(dissenting in part, with whom Ireland, J., joins). While I agree with the court that the defendant’s conviction of *424agreeing to pay another person to engage in sexual conduct, in violation of G. L. c. 272, § 53A, should be affirmed, I do not agree with the court’s interpretation of the criminal attempt statute, G. L. c. 274, § 6, or with the court’s conclusion, based on that interpretation, that the evidence in this case, as a matter of law, was insufficient to support the defendant’s conviction of attempted rape of a child. Therefore, I respectfully dissent.
The court’s opinion correctly recognizes that, in interpreting the language of criminal statutes, “[o]ur function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the statutory prohibition, construed naturally.” Ante at 414, quoting Commonwealth v. Corbett, 307 Mass. 7, 8 (1940). The Massachusetts criminal attempt statute was enacted in 1836, and the terms we interpret and apply today have not materially changed since that time.1 The statute reads: “Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished . . . .” G. L. c. 274, § 6. The court’s opinion correctly recognizes, based on the language of the statute, that the elements of an attempt are (1) the specific intent to commit a crime; (2) an overt act toward the commission of the crime; and (3) a failure to perpetrate the crime. Ante at 412. It is equally plain from the language of the statute that the Legislature recognized that attempted crimes fall into two categories. The first category of attempt occurs when a wrongdoer commits the last act necessary to complete the intended crime but, for some reason, such as bad aim or bad luck, fails to perpetrate the crime. Determining criminal liability for this sort of failed attempt is uncomplicated and noncontroversial.
The second category of attempt occurs when a wrongdoer fails to accomplish the underlying crime because he is intercepted *425or otherwise prevented from perpetrating the crime by the intervention of police or some other third party before he is able to commit the last act necessary to complete his intended crime. The law governing criminal liability for this second category is confused, complicated, and controversial. The instant case falls into this difficult category of intercepted attempts. Under the standard advanced by the court today, a defendant may be convicted of this second category of criminal attempt only if he is intercepted at a time and place where he is able to carry out the completed crime. Ante at 415-416. The practical application of this rule, as revealed in the court’s decision in the present case, can only mean that a defendant must be physically present at the scene of his intended crime before criminal liability for an attempt will attach, regardless of any other considerations relating to his conduct and intention. The larger consequence of this standard and the court’s application of it in the present case is to conflate the two distinct categories of attempt and to make it extraordinarily difficult (and, for police and any intended victim, dangerous) to obtain convictions of criminal attempts of the second category. The rule is supported neither by the terms of the governing statute nor by our case law.
We recognized in 1990 that “[t]here is little Massachusetts case law construing and applying [G. L. c. 274, § 6].” Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990). That statement remains true today, because in the interval between Ortiz and the court’s decision today, we have not decided a case that required us to construe and apply the statute. What little case law we have has focused less on the language of G. L. c. 274, § 6, and more on the analysis of the law of attempt articulated by Chief Justice Holmes in two decisions of this court, both of which are more than a century old: Commonwealth v. Kennedy, 170 Mass. 18 (1897) (Kennedy), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee)2
Kennedy involved a failed murder plot that fell clearly within *426the first category of attempt. The evidence at trial was that deadly rat poison had been found on the intended victim’s empty “mustache cup” on the same day that he and others took tea together, and those who drank tea were poisoned. Kennedy, supra at 20, 23. The court found this evidence, when combined, it appears, with proof that the defendant had applied the poison, sufficient to affirm his conviction of attempted murder. Id. at 22. In doing so, the court noted that the defendant had committed the last act necessary to accomplish his intended crime, stating that “[u]sually acts which are expected to bring about the end without further interference on the part of the criminal are near enough” to the intended criminal result to constitute an attempt to commit the crime, “unless the expectation is very absurd.” Id. at 21.
Addressing the Commonwealth’s failure to allege that the dose applied was large enough to kill, the court concluded that “[a]ny unlawful application of poison is an evil which threatens death, according to common apprehension . . . .’’Id. at 22. The court added: “[T]he gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension, coupled with the great harm likely to result from poison even if not enough to kill, would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is expected than might be the case with lighter crimes.” Id. In essence, the court held that the act of poisoning another person is so fraught with danger that a defendant may be found guilty of attempted murder, provided he intended to kill, even if later investigation reveals he would have failed to accomplish the murder because of a miscalculation as to the quantity of poison necessary to achieve his end.
Peaslee, by contrast, does not concern a defendant who had taken the last act in attempting his crime. In Peaslee, the defend*427ant had arranged combustibles in a building that he planned to bum in such a way that all that remained to be done to set fire to the building was to move a candle from a nearby shelf to a piece of wood set in a pan of turpentine and light it. Id. at 271. The defendant and a young man drove to within one-quarter mile from the building, apparently with the intent of lighting the candle, but before reaching his destination, the defendant changed his mind about setting the fire and drove away. Id. at 270. Even though the defendant had abandoned the attempt before he committed the last acts needed to accomplish the arson (the placement and lighting of the candle) without any intervention by the police or any third party, the Commonwealth’s indictment charged him with attempted arson, and a jury convicted him. On appeal, this court held the evidence to be insufficient as a matter of law to support the conviction, declaring:
“A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote [to support a conviction of attempt]. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.”
Id. at 273-274. The court’s reversal in Peaslee turns on. the defendant’s ultimate lack of intent, not on his failure to arrive at or close enough to the scene of the planned crime. His change of course is determinative not because it removes him from the scene but because it demonstrates he no longer holds the specific intent to commit the crime that is required for conviction.3
All crimes of attempt — whether of the first category (failed *428attempts) or the second (interrupted attempts) — require the Commonwealth to prove the defendant’s continuing and “present intent” at the moment where he takes his last relevant act. The only difference between the two categories is that, in a failed attempt, the defendant’s state of mind is examined at the time. he commits the last act necessary to accomplish the crime. In an interrupted attempt, the defendant’s state of mind is examined at the moment of interruption. Where, as in Peaslee, a defendant has not been intercepted in his criminal effort, he can only be convicted under a “last act” theory of attempt. Therefore, to convict, the finder of fact must find that the defendant had a specific and present intent to commit the crime at the place where the last act was to occur (here, the building), not at some earlier time (here, for instance, when the defendant initially arranged the combustibles or when he began to travel toward the building). Failing this test, the evidence in Peaslee could not support a conviction.
Although there had been no intervention by the police or a third party to interrupt the defendant in Peaslee, the court nonetheless chose to consider whether a defendant could be convicted where further acts were required to accomplish the crime — the second category of attempt under the statute. The court declared that, in some circumstances, such a defendant could be convicted, even though “[i]n this class of cases there is still a chance that the would-be criminal may change his mind” before his planned last act. Id. at 272. Essentially defining all conduct short of the last act as “preparation,” the court stated:
“[S]ome preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentiae [the opportunity to withdraw] in the need of a further exertion of the will to complete the crime. As was observed in a recent case [Kennedy], the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite.”
Id. 4
*429Informed in part by words used by Justice Holmes in dissent when he served on the United States Supreme Court, where he declared that there “must be dangerous proximity to success” to constitute a criminal attempt, Hyde v. United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting), the approach described in dicta in Peaslee has come to be characterized as the “dangerous proximity test.”5 See Model Penal Code and Commentaries § 5.01 comment 5(b), at 322 (1985); S.H. Kadish & S.J. Schulhofer, Criminal Law and Its Processes 566-567 & notes (7th ed. 2001); Stuart, The Actus Reus in Attempts, 1970 Crim. L. Rev. 505, 508. Peaslee’s dangerous proximity test essentially adds a fourth element to the statutory elements of an attempt, which applies only to the second category of cases: in order to convict a defendant who has been interrupted before completing his final act, the defendant must have come so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed if the police or a third party had not intervened. In the language Justice Holmes employed in Hyde v. United States, supra at 387 (Holmes, J., dissenting), an attempt that has not reached the final act necessary to commit the underlying crime has reached the zone of dangerous proximity, and thus may support a conviction, when “the act and the natural conditions present or supposed to be present are not enough to do the harm without a further act, but where it is so near to the result that if coupled with an intent to produce that result, the danger is very great” (emphasis added). The proximity Peaslee *430conceives of is dangerous because it indicates a high probability, absent intervention, that a completed crime will follow. See Peaslee, supra at 272.
Today, the court effectively rejects Peaslee’s fourth element and replaces it with a more restrictive alternative: when a defendant is interrupted in the commission of a crime, unless he has directed another to commit the crime, he must be physically present at the place where he is able to carry out the crime in order to be found guilty of criminal attempt. In short, the court changes Peaslee’s fourth element from dangerous proximity to physical proximity, requiring the defendant’s physical presence at the scene of the intended crime. The court then applies its new fourth element to conclude that the evidence in the instant case is insufficient as a matter of law to support the defendant’s conviction of attempted rape because the defendant was apprehended in the parking lot when he was following the undercover agent to the place where he was to rape the child and had yet to reach the place where he had been told his anticipated child victim was located.6
The court errs in four ways in requiring the element of physi*431cal proximity. First, the court fashions the element of physical proximity from the language in Peaslee that requires, “[i]f the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.” Peaslee, supra at 273-274. In the context of Peaslee, this language simply means that, when criminal liability is evaluated under rules that govern the first category of attempt cases, the specific intent of the defendant must be evaluated at the time and place he commits the last act necessary to perpetrate the attempted offense, not at an earlier time when he is preparing to commit the offense. Regardless of how extensive the defendant’s preparation, if he changes his mind before committing the last act, as the defendant did in Peaslee, he cannot be guilty of attempt. The language was not intended to mean that, in the second category of attempt cases, an attempted crime thwarted by the police may constitute an attempted crime only if it is thwarted at the time and place the offense was to be committed.*****7
Second, the requirement of an element of physical proximity ignores other language in Peaslee that was intended to address the second category of attempt cases, and that, in some circumstances, would allow a finding of dangerous proximity without physical proximity. “[S]ome preparations may amount to an attempt,” id. at 272, but nowhere does Peaslee limit this allowance only to preparations that bring the defendant to the scene of his intended crime. “[T]he degree of proximity held sufficient” for a preparation to constitute a crime of attempt “may vary with circumstances.” Peaslee, supra, citing Kennedy, supra *432at 22. Clearly, we must take this to mean that no absolute rule requires a defendant’s physical presence at the scene of the intended crime in order to support criminal liability for attempt.8 In the words of Kennedy, supra, “[e]very question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help.” The court misinterprets Peaslee and Kennedy in declaring that there can be dangerous proximity only with physical proximity.
Third, the consequence of imposing a fourth element for criminal attempt that requires physical proximity will be to prevent the Commonwealth from prosecuting a large set of attempted crimes as such. Where, as here, no actual victim existed, the defendant could never have reached a “time and place where he was able to carry [out the crime].” See Peaslee, supra at 273-274. Even if an actual, potential child victim did exist, the Commonwealth, for all practical purposes, would not be able to prosecute any defendant for attempted rape because the police would not (and should not) endanger the psychological health of the child by permitting the defendant to reach the place where the defendant could commit the sexual crime against the child. In other cases, such as when police are investigating attempted bombings or attempted shootings, it may be too dangerous for them to postpone arrest until the defendant reaches the time and place of his intended crime, lest something go wrong and they are unable to prevent the commission of the crime. The practical consequence of the court’s decision today is that the Commonwealth will need to make a perilous choice between allowing a suspect to reach the time and place of the commission of his intended crime before intervening or intervening earlier and thereby forfeiting any possibility of ever convicting him of the crime of attempt.9 On television and in the movies, the police always arrive in the nick of time; in real life, waiting so long does not always work out so well.
*433Fourth, the question whether the defendant has come so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed if the police or a third party had not intervened is a determination properly left to the jury. There is no need for the wooden formulation chosen today by the court that essentially declares as a matter of law that a defendant comes so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed only when the defendant is physically present at the time and place where the offense is to be committed. In certain circumstances, such as where a defendant’s intent is fixed and unwavering, a jury reasonably may conclude that it is nearly certain that the defendant would have completed the crime if the police had not intervened, even if the attempt is interrupted well before there is physical proximity.10 The court’s holding today erroneously declares that such a conclusion is never reasonable.
If the court had correctly interpreted Peaslee to require a fourth element of dangerous proximity, rather than of physical proximity, I believe that the evidence admitted at trial would be sufficient to permit a reasonable jury to have found that the defendant came so near to the accomplishment of the crime that it was nearly certain that the rape would have been committed if the police had not intervened (and if a young girl had in fact been brought to him). Viewing the evidence in the light most favorable to the Commonwealth, the defendant told the undercover officer that he previously had intercourse with children aged three to five or six years, but that he preferred five year olds. He asked whether the child had been “stretched,” reflect*434ing his intent to penetrate her, and specifically said he wanted “intercourse.” He agreed to a price of $200, and had $211 in cash on his person when arrested. He was in his vehicle beginning to follow the undercover agent to Elm Park, where the undercover agent said the child was located, when the police arrested him. The jury reasonably could conclude that he had come so near to accomplishing the crime of rape of a child that it was nearly certain that he would have carried through with it had he not been intercepted by police.
The facts of this case are distinguishable from those in Commonwealth v. Ortiz, 408 Mass. 463 (1990), the most recent case in which this court considered whether the evidence was legally sufficient to support an attempt conviction. In the Ortiz case, the evidence at trial was that the defendant and his brother learned that a person with whom the family had been feuding had been at their father’s apartment earlier that day carrying what appeared to be a handgun and looking for the defendant’s brother. See id. at 464. Armed with a firearm and ammunition, the brothers traveled by automobile to the neighborhood where their unwanted visitor lived, drove around the block six times hoping to discover him, and, failing to see him, returned to the street near the father’s apartment. See id. at 464-465. We found this evidence insufficient as a matter of law to support a conviction of attempted assault and battery by means of a dangerous weapon. Id. at 472. Because the defendant had not been intercepted or otherwise prevented from committing the assault and battery by the police or any third party before he returned to the area of his father’s apartment, the court evaluated the conviction under standards applicable to the first rather than the second category of attempt offenses. The court’s conclusion in the Ortiz decision that the evidence “did not warrant a finding of an overt act for which the defendant was responsible” was therefore dictated by the absence of a last necessary act — shooting at the intended victim after successfully locating him. Id. at 472.
The instant case, in contrast, falls into the second category of offenses, where no last necessary act is required, because the intervention of the police prevented the defendant from having the opportunity to commit the last necessary act. The proper focus here is whether the defendant had come so near to the *435completion of the offense that a rational trier of fact reasonably may conclude that it was nearly certain that the defendant would have committed the crime in the absence of police intervention.
I would affirm the conviction of attempted rape of a child if the jury had been properly instructed as to the required element of dangerous proximity, but they were not. The lack of proper jury instructions poses a substantial risk of a miscarriage of justice because the evidence of an attempt here, while it may be legally sufficient, is not overwhelming.11 The judge did not instruct the jury that the defendant must have come so near to the accomplishment of the crime that it was nearly certain that the crime would have been committed if the police or a third party had not intervened. Nor did the judge instruct the jury that the defendant must be close to the accomplishment of the crime. Instead, in discussing the second element that the Commonwealth must prove beyond a reasonable doubt under the statute, the judge instructed the jury:
“The overt act must be a real step for carrying out the crime; preliminary preparations to commit a crime are not enough. The overt act has to be more of a step toward actually committing the crime after all the preparations have been made. It must be the sort of act that you must reasonably expect to trigger a natural chain of events that will result in the crime unless some outside factor intervenes.”
This instruction does not effectively communicate to the jury what they must find to satisfy the fourth element in a second category or “interrupted” attempt case, and consequently we cannot be assured that the jury would have found that the dangerous proximity element was satisfied by the proof in this case.12
Therefore, I would reverse the defendant’s conviction of attempted rape of a child and remand the case, whereupon the Commonwealth could decide whether it wishes to retry the defend*436ant on this indictment. I would not, as the court does in its opinion, find for the defendant on this charge based on the legal insufficiency of the evidence.
Revised Statutes (1836), c. 133, § 12. Amendments to the statute have introduced minor changes to update its terminology and adjust the penalties applicable to attempts involving differing classes of underlying offenses. For modifications of the first type, see G.S. (1860), c. 168, § 8; R.L. (1902), c. 215, § 6; for modifications of the second type, see St. 1911, c. 130; St. 1924, c. 164.
In these two decisions, Chief Justice Holmes essentially superimposed a common-law overlay on the criminal attempt statute consistent with principles he had described in his treatise. See O.W. Holmes, Jr., The Common Law 65-70 (1881). As I discuss infra, this common-law overlay added an element of dangerous proximity that is not discernible from the language of the statute. Today, except where necessary to construe a statute as constitutional, we *426would not add elements derived from the common law to statutory criminal offenses. I do not, however, challenge the common-law requirements imposed by Commonwealth v. Kennedy, 170 Mass. 18 (1897) (Kennedy), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee), because I recognize that, by repeatedly, albeit modestly, amending the statute after 1901 without undoing any of the common-law overlay added by these cases, the Legislature has implicitly approved or, at least, acquiesced in this judicial interpretation of G. L. c. 274, § 6. See Commonwealth v. Rivera, 445 Mass. 119, 128 (2005); 2B N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction §§ 49:5, 49:7, 49:9 (2008).
The court contends that concluding that Peaslee turns on the defendant’s ultimate lack of intent is incorrect, and declares that the holding in Peaslee rested on the conclusion that, when the defendant had the requisite intent, his actions had not constituted an overt act. Ante at 412 n.7. Under this interpretation of Peaslee, the defendant would have been guilty of attempted arson if he had entered the building to set the fire with the requisite intent but changed his mind before doing so. I do not agree that a defendant can be found guilty of attempting a crime if, in the absence of any intervention, before having actually committed the crime, he changes his mind and walks away, even if he had reached a time and place where he was able to carry out the crime before abandoning his purpose.
The court then cited at least two cases in which the defendant was intercepted *429or otherwise prevented from perpetrating the crime by the police or a third party, thereby demonstrating that it intended this formulation to apply to the second category of attempts. See Peaslee, supra at 272, citing Commonwealth v. McLaughlin, 105 Mass. 460, 461-462 (1870) (defendant prevented from poisoning horse by intervention of watchman), and Regina v. Taylor, 1 Fost. & F. 511 (1859) (defendant desisted from setting fire to stack of com on discovering he was observed).
In Hyde v. United States, 225 U.S. 347, 387-388 (1912) (Holmes, J., dissenting), Justice Holmes discussed criminal attempt in distinguishing conspiracy, the crime at issue in that case, from attempt. That our own opinions have not embraced this nomenclature, as the majority points out, is not material. Ante at 414 n.13. The terminology does nothing more than conveniently describe the analysis introduced by Kennedy and Peaslee. I note that a reliance on this well-recognized shorthand is not, in any event, entirely absent from our case law. See Commonwealth v. Hebert, 373 Mass. 535, 543 (1977) (Quirico, J., concurring); Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 259 (2001).
The court contends that I err in stating that the decision in this case requires a defendant to be physically present at the scene of the crime to be guilty of attempt. The court, however, agrees that a defendant cannot be found guilty of attempt unless he intends to commit the crime at “a time and place where he was able to carry it out.” Ante at 414 n.9, quoting Peaslee, supra at 273-274. I fail to see how a defendant can be at a time and place where he is able to carry out a crime without being physically present at the scene of the crime.
The court also contends that its approach does not add a fourth element to the statute, but simply defines an overt act, which is the second element of the statute. The phrase “overt act” is not used in the attempt statute; the phrase used is “any act toward its commission,” G. L. c. 274, § 6, which parallels language the law generally employs to define an overt act. See 18 U.S.C. § 371 (2006) (requiring for purposes of Federal conspiracy statute “any act to effect the object of the conspiracy”); United States v. Bayer, 331 U.S. 532, 542 (1947) (under Federal law, crime of conspiracy is punishable “if any overt act is taken in pursuit of it”). We employ similar language to clarify that, contrary to Federal law, Massachusetts does not require an overt act to convict for conspiracy. See Commonwealth v. Judd, 2 Mass. 329, 337 (1807) (“any act done in pursuance of [the object of the conspiracy] is no constituent part of the offence, but merely an aggravation of it”). The court, however, does not rely on that customary definition of overt act in the context of criminal attempts, but instead defines an overt act as an act towards the commission of a crime that is near, in time or ability, to the completion of the *431intended crime, taking into account the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension. Ante at 414 & n.13. In the end, whether this approach adds a fourth element or simply more narrowly defines the second element of an overt act is a question of semantics; the fact remains that, to win a conviction of criminal attempt, the court has required the Commonwealth to prove more than is required by the language of the attempt statute.
The court in Peaslee, supra at 274, allows that the indictment would likely have been proved had the evidence shown the defendant had arrived at the scene but “been frightened by the police as he was about to light the candle.” But this does not mean the defendant could have been convicted only under these facts.
Even if physical proximity were required, Kennedy and Peaslee clearly would provide that the distance sufficient for physical proximity may vary with the facts of the underlying case and the nature of the substantive offense. See Peaslee, supra at 272; Kennedy, supra at 22. See also O.W. Holmes, Jr., The Common Law 68 (1881). Nothing in the case law would require that a defendant may be held criminally liable only if he is interrupted at the precise scene of his intended crime.
The court explains that where, as here, the police are orchestrating the *433operation, a defendant must be “very close to the location” of his hypothetical victim to be guilty of attempt. Ante at 414 n.9. This would apparently mean that criminal liability for an attempt should attach at a later stage where police have sustained the fiction of a potential victim than where a real victim is at risk, despite the fact that the defendant’s conduct and intent is identical in the two cases. Whether the targeted victim actually exists or not, the defendant’s conduct, intent, and culpability are the same. See Commonwealth v. Bell, 67 Mass. App. Ct. 266, 271 (2006); Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 260 (2001). A defendant should not be exonerated simply because of “facts unknown to him which made it impossible for him to succeed.” 2 W.R. LaFave, Substantive Criminal Law § 11.5(a), at 234 (2d ed. 2003).
Likewise, “the point of intervention might be put further back” and still support conviction where a defendant has engaged in conduct that can have no innocent motive. See O.W. Holmes, Jr., The Common Law, supra at 69.
This standard is appropriate where, as here, defense counsel failed to object to the judge’s final instructions even though those instructions omitted the required fourth element of dangerous proximity. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
We recognize that the judge’s instruction regarding attempt followed in substantial part Instruction 5.02 and its supplemental instruction in the Model Jury Instructions for Use in the District Court (1995).