People v. Thousand
| Citation | 631 N.W.2d 694,465 Mich. 149 |
| Decision Date | 27 July 2001 |
| Docket Number | Docket No. 116967, Calendar No. 9. |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Christopher THOUSAND, Defendant-Appellee. |
| Court | Supreme Court of Michigan |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training and Appeals, Detroit, MI, for the people.
David E. Fregolle, Southfield, MI, for the defendant-appellee.
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 M.C.L. § 750.92, or to a charge of solicitation to commit a felony under M.C.L. § 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 M.C.L. § 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 M.C.L. § 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.
Deputy William Liczbinski was assigned by the Wayne County Sheriff's Department to conduct an undercover 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
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 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, M.C.L. § 750.157b(3)(a) and 750.520d(1)(a), attempted distribution of obscene material to a minor, M.C.L. § 750.92 and 722.675, and child sexually abusive activity, M.C.L. § 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, 614 N.W.2d 674 (2000).
We granted the prosecution's application for leave to appeal.5 463 Mich. 906, 618 N.W.2d 772 (2000).
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 N.W.2d 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 N.W.2d 538 (2000); People v. Morey, 461 Mich. 325, 329, 603 N.W.2d 250 (1999).
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 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."
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 believed the gun was loaded.11
The category of "legal impossibility" is further divided into two subcategories: "pure" legal...
To continue reading
Request your trial
-
State v. Green
...an undercover officer and not an actual minor. See, e.g., Karwoski v. State, 867 So.2d 486 (Fla.Dist.Ct.App.2004); People v. Thousand, 465 Mich. 149, 631 N.W.2d 694 (2001); State v. Coonrod, 652 N.W.2d 715 (Minn.Ct.App.2002); Shaffer v. State, 72 So.3d 1070 (Miss.2011); Johnson v. State, 12......
-
People v. Likine
...with an unconstitutional decision. The doctrine of legislative acquiescence does not fit with the Adams decision. 18.People v. Thousand, 465 Mich. 149, 158, 631 N.W.2d 694 (2001) (citation omitted). For example, a factual impossibility occurs when a pickpocket picks an empty pocket. See Bla......
-
In re Basch
...on other grounds by Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); People of Mich. v. Thousand, 465 Mich. 149, 176, 631 N.W.2d 694, 707 (2001) (Marilyn, J., concurring in part and dissenting in part) ("Absent a statute expressly abrogating [a rule of common law], this common-law rule ......
-
In re Basch
...on other grounds by Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); People of Mich. v. Thousand, 465 Mich. 149, 176, 631 N.W.2d 694, 707 (2001) (Marilyn, J., concurring in part anddissenting in part) ("Absent a statute expressly abrogating [a rule of common law], this common-law rule c......
-
Breaking the law to enforce it: undercover police participation in crime.
...being focused upon the circumstances as the actor believes them to be rather than as they actually exist."); see also People v. Thousand, 631 N.W.2d 694, 703 (Mich. 2001) (rejecting the impossibility defense where the defendant attempted to distribute obscene material to an undercover offic......