Carolina Criminal Defense & DUI Lawyer UpdatesA Criminal Defense Deep Dive by Bill Powers, Board Certified Criminal Law Specialist (NBTA/NBLSC), Powers Law Firm, P.A. (Charlotte, NC)
As a criminal defense attorney in North Carolina, I am asked to explain the legal difference between planning a crime and attempting 
a crime. If you or a loved one face charges related to Criminal Attempt in NC, understanding this distinction can be fundamental to formulating an effective defense strategy. The difference is not merely academic. It is the line that separates a “thought crime” from a felony conviction. This distinction rests primarily on two fundamental concepts. those being the required intent and the overt act.
A recent opinion from the North Carolina Court of Appeals, State v. Vaughn, COA24-1089, provides an example of why a trial court’s failure to properly instruct a jury on these concepts may constitute reversible, prejudicial error. The case serves as a reminder that when the State seeks to convict a person of an attempt to commit a crime, the prosecution must prove a mental state more demanding than that required for the completed underlying offense.
The Three Elements of Criminal Attempt in North Carolina Law
In North Carolina, the crime of Criminal Attempt is what defense lawyers may refer to as an incomplete offense. It falls short of the full intended act. To secure a conviction for a criminal attempt, the State must establish three essential elements beyond a reasonable doubt:
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Specific Intent The defendant must have had the specific intent to commit the underlying, substantive offense.
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Overt Act The defendant must have performed an overt act that goes beyond mere preparation. It must be a direct step toward committing the crime.
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Failure to Complete The overt act must fall short of the completed offense.
The Vaughn opinion focused on the first two elements. the specific intent and the overt act. It found the jury instructions lacking, which created a prejudicial environment for the defendant.
Specific Intent and General Intent The Legal Bar to Conviction
Understanding criminal attempt begins with understanding intent. Criminal offenses in North Carolina are generally categorized intoGeneral Intent and Specific Intent crimes. The finder of fact is called to consider the mens rea, or a “guilty mind” or “evil mind” mental state.
A general intent crime requires the prosecution to prove that the defendant intended to perform the prohibited act itself. The law assumes the defendant intends the natural consequences of their actions.
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Example: Possession of a Firearm by a Felon (PFF). To be convicted of PFF, the State must prove the defendant possessed a firearm and that the defendant was a convicted felon. The defense in Vaughn specifically requested that the jury be instructed that possession itself is a general intent crime.
Specific Intent The Attempt Crime
In contrast, specific intent crimes require the prosecution to prove that the defendant not only intended to perform the act but also acted with a predetermined purpose or goal in mind to achieve a particular outcome. Inchoate offenses (not yet completed, in the formative stage) such as attempt are specific intent crimes.
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Example: Attempted Possession of a Firearm by a Felon. For an attempted PFF conviction, the jury is required to find the defendant intended to possess a firearm with the awareness, the understanding, that he was a convicted felon (either by plea or trial). The defendant in Vaughn testified he believed his 2002 felony conviction had been expunged. If the jury believed such testimony, the required specific intent, the knowledge of their status as a felon, was potentially missing.
The Court of Appeals found that the trial court’s failure to instruct the jury on the necessity of this specific intent meant the jury was not properly equipped to evaluate the facts against the law. Such error was exacerbated by the prosecutor’s argument about the elements of the related false information charge.
| Intent Type | Crime Example | Required Mental State | Vaughn Relevance |
| General Intent | Possession of a Firearm by a Felon (PFF) | Intent to commit the physical act (possess/control). | The jury acquitted Defendant on this completed charge. |
| Specific Intent | Attempted PFF | Intent to commit the act plus the purpose to achieve the criminal result (knowing one is a felon). | The trial court erred by failing to instruct the jury on this specific intent. |
The Overt Act Moving Beyond Preparation
The second critical element for attempt is the necessity of proof of an overt act. This prima facie element prevents criminalizing mere thoughts, planning, or preparation.
An act is considered an overt act if it is adapted to, approximating, and in the likely course of things would result in the commission of the intended crime. It must reach far enough toward the commission to be the commencement of the consummation. For lack of a better term, proof is necessary to show some act or acts were put begun or into place to accomplish the intended crime.
The Line in the Sand
North Carolina law is relatively clear. the “over act” cannot be merely preparatory in nature.
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Preparation involves getting ready. The State contended Defendant’s initial handling of the unloaded firearm and placing it on layaway in November 2022 constituted the possession or attempted possession.
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Overt Act involves a direct, unambiguous step toward the crime’s completion. This could include the act of filling out the ATF form 4473 and attempting to pay off the balance in January 2023.
In North Carolina v. Vaughn, the trial court gave no instruction to the jury on the distinction between preparation and the required overt act. Since the jury acquitted the defendant of the completed crime of Possession but convicted him of the Attempt, the Court of Appeals noted that it was unclear whether the jury would have viewed the defendant’s act of putting the gun on layaway as anything more than mere preparation if they had been properly instructed. This failure was held to be fundamental error.
Prejudicial Error and Misstatements of Law
The Vaughn case serves as a practical demonstration of how the lack of providing the proper pattern jury instruction instructions is damaging when coupled with erroneous statements of law by the prosecution.
The prosecutor argued during closing arguments that, even if the jury believed the defendant’s testimony that he thought his felony was expunged, he was still guilty of providing false information because the form simply asked if he had ever been convicted. This was a misstatement of the law because:
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The ATF form 4473 itself, which was evidence, stated that a person who received a lawful expungement should answer ‘no’ to the applicable question.
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The charge of providing materially false information under N.C. Gen. Stat. § 14-408.1(c) requires the State to prove the defendant knew the information to be false.
If the defendant genuinely believed his felony was expunged, he did not know his answer was false, meaning the prosecutor’s statement that the jury could believe the defendant and still convict him was legally incorrect.
The Court of Appeals concluded that this misstatement of law was prejudicial. It significantly increased the likelihood that the jury was also misled on the necessary specific intent for the attempted possession charge. Because the trial court failed to sua sponte instruct on the elements of attempt and the State made erroneous statements of law, the conviction could not stand.
The Court of Appeals found prejudicial error and remanded for a new trial on the attempted possession of a firearm charge.
A Legal Perspective on Criminal Defense
The State v. Vaughn opinion reinforces a non-negotiable principle of North Carolina criminal law. When a defendant is charged with a crime of attempt, the trial court must clearly and fully instruct the jury on the distinct elements of the attempt offense. The specific intent to commit the completed crime and the requirement of an overt act that is more than mere preparation.
For the State, this means the evidence must clearly establish a purposeful, willful desire for the criminal result. For the defense, this may open an avenue for challenging the State’s case, especially whn a defendant’s state of mind (mens rea) is subject to a plausible, non-criminal interpretation, such as a genuine belief in a felony expungement. The distinction between a crime of general intent and its attempted, specific-intent version is a powerful shield in a criminal case.
If you are facing serious criminal charges, including Attempted Possession of a Firearm by a Felon or need clarity on expungement law, the Charlotte criminal defense lawyers at Powers Law Firm call or TEXT 704-342-4357 now for a confidential consultation.
Frequently Asked Questions (FAQ) About Attempt Crimes in NC
Specific Intent differs from General Intent because it requires proof of a specific purpose to commit the target crime. It is more than the intent to perform the criminal act itself. For example, the crime of attempt requires specific intent. That means the defendant must have the purposeful mental state to achieve the criminal goal. This would include the knowledge of a surrounding circumstance, such as being a felon in an attempted possession of a firearm by felon case. How does Specific Intent differ from General Intent in North Carolina criminal law?
The legal distinction between an Overt Act and mere preparation is based on how far the defendant accused of criminal wrongdoing moved toward completing the crime. An overt act must go beyond simple planning or preparation. It must be the commencement of the consummation of the offense. That’s a somewhat complicated way of saying the crime had begun with the end goal of committing the prohibited criminal act. Preparation alone would likely be legally insufficient for a conviction of criminal attempt. What is the legal distinction between an Overt Act and mere preparation in a North Carolina Attempt case?
Whether you can be guilty of Attempted Possession of a Firearm by a Felon depends on your knowledge and Specific Intent. If you can establish that you had a genuine, honest belief that your felony was expunged and you were legally permitted to possess a firearm, that belief could negate the required element of knowing you were a felon. I thought my felony was expunged. Can I still be guilty of Attempted Possession of a Firearm by a Felon?
Proper jury instructions on the elements of attempt are essential for a fair trial because they define the law the jury must apply to the facts. When a trial court fails to instruct on the necessity of specific intent and the overt act, as happened in State v. Vaughn, the jury is legally misled. They cannot make a determination about guilt based on all the material features of the crime charged. Why are proper jury instructions on the elements of attempt essential for a fair trial?
A prosecutor’s misstatement of the law about providing false information can, in some circumstances, lead to the reversal of an attempted possession conviction if the error is considered prejudicial. The State v. Vaughn opinion concluded that the prosecutor’s incorrect summary of the law during closing argument regarding the required “knowingly” element for the materially false information charge likely confused the jury. This confusion tainted the necessary finding of specific intent for the related attempted possession charge, resulting in prejudicial error.