## Facts

- Rocco William Disanto and Linda Olson ended a turbulent relationship in January 2002; Olson began living with Denny Egemo.
- After the breakup, Disanto repeatedly threatened to kill Olson and Egemo and had a separate dispute with Olson involving alleged missing business funds.
- On February 17, 2002, Disanto, while drinking and gambling, described an intent to kill Olson and harm Egemo; police arrested him and seized a loaded .25-caliber pistol.
- Authorities learned Disanto was pursuing a murder-for-hire plan; a police officer posed as a contract killer and met with Disanto.
- Disanto discussed the killings in detail, including wanting victims shot twice in the head, provided Olson’s address and a photograph, identified possible valuables, and instructed that a child witness should be killed if necessary.
- Disanto gave what the State characterized as a final verbal authorization to proceed, but soon after sent word that he wanted to halt or put the plan on hold.
- The undercover officer later presented Olson’s ring as purported proof the killing had occurred; Disanto was then arrested and charged with three counts of attempted first-degree murder (Olson, Egemo, and the child).
- A jury convicted Disanto on all counts; the trial court denied a motion for judgment of acquittal challenging whether the evidence showed an “attempt” rather than preparation.

## Issues

1. Whether Disanto’s conduct in arranging a murder-for-hire plan, providing identifying information and instructions, and verbally authorizing the killings constituted an “act toward the commission” of first-degree murder under SDCL 22-4-1.
2. Whether the evidence was legally sufficient to prove attempt, as distinct from mere preparation or solicitation, when no concrete step was taken to physically carry out the murders.

## Decision

- The Supreme Court of South Dakota reversed Disanto’s three convictions for attempted first-degree murder.
- The court held that the State’s proof showed only preparation/solicitation and did not satisfy SDCL 22-4-1’s requirement of an act toward the commission of the offense.
- The court concluded that neither Disanto nor the feigned contract killer committed an overt act moving from planning to execution.
- Because the reversal rested on legal insufficiency of the attempt element, the convictions were set aside rather than retried on the same attempted-murder charges.

## Legal Principles

- Under SDCL 22-4-1, attempt requires proof that, with intent to commit a specific crime, the defendant did an act toward its commission and failed or was prevented or intercepted.
- Mere preparation, planning, or solicitation—without an overt act directed at executing the crime—does not constitute attempt.
- In murder-for-hire situations under South Dakota’s statutory standard, providing instructions, a photograph, an address, and authorization to proceed may remain preparatory absent an outward act in execution (for example, beginning the physical process of carrying out the killings).
- South Dakota’s “act toward the commission” approach is narrower than the Model Penal Code’s “substantial step” formulation and requires a clearer transition from arrangement to perpetration.

## Conclusion

The court held that Disanto’s detailed murder-for-hire arrangements and authorization did not cross the statutory line from preparation to attempt because no overt act toward executing the killings occurred, requiring reversal of the attempted-murder convictions.


State v. Disanto, 688 N.W.2d 201 (S.D. 2004)