Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 27, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 116967
CHRISTOPHER THOUSAND,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave in this case to consider whether the
doctrine of “impossibility” provides a defense to a charge of
attempt to commit an offense prohibited by law under MCL
750.92, or to a charge of solicitation to commit a felony
under MCL 750.157b. The circuit court granted defendant’s
motion to quash and dismissed all charges against him on the
basis that it was legally impossible for him to have committed
any of the charged crimes. We conclude that the concept of
impossibility, which this Court has never adopted as a
defense, is not relevant to a determination whether a
defendant has committed attempt under MCL 750.92, and that the
circuit court therefore erred in dismissing the charge of
attempted distribution of obscene material to a minor on the
basis of the doctrine of legal impossibility. We additionally
conclude that, although the Court of Appeals erred to the
extent that it relied upon the concept of “impossibility” in
dismissing the charge of solicitation of third-degree criminal
sexual conduct, the charge was nevertheless properly dismissed
because there is no evidence that defendant solicited any
person to “commit a felony” or to “do or omit to do an act
which if completed would constitute a felony” as proscribed by
MCL 750.157b. Accordingly, we reverse in part and affirm in
part the decision of the Court of Appeals and remand this
matter to the circuit court for proceedings consistent with
this opinion.
I. FACTUAL 1 AND PROCEDURAL BACKGROUND
Deputy William Liczbinski was assigned by the Wayne
County Sheriff’s Department to conduct an undercover
1
This case has not yet been tried. Our statement of
facts is derived from the preliminary examination and motion
hearing transcripts and from the documentation contained in
the lower court record, including computer printouts of the
Internet dialogue between “Bekka” and “Mr. Auto-Mag.”
2
investigation for the department’s Internet Crimes Bureau.
Liczbinski was instructed to pose as a minor and log onto
“chat rooms” on the Internet for the purpose of identifying
persons using the Internet as a means for engaging in criminal
activity.
On December 8, 1998, while using the screen name “Bekka,”
Liczbinski was approached by defendant, who was using the
screen name “Mr. Auto-Mag,” in an Internet chat room.
Defendant described himself as a twenty-three-year-old male
from Warren, and Bekka described herself as a fourteen-year
old female from Detroit. Bekka indicated that her name was
Becky Fellins, and defendant revealed that his name was Chris
Thousand. During this initial conversation, defendant sent
Bekka, via the Internet, a photograph of his face.
From December 9 through 16, 1998, Liczbinski, still using
the screen name “Bekka,” engaged in chat room conversation
with defendant. During these exchanges, the conversation
became sexually explicit. Defendant made repeated lewd
invitations to Bekka to engage in various sexual acts, despite
various indications of her young age.2
2
Defendant at one point asked Bekka, “Ain’t I a lil [sic]
old??” Upon Bekka’s negative reply, defendant asked, “[Y]ou
like us old guys?” Bekka explained that boys her age “act
like little kids,” and reiterated that she was fourteen years
old. Bekka mentioned that her birthday was in 1984 and that
she was in ninth grade, and defendant asked when she would be
(continued...)
3
During one of his online conversations with Bekka, after
asking her whether anyone was “around there,” watching her,
defendant indicated that he was sending her a picture of
himself. Within seconds, Liczbinski received over the
Internet a photograph of male genitalia. Defendant asked
Bekka whether she liked and wanted it and whether she was
getting “hot” yet, and described in a graphic manner the type
of sexual acts he wished to perform with her. Defendant
invited Bekka to come see him at his house for the purpose of
engaging in sexual activity. Bekka replied that she wanted to
do so, and defendant cautioned her that they had to be
careful, because he could “go to jail.” Defendant asked
whether Bekka looked “over sixteen,” so that if his roommates
were home he could lie.
The two then planned to meet at an area McDonald’s
restaurant at 5:00 p.m. on the following Thursday. Defendant
indicated that they could go to his house, and that he would
tell his brother that Bekka was seventeen. Defendant
instructed Bekka to wear a “nice sexy skirt,” something that
he could “get [his] head into.” Defendant indicated that he
would be dressed in black pants and shirt and a brown suede
2
(...continued)
fifteen. Defendant asked whether Bekka was still “pure,” to
which Bekka responded that she was not, but that she did not
have a lot of experience and that she was nervous.
4
coat, and that he would be driving a green Duster. Bekka
asked defendant to bring her a present, and indicated that she
liked white teddy bears.
On Thursday, December 17, 1998, Liczbinski and other
deputy sheriffs were present at the specified McDonald’s
restaurant when they saw defendant inside a vehicle matching
the description given to Bekka by defendant. Defendant, who
was wearing a brown suede jacket and black pants, got out of
the vehicle and entered the restaurant. Liczbinski recognized
defendant’s face from the photograph that had been sent to
Bekka. Defendant looked around for approximately thirty
seconds before leaving the restaurant. Defendant was then
taken into custody. Two white teddy bears were recovered from
defendant’s vehicle. Defendant’s computer was subsequently
seized from his home. A search of the hard drive revealed
electronic logs of Internet conversations matching those
printed out by Liczbinski from the Wayne County-owned computer
he had used in his Internet conversations with defendant.
Following a preliminary examination, defendant was bound
over for trial on charges of solicitation to commit third
degree criminal sexual conduct, MCL 750.157b(3)(a) and
750.520d(1)(a), attempted distribution of obscene material to
a minor, MCL 750.92 and 722.675, and child sexually abusive
5
activity, MCL 750.145c(2).3
Defendant brought a motion to quash the information,
arguing that, because the existence of a child victim was an
element of each of the charged offenses, the evidence was
legally insufficient to support the charges. The circuit
court agreed and dismissed the case, holding that it was
legally impossible for defendant to have committed the charged
offenses. The Court of Appeals affirmed the dismissal of the
charges of solicitation and attempted distribution of obscene
material to a minor, but reversed the dismissal of the charge
of child sexually abusive activity.4 241 Mich App 102 (2000).
We granted the prosecution’s application for leave to
appeal.5 463 Mich 906 (2000).
3
The prosecution’s motion to add a count of attempted
third-degree criminal sexual conduct was denied by the
district court.
Additionally, although the original information charged
defendant with the completed offense of distribution of
obscene material to a minor, the circuit court subsequently
granted the prosecution’s motion to amend the charge to
attempted distribution of obscene material to a minor.
4
The Court of Appeals concluded that, because the child
sexually abusive activity statute proscribes mere preparation
to engage in such activity, the circuit court erred in
dismissing that charge on the basis of the doctrine of legal
impossibility. 241 Mich App 102, 115-117; 614 NW2d 674
(2000). We denied defendant’s application for leave to appeal
from this portion of the Court of Appeals opinion, and this
charge is not presently before us.
5
In our order, we specifically directed the parties to
(continued...)
6
II. STANDARD OF REVIEW
We must determine in this case whether the circuit court
and the Court of Appeals properly applied the doctrine of
“legal impossibility” in concluding that the charges against
defendant of attempt and solicitation must be dismissed. The
applicability of a legal doctrine is a question of law that is
reviewed de novo. James v Alberts, 464 Mich 12, 14; 626 NW2d
158 (2001). Similarly, the issue whether “impossibility” is
a cognizable defense under Michigan’s attempt and solicitation
statutes presents questions of statutory construction, which
we review de novo. People v Clark, 463 Mich 459, 463, n 9;
619 NW2d 538 (2000); People v Morey, 461 Mich 325, 329; 603
NW2d 250 (1999).
III. ANALYSIS
A. THE “IMPOSSIBILITY ” DOCTRINE
The doctrine of “impossibility” as it has been discussed
in the context of inchoate crimes represents the conceptual
dilemma that arises when, because of the defendant’s mistake
of fact or law, his actions could not possibly have resulted
in the commission of the substantive crime underlying an
attempt charge. Classic illustrations of the concept of
5
(...continued)
address (1) whether legal impossibility is a viable defense
under the circumstances of this case, and (2) whether the
attempt statute codified the legal impossibility defense as
part of the common law of attempt.
7
impossibility include: (1) the defendant is prosecuted for
attempted larceny after he tries to “pick” the victim’s empty
pocket6; (2) the defendant is prosecuted for attempted rape
after he tries to have nonconsensual intercourse, but is
unsuccessful because he is impotent7; (3) the defendant is
prosecuted for attempting to receive stolen property where the
property he received was not, in fact, stolen8; and (4) the
defendant is prosecuted for attempting to hunt deer out of
season after he shoots at a stuffed decoy deer.9 In each of
these examples, despite evidence of the defendant’s criminal
intent, he cannot be prosecuted for the completed offense of
larceny, rape, receiving stolen property, or hunting deer out
of season, because proof of at least one element of each
offense cannot be derived from his objective actions. The
question, then, becomes whether the defendant can be
prosecuted for the attempted offense, and the answer is
dependent upon whether he may raise the defense of
“impossibility.”
6
See People v Jones, 46 Mich 441; 9 NW 486 (1881);
Commonwealth v McDonald, 59 Mass 365 (1850); People v Twiggs,
223 Cal App 2d 455; 35 Cal Rptr 859 (1963).
7
See Waters v State, 2 Md App 216; 234 A2d 147 (1967).
8
See Booth v State, 398 P2d 863 (Okla Crim App, 1964);
People v Jaffe, 185 NY 497; 78 NE 169 (1906).
9
See State v Guffey, 262 SW2d 152 (Mo App, 1953).
8
Courts and legal scholars have drawn a distinction
between two categories of impossibility: “factual
impossibility” and “legal impossibility.” It has been said
that, at common law, legal impossibility is a defense to a
charge of attempt, but factual impossibility is not. See
American Law Institute, Model Penal Code and Commentaries
(1985), comment to § 5.01, pp 307-317; Perkins & Boyce,
Criminal Law (3d ed), p 632; Dressler, Understanding Criminal
Law (1st ed), § 27.07[B], p 349. However, courts and scholars
alike have struggled unsuccessfully over the years to
articulate an accurate rule for distinguishing between the
categories of “impossibility.”
“Factual impossibility,” which has apparently never been
recognized in any American jurisdiction as a defense to a
charge of attempt,10 “exists when [the defendant’s] intended
end constitutes a crime but she fails to consummate it because
of a factual circumstance unknown to her or beyond her
control.” Dressler, supra, § 27.07[C][1], p 350. An example
of a “factual impossibility” scenario is where the defendant
is prosecuted for attempted murder after pointing an unloaded
gun at someone and pulling the trigger, where the defendant
10
See Commonwealth v Henley, 504 Pa 408, 411; 474 A2d
1115 (1984); State v Logan, 232 Kan 646, 648; 656 P2d 777
(1983).
9
believed the gun was loaded.11
The category of “legal impossibility” is further divided
into two subcategories: “pure” legal impossibility and
“hybrid” legal impossibility. Although it is generally
undisputed that “pure” legal impossibility will bar an attempt
conviction, the concept of “hybrid legal impossibility” has
proven problematic. As Professor Dressler points out, the
failure of courts to distinguish between “pure” and “hybrid”
legal impossibility has created confusion in this area of the
law. Dressler, supra, § 27.07[D][1], p 351.
“Pure legal impossibility exists if the criminal law does
not prohibit D’s conduct or the result that she has sought to
achieve.” Id., § 27.07[D][2], p 352 (emphasis in original).
In other words, the concept of pure legal impossibility
applies when an actor engages in conduct that he believes is
criminal, but is not actually prohibited by law: “There can be
no conviction of criminal attempt based upon D’s erroneous
notion that he was committing a crime.” Perkins & Boyce,
supra, p 634. As an example, consider the case of a man who
believes that the legal age of consent is sixteen years old,
and who believes that a girl with whom he had consensual
sexual intercourse is fifteen years old. If the law actually
fixed the age of consent at fifteen, this man would not be
11
See State v Damms, 9 Wis 2d 183; 100 NW2d 592 (1960).
10
guilty of attempted statutory rape, despite his mistaken
belief that the law prohibited his conduct. See Dressler,
supra, § 27.07[D][2], pp 352-353, n 25.
When courts speak of “legal impossibility,” they are
generally referring to what is more accurately described as
“hybrid” legal impossibility.
Most claims of legal impossibility are of the
hybrid variety. Hybrid legal impossibility exists
if D’s goal was illegal, but commission of the
offense was impossible due to a factual mistake by
her regarding the legal status of some factor
relevant to her conduct. This version of
impossibility is a “hybrid” because, as the
definition implies and as is clarified immediately
below, D’s impossibility claim includes both a
legal and a factual aspect to it.
Courts have recognized a defense of legal
impossibility or have stated that it would exist if
D receives unstolen property believing it was
stolen; tries to pick the pocket of a stone image
of a human; offers a bribe to a “juror” who is not
a juror; tries to hunt deer out of season by
shooting a stuffed animal; shoots a corpse
believing that it is alive; or shoots at a tree
stump believing that it is a human.
Notice that each of the mistakes in these
cases affected the legal status of some aspect of
the defendant’s conduct. The status of property as
“stolen” is necessary to commit the crime of
“receiving stolen property with knowledge it is
stolen”–i.e., a person legally is incapable of
committing this offense if the property is not
stolen. The status of a person as a “juror” is
legally necessary to commit the offense of bribing
a juror. The status of a victim as a “human being”
(rather than as a corpse, tree stump, or statue)
legally is necessary to commit the crime of murder
or to “take and carry away the personal property of
another.” Finally, putting a bullet into a stuffed
deer can never constitute the crime of hunting out
of season.
11
On the other hand, in each example of hybrid
legal impossibility D was mistaken about a fact:
whether property was stolen, whether a person was a
juror, whether the victims were human or whether
the victim was an animal subject to being hunted
out of season. [Dressler, supra, § 27.07[D][3][a],
pp 353-354 (emphasis in original).]
As the Court of Appeals panel in this case accurately
noted, it is possible to view virtually any example of “hybrid
legal impossibility” as an example of “factual impossibility”:
“Ultimately any case of hybrid legal
impossibility may reasonably be characterized as
factual impossibility. . . . [B]y skillful
characterization, one can describe virtually any
case of hybrid legal impossibility, which is a
common law defense, as an example of factual
impossibility, which is not a defense.” [241 Mich
App 106 (emphasis in original), quoting Dressler,
Understanding Criminal Law (2d ed), §
27.07[D][3][a], pp 374-375.]
See also Weiss, Scope, mistake, and impossibility: The
philosophy of language and problems of mens rea, 83 Colum L R
1029, 1029-1030 (1983) (“[b]ecause ordinary English cannot
adequately distinguish among the various kinds of impossible
attempts, courts and commentators have frequently
misclassified certain types of cases”); United States v
Thomas, 13 CMA 278, 283; 32 CMR 278, 283 (1962) (“[w]hat is
abundantly clear . . . is that it is most difficult to
classify any particular state of facts as positively coming
within one of these categories to the exclusion of the
other”); State v Moretti, 52 NJ 182, 189; 244 A2d 499 (1968)
12
(“[o]ur examination of [authorities discussing the doctrine of
impossibility] convinces us that the application of the
defense of impossibility is so fraught with intricacies and
artificial distinctions that the defense has little value as
an analytical method for reaching substantial justice”).
It is notable that “the great majority of jurisdictions
have now recognized that legal and factual impossibility are
‘logically indistinguishable’ . . . and have abolished
impossibility as a defense.” United States v Hsu, 155 F3d
189, 199 (CA 3, 1998).12 For example, several states have
adopted statutory provisions similar to Model Penal Code
§ 5.01(1),13 which provides:
A person is guilty of an attempt to commit a
crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:
(a) purposely engages in conduct which would
constitute the crime if the attendant circumstances
were as he believes them to be; or
(b) when causing a particular result is an
element of the crime, does or omits to do anything
with the purpose of causing or with the belief that
it will cause such result without further conduct
on his part; or
12
Apart from judicial abrogation of this doctrine, many
states have done so by legislative enactment. In a 1995 law
review article, California Deputy Attorney General Kyle Brodie
listed twenty states that had specifically abolished the
defense of impossibility by legislative enactment. Brodie,
The obviously impossible attempt: A proposed revision to the
Model Penal Code, 15 N Ill U L R 237, n 39 (1995).
13
See, e.g., Kan Stat Ann 21, § 3301; Colo Rev Stat 18-2
101(1); New York Penal Law 110.10.
13
(c) purposely does or omits to do anything
which, under the circumstances as he believes them
to be, is an act or omission constituting a
substantial step in a course of conduct planned to
culminate in his commission of the crime.
In other jurisdictions, courts have considered the
“impossibility” defense under attempt statutes that did not
include language explicitly abolishing the defense. Several
of these courts have simply declined to participate in the
sterile academic exercise of categorizing a particular set of
facts as representing “factual” or “legal” impossibility, and
have instead examined solely the words of the applicable
attempt statute. See Darnell v State, 92 Nev 680; 558 P2d 624
(1976); State v Moretti, 52 NJ 182, 189; 244 A2d 499 (1968);
People v Rojas, 55 Cal 2d 252; 358 P2d 921 (1961).
B. ATTEMPTED DISTRIBUTION OF OBSCENE MATERIAL TO A MINOR
The Court of Appeals panel in this case, after examining
Professor Dressler’s exposition of the doctrine of
impossibility, concluded that it was legally impossible for
defendant to have committed the charged offense of attempted
distribution of obscene material to a minor. The panel held
that, because “Bekka” was, in fact, an adult, an essential
requirement of the underlying substantive offense was not met
(dissemination to a minor), and therefore it was legally
impossible for defendant to have committed the crime.
We begin by noting that the concept of “impossibility,”
14
in either its “factual” or “legal” variant, has never been
recognized by this Court as a valid defense to a charge of
attempt. In arguing that impossibility is a judicially
recognized defense in Michigan, defendant relies heavily on
our statement in People v Tinskey, 394 Mich 108; 228 NW2d 782
(1975), that
[i]t is possible, although we need not decide, that
defendants could not have been convicted of
attempted abortion; at common law the general rule
is that while factual impossibility is not a
defense (People v Jones, 46 Mich 441; 9 NW 486
[1881])[14], legal impossibility is a defense.
LaFave & Scott, Criminal Law, § 62, p 474.
[Emphasis supplied.]
As is readily apparent, our statement in Tinskey
regarding “legal impossibility” as a defense to an attempt
charge is nothing more than obiter dictum. The defendants in
Tinskey were not charged with attempt; rather, they were
charged with statutory conspiracy. Moreover, we specifically
declined in Tinskey to express any opinion regarding the
viability of the “impossibility” defense in the context of
attempts. No other Michigan Supreme Court case has
referenced, much less adopted, the impossibility defense.
Finding no recognition of impossibility in our common
law, we turn now to the terms of the statute. MCL 750.92
14
In Jones, this Court, without mentioning the term
“impossibility,” held that a conviction of attempted larceny
could stand notwithstanding that the defendant picked an empty
pocket.
15
provides, in relevant part:
Any person who shall attempt to commit an
offense prohibited by law, and in such attempt
shall do any act towards the commission of such
offense, but shall fail in the perpetration, or
shall be intercepted or prevented in the execution
of the same, when no express provision is made by
law for the punishment of such attempt, shall be
punished as follows:
* * *
3. If the offense so attempted to be
committed is punishable by imprisonment in the
state prison for a term less than 5 years, or
imprisonment in the county jail or by fine, the
offender convicted of such attempt shall be guilty
of a misdemeanor . . . .
Under our statute, then, an “attempt” consists of (1) an
attempt to commit an offense prohibited by law, and (2) any
act towards the commission of the intended offense. We have
further explained the elements of attempt under our statute as
including “an intent to do an act or to bring about certain
consequences which would in law amount to a crime[15]; and
. . . an act in furtherance of that intent which, as it is
most commonly put, goes beyond mere preparation.” People v
Jones, 443 Mich 88, 100; 504 NW2d 158 (1993), quoting 2 LaFave
& Scott, Substantive Criminal Law, § 6.2, p 18.
15
The characterization of “attempt” as a “specific intent”
crime is fully consistent with the plain meaning of the word
“attempt.” See Perkins & Boyce, supra at 637 (“[t]he word
‘attempt’ means to try; it implies an effort to bring about a
desired result. Hence an attempt to commit any crime requires
a specific intent to commit that particular offense”).
16
In determining whether “impossibility,” were we to
recognize the doctrine, is a viable defense to a charge of
attempt under MCL 750.92, our obligation is to examine the
statute in an effort to discern and give effect to the
legislative intent that may reasonably be inferred from the
text of the statute itself. People v McIntire, 461 Mich 147,
152-153; 599 NW2d 102 (1999). “When a legislature has
unambiguously conveyed its intent in a statute, the statute
speaks for itself and there is no need for judicial
construction; the proper role of a court is simply to apply
the terms of the statute to the circumstances in a particular
case.” Id. at 153 (citation omitted). Accordingly, if our
Legislature has indicated its intent to criminalize certain
conduct despite the actor’s mistake of fact, this Court does
not have the authority to create and apply a substantive
defense based upon the concept of “impossibility.” See People
v Glass (After Remand), 464 Mich 266; 627 NW2d 261 (2001).
We are unable to discern from the words of the attempt
statute any legislative intent that the concept of
“impossibility” provide any impediment to charging a defendant
with, or convicting him of, an attempted crime,
notwithstanding any factual mistake–regarding either the
attendant circumstances or the legal status of some factor
relevant thereto–that he may harbor. The attempt statute
17
carves out no exception for those who, possessing the
requisite criminal intent to commit an offense prohibited by
law and taking action toward the commission of that offense,
have acted under an extrinsic misconception.
Defendant in this case is not charged with the
substantive crime of distributing obscene material to a minor
in violation of MCL 722.675.16 It is unquestioned that
defendant could not be convicted of that crime, because
16
At the time of the alleged offense, MCL 722.675
provided, in relevant part:
(1) A person is guilty of distributing obscene
matter to a minor if that person does either of the
following:
(a) Knowingly disseminates to a minor sexually
explicit visual or verbal material that is harmful
to minors.
* * *
(2) A person knowingly disseminates sexually
explicit matter to a minor when the person knows
both the nature of the matter and the status of the
minor to whom the matter is disseminated.
(3) A person knows the nature of matter if the
person either is aware of the character and content
of the matter or recklessly disregards
circumstances suggesting the character and content
of the matter.
(4) A person knows the status of a minor if
the person either is aware that the person to whom
the dissemination is made is under 18 years of age
or recklessly disregards a substantial risk that
the person to whom the dissemination is made is
under 18 years of age.
18
defendant allegedly distributed obscene material not to “a
minor,” but to an adult man. Instead, defendant is charged
with the distinct offense of attempt, which requires only that
the prosecution prove intention to commit an offense
prohibited by law, coupled with conduct toward the commission
of that offense. The notion that it would be “impossible” for
the defendant to have committed the completed offense is
simply irrelevant to the analysis. Rather, in deciding guilt
on a charge of attempt, the trier of fact must examine the
unique circumstances of the particular case and determine
whether the prosecution has proven that the defendant
possessed the requisite specific intent and that he engaged in
some act “towards the commission” of the intended offense.
Because the nonexistence of a minor victim does not give
rise to a viable defense to the attempt charge in this case,
the circuit court erred in dismissing this charge on the basis
of “legal impossibility.”
C. SOLICITATION TO COMMIT THIRD -DEGREE CRIMINAL SEXUAL CONDUCT
1. ANALYSIS
Defendant was additionally charged, on the basis of his
Internet conversations with “Bekka,” with solicitation to
commit third-degree criminal sexual conduct. Defendant
maintains that it was “legally impossible” for him to have
committed this crime, because the underlying felony requires
19
the existence of a child under the age of sixteen.17 The Court
of Appeals panel agreed, concluding that it was legally
impossible for defendant to have committed the crime because
the underlying form of third-degree criminal sexual conduct
charged, MCL 750.520d(1)(a), required the existence of a
person under the age of sixteen. The panel further concluded
that it was legally impossible for defendant to have committed
the crime for the additional reason that he did not “solicit[]
another person to commit a felony” as proscribed by the
solicitation statute.
Our solicitation statute, MCL 750.157b, provides as
follows, in relevant part:
(1) For purposes of this section, “solicit”
means to offer to give, promise to give, or give
any money, services, or anything of value, or to
forgive or promise to forgive a debt or obligation.
* * *
(3) . . . [A] person who solicits another
person to commit a felony, or who solicits another
person to do or omit to do an act which if
completed would constitute a felony, is punishable
as follows:
(a) If the offense solicited is a felony
punishable by imprisonment for life, or for 5 years
or more, the person is guilty of a felony . . . .
[Emphasis supplied.]
17
MCL 750.520d(1) provides that “[a] person is guilty of
criminal sexual conduct in the third degree if the person
engages in sexual penetration with another person and . . .
(a) [t]hat other person is at least 13 years of age and under
16 years of age.”
20
The Court of Appeals erred to the extent that it relied
on the doctrine of “impossibility” as a ground for affirming
the circuit court’s dismissal of the solicitation charge. As
we have explained, Michigan has never adopted the doctrine of
impossibility as a defense in its traditional attempt context,
much less in the context of solicitation crimes. Moreover, we
are unable to locate any authority, and defendant has provided
none, for the proposition that “impossibility” is a recognized
defense to a charge of solicitation in other jurisdictions.18
Nevertheless, the solicitation charge was properly
dismissed for the reason that there is no evidence that
defendant in our case solicited anyone “to commit a felony” or
“to do or omit to do an act which if completed would
constitute a felony” as prohibited by MCL 750.157b. Pursuant
to the plain statutory language, the prosecution was required
to present evidence that defendant requested that another
18
On the other hand, some courts have had occasion to
specifically reject the notion that impossibility is a defense
to solicitation. See, e.g., Benson v Superior Court of Los
Angeles Co, 57 Cal 2d 240, 243-244; 368 P2d 116 (1962) (“[i]f
the solicitor believes that the act can be committed ‘it is
immaterial that the crime urged is not possible of fulfilment
at the time when the words are spoken’ or becomes impossible
at a later time” [citations omitted]). See also Model Penal
Code § 5.04(1) (Proposed Official Draft 1985) (“[I]t is
immaterial to the liability of a person who solicits or
conspires with another to commit a crime that: (b) the person
whom he solicits or with whom he conspires is irresponsible or
has an immunity to prosecution or conviction for the
commission of the crime”).
21
person perform a criminal act. The evidence here shows only
that defendant requested that “Bekka” engage in sexual acts
with him. While the requested acts might well have
constituted a crime on defendant’s part, “Bekka” (or
Liczbinski) would not have committed third-degree criminal
sexual conduct had she (or he) done as defendant suggested.
As the Court of Appeals properly concluded:
What is lacking here is defendant’s request to
another person to commit a crime. “Bekka,” the
fourteen-year-old online persona of Deputy
Liczbinski, was not asked to commit a crime. That
is, while it would be a crime for defendant to
engage in sexual intercourse with a fourteen-year
old girl, a fourteen-year-old girl is not
committing a criminal offense (or at least not CSC
3) by engaging in sexual intercourse with an adult.
Thus, whether we look at this case as defendant
asking fourteen-year-old “Bekka” to engage in
sexual intercourse with him or as defendant asking
Deputy Liczbinski to engage in sexual intercourse
with him, he did not ask another person to commit
CSC-3. . . .
For the above reasons we conclude that the
trial court properly dismissed the charge of
solicitation to commit criminal sexual conduct.
[241 Mich App 111.]
Accordingly, while the concept of “impossibility” has no role
in the analysis of this issue, we agree with the panel’s
conclusion that an element of the statutory offense is missing
and that the solicitation charge was therefore properly
dismissed.
2. RESPONSE TO THE DISSENT
In his partial dissent, Justice TAYLOR opines that our
22
construction of MCL 750.157b(3) renders the second phrase of
that subsection a “nullity,” and that this phrase–“or who
solicits another person to do or omit to do an act which if
completed would constitute a felony”–should be read to
encompass “situations where the solicitee could not be charged
with the felony, but the solicitor could be.” Slip op, pp 3
4. We disagree.
We first note that, pursuant to the plain language of
this phrase, it is the act of “another person” that must, if
completed, “constitute a felony.” We believe that the plain
language of the statute does not support the interpretation
our dissenting colleague gives it.
Moreover, our construction of § 157b(3) does not render
the second phrase of that subsection “nugatory” or
“surplusage.” Rather, it appears that the Legislature, by its
use of the phrase “do or omit to do an act which if completed
would constitute a felony,” intended to make clear that the
solicited offense does not have to be completed.
It is noteworthy that § 157b was substantially amended in
1986, following this Court’s holding in People v Rehkopf, 422
Mich 198; 370 NW2d 296 (1985). In Rehkopf, this Court
examined two cases in which the defendants were charged under
the former version of § 157b. Defendant Rehkopf had asked an
undercover police officer to kill her husband, and defendant
23
Snyder had asked someone to kill his brother. In neither case
did the intended murder ever occur. This Court held that the
statute was not violated where the defendants’ conduct did not
lead to the results the defendants urged–namely, the deaths of
Rehkopf’s husband or Snyder’s brother.
In 1985, the statute read as follows, in pertinent part:
Any person who incites, induces or exhorts any
other person to . . . do any act which would
constitute a felony . . . shall be punished in the
same manner as if he had committed the offense
incited, induced or exhorted.
The Rehkopf majority held that
§ 157b does not subject a person to criminal
responsibility for utterances that do not result in
the commission of the offense sought to be
committed. A person who does no more than utter
words seeking the commission of an offense is
subject to liability only for the common-law
offense of solicitation. [Id. at 205.][19]
Justice BOYLE and Chief Justice WILLIAMS dissented, opining that
§ 157b contained no requirement “that the solicitation result
in either actual incitement or completion of the solicited
offense.” Id. at 223.
In 1986, the Legislature rewrote § 157b. The first
clause of current subsection 157b(3) (“a person who solicits
another person to commit a felony”), apart from using the term
19
This Court pointed out that “[s]olicitation remains a
common-law offense in Michigan for which a maximum of five
years imprisonment and a $10,000 fine may be imposed” pursuant
to MCL 750.505. 422 Mich 204, n 3.
24
“solicits,” is quite similar to the phrase “[a]ny person who
incites, induces or exhorts any other person to do any act
which would constitute a felony” as used in the prior version
of § 157b. However, the Legislature apparently deemed it
necessary–reasonably so, in light of the Rehkopf Court’s
construction of § 157b–to clarify that the solicited act need
not be completed in order to satisfy the elements of the
statute. Accordingly, the second clause of subsection 157b(3)
provides further that the statute is violated where the
defendant “solicits another person to do or omit to do an act
which if completed would constitute a felony” (emphasis
supplied). It is quite probable that the Legislature believed
that the phrase “solicits another person to commit a felony”
would not have reached solicitations in which the solicited
act never came to fruition, and that the second clause was
added for this purpose.
IV. CONCLUSION
This Court has never recognized the doctrine of
impossibility. Moreover, we are unable to discern any
legislative intent that the doctrine may be advanced as a
defense to a charge of attempt under MCL 750.92. Accordingly,
the circuit court erred in dismissing this charge on the basis
that it was “legally impossible” for defendant to have
committed the crime.
25
Furthermore, although we do not agree with the circuit
court or the Court of Appeals that “legal impossibility” was
properly invoked by defendant as a defense to the charge of
solicitation, we nevertheless affirm the dismissal of this
charge. There is no evidence that defendant solicited anyone
“to commit a felony” or “to do or omit to do an act which if
completed would constitute a felony.”
Accordingly, we reverse in part, affirm in part, and
remand this matter to the circuit court for proceedings
consistent with this opinion. We do not retain jurisdiction.
CORRIGAN , C.J., and WEAVER and MARKMAN , JJ., concurred with
YOUNG, J.
26
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 116967
CHRISTOPHER THOUSAND,
Defendant-Appellee.
___________________________________
KELLY, J. (concurring in part and dissenting in part).
I respectfully disagree with the majority's conclusion
that the doctrine of "legal impossibility" has never been
adopted in Michigan. There is ample evidence to the contrary
in the case law of the state. Because "legal impossibility"
is a viable defense, I would affirm the Court of Appeals
decision affirming the circuit court's dismissal of attempted
distribution of obscene material to a minor. MCL 750.92,
722.675.
I would also find that legal impossibility, while a
viable defense to solicitation, is inapplicable to the charge
of solicitation to commit third-degree criminal sexual conduct
in this case. MCL 750.157b(3)(a), 750.520d(1)(a). I agree
with the majority's conclusion that there is no evidence that
defendant solicited anyone to commit CSC-3. Therefore, I
would affirm the Court of Appeals decision affirming the
circuit court's dismissal of the solicitation charge, but on
different grounds.
I. "LEGAL IMPOSSIBILITY" IN MICHIGAN
The majority errs in concluding that "legal
impossibility" has never been adopted in Michigan. It focuses
on language in Tinskey1 pertaining to "legal impossibility" as
a defense to attempt, but ignores the reasoning of the
decision. Viewing the forest as well as the trees, one
observes that the reasoning and the conclusion of the Tinskey
Court prove that it accepted the doctrine of "legal
impossibility."
Tinskey held that the defendants could not be guilty of
conspiracy to commit abortion because the woman who was to be
aborted was not pregnant. Tinskey, supra at 109. The Court
reasoned that the Legislature, in enacting the statute,
purposely required that conspiracy to abort involve a pregnant
woman. It thereby rejected prosecutions where the woman was
not pregnant. It concluded that the defendants in Tinskey
could not be prosecuted for conspiracy to commit abortion
1
People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975).
2
because one of the elements of the crime, a pregnant woman,
could not be established.
Significantly, the Tinskey Court stated that "[t]he
Legislature has not, as to most other offenses, so similarly
indicated that impossibility is not a defense." Id.2 By this
language, Tinskey expressly recognized the existence of the
"legal impossibility" defense in the common law of this state.
Even though the reference to "legal impossibility" regarding
the crime of attempt may be dictum, the later statement
regarding the "impossibility" defense was part of the
reasoning and conclusion in Tinskey. This Court recognized
the defense, even if it did not do so expressly concerning
charges for attempt or solicitation.
Moreover, Michigan common law3 is not limited to
decisions from this Court. The majority should not ignore
decisions from the Court of Appeals. That Court has accepted
2
I take this to mean that with respect to conspiracy to
abort, as with most other statutory crimes, the Legislature
has not indicated that impossibility is not a defense. Hence,
it is a defense.
3
Common law is "the body of those principles and rules of
action, relating to the government and security of persons and
property, which derive their authority solely from usages and
customs of immemorial antiquity, or from the judgments and
decrees of the courts recognizing, affirming, and enforcing
such usages and customs . . . . In general, it is a body of
law that develops and derives through judicial decisions, as
distinguished from legislative enactments." Black's Law
Dictionary (6th ed), p 276.
3
"legal impossibility" as a defense.
For example, in People v Ng, the Court of Appeals
distinguished between "factual impossibility" and "legal
impossibility" in rejecting a defendant's argument that he was
not guilty of attempted murder. 156 Mich App 779, 786; 402
NW2d 500 (1986). It found that factual impossibility is not
a defense to a charge of attempted murder, but observed that
legal impossibility is a defense, citing Tinskey. Similarly,
in People v Cain, the court distinguished between "legal
impossibility" and a defense based on a claim of right. 238
Mich App 95, 117-119; 605 NW2d 28 (1999). It implicitly read
Tinskey as acknowledging the existence of the "legal
impossibility" defense.4 Accordingly, in this case, the Court
of Appeals correctly considered "legal impossibility" a viable
defense.
II. INTERPRETATION OF THE ATTEMPT STATUTE
Even if "legal impossibility" were not part of Michigan's
common law, I would disagree with the majority's
interpretation of the attempt statute. It does not follow
from the fact that the statute does not expressly incorporate
4
See also People v Genoa, 188 Mich App 461, 464; 470 NW2d
447 (1991). Genoa held that the circuit court correctly
dismissed the charge of attempted possession with intent to
deliver 650 grams or more of cocaine. Judge Shepherd based
the holding on the fact that it was legally impossible for the
defendant to have committed the offense.
4
the concept of impossibility that the defense is inapplicable.
Examination of the language of the attempt statute leads
to a reasonable inference that the Legislature did not intend
to punish conduct that a mistake of legal fact renders
unprohibited. The attempt statute makes illegal an ". . .
attempt to commit an offense prohibit by law . . . ." MCL
750.92 (emphasis added). It does not make illegal an action
not prohibited by law. Hence, one may conclude, the
impossibility of completing the underlying crime can provide
a defense to attempt.
This reasoning is supported by the fact that the attempt
statute codified the common-law rule regarding the elements of
attempt. See People v Youngs, 122 Mich 292, 293; 81 NW 114
(1899); People v Webb, 127 Mich 29, 31-32; 86 NW 406 (1901).
At common law, "legal impossibility" is a defense to attempt.
United States v Hsu, 155 F3d 189, 199-200 (CA 3, 1998);
Dressler, Understanding Criminal Law (2d ed), § 27.07[B], p
369; 21 Am Jur 2d, Criminal Law, § 178, p 254. Absent a
statute expressly abrogating "legal impossibility," this
common-law rule continues to provide a viable defense.
Bandfield v Bandfield, 117 Mich 80, 82; 75 NW 287 (1898),
rev'd in part on other grounds Hosko v Hosko, 385 Mich 39; 187
5
NW2d 236 (1971).5
This state's attempt statute, unlike the Model Penal Code
and various state statutes that follow it, does not contain
language allowing for consideration of a defendant's beliefs
regarding "attendant circumstances." Rather, it takes an
"objective" view of criminality, focusing on whether the
defendant actually came close to completing the prohibited
act. 1 Robinson, Criminal Law Defenses, § 85(a), pp 423-424;
§ 85(b), p 426, n 22. The impossibility of completing the
offense is relevant to this objective approach because
impossibility obviates the state's "concern that the actor may
cause or come close to causing the harm or evil that the
offense seeks to prevent." Id. at 424.
The majority's conclusion, that it is irrelevant whether
it would be impossible to have committed the completed
offense, contradicts the language used in the attempt statute.
If an element of the offense cannot be established, an accused
cannot be found guilty of the prohibited act. The underlying
offense in this case, disseminating or exhibiting sexual
material to a minor, requires a minor recipient. Because the
dissemination was not to a minor, it is legally impossible for
5
The Bandfield Court stated: "The legislature should
speak in no uncertain manner when it seeks to abrogate the
plain and long-established rules of the common law. Courts
should not be left to construction to sustain such bold
innovations." Id. at 82.
6
defendant to have committed the prohibited act.
This Court should affirm the Court of Appeals decision,
determining that it was legally impossible for defendant to
have committed the charged offense of attempted distribution
of obscene material to a minor, MCL 750.92, 722.675.
III. THE SOLICITATION STATUTE
I further disagree with the majority's conclusion that
"legal impossibility" is not a recognized defense to a
solicitation charge. As discussed above, the defense has been
implicitly acknowledged in Michigan's case law. The majority
states that no authority supports the proposition that "legal
impossibility" is a defense to solicitation in other
jurisdictions. However, this fact is unremarkable in light of
the rarity with which the defense is invoked. Moreover, "the
impossibility issue can arise in all inchoate offenses,"
including solicitation. Robinson, § 85(f)(2), p 436.
The language of our solicitation statute demonstrates
that an illegal solicitation must concern an act that would
constitute a felony if completed. The statute states, "a
person who solicits another person to commit a felony, or who
solicits another person to do or omit to do an act which if
completed would constitute a felony, is punishable as follows
. . . ." MCL 750.157b(3).
"Legal impossibility" would be a defense if the
7
defendant's goal were illegal but the offense incomplete due
to the defendant's factual mistake concerning the legal status
of a relevant circumstance. See Dressler, § 27.07[D][3][a],
p 373 (discussing "hybrid legal impossibility"). In this
case, defendant was mistaken regarding the legal status of
"Bekka," whom he believed to be a female minor but who was
actually a male adult.
However, defendant's factual mistake is irrelevant in
analyzing the charge of solicitation to commit third-degree
criminal sexual conduct. Even if he had made his request to
engage in sexual intercourse to a fourteen-year-old girl,
defendant, not the girl, would have violated the CSC-3
statute. Therefore, I agree with the majority that defendant
did not solicit "Bekka" to commit an act that constituted a
felony within the meaning of the solicitation statute.
I note that this is the same conclusion reached by the
Court of Appeals. See People v Thousand, 241 Mich App 102,
111; 614 NW2d 674 (2000). That Court erred, however, in
applying a "legal impossibility" analysis. It was not
defendant's mistake regarding the minority status of "Bekka"
that is significant. Rather, an element of the solicitation
charge is missing. "Legal impossibility" is, therefore,
irrelevant under the facts of this case. The solicitation
charge was properly dismissed because the prosecution could
8
not prove all elements of the crime.
IV. CONCLUSION
As judges, we often decide cases involving disturbing
facts. However repugnant we personally find the criminal
conduct charged, we must decide the issues on the basis of the
law. I certainly do not wish to have child predators loose in
society. However, I believe that neither the law nor society
is served by allowing the end of removing them from society to
excuse unjust means to accomplish it. In this case, defendant
raised a legal impossibility argument that is supported by
Michigan case law. The majority, in determining that legal
impossibility is not a viable defense in this state, ignores
that law.
In keeping with precedent and legal authority, I would
affirm the Court of Appeals decision that it was legally
impossible for defendant to commit the charged offense of
attempted distribution of obscene material to a minor. Of
course, if this view prevailed, defendant could still be
prosecuted for his alleged misconduct. He is to be tried on
the most serious of the charges, child sexually abusive
activity, MCL 750.145c.
With regard to the solicitation charge, I disagree with
the majority's conclusion that "legal impossibility" is not a
defense to solicitation. However, the defense does not apply
9
under the facts of this case. Even if the facts had been as
defendant believed, defendant did not solicit "Bekka" to
commit CSC-3. Hence, an essential element of the solicitation
charge is missing. The charge was properly dismissed for that
reason, not because of the availability of the "legal
impossibility" defense.
CAVANAGH , J., concurred with KELLY , J.
10
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v No. 116967
CHRISTOPHER THOUSAND,
Defendant-Appellee/
Cross-Appellant.
____________________________________
TAYLOR, J. (concurring in part and dissenting in part).
I agree with the majority’s recitation of the facts and
its excellent analysis of why “hybrid legal impossibility”
should not be recognized as a defense to a charge of attempt
under MCL 750.92. Thus, I concur with parts I, II, III(A),
and III(B) of the majority opinion.
However, I respectfully dissent from the majority’s
analysis of the solicitation of third-degree criminal sexual
conduct (CSC 3) charge in part III(C). In my view, defendant
may be charged with solicitation on the basis of the evidence
that he solicited a person whom he believed to be a fourteen
year-old child to engage in an act of sexual penetration even
though a child victim of such an act of CSC 3 would not be
guilty of CSC 3 for “voluntarily” engaging in the act.
My difference with the majority is in its understanding
of the solicitation statute, MCL 750.157b(3). That section
provides in pertinent part:
[A] person who solicits another person to
commit a felony, or who solicits another person to
do or omit to do an act which if completed would
constitute a felony, is punishable as
follows:. . . . [Emphasis added.]
As to the first clause (“a person who solicits another
person to commit a felony”), I agree with the majority that
defendant cannot be considered to have asked “Bekka” to commit
the felony of CSC 3 in violation of the solicitation statute
because she cannot commit this felony by engaging in sex with
an adult. If an adult and a child aged thirteen to fifteen
engage in an act of “consensual” sexual penetration, only the
adult would be committing the crime of CSC 3.1 Thus, an adult
who asks a fourteen-year-old child to engage in such an act
cannot be considered to have asked the child to commit CSC 3.
That is, the solicitor has not breached the first clause in
1
The CSC 3 statute provides, in pertinent part, that
“[a] person is guilty of [CSC 3] if the person engages in
sexual penetration with another person and . . . [t]hat other
person is at least 13 years of age and under 16 years of age.”
MCL 750.520d(1)(a). As one would expect, this language is
phrased so as to impose criminal liability on an adult who
engages in sexual penetration with a child aged thirteen to
fifteen without imposing liability on the child victim of the
crime.
2
this section.
However, regarding the disjunctive clause that follows
the first clause, i.e., “or who solicits another person to do
or omit to do an act which if completed would constitute a
felony,” this language is broader in scope than merely
prohibiting a person from soliciting another person to commit
a felony. I believe this language makes it unlawful to
solicit another person to do an act that if the act were
completed would be a felony. While this part of the statute
surely is not as clear as it could be,2 we must use statutory
construction rules to give it meaning. A primary rule is that
we should avoid making the second clause a nullity by giving
it the same meaning as the first clause.3 Using this tool, I
conclude that the second clause means it is unlawful to
solicit another person to join with the solicitor in doing an
act that would constitute a felony whether the solicited party
could be guilty of the felony or not.
2
Perhaps the Legislature will want to consider revising
the solicitation statute to employ more straightforward
language in place of the phrase “to do or omit to do an act
which if completed would constitute a felony.”
3
“It is a maxim of statutory construction that every
word of a statute should be read in a way as to be given
meaning, and a court should avoid a construction that would
render any part of the statute surplusage or nugatory.” In re
MCI Telecommunications Complaint, 460 Mich 396, 414; 596 NW2d
164 (1999); see also People v Warren, 462 Mich 415, 429, n 24;
615 NW2d 691 (2000) (no word of a statute should be treated as
surplusage or rendered nugatory).
3
This all means that the first clause requires that the
solicited act would be a felony for which the solicitee could
be charged. The second clause encompasses situations where
the solicitee could not be charged with the felony, but the
solicitor could be. This construction of the statute gives
viability to both clauses of the section at issue and is,
thus, in my view, not only preferable, but required.
The gist of the majority opinion, with regard to the
solicitation issue, is that the second phrase, i.e., “or who
solicits another person to do or omit to do an act which if
completed would constitute a felony,” is merely clarifying
language to make clear that the Legislature did not intend to
require that the solicitee actually complete the solicited
felony in order for the solicitor to have violated the
statute. That is, the majority states that the second clause
was “intended to make clear that the solicited offense does
not have to be completed.” Slip op, p 23. Yet, the majority
seems to acknowledge that the first clause is also violated by
a solicitation to commit a felony even if the felony is never
actually completed. This, then, makes the second clause a
nullity. It is that outcome that disciplined readers of
statutes should avoid.
Also, the majority indicates that my interpretation is
contrary to the plain language of the statute because “it is
4
the act of ‘another person’ that must, if completed,
‘constitute a felony.’” Slip op, p 23. I disagree because
the majority’s view on this point fails to give meaning to the
words “if completed.” If, as the majority argues, the conduct
of the solicitee in itself must constitute a felony, then the
language of the second phrase has no different meaning than if
it simply referred to “an act which ... would constitute a
felony.” The reason is that, if the statutory language read
“or who solicits another person to do or omit to do an act
which would constitute a felony,” then it might well be argued
that the solicited person’s contemplated “act,” standing
alone, must constitute a felony for the statute to be
violated. However, the “if completed” language allows for the
imposition of liability where completion of the solicited act
by another person would necessarily constitute a felony.
I agree with the majority that the current language of
the solicitation statute, MCL 750.157b, seems to be in large
measure a reaction to this Court’s interpretation of the
preceding statutory language at issue in People v Rehkopf, 422
Mich 198; 370 NW2d 296 (1985). However, that means only that
the Legislature intended to include circumstances in which the
solicited felony is never actually committed within the scope
of the solicitation statute. Indeed, the language of the
first clause proscribing a person from merely asking another
5
person “to commit a felony” suffices, by its plain and
unambiguous meaning, to accomplish that goal. That does not
mean, however, that the Legislature might not have wanted to
cover more situations inasmuch as it was acting to broaden the
scope of the statute. Accordingly, the discussion of Rehkopf
does not alter my view that, in keeping with the canon of
construction against rendering statutory language nugatory or
surplusage, the second clause must be taken as encompassing
more than the first clause, standing alone, does.
Turning to the circumstances of the present case, there
was evidence that defendant solicited “Bekka,” believing “her”
to be a fourteen-year-old child, to engage in an act of sexual
penetration with him. In other words, defendant solicited
“Bekka” to engage with him in an act of sexual penetration
between an adult and a fourteen-year-old child. Thus,
defendant solicited “Bekka” to do an act that, “if completed”
by the participation of defendant, would constitute the felony
of CSC 3 on defendant’s part. Accordingly, I conclude that
such a solicitation falls within the range of conduct in the
solicitation statute’s prohibition of soliciting another
person “to do . . . an act which if completed would constitute
a felony.” MCL 750.157b(3).
Of course, I recognize that because “Bekka” was actually
Deputy William Liczbinski, an adult, the solicited person
6
could not actually have committed the act envisioned by
defendant. However, that is immaterial. There is nothing in
the language of the pertinent part of the solicitation
statute, MCL 750.157b(3), that requires that it be possible
for the solicited person to carry out the conduct that is
solicited in order for the statute to be violated. Thus,
consistent with the majority opinion’s rejection of the “legal
impossibility” defense, I conclude that it is immaterial that
the deputy could not have carried out the solicited act.
Accordingly, I agree with the majority’s treatment of the
attempted distribution of obscene material to a minor charge.
However, I would also reverse the Court of Appeals with regard
to the solicitation of CSC 3 charge, and would remand to the
circuit court for trial on that charge.
7
People v. Thousand
Court: Michigan Supreme Court
Date filed: 2001-07-27
Citations: 631 N.W.2d 694, 465 Mich. 149
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