Defendant Jamey Allen Reid was convicted in Circuit Court, Oconee County of second-degree attempted criminal sexual conduct with a minor. Defendant appealed and the Court of Appeals of South Carolina affirmed.

On the night of January 9, 2006, Mark Patterson, a police officer for the Westminster Police Department and the Internet Crimes Against Children Task Force, conducted an undercover investigation on the internet. As part of the operation, Patterson entered a Yahoo chat room under the guise of a fourteen year old female, using the screen name

“Skatergurl” . . . At some point that night, Skatergurl received a message from a person with the screen name “FASF” asking her where she lived . . . FASF suggested meeting between 2:00 and 2:15 a.m. at the middle school that night. He told Skatergurl he would arrive in a black truck or a red car and he confirmed what Skatergurl would be wearing. Just before signing out of the chat room, FASF said, “we come here and make love, okay, snuggle, kiss, whatever, okay?” He then asked, “you wanna have sex, honestly,” and Skatergurl responded, “I can try.”

Officer Patterson called another Westminster police officer and they stationed their vehicles near the middle school. At approximately 2:30 a.m., a red Toyota Celica pulled into the parking lot. The officers stopped the car and arrested the driver, Jamey Allen Reid . . . The jury convicted Reid . . . for the attempted CSC with a minor second degree conviction . . . This appeal followed.

. . . A person is guilty of CSC with a minor in the second degree if the actor engages in sexual battery with a victim who is fourteen years or less but who is at least eleven years of age. “A person who commits the common law offense of attempt is punishable as for the principal offense.” State v.

Sutton, 340 S.C. 393, 396 n. 3 (2000). Thus, the elements of attempted C SC with a minor in the second degree are:

(1) an attempt; (2) to engage in a sexual battery; (3) with a victim; (4) who is fourteen years of age or less; (5) but who is at least eleven years of age.

Generally, the mens rea of an attempt crime is one of specific intent such that the act constituting the attempt must be done with the intent to commit that particular crime. “In the context of an attempt crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense.”

State v. Nesbitt, 346 S.C. 226, 231 (Ct. App.2001). The State must prove the defendant’s specific intent was accompanied by some overt act, beyond mere preparation, in furtherance of the intent.

Courts have struggled to determine the point at which conduct moves beyond the preparatory stage to the perpetration stage.

A competition amongst policy considerations exists in this realm of the law. On the one hand, there exists a policy not to punish or convict innocent persons for evil or criminal thoughts alone; on the other hand, a countervailing policy exists to allow law enforcement to prevent criminal conduct before it reaches the point of completion. South Carolina jurisprudence in the area of attempt law is sparse. Cases in South Carolina do not clearly establish any absolute guiding test for our trial courts to employ.

Other state and federal courts have employed a variety of tests, some of which have been used in part or interchangeably by various courts demonstrating the difficulty in defining a universal test. These tests generally are either directed to how much has been done, or instead, how much remains to be done in furtherance of the object crime . . . Case law additionally suggests varying proximity tests. One test credited to Justice Oliver Wendell Holmes, the common law “dangerous proximity” test, focuses on whether the act comes so close or near to the object crime that the danger of success is very great.

Essentially, this test focuses upon how much remains to be done before the defendant would have succeeded in his goals;

often, factors such as the nearness of danger, the substantiality of harm and the apprehension felt are considered. Further, the more severe the object crime, the less close the actor must come to completing it in order to be convicted of attempt.

Similarly, the “physical proximity” test focuses upon whether the defendant’s acts “may be said to be physically proximate to the intended crime.” This test has been further described as focusing upon an act which amounts to the commencement of the consummation of the object crime or stands “either as the first or some subsequent step in direct movement towards the commission of the offense after preparations are made.”

Another test, the “substantial step” test, derives from the Model Penal Code and focuses upon whether the defendant has taken a substantial step that strongly corroborates his intent to commit the object crime. Model Penal Code § 5.01.

Here, the court looks to what has been done as opposed to what remains to be done. Thus, the drafters of the model code noted that the scope of attempt liability would be broadened consistent with the policy of restraining dangerous persons where the firmness of criminal purpose is shown.

The Mandujano court, relying upon the Model Penal Code references to other formulations of various tests, indicated the following additional tests:

(a) The indispensable element test-a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavour over which the actor has not yet acquired control.

(b) The probable desistance test-the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended.

(c) The abnormal step approach-an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.

(d) The resipsa loquitur or unequivocality test-an attempt is committed when the actor’s conduct manifests an intent to commit a crime.

499 F.2d at 373 n. 5.

. . . As indicated, we have not found any case in South Carolina specifically indicating how far a person must go before that person may be convicted of attempt to commit a crime. However, our state supreme court has provided some guidance . . . Although the crime of attempt was not at issue in Quick, the court nonetheless discussed the distinction between preparations and overt acts, making reference in part to an “attempt to commit.” The court indicated

“preparation consists in devising or arranging the means or measures necessary for the commission of the crime;

the attempt or overt act is the direct movement toward the commission, after the preparations are made.” The court went on to articulate “ ‘the act’ is to be liberally construed, and in numerous cases it is said to be sufficient that the act go far enough toward accomplishment of the crime to amount to the commencement of its consummation.” Further, the court explained, “the act need not be the last proximate step leading to the consummation of the offense.”

. . . Reviewing the facts herein, Reid asked a person whom he thought was a fourteen-year-old girl if she would meet him within the hour in order to “make love . . . snuggle, kiss, whatever.” Moreover, the last question Reid asked Skatergurl was, “you wanna have sex, honestly?” This evidence constituted evidence of Reid’s specific intent to accomplish CSC with a minor. Having found evidence of the specific intent to commit the underlying offense, we must determine whether the State offered sufficient evidence demonstrating Reid committed some act toward the commission of the crime beyond any act or acts of preparation.

. . . Here, based on the evidence presented, Reid completed a requisite act in furtherance of the offense of attempted CSC with a minor second degree. Reid, in preparation, arranged a time and meeting location with a person whom he thought to be a minor. Reid described the type of car he would be driving and he confirmed the description of Skatergurl’s clothing. Further, Reid left the location where he was communicating with Skatergurl and committed an act beyond mere preparation in driving to and physically arriving at the prearranged location within fifteen minutes of the agreed upon time. Reid’s act, for purposes of directed verdict, constituted evidence of the first or some subsequent step in a direct movement towards the commission of the offense after any act or acts of preparation . . . AFFIRMED.

Questions:-

1. List the various tests for the actus reus of attempt that the court discusses.
2. Did the defendant cross the line between preparation and attempt? Explain.