Citation. 465 Mich. 149, 631 N.W.2d 694, 2001 Mich. 1210.
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Brief Fact Summary.
The Defendant, Christopher Thousand (Defendant), made sexual comments in an Internet chat room and sent sexually explicit photos to a sheriff’s deputy, whom the Defendant believed to be a minor girl. The Defendant was arrested when he attempted to meet the deputy he believed to be a girl.
Synopsis of Rule of Law.
Legal impossibility is a defense to the crime of attempt, but factual impossibility is no defense to attempt.
During an undercover investigation, Sheriff’s Deputy William Liczbinski (Liczbinski), an adult, entered Internet chat rooms posing as a minor. While posing as a fourteen year old girl named Bekka, Liczbinski began chatting with the Defendant. The Defendant made sexual comments to Bekka and sent her a picture of his penis. The Defendant arranged to meet Bekka at a McDonald’s Restaurant telling her he was going to “take [her] back to his home into his bedroom where we can be alone and not be bothered for sexual activity.” The Defendant described his vehicle, the clothes he would be wearing and that he would bring a white teddy bear for her. Upon his arrival at the meeting site, the Defendant was arrested by sheriff’s deputies and two white teddy bears were found in the Defendant’s car.
Was it legally impossible for the Defendant to have committed the offenses charged, thereby absolving him of criminal liability?
Yes, as to the solicitation of criminal sexual conduct and attempted disseminating or exhibiting sexual material to a minor charges, but not to the charge of child sexually abusive activity. Legal impossibility is a defense, but factual impossibility is not a defense. In order for a legal impossibility to exist, the defendant’s goal must be illegal, but it is impossible to commit the offense because of some factual mistake as to the legal status of some attendant circumstance. For example, one cannot be guilty of the bribery of a juror if he bribes someone who turns out not to be a juror. Likewise, a person is not guilty of hunting deer out of season if he accidentally shoots a stuffed deer. By contrast, a factual impossibility exists where a person intends to commit a crime, but cannot complete the crime because of some circumstance beyond his control. For instance, a person is still guilty of attempted theft if he tries to pick someone’s pocket and the pocket is empty. Simila
rly, one is guilty of attempted murder if he shoots at someone with an unloaded gun that he thinks is loaded. Here, both the solicitation crime and the attempt crime require that the victim be a minor. Since no minor existed, it was a legal impossibility for the defendant to commit either of these crimes. As to the child sexually abusive activity crime, a victim is not needed to commit the crime. All that is required is the preparation for any child sexually abusive activity.
Legal impossibility is a defense to attempt, but factually impossibility is no defense.