Yes. He can still be found guilty of the attempt. The court decided that what matters is what Thousand *thought* he was doing and what he *tried* to do. He planned to harm a child and took real steps to make it happen, like arranging the meeting and showing up. The fact that 'Bekka' was really an adult male cop doesn't cancel out his criminal intentions and actions. However, the court did throw out a different charge, called 'solicitation,' because that crime requires asking someone else to commit a crime, and the girl wouldn't have been breaking the law by having sex with him—only he would have.

No. He shouldn't be found guilty of the attempt. This judge argued for an old rule called 'legal impossibility.' This rule says that if a key ingredient of the crime is missing (here, a real child victim), you can't be guilty of attempting it. Since the crime was impossible to actually commit, the *attempt* to commit it shouldn't be a crime either.

Yes on the attempt, but the solicitation charge should also stick. This judge agreed with the main decision that Thousand was guilty of *attempt*. But he disagreed about the solicitation charge. He argued that the law is written broadly enough to include asking someone to help you commit your crime, even if that other person isn't breaking the law themselves. Therefore, Thousand should have faced trial for that charge too.

No, it doesn't matter that it was impossible for Thousand to actually commit the crimes because 'Bekka' wasn't a real minor. The idea of impossibility isn't a defense for attempting a crime under Michigan law. The court was wrong to dismiss the charge of attempting to send sexual material to a minor just because 'Bekka' was an adult. But the court was right to dismiss the charge of asking a minor to engage in sexual activities, because there's no proof Thousand actually asked anyone to commit a crime. When reviewing cases like this, courts have to look at the specific facts and laws, not just general ideas.

I disagree with the majority saying that impossibility has never been a defense in Michigan. Michigan courts have recognized it before. Since impossibility is a real defense, I would have kept the lower court's decision to dismiss the charge of attempting to send sexual material to a minor. I agree with the majority that Thousand didn't actually ask anyone to commit a crime, so the charge of soliciting a minor was properly dismissed, but not because impossibility isn't a defense.

I agree with most of what the majority said, especially about impossibility not being a defense for attempt crimes. But I disagree with how they interpreted the law about soliciting a crime. I think Thousand could be charged with soliciting a crime based on the evidence that he asked someone he thought was a 14-year-old to engage in sexual acts with him, even if the 'child' couldn't be charged with a crime for voluntarily doing those acts.

An "attempt" consists of "(1) an attempt to commit an offense prohibited by law, and (2) any act towards the commission of the intended offense."

—defining hybrid legal impossibility); see alsoJeffrey T. Goudie, Case Digest, Criminal Law-Doctrine of Impossibility-The Doctrine of Impossibility Does Not Provide a Defense to Attempted Distribution of Obscene Material to a Minor or to Solicitation of Third-Degree Criminal Sexual Conduct.

—finding a defendant who sent an obscene picture to an undercover policeman guilty of distribution of obscene material to a minor; impossibility not a relevant defense

—where the purported victim was actually a police officer posing as a minor on the Internet, this Court held the trial court erred in dismissing a charge of attempted distribution of obscene material to a minor based on the doctrine of legal impossibility "[b] ecause the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case."

Questions of law, such as the applicability of legal doctrines to a given set of facts, are reviewed de novo

Similarly, in Michigan, the court found its general attempt statute "carve [d] out no exception for those who, possessing the requisite criminal intent to commit an offense prohibited by law and taking action toward the commission of that offense, have acted under an extrinsic misconception."

Finally, other state jurisdictions have concluded that a defendant may be prosecuted for criminal solicitation of a minor, as well as attempted sexual offenses, where the online persona is an undercover officer and not an actual minor.

No. The doctrine of impossibility is not a defense to a charge of attempt under Michigan law. The Michigan Supreme Court has never adopted the impossibility defense, and the plain language of the attempt statute (MCL 750.92) does not create an exception for defendants who act under a factual mistake that renders the intended crime impossible. The proper analysis focuses on whether the defendant possessed the specific intent to commit a crime and took an act toward its commission. The notion that the completed offense was 'impossible' is irrelevant to the analysis of the inchoate crime of attempt. Separately, the charge of solicitation to commit a felony was properly dismissed, not due to impossibility, but because the statute requires soliciting 'another person to commit a felony.' Since the acts Thousand asked 'Bekka' to perform would not have constituted a felony for her, he did not solicit her to commit a crime as defined by the statute.

Yes. The doctrine of legal impossibility is a recognized defense in Michigan, implicitly adopted in prior case law like *People v Tinskey*. The attempt statute codified the common law, which included legal impossibility as a defense, and the Legislature has not explicitly abrogated it. Because an essential element of the underlying crime—dissemination to a minor—was absent, it was legally impossible for Thousand to commit the offense, and the attempt charge should therefore be dismissed. While legal impossibility is a viable defense, it does not apply to the solicitation charge here because, as the majority notes, an essential element of the solicitation statute itself is missing.

No. Legal impossibility is not a defense to a charge of attempt, and the majority's reasoning on this point is correct. However, the majority errs in dismissing the solicitation charge. The solicitation statute's second clause, which prohibits soliciting another 'to do...an act which if completed would constitute a felony,' is broader than its first clause. This second clause covers situations where the solicited act, combined with the solicitor's participation, would constitute a felony for the solicitor, even if the person being solicited could not be charged. Therefore, Thousand's solicitation of 'Bekka' to engage in an act that would have been a felony for him falls within the statute's prohibition, and the charge should not have been dismissed.

No. The doctrine of impossibility is not a defense to a charge of attempt under M.C.L. § 750.92, nor is it relevant to a charge of solicitation under M.C.L. § 750.157b. The circuit court erred in dismissing the charge of attempted distribution of obscene material to a minor on the basis of legal impossibility because the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case. However, the charge of solicitation of third-degree criminal sexual conduct was properly dismissed because there is no evidence that the defendant solicited any person to commit a felony as proscribed by M.C.L. § 750.157b. Questions of law, such as the applicability of legal doctrines to a given set of facts, are reviewed de novo.

I respectfully disagree with the majority's conclusion that the doctrine of 'legal impossibility' has never been adopted in Michigan. There is ample evidence to the contrary in the case law of the state. Because 'legal impossibility' is a viable defense, I would affirm the Court of Appeals decision affirming the circuit court's dismissal of attempted distribution of obscene material to a minor. I would also find that legal impossibility, while a viable defense to solicitation, is inapplicable to the charge of solicitation to commit third-degree criminal sexual conduct in this case. I agree with the majority's conclusion that there is no evidence that defendant solicited anyone to commit csc-m.

I agree with the majority's analysis of why 'hybrid legal impossibility' should not be recognized as a defense to a charge of attempt under MCL 750.92. However, I respectfully dissent from the majority's analysis of the solicitation of third-degree criminal sexual conduct (csc-m) charge. In my view, defendant may be charged with solicitation on the basis of the evidence that he solicited a person whom he believed to be a fourteen-year-old child to engage in an act of sexual penetration even though a child victim of such an act of csc-m would not be guilty of csc-m for 'voluntarily' engaging in the act.

People v. Thousand

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Issue:

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