O.C.G.A. § 16-4-1 (2019)

Annotations

Law reviews. - For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For article, ‘‘A Comprehensive Analysis of Georgia RICO,’’ see 9 Ga. St. U. L. Rev. 537 (1993). For survey

article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For review of 1996 criminal attempt, conspiracy, and solicitation legislation, see 13 Ga. St. U. L. Rev. 105 (1996).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION

APPLICATION 1. OFFENSES AGAINST PROPERTY 2. OFFENSES AGAINST INDIVIDUALS 3. DRUG OFFENSES General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions decided prior to codification of this principle by Ga. L. 1968, p. 1249, § 1, are included in the annotations for this Code section. Relationship to other laws. - Defendant’s prior conviction for attempted armed robbery pursuant to an Alford plea qualified as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because the record showed that the defendant’s plea was knowing and voluntary, and supported by a factual basis. United States v. Wade, 551 Fed. Appx. 546 (11th Cir. 2014), overruled on other grounds, Wade v. United States, Nos. 1:15-CV-1712-RWS-JSA, 1:11-CR-337-RWS-JSA-1, 2016 U.S. Dist. LEXIS 29169 (N.D. Ga. 2016) (Unpublished). Essential elements of criminal attempt are that the act (substantial step) be such as would be proximately connected with completed crime, and there must be apparent possibility to commit the crime in manner proposed. Fears v. State, 152 Ga. App. 817, 264 S.E.2d 284 (1979). Attempt to commit crime consists of three elements: first, intent to commit crime; second, performance of some overt act towards commission of crime; and third, failure to consummate its commission. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). To constitute attempt, there must be act done in pursuance of intent, and more or less directly tending to commission of crime. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). Act must be one done in pursuance of intent to commit crime and must tend toward commission of the crime. R.L.T. v. State, 159 Ga. App. 828, 285 S.E.2d 259 (1981); Adams v. State, 178 Ga. App. 261, 342 S.E.2d 747 (1986). Attempt requires act done with intent to commit crime, and tending to,

but falling short of its commission. Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933). Sufficient evidence. - Defendant’s conviction of criminal attempt to commit burglary was affirmed because, while the defense presented a different theory of events and claimed that defendant did not act with the intent to commit a theft, it was the jury’s province to assess witness credibility, resolve the conflicts in the evidence, and determine whether there was a reasonable hypothesis of innocence favorable to defendant. Anthony v. State, 317 Ga. App. 807, 732 S.E.2d 845 (2012). Acts going beyond preparation and towards final commission of crime. - Acts which go towards final commission of crime and are carried beyond mere preparation, although falling short of ultimate design, do constitute attempt to commit crime. Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933). Intent necessary. - In order to constitute an attempt to commit a crime, where no crime is actually committed, an intention to commit the particular crime is essential. Jenkins v. State, 53 Ga. 33, 21 Am. R. 255 (1874); Nowell v. State, 94 Ga. 588, 21 S.E. 591 (1894); Chelsey v. State, 121 Ga. 340, 49 S.E. 258 (1904). Commission means act of committing, doing, or performing; the act of perpetrating. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). Criminal attempt defined only in conjunction with substantive crime involved in attempt. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976). Uniform Commercial Code definition of ‘‘negotiable instrument’’ did not apply as an additional element in a prosecution for criminal attempt to commit the crime of theft by taking. Thogerson v. State, 224 Ga. App. 76, 479 S.E.2d 463 (1996). Issue is whether accused has gone past preparation and has begun perpetration. Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978).

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

Mere preparation is insufficient. J.E.T. v. State, 151 Ga. App. 836, 261 S.E.2d 752 (1979). Act must be more than mere preparation and must be inexplicable as a lawful act. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); R.L.T. v. State, 159 Ga. App. 828, 285 S.E.2d 259 (1981). Mere acts of preparation, not proximately leading to consummation of intended crime, will not suffice to establish attempt to commit such crime. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). It cannot be said that no preparations can amount to an attempt, rather, it is a question of degree, and depends upon circumstance of each case. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). Nature of act required to constitute attempt. - In general, to constitute an attempt, there must be an act done in pursuance of the intent, and more or less directly tending to commission of crime. Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 282 S.E.2d 305 (1981); J.E.T. v. State, 151 Ga. App. 836, 261 S.E.2d 752 (1979). Substantial step toward commission of crime suffices. - Substantial step made toward commission of crime, even though it might not be ultimate step or last possible act to consummation of offense attempted, is sufficient evidence to support verdict of guilty of criminal attempt. Lett v. State, 150 Ga. App. 132, 257 S.E.2d 37 (1979). Defendant’s acts, including telephoning a known drug dealer about purchasing cocaine, and driving to an agreed location to make the transaction, sufficiently constituted a substantial step under Jackson v. Virginia to convict the defendant of attempting to possess cocaine Massey v. State, 267 Ga. App. 482, 600 S.E.2d 437 (2004). In an attempt to traffic in cocaine case under O.C.G.A. §§ 16-4-1 and 16-13-31, the defendant was not entitled to a directed verdict of acquittal because the state did not prove the purity of the cocaine that the defendant intended to purchase; proof of purity was unnecessary given that all that was needed was a

substantial step towards the crime of trafficking, not completion of the crime. Davis v. State, 281 Ga. App. 855, 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007). Because sufficient evidence was presented which showed that the defendant took substantial steps to arouse the defendant’s own sexual desires in soliciting both the defendant’s child and the child’s cousin, showing the cousin indecent photos, discussing masturbation with both, and trying to kiss the defendant’s child between the legs, the defendant’s attempted child molestation convictions were upheld on appeal. Carey v. State, 281 Ga. App. 816, 637 S.E.2d 757 (2006). Based on a victim’s testimony, the jury could have concluded that had the victim consented to the defendant’s request for oral sex, the defendant would have performed oral sex on the victim, thereby committing aggravated child molestation; consequently, the jury could have found that the defendant asking the victim about engaging in oral sex constituted a substantial step towards the commission of that crime. Johnson v. State, 284 Ga. App. 147, 643 S.E.2d 556 (2007). Count 1 in the indictment was not defective and trial counsel was not deficient in failing to attack the count as the defendant was sufficiently informed of the charges against the defendant and also protected from subsequent prosecution for the same crime because, although Count 1 did not track the criminal attempt statute exactly, read as a whole, Count 1 asserted that, with intent to commit armed robbery, the defendant committed a substantial step toward commission of the crime by pointing a gun at the victim and grabbing the victim’s person; and, although Count 1 referenced an attempt to commit robbery, it clearly alleged use of a gun, and armed robbery occurred when a person committed a robbery by use of an offensive weapon. Wilson v. State, 344 Ga. App. 285, 810 S.E.2d 303 (2018). Mere preparatory acts not proximately leading to consummation of offense do not constitute attempt. Groves v. State, 116 Ga. 516, 42 S.E. 755 (1902); Hammond v. State, 47 Ga. App. 795, 171 S.E. 559 (1933).

General Consideration (Cont’d) What acts constitute attempt may be governed by specific statute. - Indefinite nature of offense at common law of attempt to commit a crime, has induced enactment of many statutes in England and this country, setting forth, in express terms, what acts shall constitute an attempt to commit crimes referred to in such statutes. In such cases, the statute, of course, will govern. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935). Indictment for attempt to steal cattle was sufficient. - Indictment for attempt to steal cattle which charged the accused with attempting to steal the cattle of a named person located in that person’s pasture, without further specifying the cattle intended to be stolen, was sufficiently certain, for where there is only an attempt, it is not always possible to say what particular cattle the would-be thief meant to steal. Davis v. State, 66 Ga. App. 877, 19 S.E.2d 543 (1942). Indictment sufficient with regard to Internet sting operation allegations. - With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257, 744 S.E.2d 1 (2013). Inclusion of additional acts in indictment is mere surplusage. - Because O.C.G.A. § 16-4-1 requires proof of only one act which is a substantial step toward the commission of the crime, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded. Ranson v. State, 198 Ga. App. 659, 402 S.E.2d 740, cert. denied, 198 Ga. App. 898, 402 S.E.2d 740 (1991).

Indictment sufficient. - Trial court did not err by denying the defendant’s motion for a new trial on the ground that the indictment was defective for failing to allege the essential element of intent to commit a theft because the indictment clearly charged that the defendant attempted to commit a burglary, not that the defendant completed the crime. Coleman v. State, 318 Ga. App. 478, 735 S.E.2d 788 (2012). Trial court properly denied the defendant’s motion for arrest of judgment because the indictment charged attempted aggravated child molestation based on the defendant’s act of asking the victim if the victim performed a certain sexual action and referred to the statutory language for attempt and aggravated child abuse as well as specifically alleged that the victim was under the age of sixteen, thus, the indictment sufficiently placed the defendant on notice of the charges. Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013). Purpose of ‘‘substantial step’’ requirement. - In addition to assuring firmness of criminal purpose, requirement of substantial step will remove very remote preparatory acts from ambit of attempt liability and relatively stringent sanctions imposed for attempts; on the other hand, by broadening liability to extent suggested, apprehension of dangerous person will be facilitated and law enforcement officials and others will be able to stop criminal effort at an earlier stage - thereby minimizing risk of substantive harm - without providing immunity to offender. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981). Denial of motion to sever. - In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse its discretion in denying the defendant’s motion to sever the trial from that of the codefendant; further-

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

more, the mere fact that the codefendants’ defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006). ‘‘Substantial step’’ language shifts emphasis from what remains to be done to what has been done; the fact that further step must be taken before crime can be completed does not preclude finding that steps already undertaken are substantial and, it is expected, in normal case, that this approach will broaden scope of attempt liability. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); Adams v. State, 178 Ga. App. 261, 342 S.E.2d 747 (1986); Smith v. State, 189 Ga. App. 27, 375 S.E.2d 69, cert. denied, 189 Ga. App. 913, 375 S.E.2d 69 (1988); Brown v. State, 242 Ga. App. 858, 531 S.E.2d 409 (2000). Effective assistance of counsel in attempted rape trial. - Defendant was not prejudiced by trial counsel’s failure to object to testimony speculating as to the defendant’s state of mind because there was no reasonable likelihood that the testimony contributed to the guilty verdict on the lesser charge of attempted rape; the testimony regarding the victim’s belief as to why the defendant was following the van in which the victim was traveling was not relevant to the consideration of the charges against the defendant, rape or attempted rape. Gomez-Oliva v. State, 312 Ga. App. 105, 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017). Cited in Moore v. State, 231 Ga. 218, 201 S.E.2d 146 (1973); Wade v. State, 132 Ga. App. 600, 208 S.E.2d 613 (1974); Mealor v. State, 135 Ga. App. 682, 218 S.E.2d 683 (1975); J.A.T. v. State, 136 Ga. App. 540, 221 S.E.2d 702 (1975); Rolland v. State, 235 Ga. 808, 221 S.E.2d 582 (1976); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977); Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977); Brooks v. State, 144 Ga. App. 97, 240 S.E.2d 593 (1977); Dunbar v. State, 146 Ga. App. 136, 245 S.E.2d 486 (1978); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Brooks v. State, 151 Ga. App. 384, 259 S.E.2d 743

(1979); Maddox v. State, 152 Ga. App. 384, 262 S.E.2d 636 (1979); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980); Rollins v. State, 154 Ga. App. 585, 269 S.E.2d 81 (1980); Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980); Conroy v. State, 155 Ga. App. 576, 271 S.E.2d 726 (1980); McKenzie v. State, 248 Ga. 294, 282 S.E.2d 95 (1981); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103 (1981); Davis v. State, 165 Ga. App. 440, 301 S.E.2d 659 (1983); Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984); Lester v. State, 173 Ga. App. 300, 325 S.E.2d 912 (1985); Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Battle v. State, 178 Ga. App. 655, 344 S.E.2d 477 (1986); Cox v. State, 180 Ga. App. 820, 350 S.E.2d 828 (1986); Mathis v. State, 184 Ga. App. 455, 361 S.E.2d 856 (1987); Dawson v. State, 186 Ga. App. 718, 368 S.E.2d 367 (1988); Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989); United States v. Ward, 808 F. Supp. 803 (S.D. Ga. 1992); Keener v. State, 215 Ga. App. 117, 449 S.E.2d 669 (1994); Painter v. State, 219 Ga. App. 290, 465 S.E.2d 290 (1995); Busch v. State, 234 Ga. App. 766, 507 S.E.2d 868 (1998); Sewell v. State, 244 Ga. App. 449, 536 S.E.2d 173 (2000); Mann v. State, 263 Ga. App. 131, 587 S.E.2d 288 (2003); Fernandez v. State, 263 Ga. App. 750, 589 S.E.2d 309 (2003); Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003); Drammeh v. State, 285 Ga. App. 545, 646 S.E.2d 742 (2007); Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008); DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 668 S.E.2d 737 (2008); Simon v. State, 320 Ga. App. 15, 739 S.E.2d 34 (2013); State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819 (2014); Rollf v. Carter, 298 Ga. 557, 784 S.E.2d 341 (2016). Application Sufficiency of indictment. - Indictment stating offense charged, attempted armed robbery, in terms and language of O.C.G.A. § 16-4-1 suffices. Miller v. State, 155 Ga. App. 54, 270 S.E.2d 466 (1980). Indictment for attempted child molestation was sufficient without alleging the specific intent of child molestation under

Application (Cont’d) O.C.G.A. § 16-6-4. Livery v. State, 233 Ga. App. 332, 503 S.E.2d 914 (1998). Indictment for attempted child molestation alleging that defendant took a substantial step toward commission of the crime of child molestation by (1) engaging in sexually-explicit conversations over the internet and (2) driving to an arranged meeting place was not fatally defective in that it failed to allege the commission of a crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000). Although an indictment for attempting to commit the offense of enticing a child for indecent purposes did not allege actual asportation, it did allege that defendant arranged to meet the victim for the purpose of committing indecent acts and, accordingly, did not fail to allege the taking of a substantial step toward the commission of the crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000). Trial court properly denied the defendant’s motion to dismiss the indictment accusing the defendant of criminal attempt to traffic in cocaine in violation of O.C.G.A. §§ 16-4-1 and 16-13-31(a)(1); purity did not have to be alleged in an attempt case, particularly since there was no cocaine involved in the instant case, the indictment satisfied O.C.G.A. § 17-7-54(a) by tracking the applicable statutes in a manner that was easily understood and by apprising the defendant of both the crime and the manner in which the crime was alleged to have been committed, and if the defendant admitted the allegations precisely as set forth in the indictment, the defendant would have been guilty of criminal attempt to traffic in cocaine. Davis v. State, 281 Ga. App. 855, 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007). Trial court erred in granting the defendant’s specific demurrer to an indictment charging the defendant with criminal attempt to entice a child for indecent purposes in violation of O.C.G.A. §§ 16-4-1 and 16-6-5(a) because the indictment contained the elements of the crime, informed the defendant of the charges against the defendant, and was specific enough to

protect the defendant from double jeopardy, and the language in the indictment tracked the legislative language used in and cited directly to § 16-6-5(a); the crime charged in and of itself alerted the defendant to the fact that the defendant was being accused of acting with the intent of engaging in illicit sexual conduct with a minor, and because the defendant was indicted with criminal attempt to commit the crime of enticing a child for indecent purposes, by definition, the defendant fell short of the crime’s commission, and any evidence of defendant’s criminal intent was necessarily implicit. State v. Marshall, 304 Ga. App. 865, 698 S.E.2d 337 (2010). Defendant was properly convicted of criminal attempt to commit burglary, O.C.G.A. §§ 16-4-1 and 16-7-1, because prosecution for that crime was not time-barred; the crime for criminal attempt to commit burglary was substituted in lieu of a count of burglary charged in the original indictment, and the same evidence could be used to prove both the crime and criminal attempt to commit that crime. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010). Trial court did not err in granting the defendant’s special demurrer and dismissing the indictment charging the defendant with attempted child molestation, O.C.G.A. §§ 16-4-1 and 16-6-4, attempted aggravated child molestation, §§ 16-4-1 and 16-6-4(c), and computer pornography, O.C.G.A. § 16-12-100.2(d), because the indictment contained inadequate information as to the alleged victim; attempted child molestation, attempted aggravated child molestation, and computer pornography are crimes against a particular person and require the victim to be identified in the indictment, even if the victim was a police officer using a pseudonym. State v. Grube, 315 Ga. App. 885, 729 S.E.2d 42 (2012). Offense of enticing. - Offense of enticing does not require that lewd act be accomplished or even attempted, merely that it was intended as motivation for enticement. Thus, standards for proving criminal attempt are not applicable. Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981).

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

Crime of enticing is complete when the defendant asports the victim with the intent to commit an indecent act, regardless of whether the act is actually committed; when, however, the defendant attempts to entice a child but is unsuccessful with respect to the asportation element, the defendant is properly charged with criminal attempt. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000). Defendant’s conviction for criminal attempt to entice a child for indecent purposes, under O.C.G.A. §§ 16-4-1 and 16-6-5(a), was reversed because: (1) the victim’s compliance with the defendant’s request to send the defendant a naked picture of the victim would not have satisfied the element of asportation since the request did not try to entice the victim to go to another place; (2) without evidence that the defendant tried to move the victim ‘‘any place whatsoever,’’ the state did not prove the defendant had the requisite intent to commit the crime of enticing a child and that the defendant took a substantial step toward committing that crime; so (3) the state presented insufficient evidence to prove all elements of the only crime with which the state charged the defendant. Heard v. State, 317 Ga. App. 663, 731 S.E.2d 124 (2012). Misdemeanor attempt, not felony, escape sentencing was proper when defendant was jailed for parole violation. - Defendant should have been sentenced for misdemeanor attempted escape under O.C.G.A. § 16-10-52(b)(4) since the defendant was in jail for a parole violation, not for a charge on another crime, when the defendant attempted to escape; because the defendant was not charged with any crime at the time the defendant was incarcerated for the parole violation when the defendant attempted to escape from custody, the defendant was erroneously sentenced for a felony under § 16-10-52(b)(2) and was entitled to resentencing for misdemeanor attempted escape under § 16-10-52(b)(4). Green v. State, 283 Ga. App. 541, 642 S.E.2d 167 (2007). Attempted obstruction. - Because an investigative stop of the defendant matured into a de facto arrest when the

officers transported the defendant, without consent, to a police investigative site, the officers needed probable cause to arrest the defendant for a criminal drug activity, and, based on what the officers knew at the time of the de facto arrest, probable cause did not exist to arrest the defendant for such an activity; however, the defendant lied to the officers, providing probable cause to arrest the defendant for attempted obstruction under O.C.G.A. §§ 16-4-1 and 16-10-24(a) and therefore, the seizure of the defendant’s person was not illegal, and the evidence gathered as a result of the seizure was not suppressed. United States v. Virden, 417 F. Supp. 2d 1360 (M.D. Ga. 2006), aff ’d, 488 F.3d 1317 (11th Cir. 2007). Jury instruction upheld. - Trial court did not err in giving the jury an instruction on conspiracy when the offense charged was not conspiracy but attempted bribery. Since the instruction was free of confusion or other error, it follows that there was no ‘‘possibility’’ or ‘‘real probability’’ that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than of attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634, 307 S.E.2d 19 (1983), aff ’d, 252 Ga. 79, 310 S.E.2d 912 (1984). To the extent the defendant sought review under O.C.G.A. § 17-8-58(b), of the trial court’s charge to the jury on the jury’s consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury’s verdict. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009). Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and 16-6-3(a), because the court’s instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim’s

Application (Cont’d) grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011). When the evidence showed a completed crime, there was no error in refusing to charge on attempt or abandonment of attempt. Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983). Abandonment defense disproved. - With regard to the defendant’s convictions for attempted child molestation, the state sufficiently defeated the defendant’s defense of abandonment because while the defendant did leave the motel parking lot, it was not until the defendant viewed the task force agents wearing identifying t-shirts, communications through open car windows about the defendant’s identification were already had, and the defendant left at a high rate of speed in an attempt to flee. Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013). Failure to give adequate charge. - Since an adequate charge on criminal attempt to commit armed robbery was not given to the jury, that crime cannot serve as a basis for defendant’s felony murder convictions. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001). Evidence held sufficient. - See Laidler v. State, 180 Ga. App. 213, 348 S.E.2d 739 (1986) (attempted rape); Walker v. State, 193 Ga. App. 446, 388 S.E.2d 44 (1989) (attempted armed robbery);; Harrison v. State, 201 Ga. App. 577, 411 S.E.2d 738 (1991) (attempted felony bail jumping); Criswell v. State, 186 Ga. App. 823, 368 S.E.2d 579 (1988) (attempted criminal escape); Perkins v. State, 224 Ga. App. 63, 479 S.E.2d 471 (1996) (attempted child molestation). Alford v. State, 224 Ga. App. 451, 480 S.E.2d 893 (1997) (attempted burglary); Hollis v. State, 225 Ga. App. 370, 484 S.E.2d 54 (1997) (attempted rape); Sweeney v. State, 233 Ga. App. 862, 506 S.E.2d 150 (1998) (attempt to possess cocaine); Heath v. State, 240 Ga. App. 492, 522 S.E.2d 761 (1999) (attempt to escape);

Salters v. State, 244 Ga. App. 219, 535 S.E.2d 278 (2000); Jackson v. State, 247 Ga. App. 273, 543 S.E.2d 770 (2000) (attempted armed robbery). Davis v. State, 249 Ga. App. 579, 548 S.E.2d 678 (2001) (attempted armed robbery). Evidence insufficient to convict for attempt to commit armed robbery. - Several counts of the defendant’s robbery and burglary convictions were reversed as was one count of criminal attempt to commit armed robbery because the finding of the proceeds of some of the robberies at an apartment did not show that the defendant was in possession of the property taken and no witness testified connecting the defendant with some of the home invasions; thus, the evidence did not exclude the reasonable possibility that the defendant did not participate in some of the crimes. Cisneros v. State, 334 Ga. App. 659, 780 S.E.2d 360 (2015), aff ’d, 792 S.E.2d 326 (Ga. 2016). Evidence was insufficient to convict the defendant of criminal attempt to commit armed robbery because, although the evidence presented supported a finding that the defendant performed certain acts in preparation for an armed robbery, the defendant’s acts were merely preparatory acts and did not amount to an attempt to commit the crime of armed robbery as the defendant was not in possession of a weapon or device having the appearance of a weapon; furthermore, there was no evidence that the defendant gave the robbery notes to anyone or concealed the defendant’s hands in any way as if to hide a weapon. Rainey v. State, 338 Ga. App. 413, 790 S.E.2d 106 (2016). Conviction for attempted rape and aggravated assault. - Defendant’s conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant’s conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and 16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011). Denial of merger. - Because the defendant’s convictions for attempt to sell oxycodone and possession with intent to

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016). Inconsistent verdict claim rejected. - Defendant’s claim that the defendant’s attempted armed robbery verdict and three armed robbery verdicts should have been vacated as the defendant was acquitted of the firearms offenses related to those crimes was rejected; although the defendant claimed to have argued that the verdicts were mutually exclusive, the defendant in fact argued that the verdicts were inconsistent and Georgia has abolished the inconsistent verdict rule. Ray v. State, 273 Ga. App. 656, 615 S.E.2d 812 (2005). Sentencing. - Convictions for possession of methamphetamine and criminal attempt to manufacture methamphetamine merged as a matter of fact since the state used the same conduct to establish commission of both crimes, namely the same methamphetamine oil found in a toilet; therefore, though it was permissible to prosecute defendant for each crime, defendant could not be convicted for both offenses and a possession conviction and sentence were vacated by operation of law on appeal. Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848 (2008). Trial court erred in sentencing the defendant to 20 years to serve on the criminal attempt to commit robbery count because the maximum sentence the defendant could have received was 10 years as convicted of the offense of criminal attempt to commit a felony, not punishable by death or life imprisonment, could be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which the defendant could have been sentenced if the defendant had been convicted of the crime attempted; the maximum sentence for robbery was 20 years and half that time was 10 years. Ranger v. State, 330 Ga. App. 578, 768 S.E.2d 768 (2015). Prior out-of-state convictions. - Defendant’s case was remanded for resentencing after a conviction for criminal

attempt to manufacture methamphetamine because the trial court considered an uncertified Arkansas docket sheet in aggravation of sentence and a Tennessee conviction that might not qualify as a prior felony in Georgia under the recidivist statute. Elliot v. State, 274 Ga. App. 73, 616 S.E.2d 844 (2005). Defendant’s conviction for criminal attempt to manufacture methamphetamine was supported by the evidence because: (1) the defendant’s spouse informed law enforcement authorities that the defendant was manufacturing methamphetamine; (2) the defendant was discovered at a motel and was arrested; and (3) a forensic chemist testified that the items found in the defendant’s motel room were those used in the manufacture of methamphetamine. Elliot v. State, 274 Ga. App. 73, 616 S.E.2d 844 (2005). 1. Offenses Against Property Evidence of criminal attempt to enter automobile sufficient. - Evidence that defendants discussed theft of a car stereo, possessed tools to aid in the commission of such a crime, and that they drove to a shopping center parking lot in search of a specific car to enter was sufficient to find them guilty of criminal attempt to enter an automobile. Evans v. State, 216 Ga. App. 21, 453 S.E.2d 100 (1995). Attempt to enter an automobile did not merge with loitering. - Merging of sentences for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and 16-8-18, and loitering under O.C.G.A. § 16-11-36, was not warranted because loitering required proof of presence in a place at a time or in a manner not usual for law-abiding individuals, and attempt to enter an automobile required performance of an act which constituted a substantial step toward the commission of entering an automobile, both elements not required by the other crime. Brown v. State, 312 Ga. App. 489, 718 S.E.2d 847 (2011). Evidence sufficient for conviction of attempt to commit burglary. - Breaking window of door and reaching inside in attempt to open the door does not constitute entry for purposes of O.C.G.A.

Application (Cont’d) 1. Offenses Against Property (Cont’d) § 16-7-1 and will only sustain conviction for criminal attempt to commit burglary. Hampton v. State, 145 Ga. App. 642, 244 S.E.2d 594 (1978). Presence of valuables inside premises, evidence of defendant’s flight, presence of a cement block under a broken window, and a positive identification of defendant were sufficient to support defendant’s conviction of criminal attempt to commit burglary. Methvin v. State, 189 Ga. App. 906, 377 S.E.2d 735 (1989). Circumstantial evidence was sufficient to sustain defendant’s conviction of criminal attempt to commit burglary, where defendant was found walking about a quarter of a mile from the burglarized premises within about a half hour of the attempted burglary, lied about defendant’s identity, and was wearing boots and was carrying a knife with a piece of wire on it, and there was evidence that a bootprint was found at the premises and that the telephone line had been cut. Ware v. State, 198 Ga. App. 24, 400 S.E.2d 384 (1990). Evidence was sufficient to support convictions for attempted burglary after police officers who responded to an alert by a security company of an irregular noise at a warehouse found defendants with tools covered with cinder block dust along with a four foot hole in the back cinder block wall of the warehouse. Climpson v. State, 253 Ga. App. 485, 559 S.E.2d 495 (2002). Insertion of a crowbar into the locked door to a business with the intent of prying open the door, and exerting pressure on the crowbar in such a manner that the striker plate on the door was bent and damaged, constituted a substantial step toward the commission of the crime of burglary to support a conviction for attempted burglary. Flanagan v. State, 265 Ga. App. 122, 592 S.E.2d 894 (2004). Evidence was sufficient to support the defendant’s conviction for attempted burglary as the evidence showed that the defendant took the substantial step of prying open the carport door of the house of another person, the exterior of which was 100 percent complete, so that the

defendant could steal the valuable construction tools inside, and that the defendant was caught in the act while doing so. Weeks v. State, 274 Ga. App. 122, 616 S.E.2d 852 (2005). Evidence supported the defendant’s conviction for attempted burglary after the defendant admitted trying to break into a gas station to steal beer and cigarettes. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219 (2005). Sufficient evidence, including that the defendant took a substantial step of knocking off the victim’s shed door handle, without authority, with the intent to steal valuable goods therein, supported an attempted burglary conviction; moreover, although the defendant denied any intention to commit a theft, the credibility of the witnesses and the questions as to the reasonableness of the defendant’s actions were issues for the factfinder to decide. Minor v. State, 278 Ga. App. 327, 629 S.E.2d 44 (2006). Sufficient evidence supported the defendant’s conviction of criminal attempt to commit burglary since the defendant, who had a history of sexual assaults, went to a hotel alone, late at night, wearing a mask, since, after visiting the hotel parking lot once before in the evening, and following a female hotel employee until the employee ran, the defendant approached the office door where that same lone female hotel employee had returned to work, and attempted to open the locked door, since, when the locked door would not open, the defendant continued to shake the door violently, still wearing the mask, and since, when the defendant saw the hotel employee pick up the phone and dial 9-1-1, the defendant fled; in light of this evidence, the jury was authorized to conclude that the defendant took a substantial step toward entering the hotel office without authority to commit a sexual felony therein. Swint v. State, 279 Ga. App. 777, 632 S.E.2d 712 (2006). Defendant was properly sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual § 4B1.1(a) based upon a Georgia attempted burglary of a dwelling conviction under O.C.G.A. §§ 16-4-1 and 16-7-1 because the defen-

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

dant failed to object to the factfindings at sentencing, which conclusively established that the defendant was in fact convicted of attempting to commit a generic burglary within the meaning of 18 U.S.C. § 924(e); thus, because that offense was an enumerated violent felony, the crime of attempting to commit that offense was also a violent felony, permitting the court to use the conviction as a predicate offense under the Armed Career Criminal Act after the defendant pled guilty to violating 18 U.S.C. § 922(g). United States v. Wade, 458 F.3d 1273 (11th Cir. 2006). There was sufficient evidence to support defendant’s convictions of malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon; in addition to testimony by a codefendant and eyewitness testimony by the victim’s spouse, the victim’s blood was on the defendant’s clothes, the defendant had the victim’s keys, and the knife used to kill the victim and a pistol were discovered near the site of the defendant’s arrest in some woods near the scene of the crime. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L.Ed.2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011). Despite a sufficiency challenge to an adjudication on a charge of criminal attempt to commit burglary, the court of appeals upheld the finding because the juvenile’s conduct including: (1) repeatedly ringing the victim’s doorbell; (2) hiding in the backyard; (3) furtive observation of the victim’s house; (4) telephone contact with the other juvenile who was at the victim’s front door; and (5) climbing over a basketball goal to reach a window at the back of the house was suspicious and undoubtedly consistent with preparation for a daylight burglary. Moreover, the juvenile’s actions, as well as evidence of a bent window screen, constituted evidence of a substantial step towards entering the victim’s house without authority and inconsistent with a lawful purpose. In the Interest of R.C., 289 Ga. App. 293, 656 S.E.2d 914 (2008). Evidence supported a conviction of criminal attempt to commit burglary. The

victim heard knocking at the victim’s sliding glass door and saw the defendant, a neighbor, crouched down holding a crowbar and beating the bottom track of the door; when the victim asked what the defendant was doing, the defendant said, ‘‘Oh, you’re home,’’ and asked to borrow the victim’s shovel, then said that the defendant had just wanted to make sure the victim was okay and left without the shovel; when police asked the defendant what had gone on, the defendant said, ‘‘I didn’t have a crowbar in my hand. I had a screwdriver in my hand’’; and during an interview with police, the defendant gave differing explanations for the defendant’s actions. Rudnitskas v. State, 291 Ga. App. 685, 662 S.E.2d 729 (2008). Evidence was sufficient to show that the defendant, who was convicted of attempted burglary under O.C.G.A. §§ 16-4-1 and 16-7-1, had the intent to rob the sawmill in question. The defendant and others set out early on a Saturday and entered the property in an unusual way; and the defendant drove the getaway truck, lied to police, and failed to produce a flashlight when asked to empty the defendant’s pockets. Armour v. State, 292 Ga. App. 111, 663 S.E.2d 367 (2008). Trial court did not err in denying a defendant’s motion for a directed verdict of acquittal on a charge of attempted burglary in violation of O.C.G.A. §§ 16-4-1 and 16-7-1(a) because the evidence was sufficient to authorize the jury to conclude that the defendant took a substantial step toward entering an owner’s apartment to commit a felony; the defendant’s inculpatory statement that the defendant intended to enter the owner’s apartment to get money was direct evidence of the defendant’s guilt, and this statement, combined with a witness’s testimony that the witness heard the defendant and the defendant’s brother discuss entering the owner’s apartment through the window, saw them on the owner’s porch, and then heard the window breaking, provided ample evidence to support the defendant’s conviction of attempted burglary beyond a reasonable doubt. Durham v. State, 295 Ga. App. 734, 673 S.E.2d 80 (2009). With regard to the defendant’s conviction for attempted burglary, sufficient ev-

Application (Cont’d) 1. Offenses Against Property (Cont’d) idence supported the conviction because the jury evaluated the nature of the circumstances of the morning’s events, as well as the daughter’s eyewitness testimony identifying the defendant and, although the defendant explained that it was mistakenly the wrong house, the jury was authorized to come to a different and reasonable conclusion based on the state’s case. White v. State, 323 Ga. App. 660, 744 S.E.2d 857 (2013). Evidence was sufficient to sustain the defendant’s attempted burglary conviction since the victim testified that, after the victim woke and saw the defendant outside, the victim found the screen to an open window on the hood of the victim’s car and found a piece of carpet the victim had left in the window sill for the victim’s cat to sit on in the yard. The jury thus could have found that the defendant removed the screen in an attempt to gain entrance into the house. Dillard v. State, 323 Ga. App. 333, 744 S.E.2d 863 (2013). Evidence sufficient for criminal attempt to commit theft by receiving stolen property. - Evidence that the informant told the defendant that the items being pawned were not ‘‘hot, hot,’’ the defendant’s failure to put serial numbers of the items on the pawn tickets or property-tracking website, the defendant’s instructions to the informant to remove the packaging of one of the new items, and the defendant’s admission that the defendant had been suspicious of the informant was sufficient to support the defendant’s conviction for criminal attempt to commit theft by receiving stolen property. Miller v. State, 323 Ga. App. 412, 744 S.E.2d 926 (2013). Rule of lenity did not apply. - Trial court did not err in not applying the rule of lenity with regard to the defendant’s conviction for criminal attempt to commit burglary because the crimes of criminal trespass and criminal attempt to commit a burglary did not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime; thus, the rule of lenity did not apply. Snow v. State, 318

Ga. App. 131, 733 S.E.2d 428 (2012). Attempt to push open door sufficient for attempted burglary. - Defendant’s attempted burglary conviction, O.C.G.A. § 16-4-1, was supported by evidence that the victim heard someone ‘‘snatching’’ at and ‘‘pushing on’’ the victim’s door. When the victim observed the defendant and another person outside the victim’s house, the victim threatened to shoot them; they fled in a car that they had parked close enough to the house that they could have stood on the car and climbed through a window. Mock v. State, 306 Ga. App. 93, 701 S.E.2d 567 (2010). Severance from separate charge of armed robbery. - Attempted armed robbery conviction was upheld on appeal, as severance from a separate charge of armed robbery was not required, given that the two crimes were part of a series of connected acts, committed within a short period of time, in the same area, with the same weapon, and involved a similar modus operandi. Fields v. State, 283 Ga. App. 208, 641 S.E.2d 218 (2007). Evidence sufficient for criminal attempt to commit armed robbery. - Since the victim testified that, while threatening the victim with a loaded gun and after telling the victim that defendant wouldn’t hesitate to kill the victim, defendant asked, ‘‘do you got any money in here?’’, the evidence provided a sufficient basis for the jury’s determination that defendant was guilty of criminal attempt to commit armed robbery. Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001). Evidence was sufficient to support the defendant’s conviction of criminal attempt to commit armed robbery because the defendant surreptitiously watched others at a fast food restaurant, wore a mask, and drew a BB handgun that resembled a semi-automatic weapon when the defendant was confronted by a police officer. New v. State, 270 Ga. App. 341, 606 S.E.2d 865 (2004). Evidence supported the defendant’s conviction for armed robbery, attempted armed robbery, burglary, and one firearms offense because: (1) the defendant confessed to the crimes; (2) a companion wore distinctive shoes that matched those of an armed robber; (3) two dust-free ski masks,

CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION

similar to those worn by the armed robbers, were found in the defendant’s very dusty utility closet; and (4) a small red car was parked near a restaurant that was robbed, officers stopped the defendant two hours later, and the defendant drove the same car to the police station when the defendant came for voluntary questioning. Ray v. State, 273 Ga. App. 656, 615 S.E.2d 812 (2005). Evidence supported a conviction for criminal attempt to commit armed robbery because the defendant jumped over the counter at a restaurant, held a knife to a waitress’ neck and, after fleeing the scene and being caught by police, admitted to the crime. Lemming v. State, 272 Ga. App. 122, 612 S.E.2d 495 (2005), overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009). Armed robbery, attempted armed robbery, and possession of a firearm during the commission of a crime convictions were upheld on appeal, based on sufficient evidence supporting the defendant’s guilt, specifically, a security surveillance videotape, eyewitness testimony, and the defendant’s voluntary admission to police. Smith v. State, 281 Ga. App. 587, 636 S.E.2d 748 (2006). Evidence was sufficient to convict the defendant of criminal attempt to commit armed robbery, even though the defendant never said the defendant was going to rob a store or demanded money, as the jury was authorized to find that, having spent all of the defendant’s money, the defendant took the substantial step of entering the store with a knife with the intent to commit robbery. Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008). Evidence supported the defendant’s convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant,

with the defendant’s hand in the defendant’s pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (2011). Victim’s testimony that the defendant was one of the two men who came into the victim’s house, beat the victim with fists and a flashlight, and demanded the victim’s keys and money authorized the jury to find the defendant guilty of burglary, aggravated battery, and criminal attempt to commit armed robbery. Garmon v. State, 317 Ga. App. 634, 732 S.E.2d 289 (2012). Evidence including testimony as to the gang’s criminal activities, corroborating the defendant’s participation in the armed robberies; the defendant’s admission to participating in two murders; and a gun the defendant used in the attempted armed robbery of the first victim was sufficient to support the defendant’s convictions for criminal street gang activity, criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. Morris v. State, 322 Ga. App. 682, 746 S.E.2d 162 (2013). Sufficient evidence supported the defendant’s convictions for two counts of armed robbery with respect to two victims at the first residence, attempt to commit armed robbery with respect to one of the victims at the first residence, and two counts of burglary with respect to the two residences because the accomplice testimony was sufficiently corroborated by one of the witnesses, who identified the defendant. Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013). Evidence that men ultimately identified as the defendant and the codefendant broke into the victims’ home, held all three victims at gunpoint while demanding drugs and money, and began loading electronics and other valuables from the home into the victims’ vehicle before fleeing the premises was sufficient to support the defendant’s three attempted armed robbery convictions. Issa v. State, 340 Ga. App. 327, 796 S.E.2d 725 (2017).

Application (Cont’d) 1. Offenses Against Property (Cont’d) Jury was authorized to conclude that the defendant used a firearm to attempt to take money from the victim given the victim’s testimony that the defendant pulled out a gun and asked the victim what the victim had in the victim’s pockets. Green v. State, 304 Ga. 385, 818 S.E.2d 535 (2018). Evidence insufficient to convict for attempt to commit theft by taking as a fiduciary. - Evidence was insufficient to convict the defendant of criminal attempt to commit theft by taking by a fiduciary as the relationship between the defendant and the employer was merely that of employer-employee because, although the defendant was responsible for creating invoices, the defendant did not have authority to act for the employer beyond weighing the metals and assigning to the weight a dollar amount that had been previously fixed by the employer; and the defendant could not negotiate with the customers or independently determine how much the metals were worth; thus, although the conviction for criminal attempt to commit theft by taking stood, the felony sentence, based on the defendant being a fiduciary, was reversed. Scott v. State, 344 Ga. App. 412, 810 S.E.2d 613 (2018). Criminal attempt not included in offense of shoplifting. - Trial court did not err in refusing to instruct on criminal attempt as a lesser included offense of theft by shoplifting where the evidence showed that defendant concealed shirts in defendant’s pants while in the store and the only issue for the jury was whether defendant had the requisite intent to shoplift; if the jury had not found such intent, it would have been required to acquit defendant. Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995). Possession of firearm did not merge with attempted armed robbery conviction. - Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b)

and (e). McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005). Criminal attempt to commit theft from vehicle. - There was no merit to argument of juvenile defendant that circumstantial evidence was insufficient to prove the acts of entering an automobile and criminal attempt to commit theft from a vehicle since, during the early morning hours, defendant was in the area where a car stereo was stolen and the attempted theft of tire rims occurred, a driver’s license bearing the false name defendant gave was found at the crime scene, defendant returned to the car that defendant was driving with a car stereo, and car stereo parts were found in the car defendant was driving. In the Interest of C.M., 290 Ga. App. 788, 661 S.E.2d 598 (2008). Defendant’s act of repeatedly pulling at a vehicle’s door handle in a sorority house parking lot at 2:00 A.M. amounted to more than a mere preparatory act, and was instead an act proximately leading to the consummation of the crime of entering an automobile, supporting the defendant’s conviction for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and