## Facts

- A Yuma County deputy sheriff contacted Marvin Timothy McElroy and another person near a residence around 1:00 a.m. and agreed to give McElroy a ride.
- During a pat-down search, the deputy found a plastic bag of white pills in McElroy’s shirt; McElroy said the pills were “speed” (amphetamines) and that he bought them at a bar.
- After McElroy was placed in the patrol car, the deputy found a second bag of similar pills in the back seat.
- A field test indicated the pills were amphetamines; after receiving Miranda warnings, McElroy again identified the pills as “speed.”
- Laboratory testing later showed the pills were not amphetamines and were not any statutorily proscribed dangerous drug.
- McElroy was tried to the court, convicted of attempted possession of dangerous drugs under Arizona’s attempt statute, and placed on probation.
- He appealed, arguing the completed offense was impossible because the substance was not a dangerous drug.

## Issues

1. Whether a defendant may be convicted of attempted possession of dangerous drugs when the substance possessed is not actually a dangerous drug, making completion of the offense impossible.

## Decision

- The Arizona Supreme Court affirmed the conviction.
- The court held that Arizona’s attempt statute permits attempt liability when the defendant’s conduct would be criminal if the attendant circumstances were as the defendant believed them to be.
- Because McElroy believed he possessed illegal amphetamines and intentionally possessed the pills, impossibility based on the pills’ actual lawful composition did not bar conviction for attempt.

## Legal Principles

- Under A.R.S. § 13-1001(A)(1), a person commits attempt if, acting with the culpability required for the offense, the person intentionally engages in conduct that would constitute the offense if the attendant circumstances were as the person believes them to be.
- Impossibility is not a defense to attempt when the only barrier to completion is that the actual circumstances differ from the defendant’s criminal belief.
- For attempt liability, the defendant’s intent and conduct, evaluated against the circumstances as the defendant believed them, can be sufficient even if the completed crime could not occur on the facts as they actually existed.

## Conclusion

The court upheld McElroy’s conviction for attempted possession of dangerous drugs, concluding that Arizona law imposes attempt liability based on the defendant’s belief about the attendant circumstances, even when the completed offense is impossible because the substance is not contraband.


State v. McElroy, 128 Ariz. 315, 625 P.2d 904 (Ariz. 1981)