[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Nolan, Slip Opinion No. 2014-Ohio-4800.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4800
THE STATE OF OHIO, APPELLANT, v. NOLAN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Nolan, Slip Opinion No. 2014-Ohio-4800.]
Criminal law—R.C. 2923.02—R.C. 2903.02(B)—Attempted felony murder is not a
cognizable crime in Ohio.
(No. 2013-1290—Submitted June 24, 2014—Decided November 5, 2014.)
APPEAL from the Court of Appeals for Portage County,
No. 2012-P-0047, 2013-Ohio-2829.
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SYLLABUS OF THE COURT
Attempted felony murder is not a cognizable crime in Ohio.
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PFEIFER, J.
{¶ 1} The state argues that “[a]n appellate district court errs in finding
attempted felony murder by means of a deadly weapon is not a viable criminal
offense in Ohio because that decision is in conflict with State v. Williams, 124
SUPREME COURT OF OHIO
Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937.” We disagree, and we affirm
the judgment of the court of appeals.
BACKGROUND
{¶ 2} After a jury trial, appellant Bobby D. Nolan was found guilty of
attempted felony murder, felonious assault, and possessing a firearm while under
a disability. On appeal, Nolan initially asserted three assignments of error. The
court of appeals concluded that each of those assignments of error was without
merit. None of those alleged errors is before us.
{¶ 3} Prior to issuing its opinion, the court of appeals determined that a
separate question needed to be reviewed. Accordingly, it ordered supplemental
briefing, and Nolan presented an additional assignment of error on the following
issue: “Whether as a matter of law, the appellant can be convicted of attempted
felony murder when there was no resultant death.” The court resolved this issue
by concluding that attempted felony murder “is not a viable criminal offense”
under Ohio law because it “constitutes a logical impossibility,” reversed the
conviction for attempted felony murder, and remanded the cause to the trial court
for further proceedings. 2013-Ohio-2829, 995 N.E.2d 902, ¶ 52-53, 64 (11th
Dist.). We accepted the state’s discretionary appeal. 137 Ohio St.3d 1421, 2013-
Ohio-5285, 998 N.E.2d 1177.
ANALYSIS
{¶ 4} As a preliminary note, we conclude that the court of appeals’
decision did not conflict with State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-
147, 922 N.E.2d 937, for the simple reason that this court’s majority opinion in
that case did not discuss attempted felony murder. Even though the state claims
that in Williams, “this Court expressly found a defendant may be found guilty of
attempted felony murder,” this court’s majority opinion in Williams never used
the term “attempted felony murder.” This court’s majority opinion did use a
version of the term “attempted murder,” with and without a hyphen, more than 40
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January Term, 2014
times, including twice in syllabus law, but did not use the term “attempted felony
murder.” It is quite clear that the propriety of a conviction for attempted felony
murder was not at issue in Williams. The opinion of the dissenting justice used
the term “attempted felony murder” twice in passing, but also did not consider the
propriety of a conviction for that offense. See id. at ¶ 30, 37. Our research
indicates that those are the only two times any opinion of this court has ever used
the term “attempted felony murder.”
{¶ 5} The issue in this case is not whether the court of appeals issued a
decision in conflict with Williams, but whether it is possible to commit “attempted
felony murder” in Ohio. For the reasons that follow, we conclude that it is not.
{¶ 6} R.C. 2923.02, the attempt statute, states:
(A) No person, purposely or knowingly, and when purpose
or knowledge is sufficient culpability for the commission of an
offense, shall engage in conduct that, if successful, would
constitute or result in the offense.
{¶ 7} One obvious requisite of the statute is that a person cannot commit
an attempt offense unless he or she has acted purposely or knowingly. Thus, to be
convicted of an attempt crime, a defendant must be shown to have attempted to
commit the crime and to have acted with the “specific intention to cause a certain
result” or the “specific intention to engage in conduct” of a certain nature, R.C.
2901.22(A), or to have acted when “aware that his conduct will probably cause a
certain result or will probably be of a certain nature,” R.C. 2901.22(B).
{¶ 8} R.C. 2903.02(B), the felony-murder statute, states:
No person shall cause the death of another as a proximate
result of the offender’s committing or attempting to commit an
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offense of violence that is a felony of the first or second
degree * * *.
{¶ 9} The felony-murder statute imposes what is in essence strict
liability. Though intent to commit the predicate felony is required, intent to kill is
not. See State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498,
¶ 31-33; State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239,
¶ 43 (R.C. 2903.02(B) “does not contain a mens rea component”); People v.
Hernandez, 82 N.Y.2d 309, 317, 604 N.Y.S.2d 524, 624 N.E.2d 661 (1993) (“The
basic tenet of felony murder liability is that the mens rea of the underlying felony
is imputed to the participant responsible for the killing. By operation of that legal
fiction, the transferred intent allows the law to characterize a homicide, though
unintended and not in the common design of the felons, as an intentional killing”
[citation omitted]).
{¶ 10} In sum, an 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. Thus, this case devolves to an anfractuous question:
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.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
_________________________
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J.
Holder, Assistant Prosecuting Attorney, for appellant.
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January Term, 2014
Richard E. Hackerd, for appellee.
Timothy Young, Ohio Public Defender, and Allen Vender, Assistant
Public Defender, urging affirmance for amicus curiae Office of the Ohio Public
Defender.
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