Ford v. State

• Decision Date: 30 September 1992
• Docket Number: CR-90-1876
• Citation: 612 So.2d 1317
• Parties: Harvey FORD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1317

612 So.2d 1317

Harvey FORD v. STATE.

CR-90-1876.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 25, 1992.

Certiorari Denied Feb. 26, 1993

Alabama Supreme Court 1920435.

Bruce A. Gardner, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Frances Smith, Asst. Atty. Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, Harvey Ford, pleaded guilty to attempted assault in the first degree, in violation of § 13A-4-2 and § 13A-6-20, Code of Alabama 1975, and was sentenced to 10 years' imprisonment. He raises three issues on appeal; however, because of our disposition of this case, we find it necessary to address only the following issue.

On appeal, Ford argues, for the first time, that the trial court erred by accepting his plea of guilty to an offense that he argues is not a lesser-included offense of the offense of solicitation to commit murder, for which he was indicted. The indictment reads, in pertinent part, as follows:

"The Grand Jury of said County charge, that before the finding of this indictment, HARVEY FORD ... did solicit, request, command, or importune Stanley B. Maxey, Jr., to engage in conduct constituting the crime of Murder (Section 13A-6-2 of the Code of Alabama) with intent that such person engage in such conduct, in violation of § 13A-4-1 of the Code of Alabama...."

Pursuant to a plea agreement, however, the prosecution, with the appellant's consent, moved to amend the solicitation-to-murder indictment to charge the offense of attempted assault in the first degree. The appellant now argues that this amendment violated A.R.Cr.P.Temp. 15.5(a) (now A.R.Cr.P. 13.5(a)), which provides, "A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not included in the original indictment, information, or complaint." See also Washington v. State, 562 So.2d 281 (Ala.Cr.App.1990); Ross v. State, 529 So.2d 1074 (Ala.Cr.App.1988).

Section 13A-1-9(a), Code of Alabama 1975, defines a lesser-included offense as follows:

"An offense is an included one if:

"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or

"(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or

"(3) It is specifically designated by statute as a lesser degree of the offense charged; or

"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission."

Furthermore, this court has held as follows:

" '[T]o be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged[,]' Payne v. State, 391 So.2d 140, 143 (Ala.Cr.App.), writ denied, 391 So.2d 146 (Ala.1980), ... unless it is so declared by statute."

James v. State, 549 So.2d 562, 564 (Ala.Cr.App.1989). "Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis." Aucoin v. State, 548 So.2d 1053, 1057 (Ala.Cr.App.1989). "In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ... in light of the particular facts of each case." Ingram v. State, 570 So.2d 835, 837 (Ala.Cr.App.1990) (citing Ex parte Jordan, 486 So.2d 485, 488 (Ala.1986); emphasis in original). See also Farmer v. State, 565 So.2d 1238 (Ala.Cr.App.1990).

Section 13A-4-1(a) defines the offense of criminal solicitation, for which the appellant was indicted, as follows: "A person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a crime, he solicits, requests, commands or importunes such other person to engage in such conduct." Section 13A-4-2(a) defines the offense of "attempt," to which the appellant pleaded guilty, as follows: "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense."

This court, in Springfield v. State, 580 So.2d 88, 90 (Ala.Cr.App.1991), cert. stricken, 596 So.2d 659 (Ala.1991), summarily held that attempt (to commit a controlled substance crime) is not a lesser included offense of solicitation (to commit a controlled substance crime). To provide a clear rationale for that holding, we rely upon the following discussion in Thornton v. State, 570 So.2d 762, 767-69 (Ala.Cr.App.1990), wherein Thornton tried to assert the defense of § 13A-4-1(c), ¹ by arguing that he could not be convicted of criminal solicitation (to commit a controlled substance crime) because he also could have been charged and convicted of an attempt:

" 'Sometimes inchoate offenses will overlap and defendant's conduct will allow his being indicted for more than one of the offenses. The offense of solicitation is not an attempt per se. However, frequently solicitation accompanied by some overt act on the part of defendant may equate an attempt. While the two offenses are separate, looking at the matter pragmatically, in states which have abolished common law offenses and failed to provide for the statutory crime of solicitation, some courts have frequently permitted common law solicitation to be punished as attempts.

" '....

" '... The need for such [an] anticipatory offense is obvious. There is a need to distinguish solicitation cases from "attempts," especially where the type of "overt" conduct required by the defendant in order to equate an attempt is sometimes unclear or uncertain.

" 'In some criminal enterprises a sufficient overt act on the part of [a] defendant cannot be proved so as to make the crime of attempt, and the person solicited has not yet agreed (such as waiting for further discussions)...' "

"Ala.Code § 13A-4-1 Commentary (1975).

"... [T]he State argues that the appellant did not commit a sufficient overt act to warrant a finding that the appellant 'attempted' to purchase and possess drugs.

"....

"The issue ... is whether the conduct of the appellant constituted a sufficient overt act so that he could have been convicted of criminal attempt. This court addressed this issue, at length, in Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326, 329-30 (1973).

" 'As to when the conduct of a defendant charged with attempt to commit a crime amounts to an overt act is illustrated in Groneau v. State, Fla.App., 201 So.2d 599, 603, wherein it is said:

" ' "Mere intention to commit a specific crime does not amount to an attempt. Preparation alone is not sufficient. Something more is required than mere menace, preparation or planning. The attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption, or for other extrinsic cause. State v. Wilson, 30 Conn. 500, 506; State v. Enanno, 96 Conn. 420, 427, 114 A. 386. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. There must be some appreciable fragment of the crime committed and it must be in such progress that it would be consummated unless interrupted by circumstances independent of the will of the attempter. It is not, however essential that the actor would have actually succeeded if he had followed the course of conduct upon which he had embarked. State v. Mazzadra, 1954, 141 Conn. 731, 109 A.2d 873. 1 Wharton Criminal Law, Attempt, § 224 (12th Ed.)."

" 'The "preparation" for commission of an offense consists in devising or arranging the means or measures necessary for commission of the crime, while an "attempt" or "overt act" is a direct movement toward the commission, after the preparations are made. State v. Quick, 199 S.C. 256, 19 S.E.2d 101, 102, 103.

" '....

" ' "Mere solicitation, unaccompanied by an act moving directly toward commission of [an] intended crime, is not an 'overt act' constituting [an] element of [the] crime of attempt." State v. Davis, 319 Mo. 1222, 6 S.W.2d 609.

" ' "[It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.]" State v. Thomason, 23 Okl.Cr. 104, 212 P. 1026, 1027.' (Emphasis added.)

"....

"Section 13A-4-1 is based on the New York and Michigan versions of criminal solicitation. Section 13A-4-1(c) is based on a New York statute to the same effect. N.Y.Penal Law § 100.20 (McKinney 1987).

"In People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266 (1971), the New York court addressed a similar issue as the one before this court: 'whether a verbal solicitation to commit a crime constitutes an attempt to commit the crime.' Spencer, 322 N.Y.S.2d at 267. In Spencer, the court noted that the majority of American jurisdictions hold that 'mere criminal solicitation of another to commit a crime does not constitute an attempt.' Spencer [322 N.Y.S.2d] at 269, quoting Gervin v. State, 212 Tenn. 653, 656-57, 371 S.W.2d 449, 450-51 (1963).

"In Spencer, the appellant drove alongside a child who was walking down the street. He tried to convince the child to perform sodomy on him, but the evidence failed to support a finding that the appellant took any further steps to that end. Based on this...