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21-5301. Attempt. (a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.

(b) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.

(c) (1) An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1. An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for an attempt to commit a nondrug felony shall be a severity level 10.

(2) The provisions of this subsection shall not apply to a violation of attempting to commit the crime of:

(A) Aggravated human trafficking, as defined in K.S.A. 21-5426(b), and amendments thereto, if the offender is 18 years of age or older and the victim is less than 14 years of age;

(B) terrorism, as defined in K.S.A. 21-5421, and amendments thereto;

(C) illegal use of weapons of mass destruction, as defined in K.S.A. 21-5422, and amendments thereto;

(D) rape, as defined in K.S.A. 21-5503(a)(3), and amendments thereto, if the offender is 18 years of age or older;

(E) aggravated indecent liberties with a child, as defined in K.S.A. 21-5506(b)(3), and amendments thereto, if the offender is 18 years of age or older;

(F) aggravated criminal sodomy, as defined in K.S.A. 21-5504(b)(1) or (2), and amendments thereto, if the offender is 18 years of age or older;

(G) commercial sexual exploitation of a child, as defined in K.S.A. 21-6422, and amendments thereto, if the offender is 18 years of age or older and the victim is less than 14 years of age;

(H) sexual exploitation of a child, as defined in K.S.A. 21-5510(a)(1) or (4), and amendments thereto, if the offender is 18 years of age or older and the child is less than 14 years of age;

(I) aggravated internet trading in child pornography, as defined in K.S.A. 21-5514(b), and amendments thereto, if the offender is 18 years of age or older and the child is less than 14 years of age; or

(J) capital murder, as defined in K.S.A. 21-5401, and amendments thereto.

(d) (1) An attempt to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.

(2) The provisions of this subsection shall not apply to a violation of attempting to commit a violation of K.S.A. 21-5703, and amendments thereto.

(e) An attempt to commit a class A person misdemeanor is a class B person misdemeanor. An attempt to commit a class A nonperson misdemeanor is a class B nonperson misdemeanor.

(f) An attempt to commit a class B or C misdemeanor is a class C misdemeanor.

History: L. 2010, ch. 136, § 33; L. 2011, ch. 30, § 14; L. 2013, ch. 120, § 11; L. 2014, ch. 114, § 1; L. 2017, ch. 78, § 6; July 1.

Source or Prior Law:

21-3301.

CASE ANNOTATIONS

1. Convictions for attempted aggravated robbery, aggravated assault and attempted distribution or possession with intent to distribute a controlled substance are not multiplicitous with one another because the statutes for each require some element not required by the other two. State v. George, 311 Kan. 693, 699, 466 P.3d 469 (2020).

2. In prosecution for attempted distribution of a controlled substance, the "overt act" element of attempt does not require actual possession of the substance because an individual can take steps toward completing a distribution prior to actual possession. State v. Milo, 315 Kan. 434, 449, 510 P.3d 1 (2022).


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