People v. Thousand

• Court: Court of Appeal of Michigan
• Writing for the Court: SAWYER.
• Citation: People v. Thousand, 241 Mich.App. 102, 614 N.W.2d 674 (Mich. App. 2000)
• Decision Date: 26 July 2000
• Docket Number: Docket No. 220283.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Christopher THOUSAND, Defendant-Appellee.

614 N.W.2d 674

241 Mich. App. 102

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Christopher THOUSAND, Defendant-Appellee.

Docket No. 220283.

Court of Appeals of Michigan.

Submitted April 4, 2000, at Detroit.

Decided May 12, 2000, at 9:05 a.m.

Released for Publication July 26, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Brian T. Moody, Assistant Prosecuting Attorney, for the people.

David E. Fregolle, Southfield, for the defendant. Before MARK J. CAVANAGH, P.J., and SAWYER and ZAHRA, JJ.

SAWYER, Judge.

Defendant was charged with child sexually abusive activity, M.C.L. § 750.145c; MSA 28.342a, solicitation to commit third-degree criminal sexual conduct, M.C.L. § 750.157b(3)(a); MSA 28.354(2)(3)(a) and M.C.L. § 750.520d(1)(a); MSA 28.788(4)(1)(a), and attempted distribution of obscene material to a minor, M.C.L. § 750.92; MSA 28.287 and M.C.L. § 722.675; MSA 25.254(5). The trial court granted defendant's motion to quash and dismissed the case. The people now appeal, and we affirm in part, reverse in part, and remand.

In December 1998, during an undercover investigation of persons using the Internet to attempt to engage in child sexually abusive activity, Wayne County Sheriff's Deputy William Liczbinski, an adult, entered Internet chat rooms and posed as a minor. While in a chat room, Deputy Liczbinski, posing as a fourteen-year-old girl named "Bekka," began chatting with defendant. During their correspondence, defendant made sexual comments to "Bekka" and sent "her" a picture of his penis via the Internet. Defendant told "Bekka" that 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." Defendant and "Bekka" decided to meet at the McDonald's Restaurant located on Van Dyke in the city of Detroit. Defendant told "Bekka" that he would be driving a green Duster, what clothing he would be wearing for the meeting, and that he would be carrying a gift for her, a white teddy bear. When he arrived at the meeting site at the predetermined time, defendant was arrested by sheriff's deputies. Two white teddy bears were found in defendant's automobile.

Defendant moved to quash the information and dismiss the case, arguing that each of the charged offenses required the existence of a minor as the victim or potential victim and that it was undisputed that no minor was actually involved in this matter. The trial court agreed with defendant and granted the motion to quash. The trial court reasoned that the existence of a minor was an element of each offense with which defendant was charged and, because no such minor was involved, it was legally impossible for defendant to have committed or have attempted to commit the charged offenses.

The prosecution's only argument involves whether it is legally or factually impossible for defendant to have committed the charged offenses where the victim was not, in fact, a fourteen-year-old girl as defendant thought, but in fact an adult male. This distinction is critical because, while legal impossibility is a defense to the crime of attempt, factual impossibility is not. People v. Ng, 156 Mich.App. 779, 786, 402 N.W.2d 500 (1986); see also People v. Tinskey, 394 Mich. 108, 228 N.W.2d 782 (1975); People v. Cain, 238 Mich.App. 95, 117-118, 605 N.W.2d 28 (1999). Although this is the only issue raised by the prosecution, we believe that the analysis differs with each of the three charged offenses. Accordingly, we will analyze each offense separately.

To begin, the issue of factual versus legal impossibility presents a question like the ancient quandary of whether a glass is half empty or half full. As Professor Joshua Dressler states in Understanding Criminal Law, § 27.07[D][3][a], pp. 374-375 (2d ed.), the distinction can be very subtle:

Ultimately any case of hybrid legal impossibility may reasonably be characterized as factual impossibility. That is, applying the definition of "factual impossibility" set out above in subsection [C][1], in each case D intended end (e.g., to receive stolen property; to pick a human pocket; to bribe a juror; to kill a human; to hunt a deer out of season) constituted a crime, but she failed to consummate the offense because of some fact of which D was unaware or was beyond her control. Thus, by 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. [Emphasis in original.]

Professor Dressler summarizes factual impossibility, id. at § 27.07[C][1], p. 370, as follows:

"Factual impossibility" exists when a person's intended end constitutes a crime, but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control. Examples of factual impossibility are: (1) a pickpocket putting her hand in the victim's empty pocket; (2) an abortionist beginning the surgical procedure on a nonpregnant woman; (3) an impotent male trying to have nonconsensual sexual intercourse; (4) an assailant shooting into an empty bed where the intended victim customarily sleeps, or pulling the trigger of an unloaded gun aimed at a person who is present.

In each of these examples the actor was mistaken regarding some fact relating to the victim, herself or himself, and/or the method of commission. More specifically, the target offense was not consummated because the actor chose the wrong victim (the pickpocket and abortion cases), the victim was not present (the empty bed case), the actor was not physically capable of committing the offense (the impotency case), or inappropriate means were used to commit the crime (the unloaded gun case). Had the circumstances been as the actors believed them to be, or hoped that they were (e.g., the pocket contained property; the woman was pregnant; the victim was in the bed; the actor was physically capable of having intercourse; the gun was loaded), the crimes would have been consummated.

It should not be surprising that lawmakers are unsympathetic to claims of factual impossibility. In each of the cases described above, the actor has demonstrated her or his dangerousness (critical to subjectivists) and manifested criminality (important to objectivists). No good reason exists to recognize a defense merely because a person chooses her victim badly, does not use proper means to commit the crime, or for some other reason unrelated to her culpability does not successfully commit the offense.

Dressler summarizes legal impossibility as follows, id. at § 27.07[D][3][a], pp. 373-374:

Hybrid legal impossibility (or what courts will simply call "legal impossibility") exists if the actor's goal is illegal (thus, distinguishing itself from pure legal impossibility), but commission of the offense is impossible due to a factual mistake by her regarding the legal status of some attendant circumstance relevant to her conduct. As the preceding definition implies and as is clarified immediately below, this is a hybrid version of impossibility: the actor's impossibility claim includes both legal and factual aspects to it.

Courts have recognized a defense of legal impossibility or have stated that it would exist if D: (1) receives un stolen property believing that it was stolen; (2) tries to pick the pocket of a stone image of a human; (3) offers a bribe to a "juror" who is not a juror; (4) tries to hunt deer out of season by shooting a stuffed animal; (5) shoots a corpse believing that it is alive; or (6) 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. A person is not guilty of "receiving stolen property with knowledge that it is stolen" unless the property is "stolen" in character. Likewise, one cannot legally bribe a juror unless the person bribed is 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 cannot legally constitute the crime of killing a deer out of season.

On the other hand, in each of the preceding examples of hybrid legal impossibility, D was mistaken about a fact: whether the property had been stolen; whether a person was a juror; whether the victims were living human beings; or whether the victim was an animal subject to being hunted out of season. [Emphasis in original.]

This brings us back to the original point from Professor Dressler that we quoted: cases may be reasonably characterized as either factually or legally impossible. One distinction we do note between Dressler's examples of legal and factual impossibility is this: in the legal impossibility cases, the intended object of the defendant's actus reus could not possibly support the crime, while in the factual impossibility cases the object of the actus reus could have been the victim of a crime.

Taking the examples of legal impossibility, the property the defendant intended to receive was not, in fact, stolen and therefore could not form the basis of receiving stolen property; the intended victim of the pickpocket was, in fact, a stone statue, which cannot be the victim of a theft; the person the defendant intended to give money to was not a juror, and therefore could not be a bribed juror; the defendant intended, in fact, to shoot the object that turned out to be a stuffed deer and a stuffed deer cannot be taken out of season; the defendant intended to shoot the object that was, in fact, a corpse or the object that was, in fact, a tree stump and neither a corpse nor a tree stump may be the victim of a homicide. In each of these cases, the defendant...