Hix v. Com.
270 Va. 335, 2005 Va. LEXIS 84, 619 S.E.2d 80 (2005)
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Rule of Law:
A defendant can be convicted of an attempt crime even if the intended result is factually impossible due to circumstances unknown to the defendant, as long as the defendant's actions, if carried out as intended, would constitute a crime.
Facts:
- Thomas Edward Hix was convicted by a jury in the Circuit Court of Stafford County of attempted indecent liberties with a minor and using a computer to solicit a minor.
- Hix engaged in online conversations with an undercover officer posing as a 13-year-old girl named Heather.
- Despite initially terminating the conversation upon learning Heather's age, Hix re-engaged, discussing sexual acts and arranging a meeting.
- During these conversations, Hix acknowledged the illegality of his actions, stating he could 'get 30 years in prison' for 'messen with you[,] girl.'
- Hix was arrested when he arrived at the agreed meeting location, having been deceived by the officer's disguise as a minor.
- At the time of his arrest, Hix admitted to police that he believed the person he was meeting was 13 years old.
- At trial, Hix claimed he didn't believe 'Heather' was actually 13, suggesting she was an adult 'role-playing' or that he was concerned she might be in trouble.
- Hix argued at trial and on appeal that his conviction should be overturned due to factual impossibility, as there was no actual minor involved.
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Issue:
Is factual impossibility a defense to a charge of attempted indecent liberties with a child when the 'victim' is actually an undercover officer posing as a minor?
Opinions:
Majority - Agee (J.)
No. Factual impossibility is not a defense to the crime of attempt. I distinguish between legal impossibility and factual impossibility in this case. Legal impossibility occurs when a defendant's actions, even if fully carried out exactly as intended, would not constitute a crime. Factual impossibility occurs when the actions intended by a defendant are proscribed by criminal law, but a circumstance or fact unknown to the defendant prevents him from bringing about the intended result. Hix's explicit communications with 'Heather' and his proposal to 'hook up,' if fully carried out as intended, would constitute a crime under the indecent liberties statute. Only the fact that Agent Wells impersonated a 13-year-old girl prevented Hix from bringing about his intended result. Thus, Hix's defense is one of factual, not legal impossibility. What is usually referred to as 'factual impossibility' is no defense to a charge of attempt. That is, if what the defendant intends to accomplish is proscribed by the criminal law, but he is unable to bring about that result because of some circumstance unknown to him when he engaged in the attempt, then he may be convicted. I reject Hix's argument that we should adopt a third kind of impossibility defense called 'hybrid legal impossibility.' Our precedent in Collins v. Radford and Trent v. Commonwealth differentiates between legal and factual impossibility to the effect that while legal or 'inherent impossibility' may be a defense, factual impossibility based upon 'some extraneous fact not within the knowledge or control of the accused' is not. The Court of Appeals correctly determined that a police officer posing as a child in an internet chat room is only an impediment to the commission of the crime, an extraneous fact outside of the knowledge and control of the defendant. The non-existence of a 'real child' does not make the crime of attempted indecent liberties inherently or legally impossible, but only factually impossible. Regarding Hix's conviction under the communications statute, I find that Hix is procedurally barred from challenging his conviction based upon the language of the indictment, as he did not raise this issue at trial. The evidence is sufficient to sustain his conviction under the communications statute.
Analysis:
This case reinforces the important distinction between legal and factual impossibility in attempt crimes. The court clarifies that factual impossibility—where external circumstances unknown to the defendant prevent the completion of the crime—is not a valid defense. This ruling has significant implications for law enforcement operations involving undercover officers, particularly in internet-based sting operations targeting potential child predators. The decision aligns Virginia law with the majority of jurisdictions that reject 'hybrid legal impossibility' as a defense. The court's reasoning emphasizes that the defendant's criminal intent and actions, rather than external circumstances beyond their control, determine culpability in attempt crimes.
