Whether a defendant may be convicted of attempted possession of dangerous drugs when the pills he possessed were not actually dangerous drugs.
Holding
Yes. The absence of actual dangerous drugs was factual impossibility, which Arizona’s attempt statute does not recognize as a defense when the defendant believed the attendant circumstances made the conduct criminal.
Reasoning
Arizona’s attempt statute, A.R.S. § 13-1001(A)(1), covers a person who intentionally engages in conduct that would be an offense if the attendant circumstances were as the person believed them to be. The Court read this language as a legislative rejection of factual impossibility as a defense to attempt.
The Court distinguished factual impossibility from traditional legal-impossibility examples. Legal impossibility exists when the completed conduct would not be criminal even if carried out as intended. Factual impossibility exists when an unknown physical fact prevents completion of what otherwise would be a crime, such as when supposed heroin is actually talcum powder. The latter circumstance does not excuse an attempt under the statute.
McElroy unquestionably could not have been convicted of completed possession because the pills were not dangerous drugs. But if the pills had been what he believed they were—amphetamines or “speed”—his possession would have been criminal. Their actual non-drug character therefore did not erase his criminal attempt.
The Court also emphasized that intent alone is insufficient for attempt. Here, however, McElroy did more than merely intend to possess drugs: he had acquired and physically possessed pills that he believed were illegal drugs, repeatedly identified them as amphetamines, and thus engaged in conduct directed toward completion of possession.