Commonwealth v. Vann Bell
67 Mass. App. Ct. 266, 2006 Mass. App. LEXIS 939, 853 N.E.2d 563 (2006)
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Rule of Law:
Factual impossibility, which occurs when a defendant's criminal objective is thwarted by an unknown physical circumstance, is not a defense to the crime of attempt. A defendant's criminal liability is assessed based on their intent and the overt acts they perform, regardless of whether the crime was physically possible to complete.
Facts:
- Officer Patricia Cummings, working undercover, called defendant Kerry Vann Bell pretending to be a prostitute willing to sell the sexual favors of a nonexistent five-year-old child.
- Bell agreed to meet Cummings at a convenience store and insisted that she bring the child with her.
- Bell met Cummings, and they went to his SUV to discuss the transaction in detail.
- Inside the vehicle, Bell complained that the child was not present and discussed his preference for young girls, stating he had 'done ages from three to five, six.'
- Bell approved of the child's purported age of five, noting 'they’re not in school yet where no one has to report anything.'
- Bell and Cummings agreed on a price of at least $200 for sexual intercourse with the child.
- Bell agreed to follow Cummings to a nearby park where he believed the child was located.
- Police arrested Bell as he was about to leave to follow Cummings to the park; he had $211 in his possession.
Procedural Posture:
- Kerry Vann Bell was indicted in Massachusetts Superior Court for attempted rape of a child and solicitation of sexual conduct for a fee.
- Bell filed a motion to dismiss the charges, arguing the evidence was insufficient because no actual child existed.
- The Superior Court judge denied Bell's motion to dismiss.
- The Superior Court judge then reported three questions of law to the Massachusetts Appeals Court for interlocutory review before the trial proceeded.
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Issue:
Does factual impossibility, such as the nonexistence of a victim in a police sting operation, serve as a valid defense against a charge of attempt to commit a crime?
Opinions:
Majority - Katzmann, J.
No. Factual impossibility is not a defense to an attempt crime. The court distinguishes between legal impossibility, where the defendant's objective is not a crime, and factual impossibility, where the objective is a crime but an unknown circumstance prevents its completion. Here, the defendant intended to commit rape of a child, a criminal act. The nonexistence of the child was a factual circumstance unknown to him that prevented the crime's consummation, analogous to attempting to pick an empty pocket. The defendant's conduct, intent, culpability, and dangerousness are the same whether the victim actually exists or not. Furthermore, the defendant committed a sufficient 'overt act' by going beyond mere preparation; he formulated a detailed plan, met the undercover officer, negotiated the terms, agreed on a price, and was in the process of traveling to the agreed-upon location when he was arrested. These actions were proximate enough to the completion of the crime to constitute an attempt.
Analysis:
This case strongly reaffirms the legal principle that factual impossibility is not a defense to attempt crimes in Massachusetts, aligning with the majority of jurisdictions. The decision provides a solid legal foundation for the use of undercover sting operations where essential elements of the target crime, such as a victim or contraband, are fabricated by law enforcement. It clarifies that the legal analysis focuses on the defendant's subjective criminal intent and the objective steps taken in furtherance of that intent, rather than on external factors that make success impossible. The ruling also offers a clear application of the 'overt act' proximity test, demonstrating that finalizing all details of a crime and beginning the journey to the crime scene can be sufficient to move past mere preparation into the realm of a criminal attempt.
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