[Posted May 7, 2019) The Court of Appeals of Virginia today hands down one of its few en banc decisions of the year. Jones v. Commonwealth addresses the sufficiency of the evidence in a charge of attempted robbery. The court here undertakes to resolve prior conflicting – or at least incongruous – caselaw on the quantum of evidence required to convict.

Early one morning, Petersburg police officers saw a man get out of a car and walk across the street. Soon thereafter, two other men, one of whom was Jones, got out of the car and took four or five minutes fussing with their clothing before they, too, started across the street.

The officers followed and saw the two men standing at the corner of a house. They approached the men and identified themselves, at which point Jones took off. He crossed a fenced parking lot before returning to the car and driving away.

It didn’t work. Another police officer stopped the car and arrested Jones –

[Okay, I know what you’re wondering: Arrested him for what? Standing near a building? Running away from the police? Be patient; all will be revealed in the next paragraph.]

A search of the car produced a ski mask, and police found another such mask along the route that Jones had traveled in attempting to get away. A search of the fenced parking lot revealed a sawed-off shotgun. Now we’re getting somewhere. In an interview after his arrest, Jones unwisely agreed to waive his right to remain silent, and inculpated himself. Jones and his immediate accomplice had gone to the scene to “make sure Trip didn’t get hurt.” He explained that Trip – presumably the first man to exit the car – had gone to rob a drug dealer.

That looks like an accessory to robbery, except there was no robbery. There was no evidence that the target drug dealer was anywhere nearby, or that he was in fact robbed. Despite that, a judge convicted Jones of attempted robbery and a companion firearm charge, reasoning that Jones was part of the robbery itself.

A panel of the CAV reversed these convictions, holding that while Jones unquestionably possessed the intent to commit the crime, there was insufficient evidence that he had committed any overt act in furtherance of the plan. The court held that the actions proved were mere preparation, and under preexisting caselaw, that isn’t enough.

The court granted en banc rehearing, and today the court reverses the conviction in a sort-of-split, sort-of-unanimous ruling. The split arises over the key reason why this opinion will be newsworthy: the precise boundary between preparation and overt act.

I use the adjective precise guardedly. The problem is that there’s usually no hard-and-fast threshold between preparation and participation in the crime. The majority – Judge Humphreys, writing for Judges Petty, Alston, Huff, Chafin, and Malveaux – holds that the boundary is the moment when the defendant “commences” to consummate the crime. Citing two earlier CAV panel opinions, the majority holds that merely being in the vicinity, prepared to act, isn’t enough.

The majority explains what divides the judges in this way: “In summary, the difference between our analysis and that of our concurring colleagues is whether, to constitute an attempted crime, an overt act, ‘slight’ or not, must be in furtherance of the commission of the crime itself or merely in furtherance of the criminal intent to commit it.” (Emphasis in original) The majority holds that the overt act must relate to the crime itself. Otherwise, it reasons, every act in the process becomes an overt act, and the “mere preparation” exception would vanish.

Judge Beales authors today’s concurrence, arguing that today’s ruling doesn’t clarify anything:

While simultaneously suggesting that courts have created “a wide and not entirely consistent variety of phrases to describe the type of act” sufficient to establish an attempted offense, the majority has decided to throw its own hat into the ring by introducing its own test. It now invites litigants to grapple with the requirement that attempt “begins once an overt act commencing an element of the intended crime is initiated with the requisite intent.” While the majority indicates that it endeavors to clarify the law of attempt, I strongly suspect that today’s opinion will have the exact opposite effect.

The concurring judges decline to join the effort to create a bright-line test for the distinction, preferring instead to retain a case-by-case analysis.

Despite this disagreement, all eleven judges agree that the conviction is infirm, because there was no evidence of where the victim was, or that Jones was anywhere nearby. The court accordingly reverses and enters final judgment on the two appealed convictions.

While it’s tempting to say that this is the end of the road, I foresee a petition to the justices for a writ. I read Judge Beales’s opinion as an open invitation to the Supreme Court to take up this issue. He does so by contending that the en banc majority is undertaking to revise Supreme Court caselaw. Whether the justices wade in or not, this opinion is required reading for anyone who handles criminal law.