State v. Disanto
2004 SD 112 · South Dakota Supreme Court · 2004
Facts
Rocco William Disanto and Linda Olson, formerly engaged, ended their turbulent relationship. Olson then moved in with Denny Egemo. Disanto became obsessed, making threatening telephone calls to Olson and Egemo, and telling others he intended to kill them. He was arrested after telling a woman at the First Gold Hotel in Deadwood of his intent to kill Olson and shoot Egemo, and showing her a pistol. While in prison, Disanto told Stephen Rynders of his murder plans. Upon release, Rynders, acting under law enforcement direction, introduced Disanto to Dale McCabe, an officer posing as a contract killer. Disanto provided McCabe with photos of Olson, pointed out her vehicle and home, and instructed him to shoot both Olson and Egemo twice in the head, and to kill Olson's teenage daughter if she was present. He suggested valuables in the home could be partial payment and confirmed the "deal" with McCabe. Less than three hours later, Disanto called Rynders, falsely claiming police involvement and stating he wanted to "halt" the murders, saying "I’m not backing out of it, I just want to put it on hold." The next day, McCabe approached Disanto, showing him Olson's diamond ring, implying the murders were done, and Disanto responded, "I don't wanna know nothin' about it" and "Guaranteed" when McCabe mentioned he still owed him.
Procedural history
Defendant was arrested and charged with three counts of attempted first-degree murder and one count of simple assault. He unsuccessfully sought a judgment of acquittal at trial, claiming the evidence was insufficient. The jury convicted him on all three charges. Defendant appealed the convictions, arguing the trial court erred in denying his motion for judgment of acquittal and motion for judgment notwithstanding the verdict.
Issue
Did the defendant's actions, including hiring a feigned contract killer and providing details for the murders, constitute an "attempt" to commit murder, or merely "mere preparation" for the crime under South Dakota law?
Holding
The court reversed the convictions, holding that the defendant's actions amounted to no more than mere preparation because neither he nor the feigned killer committed an act toward the commission of the offenses.
Rule
To prove an attempt, the prosecution must show specific intent, a direct act toward the commission of the intended crime, and failure or interception in perpetration. Mere preparation, such as planning or arranging means, is insufficient; the act must clearly indicate an unambiguous intent and be an immediate step in the present commission of the criminal design. The boundary between preparation and attempt is where an act "unequivocally demonstrate[s] that a crime is about to be committed," requiring a direct act or movement in execution of the design, not just being in a condition to commence the act. Solicitation alone does not constitute an attempt to commit a crime under South Dakota law, as attempt and solicitation are distinct offenses, and converting solicitation to attempt would eliminate the necessary element of an overt act.
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