In order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant's conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.
Defendant was contacted by an undercover agent and arranged to sell the agent one pound of heroin. During the sale, the agent field tested the heroin, and upon a positive result, arrested defendant. Subsequent to the arrest, a search warrant was issued for defendant's residence, where two pounds of a similar substance was found hidden in a television set. A chemical analysis revealed the substances were not in fact heroin, but procaine hydrochloride, an uncontrolled substance. Defendant was charged with an attempt to distribute heroin. The district court convicted defendant. The appellate court reversed the conviction.
Could defendant be convicted of attempting to distribute heroin where his objective acts were consistent with a noncriminal enterprise?
The court reversed defendant's conviction because the jury erred in determining that defendant's intent was sufficient to form the sole basis of a criminal offense, and defendant's objective acts were consistent with a noncriminal enterprise.