           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 JANUARY 2019 Term

                                                                            FILED
                                                                         April 9, 2019
                                     No. 17-0401                           released at 3:00 p.m.
                                                                       EDYTHE NASH GAISER, CLERK
                                                                       SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA

                              STATE OF WEST VIRGINIA,
                                     Respondent

                                          v.

                             MARCUS STEPHEN SANDERS,
                                     Petitioner


                    Appeal from the Circuit Court of Raleigh County
                       The Honorable John A. Hutchison, Judge
                           Criminal Action No. 15-F-242-H

                             REVERSED AND REMANDED


                              Submitted: February 6, 2019
                                 Filed: April 9, 2019

Andrew R. Shumate, Esq.                              Patrick Morrisey, Esq.
Jason D. Parmer, Esq.                                Attorney General
Public Defender Services                             Zachary Viglianco, Esq.
Charleston, West Virginia                            Assistant Attorney General
Counsel for the Petitioner                           Charleston, West Virginia
                                                     Counsel for the Respondent


JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE HUTCHISON is disqualified.
JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion.
ACTING JUSTICE LOUIS H. BLOOM sitting by temporary assignment dissents and
reserves the right to file a separate opinion.
                              SYLLABUS BY THE COURT



              1.     “‘Where the issue on an appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of

review.’ Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).”

Syl. Pt. 1, State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017).



              2.     “The crime of felony-murder in this State does not require proof of the

elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the

homicide occurs accidentally during the commission of, or the attempt to commit, one of the

enumerated felonies.” Syl. Pt. 7, State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978).



              3.     “‘In order to constitute the crime of attempt, two requirements must be

met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act

toward the commission of that crime, which falls short of completing the underlying crime.’

Syl. Pt. 2, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).” Syl. Pt. 1, State v.

Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991).



              4.     “Where formation of criminal intent is accompanied by preparation to

commit the crime of murder and a direct overt and substantial act toward its perpetration, it


                                              i
constitutes the offense of attempted murder.” Syl. Pt. 2, State v. Burd, 187 W. Va. 415, 419

S.E.2d 676 (1991).



              5.     Attempted felony-murder is not a cognizable crime under West Virginia

law.




                                             ii
WORKMAN, Justice:



              This case is before the Court upon the appeal of the petitioner, Marcus Stephen

Sanders, from the November 17, 2016, order sentencing him, inter alia, to an indeterminate

term of imprisonment of not less than three nor more than fifteen years for his jury conviction

of the charge of attempted first-degree murder under a felony-murder theory (hereinafter

“attempted felony-murder”).1 The sole issue on appeal is whether the offense of attempted

first-degree murder under a felony-murder theory is a cognizable crime in West Virginia.

Based upon our review of the parties’ arguments and briefs, which included the

Respondent’s, State of West Virginia’s (hereinafter “the State”), confession of error on the

issue, as well as the appendix record, we agree with both parties in this case and find that

there is no cognizable crime of attempted felony-murder in this State. Accordingly, we

reverse the petitioner’s conviction and sentence for attempted felony-murder and remand this

case for resentencing.




       1
        The petitioner also was convicted of one count of first-degree robbery, for which he
was sentenced to a determinate term of twenty years; two counts of wanton endangerment
involving a firearm, for which he was sentenced to a determinate term of four years on one
count and an enhanced effective sentence of eight years for the second count; and one count
of conspiracy to commit a felony, for which he was sentenced to an indeterminate term of
not less than one nor more than five years. None of these convictions or sentences are the
subject of this appeal as the petitioner raised no assigned errors regarding them.

                                              1
                           I. Facts and Procedural History

              The petitioner and his co-defendant, Deshaun Evans,2 arranged a drug deal with

Josh Palmer, who was going to sell them some drugs. After arranging the drug purchase, the

petitioner and Mr. Evans decided to rob Mr. Palmer rather than purchase the drugs from him.

Before this drug transaction was to occur, Mr. Palmer met up with Christopher Greene, who

was Mr. Palmer’s next-door neighbor in an apartment building and who was going to

purchase cigarettes. Mr. Greene had no knowledge of the drug deal. On their way to buy

cigarettes, Mr. Palmer and Mr. Greene came upon the petitioner and Mr. Evans, who was

wearing a mask at the time. Both the petitioner and Mr. Evans had guns and robbed Mr.

Greene, taking his wallet. The petitioner or Mr. Evans beat and “pistol whipped” Mr. Greene

after robbing him as Mr. Greene tried to get away. Mr. Palmer fled the scene and returned

to his apartment building where he sought help from Michelle Morr Greene, Mr. Greene’s

wife. Mrs. Greene arrived at the scene where her husband was being beaten and as she tried

to help, she sustained a single gunshot wound when four rounds from a gun were discharged.

There was no evidence as to who discharged the gun.



              On May 13, 2015, the petitioner was indicted on eight counts, including first-

degree robbery of Mr. Greene, attempted first-degree murder of Mr. Greene, wanton


      2
       Mr. Evans was also indicted on five counts, which included first-degree robbery,
attempted first-degree murder, malicious wounding, wanton endangerment and felony
conspiracy. His case is not the subject of the instant appeal.

                                             2
endangerment involving a firearm of Mr. Greene, attempted first-degree murder of Mrs.

Greene, malicious assault of Mrs. Greene, wanton endangerment involving a firearm of Mrs.

Greene, misdemeanor illegal possession of a firearm, and felony conspiracy.



              It was not until the final pretrial hearing, which occurred the day before the

trial, that the State indicated that it would pursue the theory of attempted felony-murder

against the petitioner.3 The petitioner objected, arguing that there is no attempted felony-

murder crime. The circuit court, however, allowed the State to proceed with attempted first-

degree-felony-murder, which both parties and the circuit court acknowledged relieved the

State of proving premeditation or specific intent. As the circuit court stated, “if . . . [the

State] proves that the attempted murder occurred during the commission of a crime, it’s

easier for . . . [it] to prove the commission of the crime than it is to prove premeditation.

That’s one of those anomalies and, I mean, the Supreme Court discussed it at some length

in Dallas Hughes.”4

       3
       Perhaps had the State not waited until the day before trial to proceed on an attempted
felony-murder theory, the issue could have been legally developed by the parties, which
could have prevented the erroneous decision reached below.
       4
        The circuit court was referring to State v. Hughes, 225 W. Va. 218, 691 S.E.2d 813
(2010), in which the defendant was convicted of first-degree murder. In Hughes, the Court
was focused upon the issue of whether an indictment has to expressly charge a defendant
with felony-murder and whether the State could send both a felony-murder charge and a
premeditated murder charge to the jury. Id. at 221, 691 S.E.2d at 816. We found that the
indictment did not have to specify the State’s theory of prosecution, recognizing that felony-
murder was an alternative theory of proving first-degree murder. Id. at 224-25, 691 S.E.2d
                                                                                (continued...)

                                              3
              The jury, after hearing all the evidence presented at trial, convicted the

petitioner on the charge of attempted felony-murder of Mr. Greene, among other counts. On

November 16, 2016, the circuit court sentenced the petitioner to an indeterminate term of not

less than three nor more than fifteen years on this count.5 It is from the circuit court’s

sentencing order that the petitioner appeals.



                                  II. Standard of Review

              We are guided by the following standard of review in resolving the issue now

before the Court: “‘Where the issue on an appeal from the circuit court is clearly a question

of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syl.

Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 1,

State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017).




       4
        (...continued)
at 819-20. We further found that the State could rely upon both premeditated murder and
felony-murder at a trial on a first-degree murder charge so long as each theory was
distinguished for the jury through instructions. Id. at 226, 691 S.E.2d at 821. It appears from
the appendix record that the circuit court was relying upon the Hughes decision to support
the proposition that the State did not have to specifically indict the petitioner on attempted
felony-murder and that the State could advance both an attempted murder and an attempted
felony-murder theory at trial. Nothing, however, in the Hughes decision supports the
proposition that attempted felony-murder is a cognizable crime in this State.
       5
        See supra note 1 (setting forth petitioner’s complete sentence).

                                                4
                                        III. Discussion

               The sole issue in this case is whether the crime of attempted felony-murder

exists in West Virginia. The petitioner contends that it does not. He argues that the circuit

court’s attempted felony-murder instruction diminished the State’s burden of proof and

violated his right to due process because it excluded the essential element of any attempt

crime in this State – the mens rea. He also argues that the felony-murder doctrine does not

apply in the absence of a death in the commission of a felony. As the petitioner contends,

the felony-murder doctrine is a special rule that allows for punishment of unintentional

deaths that occur during the course of the commission (or attempted commission) of certain

felonies. Thus, if there is no death, then this doctrine is not applicable. The State agrees with

the petitioner on the issue before us, arguing that existing law in West Virginia forecloses

the existence of the crime of attempted felony-murder.



               We begin by examining our felony-murder law to better understand why

attempted felony-murder is not a viable crime. West Virginia Code § 61-2-1 (2014) defines

felony-murder as follows: “Murder . . . in the commission of, or attempt to commit, arson,

kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful

custody, or a felony offense of manufacturing or delivering a controlled substance as defined

in article four, chapter sixty-a of this code, is murder of the first degree.” (Citation omitted).

This Court has found that “[t]he crime of felony-murder in this State does not require proof


                                                5
of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if

the homicide occurs accidentally during the commission of, or the attempt to commit, one of

the enumerated felonies.” Syl. Pt. 7, State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978)

(emphasis added); see Syl. Pt. 2, State ex rel. Davis v. Fox, 229 W. Va. 662, 735 S.E.2d 259

(2012) (“‘“[T]he elements which the State is required to prove to obtain a conviction of

felony murder are: (1) the commission of, or attempt to commit, one or more of the

enumerated felonies; (2) the defendant’s participation in such commission or attempt; and

(3) the death of the victim as a result of injuries received during the course of such

commission or attempt.” State v. Williams, 172 W. Va. 295, 305 S.E.2d 251, 267 (1983).’

Syl. Pt. 5, State v. Mayle, 178 W. Va. 26, 357 S.E.2d 219 (1987).”).          Thus, we have

definitively concluded that in order for felony-murder to apply, there must be a homicide.

As we stated in the Davis case,

              [t]o date, the offense of felony murder, which has its origins in
              the common law of this state, has always involved the death of
              a victim of the felony or a police officer. See State v. Wade, 200
              W. Va. 637, 490 S.E.2d 724 (1997); Mayle, 178 W. Va. at 28,
              357 S.E.2d at 222, State v. Williams, 172 W. Va. 295, 305
              S.E.2d 251 (1983); State v. Dawson, 129 W. Va. 279, 40 S.E.2d
              306 (1946); State v. Beale, 104 W. Va. 617, 630, 141 S.E. 7, 12
              (1927). Consequently, we flatly disagree with Petitioner’s
              suggestion that our settled jurisprudence “offer[s] no insight on
              whether the Felony Murder statute requires proof of the death of
              the victim.”

                     At common law, a conviction for felony murder
              predicated on the offense of robbery required a showing of a
              homicide committed by the defendant or by an accomplice in the
              attempt to commit or in the commission of a robbery. See Sims,

                                              6
              162 W. Va. at 223, 248 S.E.2d at 841; Robertson v.
              Commonwealth, 1 Va.Dec. 851, 856, 20 S.E. 362, 364 (1894).

Davis, 229 W. Va. at 668, 735 S.E.2d at 265.



              It is only when a homicide occurs during the commission of one of the

statutorily enumerated felonies6 that felony-murder becomes operable because it is the

occurrence of the homicide that allows the transfer of intent involved in the underlying

felony to fulfill the intent needed for first-degree murder. As the Court stated in State v.

Young, 173 W. Va. 1, 311 S.E.2d 118 (1983),

              [t]he felony murder doctrine, as developed at common law,
              provides that where a homicide occurs in the course of, or as a
              result of, a separate, distinct felony, the felonious intent
              involved in the underlying felony may be transferred to supply
              the intent to kill necessary to characterize the homicide as
              murder. See generally 40 Am. Jur. 2d, Homicide, § 72 et seq.
              (1968); Annot., 13 A.L.R. 4th 1226 (1982).

173 W. Va. at 16-17, 311 S.E.2d at 134. Accordingly, a felony-murder theory eliminates the

State’s burden to prove specific intent. The State, however, must still prove that a defendant

intended to commit one of the statutorily enumerated felonies and that a homicide, even an

accidental, unintended homicide, occurred during the commission or attempt to commit one

of those enumerated felonies in order to reap the benefit of the transferred intent that a

felony-murder theory provides. See W. Va. Code § 61-2-1. Succinctly stated, without a



       6
        See W. Va. Code § 61-2-1.

                                              7
homicide during the commission of a statutorily enumerated felony, the crime of felony-

murder cannot be committed as the crime lacks intent. Id.



              Turning to whether attempted felony-murder is a viable crime in this State, this

Court has previously held in syllabus point one of State v. Burd, 187 W. Va. 415, 419 S.E.2d

676 (1991), that

                     “[i]n order to constitute the crime of attempt, two
              requirements must be met: (1) a specific intent to commit the
              underlying substantive crime; and (2) an overt act toward the
              commission of that crime, which falls short of completing the
              underlying crime.” Syl. Pt. 2, State v. Starkey, 161 W. Va. 517,
              244 S.E.2d 219 (1978).

(Emphasis added). Significantly, in so holding, the Court recognized that a vital element of

any attempt crime is “a specific intent to commit the underlying substantive crime.” 187 W.

Va. at 415, 419 S.E.2d at 676, Syl. Pt. 1. Thus, in the context of attempted first-degree

murder, this Court has determined that “[w]here formation of criminal intent is accompanied

by preparation to commit the crime of murder and a direct overt and substantial act toward

its perpetration, it constitutes the offense of attempted murder.” Id., Syl. Pt. 2 (emphasis

added). Conceptually, therefore, the crime of attempted felony-murder fails because the

requisite specific intent requirement of any attempt crime is lacking. In other words, the

intent in an attempted felony-murder is inextricably intertwined with the commission of one

of the underlying felonies listed in the felony-murder statute, West Virginia § 61-2-1, and not

the requisite specific intent to commit murder needed for an attempted murder. Further,

                                              8
without a homicide, there is no transferred intent. It is, therefore, a non sequitur to even

suggest that a defendant can be convicted of attempted felony-murder.



              The jury instruction given in this case exemplifies the fallacy that attempted

felony-murder is a crime. The jury was instructed on attempted felony-murder as follows:

              In order to find the defendant Marcus Stephen Sanders guilty of
              attempted first degree murder, you must find beyond a
              reasonable doubt that (1) the defendant Marcus Stephen Sanders
              (2) on or about December 9, 2014 (3) in Raleigh County, West
              Virginia, (4) did, during the commission of the felony crime of
              robbery or delivery of a controlled substance7 (5) attempt to kill
              Christopher Greene, (6) and that he committed a substantial
              overt act toward the commission of the crime, (7) but which act
              fell short of completing the underlying crime.

(Footnote added). This instruction relies upon the transferred intent derived from felony-

murder, i.e., the intent to commit the underlying robbery, but without a homicide. The

instruction is devoid of the requisite element of mens rea necessary for every attempt crime,

which in this case would be the specific intent to kill Mr. Greene. See Burd, 187 W. Va. at

415, 419 S.E.2d at 676, Syl. Pt. 1. The instruction given to the jury, therefore, undeniably

relieved the State from its burden of proving the specific intent necessary for every attempt

crime.


         7
        The petitioner is not charged with the underlying felony of delivery of a controlled
substance in the indictment contained in the appendix record. The circuit court’s docket
sheet, which is also part of the appendix record, indicates that a motion to amend the
indictment was granted, but neither the motion nor an amended indictment appears in the
appendix record.

                                              9
              Thus, because the crime of attempt requires as one of its elements the specific

intent to commit the underlying substantive crime, and because the only way that the

transferred intent of felony-murder is achieved is if an actual homicide occurs, we now hold

that attempted felony-murder is not a cognizable crime under West Virginia law.8


       8
        It is within the prerogative of the Legislature to enact a new law establishing that
certain acts constitute attempted felony-murder. Currently, however, only the State of
Florida has codified the crime of attempted felony-murder as follows:

                     (1) Any person who perpetrates or attempts to perpetrate
              any felony enumerated in s. 782.04(3) and who commits, aids,
              or abets an intentional act that is not an essential element of the
              felony and that could, but does not, cause the death of another
              commits a felony of the first degree, punishable by
              imprisonment for a term of years not exceeding life, or as
              provided in s. 775.082, s. 775.083, or s. 775.084, which is an
              offense ranked in level 9 of the Criminal Punishment Code.
              Victim injury points shall be scored under this subsection.

                     (2) Any person who perpetrates or attempts to perpetrate
              any felony other than a felony enumerated in s. 782.04(3) and
              who commits, aids, or abets an intentional act that is not an
              essential element of the felony and that could, but does not,
              cause the death of another commits a felony of the first degree,
              punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
              which is an offense ranked in level 8 of the Criminal
              Punishment Code. Victim injury points shall be scored under
              this subsection.

                      (3) When a person is injured during the perpetration of or
              the attempt to perpetrate any felony enumerated in s. 782.04(3)
              by a person other than the person engaged in the perpetration of
              or the attempt to perpetrate such felony, the person perpetrating
              or attempting to perpetrate such felony commits a felony of the
              second degree, punishable as provided in s. 775.082, s. 775.083,
                                                                                    (continued...)

                                              10
              By this decision, we join a majority of the jurisdictions that have examined this

precise issue and have similarly rejected the crime of attempted felony-murder. See State v.

Moore, 189 P.3d 1107, 1110 (Ariz. Ct. App. 2008) (holding that “attempted felony murder

is not a cognizable offense in Arizona, and it is reversible error to convict a defendant of

attempted felony murder”); People v. Billa, 79 P.3d 542, 546 n.4 (Cal. 2003) (stating that

“California has no crime of attempted felony murder.”); People v. Stephenson, 30 P.3d 715,

717 (Colo. App. 2000) (finding that attempted felony-murder “is non-existent because it is

a ‘logical impossibility[]’” and concluding that “defendant’s conviction for ‘attempted felony

murder’ cannot stand.”); Rambo v. State, 939 A.2d 1275, 1281 (Del. 2007) (stating that

“[a]ttempted felony murder is not recognized to be a crime in Delaware”); State v. Pratt, 873

P.2d 800, 812 (Idaho 1993) (determining that “[a]ttempted felony murder is not a crime in

Idaho.”); People v. Viser, 343 N.E.2d 903, 911 (Ill. 1975) (reversing conviction for attempted

felony-murder, stating that “the unique characteristic of felony murder is that it does not

include an intent to kill, and it was error to instruct the jury that the defendants could be

found guilty of attempted murder in the absence of such an intent.”); Head v. State, 443


       8
        (...continued)
               or s. 775.084, which is an offense ranked in level 7 of the
               Criminal Punishment Code. Victim injury points shall be scored
               under this subsection.

Fla. Stat. § 782.051 (West Supp. 2019). We further note that prior to the enactment of this
statute, the Supreme Court of Florida expressly found that “the crime of attempted felony
murder is logically impossible.” State v. Gray, 654 So.2d 552, 553 (Fla. 1995), superseded
by statute as stated in Weatherspoon v. State, 214 So.3d 578 (Fla. 2017).

                                             11
N.E.2d 44, 50 (Ind. 1982) (reversing conviction for attempted murder, finding that “the

felony-murder rule cannot be applied unless the death of another occurred by virtue of the

commission or attempted commission of the underlying felony. In other words, absent death

the applicability of the felony-murder rule is never triggered.”); State v. Robinson, 883 P.2d

764, 767 (Kan. 1994) (stating that “Kansas does not recognize the crime of attempted felony

murder.”); Bruce v. State, 566 A.2d 103, 105 (Md. 1989) (holding that “[b]ecause a

conviction for felony murder requires no specific intent to kill, it follows that because a

criminal attempt is a specific intent crime, attempted felony murder is not a crime in

Maryland.”); State v. Rhett, 601 A.2d 689, 692 (N.J. 1992) (reversing attempted murder

conviction because lower court incorrectly charged jury on requisite mental state for

attempted murder, stating “an actor cannot attempt to cause death unless death is a conscious

object of the actor’s conduct. See State v. Darby, 200 N.J.Super. 327, 331, 491 A.2d 733

(App. Div. 1984) (‘attempted felony murder’ cannot be a crime because it is a

self-contradiction; one does not intend an unintended result).”); State v. Ortega, 817 P.2d

1196, 1202 (N.M. 1991) (acknowledging that crime of attempted felony murder is not

recognized in New Mexico), abrogated on other grounds as stated in Kersey v. Hatch, 237

P.3d 683 (N.M. 2010); State v. Lea, 485 S.E.2d 874, 880 (N.C. Ct. App. 1997) (holding that

“offense of ‘attempted first degree felony murder’ does not exist” under North Carolina law);

State v. Nolan, 25 N.E.3d 1016, 1018 (Ohio 2014) (finding that attempted felony-murder is

not crime in Ohio); Commonwealth v. Griffin, 456 A.2d 171,177 (Pa. Super. Ct. 1983)


                                             12
(stating that “it does not follow that those persons would be guilty of attempted murder if a

killing did not occur. They would not be guilty of attempted murder because they did not

intend to commit murder–they only intended to commit a felony or to commit bodily harm.”);

State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996) (relying upon other jurisdictions

finding attempted felony-murder does not exist and concluding that “one cannot intend to

accomplish the unintended. Consequently, the offense of attempted felony-murder does not

exist in Tennessee.”); State v. Bell, 785 P.2d 390, 394 (Utah 1989) (determining that “in the

face of logic, the conclusion is inescapable that the crime of attempted murder requires proof

of intent to kill. Therefore, we also hold that attempted felony-murder does not exist as a

crime in Utah.”); Goodson v. Commonwealth, 467 S.E.2d 848, 856 (Va. Ct. App. 1996)

(concluding that “[t]o allow use of the felony murder doctrine to impute specific intent from

the intent to commit the underlying felony [in an attempted felony-murder case] would

eliminate the Commonwealth’s burden to prove a specific intent to kill as an element of

attempted murder.”); In re Richey, 175 P.3d 585, 587 (Wash. 2008) (concluding that the

crime of attempted felony-murder does not exist in Washington because “[i]n electing to

charge first degree felony murder, the State relieves itself of the burden to prove an intent to

kill or, indeed, any mental element as to the killing itself. It follows that a charge of

attempted felony murder is illogical in that it burdens the State with the necessity of proving

that the defendant intended to commit a crime that does not have an element of intent.”);

State v. Briggs, 579 N.W.2d 783, 786 (Wis. Ct. App. 1998) (determining that “there is no


                                              13
crime of attempted felony murder in the State of Wisconsin”); see also State v. Gay, 830

So.2d 356, 364 (La. Ct. App. 2002) (“There exists no such crime as attempted second degree

felony murder because that crime requires proof of specific intent to kill; this is inconsistent

with the felony murder theory of an unintentional killing. Thus, the crime of attempted

second degree murder cannot be based upon an underlying felony.”) (citations omitted); State

v. Dahlstrom, 150 N.W.2d 53, 58 (Minn. 1967) (discussing attempted murder in third degree

and concluding, “[b]ut we cannot conceive of a factual situation which could make such

conduct attempted murder in the third degree where the actor did not intend the death of

anyone and where no death occurred.”); People v. Burress, 505 N.Y.S.2d 272, 273 (N.Y.

App. Div. 1986) (holding that attempted second-degree murder is nonexistent crime).9


       9
        Some states have not addressed this issue head-on, but have endorsed the majority
view. See, e.g., Cockrell v. State, 890 So.2d 168, 172 (Ala. Crim. App. 2003), aff’d, 890
So.2d 174 (Ala. 2004) (discussing transferred intent and quoting Poe v. State, 671 A.2d 501,
504 (Md. 1996), wherein Maryland court noted “‘[c]learly, there is no crime of attempted
felony murder when no death occurs during the course of a felony. . . . Likewise, the
doctrine of transferred intent does not apply to attempted murder when there is no death.’”);
Summerlin v. State, 793 S.E.2d 477, 483 (Ga. Ct. App. 2016), cert. denied, No. S17C0595
(Ga. May 15, 2017) (declining to decide issue of whether attempt to commit felony-murder
is crime in Georgia, but approving logic of majority of jurisdictions that had addressed issue
and concluded that it is not crime); Keys v. State, 766 P.2d 270, 273 (Nev. 1988) (discussing
specific intent to kill another person needed for attempted murder and recognizing that
“[a]ttempted murder can be committed only when the accused’s acts are accompanied by
express malice, malice in fact. One cannot attempt to kill another with implied malice
because there “‘“is no such criminal offense as an attempt to achieve an unintended result.”’”
Ramos [v. State], 95 Nev. [251] at 253, 592 P.2d [950] at 951 [(Nev. 1979)] (quoting People
v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 910 (1975)). An attempt, by nature, is a failure to
accomplish what one intended to do.”); see also State v. King, 810 S.E.2d 18, 22 (S.C. 2017)
(stating that “[w]hile it may seem counterintuitive for the attempt of a crime to require a
                                                                                 (continued...)

                                              14
              Similar to our reasoning, the Arizona court found in Moore that

              the concept of attempted felony murder presents a logical
              absurdity. Felony murder differs from murder . . . because the
              defendant may be found guilty of felony murder even when the
              killing is unintended. . . . There is no specific requirement of a
              culpable mental state regarding the homicide; rather, the
              requisite mental state is supplied by law from the accompanying
              felony. A.R.S. § 13-1105(B) (providing that felony murder
              “requires no specific mental state other than what is required for
              the commission of any of the enumerated felonies”); [State v.]
              McLoughlin, 139 Ariz. [481] at 485-86, 679 P.2d [504] at 508-
              09 [(Ariz. 1984)] (“[T]he mens rea necessary to satisfy the
              premeditation element of first-degree murder is supplied by the
              specific intent required for the felony.”). As a result of this
              fictional transfer, the homicide is deemed in the eyes of the law
              to have been committed with the traditionally required malice or
              mental state.

                     When attempt is attached to felony murder, however, the
              doctrine becomes nonsensical. Attempt requires intent to
              commit the target offense. A.R.S. § 13-1001. Therefore, if
              attempted felony murder were cognizable in Arizona, a
              defendant would need the specific intent to commit an intended
              felony that results in an unintended homicide. This is, of course,
              the reductio ad absurdum, as there can be no criminal offense
              that requires an attempt to accomplish an unintended result.

Moore, 189 P.3d at 1109 (some emphasis added); accord Lea, 485 S.E.2d at 880 (“We

conclude that a charge of “attempted felony murder” is a logical impossibility in that it would

require the defendant to intend what is by definition an unintentional result.”).



       9
         (...continued)
higher level of mens rea than that of the completed crime, this is the majority rule and a rule
that our appellate courts and General Assembly have followed. Consequently, . . . we hold
that a specific intent to kill is an element of attempted murder.”).

                                              15
              Likewise, the Supreme Court of Ohio concluded that attempted felony-murder

was not a viable crime, reasoning:

                      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.

Nolan, 25 N.E.3d at 1018. Moreover, the Superior Court of New Jersey aptly stated in

Darby, “[a] felony murder, i.e., a death caused neither knowingly [n]or purposely, is by

definition not a result which is purposely planned. ‘Attempted felony murder’ is a

self-contradiction, for one does not ‘attempt’ an unintended result.” 491A.2d at 736. In

other words, the “description of the purported crime of attempted felony murder is manifestly

unintelligible. . . . The fact is that the concepts of attempt and felony murder cannot

rationally be joined.”10 Id.



              In addition to the plethora of legal authority supporting our decision, a review

of our criminal statutory scheme unquestionably shows that our Legislature has already



       10
        The only outlier jurisdiction to recognize the crime of attempted felony-murder is
Arkansas and the Supreme Court of Arkansas did so without any analysis or thoughtful
discussion of the issue. See White v. State, 585 S.W.2d 952, 953-54 (Ark. 1979).

                                             16
addressed those instances where bodily injury occurs during the commission of a crime and

provided for punishment.11 For instance, West Virginia Code § 61-7-12 (2014) provides for

the crime of wanton endangerment involving a firearm, for which the petitioner in this case

was charged, convicted, and sentenced on two counts for a determinate term of four years

on one count and an enhanced effective sentence of eight years for the second count.

Further, our robbery statute, West Virginia Code § 61-2-12 (2014), under which the

petitioner also was convicted and received a twenty-year sentence, specifically provides for

a severe punishment of “not less than ten years” when a defendant commits a robbery or

attempts to commit robbery by use of violence to the victim, or by use of a firearm to threaten

a victim. Id. Other crimes that provide for punishment for the bodily injury of a person

during the commission of a crime include: malicious or unlawful assault, assault, and

battery, West Virginia Code § 61-2-9 (2014 and 2018 Supp.), and assault during commission

of or attempt to commit a felony, West Virginia Code § 61-2-10 (2014).



              In declining to extend attempted felony-murder beyond that which our case law

and statutory law intended, we are in no way altering the traditional application of felony-



       11
          See Kimbrough, 924 S.W.2d at 891-92 (providing that “[c]onsidering that the
legislature has already enacted specific offenses covering situations in which death or injury
is threatened or occurs during the commission of certain felonies, we conclude that to extend
the felony-murder rule to cases in which no death occurs would ‘extend the scope of the
doctrine beyond the pale of its statutory design and logical underpinnings.’ Head v. State,
443 N.E.2d 44, 51 (Ind. 1982).”).

                                              17
murder as set forth in West Virginia Code § 61-2-1, which unquestionably requires that a

homicide occur. Moreover, when there is a specific intent to murder another person during

the commission of a felony but no death occurs, attempted murder may be charged because

of the presence of specific intent. See Burd, 187 W. Va. at 415, 419 S.E.2d at 676, Syl. Pts.

1 and 2.

                                     IV. Conclusion

              Based upon the foregoing, we reverse the petitioner’s conviction and sentence

imposed for attempted felony-murder and remand this case to the Circuit Court of Raleigh

County for resentencing.



                                                                   Reversed and remanded.




                                             18
