## 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

1. 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.


State v. Nolan, 2013-Ohio-2829 (2013)