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Inchoate Offenses - Attempt, Conspiracy and Solicitation in Virginia

Posted by George L. Freeman | Jan 09, 2020

It is possible to be held criminally liable in Virginia even if you don't actually commit a substantive crime.  For purposes of this article, we will address the crime of Robbery.  Robbery involves taking personal property from another person through violence or intimidation.  Suppose two people decide they want money from a person they know has a lot of cash on them.  Further, assume that one of the two would-be robbers goes to the store and buys an gun.  Next, suppose that days later they approach this person at a park and one of them brandishes a gun and the other demands the money and takes it from the person.  This is a robbery and they are both guilty of the crime, which is punishable by Life in prison or any term not less than 5 years. 

What is an Attempt?

An attempt involves committing a "direct act" with the intent to commit the offense (in this case a robbery) but for some reason, any reason, the crime does not actually occur.  Whether the two would-be robbers change their minds and withdraw their plan, or the person they intend to rob refuses to give them any money, if they set out to commit the offense they both could be convicted of Attempted Robbery.  This would be the case even if the person they intended to rob had no money.  This means that even if it is factually impossible for the would-be robbers to commit the crime, they could still be convicted of Attempted Robbery.  This is still a felony, albeit a lesser offense than the actual crime of Robbery.  

What is a direct act?  It requires an act that goes beyond mere preparation.  It must show a present intention to commit the crime but does not need to be the last act before the crime is actually committed.  In our scenario, the purchase of the gun would be mere preparation.  But once the two guys arrive at the park, there is a strong argument they have engaged in a direct act going beyond mere preparation.  Exit the vehicle and approach the person with the cash, and the argument is even stronger.  Draw the weapon, and it is near certain an attempt has been made and both would-be robbers are now guilty of Attempted Robbery.

Attempts to commit felonies are punished as lesser felonies.  Attempts to commit misdemeanors are punished the same as the misdemeanor attempted.

What is Conspiracy?

Conspiracy to Commit a Felony is a crime in Virginia.  It involves two or more persons coming to an agreement to commit a felony.  Once the two have conspired to commit a felony, they are guilty of Conspiracy.  In our scenario, once the two guys decide to rob at some future point the person with the money, a conspiracy to commit robbery has occurred.  They are both guilty.  Many states, and federal law, requires for conspiracy not only the agreement to commit the felony but also requires an overt act in furtherance of the conspiracy.  Virginia law does not require an overt act.  However, as a practical matter an overt act would supply the necessary evidence to show the parties actually intended to commit the felony.  It is not Conspiracy to joke around with a friend; the parties must actually intend their plan.

In our scenario, if the police were able to prove the parties agreed (conspired) to rob the guy at the park they could be charged with the felony of Conspiracy.  Even though the Commonwealth would not have to prove an "overt act," the overt act of purchasing the gun would be evidence that they were not joking. 

Generally Conspiracy is punished as a lesser felony than the felony conspired.  (There is no such criminal charge as Conspiracy to Commit a Misdemeanor, except for the crime of Trespass).

What is Solicitation?

Solicitation to Commit a Felony is a crime in Virginia.  Solicitation involves asking, entreating, commanding, or attempting to persuade another person to commit a felony.  The most common example is hiring a hitman to commit a violent crime.  But, in our scenario, whichever of the two would-be robbers who brought up first the idea to rob the guy with the cash at the park could be charged with Solicitation.  The person who is being solicited does not have to agree in any way with the criminal plan.  If the person solicited rejects the solicitation, he has committed no crime; but if he agrees to the plan, he now (along with the solicitor) has committed a Conspiracy.  The person who solicits does not have to intend to participate in the crime itself.  And, once he has committed a solicitation, he is guilty of Solicitation even if the other person rejects his request.  Solicitation to Commit a Felony is punished as a felony, too.

Inchoate Offenses - attempt, conspiracy, solicitation - exist to discourage people from engaging in criminal conduct.  You can see how serious these offenses are treated; just trying to get another person to commit a felony could land you in jail.  Coming to an agreement only makes matters worse, and once you set out on an attempt, abandonment or impossibility cannot save you from criminal liability.

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

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