Facts
- Travis McPeak and Bobby Nolan got into an altercation.
- McPeak decided to leave the scene.
- As McPeak approached the sidewalk, he saw a shadow behind him.
- Nolan attempted to hit McPeak.
- McPeak dodged the blow and pushed Nolan to the ground.
- As Nolan got up, he pulled a gun from his pocket and fired in McPeak’s general direction.
- The bullet entered McPeak’s outer thigh and exited his inner thigh; McPeak survived.
- Nolan was charged with two counts of attempted murder and one count of felonious assault.
- The first attempted-murder count alleged Nolan purposely attempted to cause McPeak’s death.
- The second attempted-murder count alleged Nolan knowingly engaged in conduct that, if successful, would have caused McPeak’s death as a proximate result of Nolan’s commission of felonious assault (an attempted felony-murder theory).
- The jury acquitted Nolan of the first attempted-murder count and convicted him on the second attempted-murder count and on felonious assault.
- On appeal, after the appellate court requested supplemental briefing on whether attempted felony murder is a viable offense, Nolan argued he could not be convicted on that theory because McPeak did not die.
Issues
- Whether Ohio law permits a conviction for “attempted felony murder” when the alleged attempted murder is based on the felony-murder statute and the victim did not die.
Decision
- The court held that “attempted felony murder” is not a recognized offense under Ohio law.
- The court reversed Nolan’s attempted-murder conviction that was based on the felony-murder theory.
- The court left Nolan’s felonious-assault conviction in place and remanded for further proceedings consistent with its ruling.
Legal Principles
- Ohio’s felony-murder provision imposes murder liability when a death is caused as a proximate result of committing or attempting to commit a qualifying felony; it does not require an intent to kill.
- Ohio’s attempt statute requires purposeful or knowing conduct directed toward committing an offense; attempt liability depends on a defendant’s state of mind to bring about the criminal result or to complete the criminal act.
- Because felony murder does not require a purpose to kill, combining the attempt statute with felony murder produces a mismatch between attempt’s culpability requirement and felony murder’s lack of an intent-to-kill element.
- When no death occurs, the felony-murder statute is not triggered, and the law does not create an “attempt” version of felony murder to fill that gap; conduct short of causing death must be charged and proved under other offenses (such as felonious assault or purposeful attempted murder).
Conclusion
In State v. Nolan, the appellate court ruled that Ohio does not recognize attempted felony murder where the victim survives, reversed Nolan’s attempted-murder conviction that rested on the felony-murder theory, and remanded while leaving his felonious-assault conviction intact.