State v. Lopez

• Decision Date: 13 September 1983
• Docket Number: No. 14950,14950
• Citation: State v. Lopez, 669 P.2d 1086, 100 N.M. 291, 1983 NMSC 69 (N.M. 1983)
• Parties: STATE of New Mexico, Petitioner, v. Gerard LOPEZ, Respondent.
• Court: New Mexico Supreme Court

Page 1086

669 P.2d 1086

100 N.M. 291

STATE of New Mexico, Petitioner, v.Gerard LOPEZ, Respondent.

No. 14950.

Supreme Court of New Mexico.

Sept. 13, 1983.

Rehearing Denied Sept. 28, 1983.

Paul Bardacke, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for petitioner.

Janet Clow, Chief Public Defender, William P. Slatter, Asst. Appellate Defender, Santa Fe, for respondent.

OPINION

RIORDAN, Justice.

Gerard Lopez(Lopez) was indicted on one count of attempting to traffic in a controlled substance, or in the alternative, on one count of fraud.Lopez filed a motion to dismiss the attempt count on the basis that the doctrine of impossibility barred prosecution.For purposes of the hearing on the motion to dismiss, the parties stipulated that the substance was neither cocaine nor any other controlled substance.The trial court granted Lopez's motion to dismiss and the State appealed.The Court of Appeals affirmed, and we granted the State's petition for certiorari.We reverse.

The issue on appeal is whether a defense of impossibility is available to a defendant charged with an attempt to commit a felony which under the facts, is impossible to complete.

Lopez received $110.00 from a confidential informant for what he represented as a gram of cocaine, but which in fact was not.Due to a circumstance unknown to Lopez (the substance was not cocaine), it was impossible for him to effectuate the crime of trafficking in a controlled substance.NMSA 1978, Section 30-28-1 defines an attempt as "an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission."

The doctrine of impossibility abounds with confusion.United States v. Everett, 700 F.2d 900(3rd Cir.1983).There are two separate categories: 1) where the act, if completed, would not be criminal ("legal impossibility"), and 2) where the crime is impossible of completion because of a physical or factual condition unknown to the defendant("factual impossibility").Booth v. State, 398 P.2d 863, 870(Okl.Cr.1964).In Booth, the Oklahoma court noted that authorities in various states were in general agreement that where there is legal impossibility, a defendant may not be successfully charged with attempt.However, in cases involving factual impossibility the defendant may be charged and convicted of attempt.The confusion arises when determining, under a particular set of facts, whether the impossibility is "legal" or "factual."

In the present case, the Court of Appeals found that a legal impossibility existed because the actual act when completed (selling a non-controlled substance) did not constitute a crime.That would undoubtedly be true if the substance had not been represented as cocaine.However, once it was represented as cocaine, a question of fact arose as to Lopez's knowledge and intentions.Either he intended to sell the substance believing it to be cocaine thus committing an attempt, or he sold a substance that he knew was not cocaine but intended that the buyer part with his money thinking that it was cocaine, resulting in fraud.See, e.g., United States v. Heng Awkak Roman, 356 F.Supp. 434(S.D.N.Y.)(factual impossibility exists where defendants attempted to sell what they believed was heroin, but was only soap powder)aff'd, 484 F.2d 1271(2d Cir.1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874(1974).

Lopez should be treated in accordance with the facts as he believes them to be.In the present case, assuming the truth of the allegations, which we must assume for the purpose of a motion to dismiss, Lopez demonstrated his readiness to violate the law.Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992(Ct.App.), cert. denied, 97 N.M. 483, 641 P.2d 514(1981).Lopez manifested the required intent to commit a dangerous act.When a defendant has done everything within his power to commit a crime, he has attempted to commit the crime.See generallyUnited States v. Coplon, 185 F.2d 629(2nd Cir.1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688(1952).Therefore, imposition of criminal liability is justified.

In the present case, the Court of Appeals adopted the reasoning of the Oklahoma court in Booth v. State, that unless the attempt statute is changed to reflect the modern trend, the court is bound by the common law doctrine of impossibility.However, if the intended act is not criminal, there can be no criminal liability for an attempt to commit the crime.State v. Lopez, 81 N.M. 107, 464 P.2d 23(Ct.App.1969), cert. denied, 81 N.M. 140, 464 P.2d 559(1970).We interpret "intended act" to mean that the act is to be viewed from the defendant's point of view.Therefore, we determine that New Mexico's attempt statute is consistent with the view that when a defendant does everything that is required to commit a crime but is frustrated due to the fact that completion is impossible, he can nevertheless be found guilty of attempt.We see no difference, for example, between this case and one in which a defendant shoots into the intended victim's bed believing the victim to be there, when in fact the victim is elsewhere.E.g., State v. Mitchell, 170 Mo. 633, 71 S.W. 175(1902).The fact that the victim is alerted to the crime and removes himself to a place of safety should not act to the benefit of the accused.Similarly, the fact that a substance is not cocaine, as in the present case, should not act to the benefit of one who intends to traffic in cocaine.When the objective is clearly criminal, impossibility is not a proper defense.United States v. Quijada, 588 F.2d 1253(9th Cir.1978).

We specifically reject the Oklahoma position in Booth on the impossibility defense, and instead adopt the position of the Ninth Circuit as stated in Quijada, 588 F.2d at 1255(citation omitted), that:

Specifically, we eschew any effort to distinguish so-called legal impossibility from factual impossibility or to establish any general principles capable of solving most, if not all, instances in which the defense is raised.We can only say that generally a defendant should be treated in accordance with the facts as he supposed them to be.The fact that the pocket was empty should not insulate the pickpocket from prosecution for an attempt to steal.

To convict a defendant of an attempt, the required criminal intent must be sufficiently corroborated by objective facts.Such corroboration is required to prevent conviction on the basis of criminal intent alone.Cf.United States v. Korn, 557 F.2d 1089(5th Cir.1977);United States v. Oviedo, 525 F.2d 881(5th Cir.1976).In the present case, acts such as representing a substance as cocaine, offering it for sale, and receiving $110.00 in exchange for it, are unequivocally corroborative of the required criminal intent if proved beyond a reasonable doubt.See, e.g., United States v. Everett, (where defendant promised to sell a controlled substance, transferred the substance furtively, and confessed and identified the substance, evidence was sufficient to establish defendant's guilt of attempt to distribute);United States v. Hough, 561 F.2d 594(5th Cir.1977)(where defendant admitted in sworn statement that he thought the substance which he possessed was a controlled substance, though in fact it was not, he could be convicted of intentionally attempting to possess with intent to distribute a controlled substance); United States v. Korn, (where defendant allegedly entered into negotiations with government undercover agent and informer to purchase 40,000 methaqualone tablets, and gave $20,000.00 to agent in return for four cartons which defendant believed contained methaqualone tablets, the evidence taken as a whole sufficiently corroborated defendant's subjective intent to distribute a controlled substance).

Therefore, the Court of Appeals and the trial court are reversed.This case is to be reinstated on the trial docket for proceedings not inconsistent with this opinion.

IT IS SO ORDERED.

PAYNE, C.J., and STOWERS, J., concur.

SOSA, Senior Justice and FEDERICI, J., respectfully dissent.

SOSA, Senior Justice, dissenting.

I cannot concur with the majority opinion in this case.I would hold that the defense of impossibility is available to a defendant charged with an attempt to commit a felony which, under the facts, is impossible to complete.I agree with the opinion of the Court of Appeals that until NMSA 1978, Section 30-28-1, is changed to define attempt as including an attempt to commit an act which if completed would not be a crime, the defense of legal impossibility should not be ruled out.

I therefore respectfully dissent and adopt the Court of Appeals opinion which is attached hereto, in toto, as my dissent.

FEDERICI, J., concurs.

No. 5991.

Court of Appeals of New Mexico.

May 10, 1983.

OPINION

HENDLEY, Judge.

Defendant was indicted on one count of attempting to traffic in a controlled substance, or in the alternative, one count of fraud.The trial court granted his motion to dismiss the trafficking count and the State appeals.

We affirm.

Defendant received $110.00 from an undercover agent for what he represented was a gram of cocaine.For purposes of the hearing on the motion to dismiss, the parties stipulated that the substance was neither cocaine nor any other controlled substance.We do not know whether defendant believed the substance was or was not cocaine.

The trafficking count charges defendant as follows:

That on or about the 16th day of January, 1982, in Bernalillo County, New Mexico, the above-named defendant GERALD [sic] LOPEZ did attempt to commit a felony, to wit: Traffic in a Controlled Substance, to wit: Cocaine, which failed in its commission, in that the said defendant GERALD [sic] LOPEZ did attempt to intentionally sell a controlled substance, to wit: Cocaine, contrary to Secs. 30-31-20(A)(3),30-31-1,30-31-6,30-31-7and30-28-1,NMSA 1978.

The sole issue on appeal is whether...