When North Carolina prosecutors charge someone with attempting to commit a crime, rather than the completed offense itself, they undertake a burden of proof that most defendants don’t fully
For anyone facing criminal charges on the Outer Banks, particularly those involving alleged firearms offenses, controlled substance possession, or other charges where prosecutors may try to pursue criminal charges relating to an “attempt to commit a crime,” the Vaughn opinion provides guidance.
If you or someone close to you is charged on the OBX and you are not sure what to do next, TEXT or call the Glover Law Firm to set up a confidential consultation. Attorney Danny Glover has more than 25 years of real courtroom experience helping clients work through complex criminal charges. TEXT or call 252-299-5300.
The Foundational Principles of Attempt Crimes: The Essential Elements of the Offense
North Carolina law establishes three essential elements the State must prove beyond a reasonable doubt for any “criminal attempt” conviction:
- Specific intent to commit the underlying substantive offense
- An overt act going beyond mere preparation toward the commission of that offense (the crime)
- Failure to complete the intended crime
The second element, specific intent, carries particular significance because it represents a qualitatively different mental state than what suffices for many completed offenses. The distinction lies at the heart of Vaughn‘s holding.
| Type of Crime | General Intent Crimes (Completed Felony Possession) | Criminal Attempt Charges (Require Specific Intent) |
| Required Mental State (Intent) | General Intent: The State must prove the defendant intended to perform the prohibited act itself. | Specific Intent: The State must prove the defendant acted with a predetermined purpose or goal to achieve the criminal result. |
| Knowledge Burden on Prosecution | State does not need to prove the defendant knew the act was illegal or intended to violate the law. | State must prove the defendant acted with awareness and understanding that the conduct was criminal (knew they were a convicted felon). |
| Key Physical Element | Proof of the completed act (actual possession of the firearm). | Proof of an Overt Act going beyond mere preparation toward commission of the offense. |
| Defense Impact of Mistake of Fact | Generally does not negate guilt. | Can negate the specific intent element (genuinely believing the conviction was expunged). |
Specific Intent vs. General Intent: A Substantive Difference
Many criminal offenses in North Carolina are classified as “general intent” crimes, meaning the prosecution need only prove the defendant intended to perform the prohibited act itself, with the law presuming the defendant intended the natural consequences of that action.
Possession of a firearm by a convicted felon under N.C. Gen. Stat. § 14-415.1, for example, NC gun laws require proof that the defendant possessed or controlled a firearm and that the defendant had a prior felony conviction.
The State need not prove the defendant intended to violate the statute or even that the defendant knew possession of firearms by felons was prohibited.
Attempt charges, however, demand specific intent. The defendant must have acted with a predetermined purpose or goal to achieve the criminal result.
As the Court of Appeals explained in Vaughn, citing established North Carolina precedent, “[t]he crime of attempt requires an act done with the specific intent to commit the underlying offense.” State v. Coble, 351 N.C. 448, 449 (2000).
This means that for attempted possession of a firearm by a felon, the indictment must allege and the jury must ultimately find the defendant intended to possess a firearm with awareness and understanding that he was a convicted felon.
If a defendant genuinely believed, even if incorrectly, that his felony conviction had been expunged, that belief potentially negates the specific intent element required for attempt.
The Vaughn defendant testified he attended an expungement clinic in 2013, met with an attorney regarding his 2002 felony cocaine possession conviction, and believed the conviction had been expunged.
He subsequently passed background checks for employment, including work at Camp Lejeune military base. If the jury credited this testimony, the required specific intent, knowledge of his status as a felon, was missing.
The Overt Act Requirement: Where Preparation Ends and Attempt Begins
The second critical element distinguishing attempt from lawful conduct is the requirement of an overt act that transcends mere preparation.
North Carolina courts have articulated this standard with language emphasizing both the act’s proximity to the completed crime and its unambiguous character:
“[T]he act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.”
State v. Miller, 344 N.C. 658, 668 (1996) (quoting State v. Prince, 280 N.C. 154, 158 (1971)).
In Vaughn, the State contended the defendant attempted to possess a firearm when he initially handled an unloaded weapon at a pawn shop in November 2022 and placed it on layaway.
The defendant returned in January 2023 to complete the purchase by filling out ATF Form 4473 and attempting to pay the remaining balance. His application was denied after the background check revealed his felony conviction.
The jury acquitted the defendant of completed possession but convicted him of attempted possession.
This verdict suggests the jury found the defendant did not actually possess the firearm but took sufficient steps toward possession to constitute an attempt.
However, the Court of Appeals found this determination legally suspect because the trial court failed to instruct the jury on what constitutes an “overt act” beyond preparation.
Without proper instruction through the pattern jury instructions, it remains unclear whether the jury would have classified placing a firearm on layaway as anything more than preparatory conduct, akin to researching how to commit a crime, assembling materials, or positioning oneself to act, rather than an overt act constituting the “commencement of the consummation” of firearm possession.
The Vaughn Court’s Holdings: When Instructional Error Becomes Prejudicial
The Court of Appeals identified two related but distinct failures in the trial court’s jury instructions, both preserved by defense objection:
1. Complete Failure to Instruct on Attempt Elements
Despite extended colloquy between counsel and the Court (the trial Judge) regarding the necessity of attempt instructions, and the Defense requesting such instructions, the trial court ultimately provided limited guidance on what distinguishes an attempt from either preparatory conduct or a completed offense. The court inserted the word “attempt” before “possession of a firearm by a felon” in its instructions, telling jurors they should convict if they found the defendant “attempted to possess or attempted to have within defendant’s custody, care or control a firearm.”
This instructional failure left the jury without legal standards for two essential elements: (1) what mental state satisfies “specific intent” for an attempt, and (2) what conduct constitutes an “overt act” rather than mere preparation. North Carolina pattern jury instructions exist to prevent such omissions, yet the trial court declined to provide a clarifying instruction even after defense counsel noted the error following initial instructions.
The Court of Appeals has held this failure constituted reversible error, noting that “[f]ailure to instruct upon all substantive or material features of the crime charged is error.” State v. Whiteley, 172 N.C. App. 772, 780 (2005).
2. Prosecutorial Misstatement of Law Compounding Instructional Deficiency
The prejudicial impact of the missing attempt instructions was magnified by the prosecutor’s closing argument, including on the related charge of providing materially false information to a firearms dealer under N.C. Gen. Stat. § 14-408.1(c).
On the ATF Form 4473, applicants must answer whether they have ever been convicted of a felony. The defendant answered “no” despite his 2002 conviction. The statute criminalizing false information on such forms requires proof that the defendant “knowingly” provided false information. The ATF form itself specifies that persons who have received lawful expungements “should answer ‘no’ to the applicable question.”
The prosecutor’s argument misstated North Carolina law. If the defendant genuinely believed his conviction had been expunged, he did not “know” his answer was false, which negates the statute’s required mental state.
Moreover, under the ATF form’s own instructions, a person with a lawfully expunged conviction should answer “no,” making the answer objectively correct if the defendant’s belief in the expungement were accurate.
The trial court sua sponte failed to correct this misstatement either during the prosecutor’s argument or in its own instructions.
The Court of Appeals found this failure significant because it created substantial risk that the jury convicted on the false information charge based on an incorrect understanding of the law, which in turn infected the attempted possession verdict.
If the jury believed the defendant could be guilty of knowingly providing false information even while genuinely believing his conviction was expunged, they likely applied the same flawed reasoning to the specific intent element of attempted possession.
The combination of missing attempt instructions and uncorrected prosecutorial misstatements created what the Court of Appeals characterized as prejudicial error, such that it remanded the matter for a new trial.
Attempt Charges as Prosecutorial Fallback Positions
The Vaughn case illustrates a common prosecutorial strategy: charging both the completed offense and attempt as a fallback position.
When evidence of completed possession proved insufficient (the jury acquitted on that count), the State still obtained a conviction on the attempt charge.
That type of approach places defendants at risk even when the evidence of the completed crime is wanting. An effective defense strategy must therefore anticipate and address both theories simultaneously:
- Challenging whether the defendant possessed the specific intent required for attempt
- Challenging whether any acts taken constituted overt acts beyond preparation
- Arguing for jury instructions that properly distinguish attempt from completed offenses
- Objecting if prosecutors argue and/or submit incorrect legal theories to the finder of fact (the jury)
For defendants in Dare County, Currituck County, and throughout the Outer Banks, prosecutors occasionally charge both completed offenses and attempt crimes. This means that even when the State’s evidence of a completed crime may appear weak, attempt charges can remain viable. Those carry serious consequences that deserve careful consideration by an experienced legal counsel. As appropriate, criminal lawyers review the discovery and, while preparing for trial, address both theories of guilt.
Appellate Practice and Preservation Issues
The Vaughn decision demonstrates the importance of appellate advocacy and proper preservation of issues for review. The Court of Appeals:
- Upheld denial of motions to dismiss (finding sufficient evidence for jury consideration)
- Found prejudicial error in the jury instruction (remanding the case for a new trial)
- Declined to invoke Rule 2 to address constitutional issues not raised at trial
This outcome emphasizes the disturbing fact that even clear, disturbing legal issues do not always receive appellate consideration without proper trial preservation. Defense counsel is called to anticipate potential appellate issues and create a clear, unambiguous record on appeal through timely objections, requested instructions, and motions.
For complex criminal cases on the Outer Banks (and throughout all of North Carolina for that matter), consideration of appellate issues should begin at trial preparation stage, not after conviction.
The Heightened Burden of Attempt Charges
State v. Vaughn serves as an important reminder that North Carolina’s attempt statute imposes a burden of proof qualitatively different from, and in some ways discernably more difficult than, that required for many completed offenses.
“The specific intent requirement requires proof of a particular mental state that mere evidence of prohibited conduct cannot establish – Danny Glover, OBX Criminal Defense Lawyer
The overt act requirement involves conduct that transcends preparation and approaches consummation of the intended crime.
When trial courts fail to instruct juries on these essential elements, or if prosecutors misstate (even unintentionally) the law regarding the mental states required for conviction, appellate courts sometimes do find prejudicial error requiring new trial.
For anyone facing criminal charges on the Outer Banks, understanding these principles and ensuring they receive proper application at trial can mean the difference between conviction and acquittal, or between an uncorrectable guilty verdict and preserved appellate issues warranting reversal.
FAQs for Criminal Attempt Charges
What is the difference between attempt charges and completed crimes in North Carolina?
Criminal attempt charges in North Carolina require prosecutors to prove three distinct elements that completed crimes do not: (1) specific intent to commit the underlying offense, (2) an overt act going beyond mere preparation, and (3) failure to complete the crime. This means the State faces a higher burden of proof for attempt charges than for many completed offenses. For example, in possession cases, prosecutors must prove the defendant knew he was a convicted felon and specifically intended to possess a firearm, not just that he possessed it. The North Carolina Court of Appeals’ decision in State v. Vaughn demonstrates that even when evidence of completed possession is insufficient for conviction, prosecutors can still pursue attempt charges as a fallback strategy.
Can you be convicted of attempted possession of a firearm if you never actually had the gun?
Attempted possession of a firearm by a felon in North Carolina does not require actual possession of the weapon. Instead, prosecutors must prove you took an “overt act” toward possession that went beyond mere preparation. In the Vaughn case, the defendant handled an unloaded shotgun at a pawn shop and placed it on layaway, then returned to complete paperwork but never took custody of the firearm. The jury acquitted him of completed possession but convicted him of attempted possession. However, the Court of Appeals found this problematic because the trial court failed to instruct jurors on what constitutes an “overt act” versus mere preparation, ultimately ordering a new trial.
What does specific intent mean for criminal attempt charges?
Specific intent for criminal attempt charges means the defendant must have acted with a predetermined purpose to achieve the criminal result, not just performed the prohibited act. This represents a qualitatively higher mental state than required for general intent crimes. In attempt cases, prosecutors must prove the defendant knew the relevant facts that made the conduct criminal. For attempted possession of a firearm by a felon, the State must prove you knew you were a convicted felon and specifically intended to possess the firearm. Attorney Danny Glover at Glover Law Firm handles complex intent issues in criminal charges throughout coastal North Carolina.
What happens if the judge gives wrong jury instructions in a criminal trial?
Wrong jury instructions in criminal trials can result in prejudicial error requiring a new trial, as demonstrated in State v. Vaughn. When a trial court fails to instruct jurors on essential elements of the charged crime, such as the specific intent and overt act requirements for attempt charges, the Court of Appeals can reverse the conviction and order a new trial. However, defense counsel must properly preserve these issues by making timely objections during trial. In Vaughn, the defense objected after the court failed to give proper attempt instructions despite both parties requesting them, which allowed the Court of Appeals to review and ultimately grant relief. This underscores why experienced criminal defense attorneys focus on jury instruction issues during trial preparation, not just after conviction.
Do I need to hire a lawyer for attempt charges even if I didn't complete the crime?
Hiring an experienced criminal defense lawyer makes sense, especially for complicated legal issues involving attempt charges. Attempt charges involve a heightened burden of proof requiring specific intent and overt acts beyond preparation, creating multiple defense opportunities that might be missed without the help of a defense lawyer. Prosecutors sometimes charge both the completed offense and attempt as a fallback position, meaning you could face a conviction even if the evidence of the completed crime isn’t all that strong. Attorney Danny Glover at Glover Law Firm has over 25 years of courtroom experience handling criminal charges throughout Dare County, Currituck County, and the Outer Banks, including challenging specific intent elements and preserving appellate issues. TEXT or call now 252-299-5300 for a confidential consultation about your criminal charges.
OBX Criminal Defense: Danny Glover and the Glover Law Firm
Danny Glover represents clients facing criminal charges throughout the Outer Banks, including Dare County, Currituck County, and surrounding coastal North Carolina jurisdictions. The firm handles cases involving firearms offenses, drug charges, and other serious criminal allegations. For free consultation regarding criminal charges, please TEXT or call the Glover Law Firm at 252-299-5300.