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Acts of mere preparation in setting the groundwork for a crime do not amount to an attempt. Under South Dakota's definition of attempt, solicitation alone cannot constitute an attempt to commit a crime. Attempt and solicitation are distinct offenses. To call solicitation an attempt is to do away with the necessary element of an overt act.
Rocco William Disanto told several people of his intent to murder his former girlfriend and her new boyfriend. Unknown to defendant, his design was revealed to the authorities and they had a police officer pose as a contract killer to interject himself in the plan. Disanto and the "hit man" discussed the murders, wherein Disanto wanted each victim shot twice in the head. He directed the feigned killer to the former girlfriend's address, gave him a picture of her, provided details on what valuables could be obtained during the killings, instructed him to kill a child witness if necessary, and issued a final command to proceed with the murders. Shortly afterwards, however, Disanto communicated with an intermediary that he wanted to "halt" the murders, saying "I'm not backing out of it, I just want to put it on hold." In his trial for three counts of attempted first-degree murder, Disanto unsuccessfully sought a judgment of acquittal claiming that the evidence was insufficient to establish that he went further than mere preparation for the offenses. The jury convicted him on all three charges.
Did Disanto’s evil intent go beyond preparation into acts of perpetration?
The court reversed the convictions because Disanto’s actions amounted to no more than mere preparation: neither he nor the feigned killer committed an act toward the commission of the offenses. The court held that the acts of mere preparation in setting the groundwork for a crime did not amount to an attempt. Solicitation alone could not constitute an attempt to commit a crime. Attempt and solicitation were distinct offenses. To call solicitation an attempt was to do away with the necessary element of an overt act. Worse, to succumb to the understandable but misguided temptation to merge solicitation and attempt only muddled the two concepts and perverted the normal and beneficial development of the criminal law through incremental legislative corrections and improvements.