Inchoate Crimes: Attempt, Solicit, Aid, Conspiracy

Estimated reading time: 7 minutes

What are inchoate crimes? Attempts, Solicitation, Aiding and abetting, and Conspiracy are all inchoate crimes or can be.

Inchoate means something partially complete, something begun but not fully formed or developed, rudimentary, anticipating or preparatory.

An inchoate crime is an incipient crime which could lead to another, real crime. And incipient means beginning to appear, or at an initial stage. These criminal laws are controversial. But your criminal defense attorney will be essential, to protect you from those who would abuse the law.

“Whatever we do affects everything and everyone else, if even in the tiniest way. Why, when a housefly flaps his wings, a breeze goes round the world.”

The Princess of Pure Reason, The Phantom Tollbooth, by Norton Juster

Hindsight bias: In retrospect, we may perceive a chain of events. But we may not be able to foresee them, at the time. In other words, it’s easier to see the future after the fact.

The Model Penal Code classifies attempts, solicitation, aiding and abetting, and conspiracy as inchoate crimes. PART I, ARTICLE 5 Inchoate Crimes, American Law Institute, 1985. And it influenced Minnesota legislation.

Minnesota Inchoate Crime Statutes

Attempts to commit a crime

Minnesota’s general inchoate crimes statute for Attempt is Minnesota Statutes § 609.17, subdivision 1:

“Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”

Minn. Stat. § 609.17, subd. 1

So “a substantial step toward” committing an uncompleted crime, is itself a crime. But this law requires evidence of criminal intent, or mens rea. The law requires evidence of “intent to commit a crime” in taking the “substantial step.”

We may easily perceive a chain of events in the past. But we may not be able to know the future in real time. And since evidence of “intent” is usually circumstantial, we have a problem.

Attempt Crime Sentencing: The Minnesota Statutes § 609.17, subd. 4, limits the maximum sentence for an attempt crime to half the maximum for the underlying offense. (But not if punishable by life imprisonment.) And similarly, the Minnesota Sentencing Guidelines, 2G, calls for one-half the presumptive sentence of many, though not all, underlying offenses.

“As a matter of criminal-law theory, attempt is an inchoate crime that must be connected to an uncompleted substantive crime that was attempted. This connection is necessary to determine whether a defendant took a ‘substantial step toward’ committing the uncompleted crime, Minn.Stat. § 609.17, subd. 1, and to determine the presumptive sentence for an attempt conviction, see Minn.Stat. § 609.17, subd. 4; Minn. Sent. Guidelines § 2.G.2. But this connection does not mean that an attempt is not a separate offense — and it does not mean that a conviction of attempt and a conviction of a completed substantive crime are one and the same.”

State v. Noggle, 881 NW2d 545 (Minn. Supreme Court 2016)

Solicitation to commit a crime

Minnesota does not have a general Solicitation Crime statute. But rather, Minnesota has several inchoate crime Solicitation statutes specific to situations. And these include Minnesota Statutes:

• Prostitution Definitions, Minn Stat § 609.321,
• Solicitation, Inducement, Promotion of Prostitution, Minn Stat § 609.322,
• Defenses to Prostitution Charges, Minn Stat § 609.325,
• Solicitation of Children To Engage In Sexual Conduct, Minn Stat § 609.352,
• Solicitation of Mentally Impaired Persons, Minn Stat § 609.493,
• Solicitation of Juveniles, Minn Stat § 609.494.

As you can see, these criminal statutes relate to prostitution and child sex abuse; and to soliciting mentally impaired or juveniles to commit criminal acts. And some of them define “Solicit” to mean “commanding, entreating, or attempting to persuade a specific person.”

The Minnesota Court of Appeals observed:

“Solicitation, like the offer to engage in sexual conduct for hire, is an inchoate activity which permits application of Minn. Stat. § 609.352 to conduct that “is in some degree ambiguous.” See Black’s Law Dictionary 761 (6th ed.1990) (defining inchoate crimes as “[a]n incipient crime which generally leads to another crime. * * * * The Model Penal Code classifies attempts, solicitation and conspiracy as such.”).”

State v. McGrath, 574 NW2d 99 (Minn. Court of Appeals 1998)

See:

Sex Workers and Minnesota Prostitution Law

Prostitution Crimes and Defense in Minnesota

Aiding and abetting

“Aiding and abetting” is another of Minnesota’s inchoate crimes. Minnesota’s general Aiding and abetting Crime is in Minnesota Statutes § 609.05, Liability For Crimes Of Another:

“Subd. 1. Aiding, abetting; liability. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence …”

Minn. Stat. § 609.05 (2025)

If a person is liable as an accomplice for a crime under Minn. Stat. § 609.05, subd. 1, the person is “also liable for any other crime committed in pursuance of the intended crime If reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.”

The “intentionally aids” element requires that the defendant “knew that [her] alleged accomplices were going to commit a crime” and that the defendant “intended [her] presence or actions to further the commission of that crime.” State v. Mahkuk, 736 NW2d 675, 682 (Minn. Supreme Court 2007); see Minn. Stat. § 609.05. 

The Minnesota Supreme Court illuminated the law in such a case:

“Because appellant was in jail on a misdemeanor probation violation and it was physically impossible for appellant to aid others in the commission of Pool’s actual kidnapping and murder, we examine the evidence to see whether it is sufficient to convict appellant of advising, hiring, counseling, or conspiring with those who physically assaulted, kidnapped, and murdered Pool. To succeed on a claim of liability for aiding and abetting, the state must prove that appellant ‘played a knowing role in the commission of the crime.’ State v. Gates, 615 NW2d 331, 337 (Minn. 2000). This court distinguishes between a ‘knowing role in the crime” and “inaction, knowledge, and passive acquiescence.’ Id. Active participation in the actual commission of the offense is not required to constitute the aiding and abetting of that crime, and appellant’s ‘presence, companionship, and conduct before and after an offense is committed are relevant circumstances from which the jury may infer criminal intent.’ Id.

This is a case based entirely on circumstantial evidence. It is one thing to argue that the circumstantial evidence supports the state’s theory of the case — which arguably it does — and another to conclude that the legal requirement that no other rational hypotheses can be drawn from the facts is met.”

Bernhardt v. State, 684 NW2d 465 (Minn. Supreme Court 2004)

Some other Minnesota Statutes relating to “aiding and abetting” inchoate crimes and defenses include:

• Aiding And Abetting Driving While Impaired, Minn Stat § 169A.78,
• Authorized Use Of Force, “in resisting or aiding another to resist an offense against the person,” Minn Stat § 609.06, subd. 1 (3),
• Aiding Suicide, Aiding Attempted Suicide, Minn Stat § 609.215, See, State v. Melchert-Dinkel, 844 NW2d 13 (Minn. Supreme Court 2014),
• Aiding Offender After the Fact (Obstructing Investigation), Accomplice After the Fact, Aiding an Offender to Avoid Arrest, Minn Stat § 609.495, See, State v. Ulvinen, 313 NW2d 425 (Minn. Supreme Court 1981).

Conspiracy to commit a crime never committed

The general Conspiracy to Commit a Crime statute is Minnesota Statutes § 609.175, including:

“To commit crime. Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced as follows:
(1) if the crime intended is a misdemeanor, by a sentence to imprisonment for not more than 90 days … ; or
(2) if the crime intended is murder in the first degree or treason, to imprisonment for not more than 20 years; or
(3) if the crime intended is any other felony or a gross misdemeanor, to imprisonment or to payment of a fine of not more than one-half the imprisonment or fine provided for that felony or gross misdemeanor or both.”

Minn. Stat. § 609.175, Subd. 2 (2025)

And, as the Minnesota Supreme Court stated, “the crime of conspiracy requires (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy.” State v. Kuhnau, 622 NW2d 552 (Minn. Supreme Court 2001).

Some other Minnesota criminal statutes that relate to conspiracy crimes include:

• Drug Crime Conspiracies, Minn Stat § 152.096,
• RICO, Racketeering Definitions, Minn Stat § 609.902.

And conspiracy criminal statutes exist at the federal level as well, for example the Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970, 18 USC §§ 1961-68.

In, State v. Kuhnau, 622 NW2d 552 (Minn. Supreme Court 2001), the jury instructions were in error because they failed to include all the elements of the crime underlying the conspiracy. Specifically, the instruction relating to the conspiracy to sell methamphetamine omitted the words “knew or believed that the substance sold was methamphetamine,” an element of the underlying offense:

“We have long held that the crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy. … A conscious and intentional purpose to break the law is an essential element of the crime of conspiracy and consists of two distinct crimes: the conspiracy and the substantive crime, which is the object of the conspiracy. See … State v. Burns, 9 N.W.2d 518, 520 (1943). In Burns, we held that ‘criminal liability for conspiracy is predicated upon personal guilt … A person cannot become a party to or criminally responsible for the criminal acts of another unless he knows their true character.'”

State v. Kuhnau, 622 NW2d 552 (Minn. Supreme Court 2001)

Defenses to a criminal conspiracy charge

1. Evidence of an agreement is lacking.
2. Agreement to do a legal act is not a crime.
3. An agreement to act with one person is not agreement to a plan or to act with other unknown persons.
4. Defendant did not perform an overt act towards completion of a plan.
5. If defendant did, he later withdrew from the plan.

Pre-crime: Defending Against Inchoate Crimes Claims

As you can see, the various Minnesota inchoate crimes overlap. They all involve an underlying offense that never happened. And this raises the specter of government abuse of these “pre-crime” laws.

Another common issue is criminal intent. What is planning, to intend, to someday, commit a criminal act, maybe? Is that a crime? No. But how do you prove which side of that chained and blurry line you are on? And should we be criminalizing that?

To an extent, the laws acknowledge this problem by providing half the punishment for some inchoate crimes; relative to their underlying offense. So, for example, if a presumptive sentence for an Ag Robbery was 48 months; then Attempt Ag Robbery would be a presumptive 24 months in prison.

Six degrees of separation: Another common problem we see in federal court conspiracy charges is the “small conspiracy vs. the government’s big conspiracy theory.”

The evidence may show the defendant had a plan with someone to do one small thing. But the government claims the defendant responsible for the acts of persons unknown to defendant; but known to the someone defendant did know, several times removed.

Improper Witness Coercion (Witness Tempering): And some prosecutors may abuse their power to coerce witnesses with threats of criminal prosecution, enhancements and mandatory minimums. When they do, they may threaten to charge one of these inchoate crimes.

Question? Call Attorney Thomas Gallagher, 612 333-1500

Over Attorney Thomas Gallagher‘s three decades of criminal defense practice, he helped many people facing inchoate crime charges.

Some have been misdemeanors, some have been large federal drug conspiracy cases, and everything in between. And we see situation patterns in these types of cases that repeat. So having defense counsel with experience can help you.

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