (2) in no case, other than attempted murder, shall confinement exceeding 20 years be adjudged, and (3) except in cases of rape/sexual assault (Articles 120(a) or (b)) and rape/sexual assault of a child (Articles 120b(a) or (b)), mandatory minimum punishment provisions shall not apply.
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—location) on or about __________, attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element).
c. ELEMENTS:
(1) That, (state the time and place alleged), the accused did (a) certain overt act(s), that is: (state the act(s) alleged or raised by the evidence);
(2) That the act(s) (was) (were) done with specific intent to commit the offense of (state the alleged attempted offense);
(3) That the act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the commission of the intended offense; and
(4) That such act(s) apparently tended to bring about the commission of the offense of (state the alleged attempted offense), (that is, the act(s) apparently would have resulted in the actual commission of the offense of (state the alleged attempted offense) except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of that offense.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward the commission of the intended offense. A substantial step is one that is strongly corroborative of the accused’s criminal intent and is indicative of (his) (her) resolve to commit the offense.
Proof that the offense of (state the alleged attempted offense) actually occurred or was completed by the accused is not required. However, it must be proved beyond a reasonable doubt that, at the time of the act(s), the accused intended every element of (state the alleged attempted offense).
The elements of the attempted offense are: (state the elements of the offense allegedly intended along with necessary definitions).
NOTE 3: Instructing on the elements of the offense attempted. When instructing on the elements of the attempted offense, the military judge may describe the intended offense in summarized fashion, along with applicable definitions, rather than enumerate each element. For example, where the alleged offense is attempted larceny of an item of a value greater than $500, the military judge may state: “Larceny is the wrongful taking of the property of another of a value greater than $500 with the intent to permanently deprive the owner of the use and benefit of the property or the intent to permanently appropriate the property to the accused’s own use or the use of anyone other than the lawful owner. A taking is wrongful only when done without the consent of the owner and with a criminal state of mind.” When the offense attempted involves elements of another offense, such as burglary with intent to commit rape, the elements of both offenses (burglary and rape), along with applicable definitions, must be stated.
NOTE 4: Graduated punishment possibilities for the attempted offense. If the offense attempted has maximum punishments graduated according to value, amounts, type of property, or other factors, the elements of the attempted offense should include the value, amount, type of property, or other factor alleged. For example, where the offense attempted is larceny of military property, that the property was military property must be stated as an element and the definition of military property given. The elements for the offense need not be enumerated but may be summarized as in the example in NOTE 2, above.
NOTE 5: Factual impossibility. If the evidence indicates that it was impossible for the accused to have committed the offense attempted for reasons unknown to him or her, the accused may still be found guilty of attempt. A person who purposefully engages in conduct which would constitute an offense if the circumstances were as that person believes them to be is guilty of an attempt. For example, if with intent to commit robbery, a person by force and against the victim’s will reaches into the victim’s pocket to steal money, believing money might be there, the person is guilty of attempted robbery even though the victim has no money on his person. When factual impossibility is raised, the following may be appropriate:
The evidence has raised the issue that it (was) (may have been) impossible for the accused to have committed the offense of __________ because (here state the facts or contention of the counsel). If the facts were as the accused believed them to be, and under those facts (his) (her) conduct would constitute the offense of (__________), the accused may be found guilty of attempted (__________) even though under the facts as they actually existed it was impossible for the accused to complete the offense of (__________). The burden of proof to establish the accused’s guilt beyond a reasonable doubt is upon the government. If you are satisfied beyond a reasonable doubt of all the elements of the offense as I have explained them to you, you may find the accused guilty of attempted (__________) even though under the facts as they actually existed it was impossible for the accused to commit the offense of (__________).
NOTE 6: Offenses requiring an intent to commit murder. When an attempt to commit an offense which requires the intent to commit murder is charged (e.g., burglary with intent to commit murder), the military judge MUST instruct that the requisite intent is to kill; an intent to inflict great bodily harm is not sufficient. See US v. DeAlva, 34 MJ 1256 (ACMR 1992).
NOTE 7: Other Instructions. Where the evidence raises the issue that the accused may have abandoned his or her criminal purpose, Instruction 5-20, Voluntary Abandonment, may be applicable. Where there is evidence that the accused may not have had the ability to formulate the requisite intent, Instruction 5-15, Evidence Negating Mens Rea, should be given. Instruction 5-15 is required even when evidence of the defense of lack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); US v. Berri, 33 MJ 337 (CMA 1991). If voluntary intoxication in relation to the ability to formulate the requisite intent is raised by the evidence, Instruction 5-21, Voluntary Intoxication, should ordinarily be given. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable.
e. REFERENCES: US v. Jones, 37 MJ 459 (CMA 1993); US v. Schoof, 37 MJ 96 (CMA 1993); US v. Byrd, 24 MJ 286 (CMA 1987).