It is not possible to commit attempted felony murder in the state, the Ohio Supreme Court held today.

An attempted crime requires a defendant to have acted knowingly or purposely, but felony murder does not require intent to kill, only the intent to commit the underlying felony, Justice Paul E. Pfeifer wrote in the court’s unanimous opinion. It is therefore impossible to purposely or knowingly cause an unintended death, he concluded.

The decision upholds the appeals court’s reversal of the conviction of Bobby D. Nolan for attempted felony murder.

In 2012, Nolan was convicted in Portage County for attempted felony murder, felonious assault, and possessing a firearm.

Can a person be guilty of attempting to cause an unintended death? We conclude … that it is impossible to purposely or knowingly cause an unintended death.

Can a person be guilty of attempting to cause an unintended death? We conclude … that it is impossible to purposely or knowingly cause an unintended death.

He appealed to the Eleventh District Court of Appeals. While the court found his claims to have no merit, it ordered additional briefing on whether a person can be convicted of attempted felony murder in Ohio. The court determined that attempted felony murder is a “logical impossibility” and reversed Nolan’s conviction on that charge.

The state appealed to the Ohio Supreme Court.

Justice Pfeifer rejected the state’s contention that the appellate court’s reversal conflicted with State v. Williams, a 2010 Ohio Supreme Court decision. While the majority opinion in that case did discuss “attempted murder,” it did not use the term “attempted felony murder,” Justice Pfeifer noted. He explained that a conviction for attempted felony murder was not at issue in Williams.

Justice Pfeifer then examined the language of R.C. 2923.02, which describes the offense of attempting to commit a crime, and R.C. 2903.02(B), the felony-murder statute.

“[A]n attempt crime must be committed purposely or knowingly and intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended,” he wrote. “Can a person be guilty of attempting to cause an unintended death? We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio.”

2013-1290. State v. Nolan, Slip Opinion No. 2014-Ohio-4800.

View oral argument video of this case.

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