Grady W. Hailstock v. United States, 85 A.3d 1277

Defendant Grady Hailstoek (57 at trial) was tried by bench and convicted of one count of attempted misdemeanor sexual abuse (MSA) and one count of simple assault for conduct toward 17-year-old C.W.
C.W., a family acquaintance who called defendant “uncle,” was sick in her mother’s bed when defendant entered, shut and locked the door, climbed onto the bed, said he would “get down,” grabbed her robe, touched her breast, and stood watching at the doorway after she pushed him away.
C.W. cried and told her brother; defendant allegedly smirked and later told police his intent was to have sexual intercourse with C.W. if she consented.
The trial court found defendant intended sexual intercourse or sexual contact, should have known he lacked consent, took acts reasonably adapted to the offense, and came dangerously close to completing the sexual contact.
The court could not find beyond a reasonable doubt that defendant intended from the outset to force intercourse regardless of consent, but convicted him of attempted MSA and assault.
On appeal defendant argued the government failed to prove the requisite mens rea for attempt and that he did not come dangerously close to completing MSA; he also argued the assault conviction merges with attempted MSA.

Issue	Hailstoek's Argument	Government's Argument	Held
Whether the government proved the mens rea for attempted MSA	Government had to prove he intended the sexual contact and intended to do so regardless of lack of consent; court’s inability to find non-consent intent requires reversal	Conviction requires intent to commit the sexual act/contact to gratify sexual desire when defendant knew or should have known there was no permission; evidence and court findings show that intent	Affirmed: court’s findings and evidence satisfied the specific intent element for attempted MSA
Whether defendant came "dangerously close" to completing MSA (proximity)	Because defendant purportedly intended to stop if C.W. did not consent, completion was never imminent and he did not come within dangerous proximity	Physical acts (locking door, getting on bed, grabbing robe, touching breast) and the victim’s resistance show substantial steps and that only external interference prevented completion	Affirmed: defendant took substantial steps and interference was external; dangerous proximity satisfied
Whether assault conviction must merge with attempted MSA	N/A (defendant sought vacatur)	Government conceded merger error	Remanded: one conviction (either assault or attempted MSA) must be vacated

Nkop v. United States, 945 A.2d 617 (explains elements of attempted MSA and attempt test)
Robles v. United States, 50 A.3d 490 (clarifies "should have knowledge or reason to know" element in MSA)
Buchanan v. United States, 32 A.3d 990 (attempt requires intent to commit the underlying crime)
Brawner v. United States, 979 A.2d 1191 (attempt requires intent and overt act toward completion)
Evans v. United States, 779 A.2d 891 (dangerous proximity test: except for some interference defendant’s acts would have completed the crime)
In re Johnson, 48 A.3d 170 (substantial-step formulation for attempt)
In re Squillacote, 790 A.2d 514 (discusses line between preparation and attempt)
Davis v. United States, 873 A.2d 1101 (external interference can be victim’s resistance preventing completion)
In re Doe, 855 A.2d 1100 (observes difficulty distinguishing preparation from attempt in sexual-abuse context)