|Moffett v. State,96 Nev. 822, 618 P.2d 1223, 1980.
PER CURIAM. Although appellant makes several assignments of error, we recognize
only one as meriting discussion, namely, whether there is sufficient evidence to support
the attempted murder conviction.
In the early morning hours of August 29, 1978, the victim, Linda Exner, was
asleep alone in her apartment. She was awakened by appellant, Deanna Moffett, who had
begun to tie her up. Deanna was accompanied by Bobby McPherson, age 14, who held a
knife to the throat of the victim. Appellant then threatened Linda and untied her hands to
enable Linda to write in her own handwriting, her "suicide note" appellant had written
earlier. The note provided:
Dear Ed, you might think I'm happy seeing you like this, but I'm not. I know
that I will never really have you and I can't bear that. You're always looking at
other girls when I'm with you, and when you don't spend the night with me, I
know you are making love to someone else so I'm ending it. I love you, Linda.
Thereafter, Moffett instructed the victim to write the above message and told her
that afterwards she would give her some pills to make her sleep for 48 hours.
The victim wrote approximately one line of the letter before she escaped
following a struggle. The appellant and her accomplice then fled and returned to the
residence of Ed McPherson where they were apprehended. Upon their arrival at Linda's
apartment, the police found the following incriminating evidence: a bottle of wine, a
switchblade knife, a flashlight, a bottle of pills, another knife, a short length of hemp rope,
and the note.
Dr. Green, a board certified pathologist and toxicologist, testified that the pills
found at the victim s apartment were sleeping pills, lie stated that a high dosage was
dangerous and would be fatal absent immediate and adequate medical intervention. He
further testified that if alcohol was ingested in conjunction with the pills, the effect would
be even more extreme.
Found guilty of both attempted murder and burglary, felonies, appellant appeals.
To prove an attempt to commit a crime, the prosecution must establish (1) the
intent to commit the crime; (2) performance of some act towards its commission; and (3)
failure to consummate its commission. Appellant alleges that there was insufficient
evidence presented to establish the performance of some act, beyond mere preparation,
toward the commission of murder. We disagree.
The preparation for a crime consists in "devising or arranging the means or
measures necessary for the commission of the offense; the attempt is the direct movement
towards the commission after the preparations are made." In interpreting NRS 208.070,1
we stated in Darnell v. State, 92 Nev. at 682,558 P.2d at 625, that a "direct but ineffectual
act toward the commission of the crime" is the required actus reus for an attempted crime.
The act need not be, as appellant herein asserts, actual commencement of the potentially
death producing action.
Here, appellant's own testimony showed, inter alia, that she obtained the keys to
the victim's apartment without the victim's or Ed McPherson's knowledge or consent;
that she made a list of the instruments she was taking to Linda's apartment; and the night
before she went to Linda's apartment she wrote the note she wanted Linda to write to Ed.
After entering Linda's apartment, the appellant tied the victim's hands, woke the victim
up, and started to dictate to the victim the note that appellant had previously written.
Appellant further testified that she had planned the incident about two days in advance of
her going to the victim's apartment. She acquired the necessary materials prior to entering
the victim's apartment, then pursuant to her plan, entered the victim's apartment and
exercised sufficient" control over the victim to begin to effectuate her plan. Had it not been
for Linda's fortuitous escape, appellant would have effectuated her purpose.