Van Bell v. State
| Decision Date | 22 June 1989 |
| Docket Number | No. 18975,18975 |
| Citation | 775 P.2d 1273,105 Nev. 352 |
| Parties | Kerry VAN BELL, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and David T. Wall, Deputy Public Defender, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland and Eric G. Jorgenson, Deputy Dist. Attys., Las Vegas, for respondent.
An indictment charged appellant Kerry Van Bell with attempted sexual assault. The indictment alleged that appellant committed the following acts: paid a woman a $100 finder's fee to procure a young girl for sexual intercourse; negotiated with an undercover officer for the purchase of a young girl; offered the undercover officer $150 to have a child furnished to him; chose a young girl, represented to be five or six years of age, from a collection of photographs supplied by the undercover officer; and prepared for sexual intercourse with the young girl by arranging for a room and purchasing vaseline to use as a lubricant. The testimony adduced at trial mirrored the allegations set forth in the indictment.
A jury found appellant guilty of attempted sexual assault. The trial judge sentenced him to a term of eighteen years, running concurrently with a sentence imposed by the superior court in California.
Appellant raises three allegations of error on appeal. He contends that the indictment alleged insufficient facts to constitute the offense of attempted sexual assault. He also claims that the district court erred in denying his motion for an advisory verdict of acquittal and that the prosecution presented insufficient evidence to support the jury's verdict.
Preliminarily, we restate our position regarding the doctrines of legal and factual impossibility first set forth in Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976). 1 In Darnell, we declined to distinguish between physical and legal impossibility, focusing instead on the specific intent to commit the substantive offense. Darnell, 92 Nev. at 682, 558 P.2d at 625. Thus, we extended the criminality of attempts. Applying Darnell to the instant case, the fact that no child was available does not, in itself, bar appellant's conviction for attempted sexual assault. Rather, appellant stipulated that he intended to commit sexual assault upon the five or six-year-old girl whose photograph he selected.
An attempt to commit a crime is an act done with intent to commit that crime, and tending but failing to accomplish it. NRS 193.330. Specifically, to prove attempted sexual assault, the prosecution must establish that (1) appellant intended to commit sexual assault; (2) appellant performed some act toward the commission of the crime; and (3) appellant failed to consummate its commission. See Larsen v. State, 86 Nev. 451, 453, 470 P.2d 417, 418 (1970) ().
As already stated, appellant stipulated that he intended to commit sexual assault upon the young girl whom he picked from a collection of photographs and who he believed was five or six years of age. Nevertheless, he did not accomplish this crime. Therefore, this appeal focuses on whether appellant's acts sufficed for attempt liability.
This court previously held that "[m]ere indecent advances, solicitations, or importunities do not amount to an attempt [to rape]." State v. Pierpoint, 38 Nev. 173, 174, 147 P. 214 (1915). (Citation omitted.) Likewise, mere preparation to commit a crime is insufficient to constitute an attempt. State v. Verganadis, 50 Nev. 1, 4, 248 P. 900, 901 (1926). However, we also held that when the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that crime will constitute an attempt. Larsen, 86 Nev. at 454, 470 P.2d at 419.
Appellant argues that Nevada law applies a "proximity approach" in determining what acts will suffice for attempt liability. He maintains that all the cases in which this court concluded that an attempt occurred involved the element of proximity not present in the instant case. Consequently, he claims that his acts of solicitation and preparation, made at a distance from the place where the substantive offense was to be committed, did not constitute an attempt. We disagree.
Admittedly, most cases upholding attempt convictions do involve situations in which there was a physical or dangerous proximity to successfully committing the crime. Moreover, under the circumstances as appellant reasonably viewed them, he was both physically and temporally close to committing sexual assault on the young girl. At the time of appellant's arrest, appellant and the undercover agent had started driving to the apartment where appellant would engage in sex with the young girl. Thus, the facts in the instant case compare to those in Stephens v. Sheriff, 93 Nev. 338, 565 P.2d 1007 (1977).
In Stephens, a case involving an attempted contract killing, this...
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