The Tennessee Supreme Court has held that a jury can be instructed to consider – and a defendant can be convicted of – the less serious crime of criminal attempt, even if there is evidence that the charged crime was not only attempted, but completed.
Jeremy Thorpe was convicted in 2012 by a Davidson County jury of one count of criminal attempt to commit sexual battery by an authority figure. Prior to the trial, Mr.
Thorpe was indicted on two counts of aggravated sexual battery and one count of sexual battery by an authority figure.
At trial, the victim testified that when she was 13, the defendant kissed her on her inner thighs and touched her inappropriately. Mr. Thorpe and the victim’s mother were dating at the time, and the defendant lived with the family.
Before the jury began deliberations, the judge gave the jury instructions, including telling them that they had the option of finding the defendant guilty of criminal attempt to commit sexual battery by an authority figure. That charge is considered a lesser-included offense of sexual battery by an authority figure.
Lesser-included offenses are crimes that contain some elements of a more serious crime, but not always all elements, and convictions usually will be subject to lighter penalties. Lesser-included offenses often involve attempts to commit a particular crime or assisting someone who commits a crime.
On appeal to the Court of Criminal Appeals, Mr. Thorpe argued that the trial court erred in including criminal attempt as a lesser-included offense. He contended that the evidence showed that he either did or did not commit the charged crime, depending on whose testimony the jury believed. Under those circumstances, Mr. Thorpe argued that there could be no mere attempt to commit the charged crime, and, therefore, the trial court should not have allowed the jury to consider the lesser-included offense of criminal attempt. The appeals court disagreed and upheld the conviction.
The Supreme Court agreed to hear the case on appeal and determined that, when the lesser-included offense of criminal attempt is charged, a jury is free to interpret the evidence in such a way as to find a defendant guilty of that offense, even if there was only conflicting testimony as to whether the charged crime was committed in full. The Court went on to say that, if the State proves that the defendant acted with intent to commit the crime and took a substantial step toward acting on that intent, the lesser-included offense of criminal attempt is an appropriate charge, regardless of whether the full offense was committed.