Caseflicks

Michigan Supreme Court • 2001

People v. Thousand

631 N.W.2d 694 | 465 Mich. 149

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Takeaway

In short, this case holds that impossibility does not defeat a Michigan attempt charge when the defendant intended the crime and took a substantial step, but solicitation still requires asking another person to commit conduct that would itself be felonious under the solicitation statute.

Background

During an undercover Internet investigation, a Wayne County sheriff's deputy used the screen name “Bekka” and represented herself as a fourteen-year-old girl. Defendant Christopher Thousand engaged “Bekka” in sexually explicit online conversations, sent an image of male genitalia, proposed sexual activity, and arranged to meet her at a McDonald's restaurant. He arrived in clothing and a vehicle matching his online description, and officers found white teddy bears in his vehicle after arresting him. “Bekka,” however, was actually an adult male deputy.

Following the preliminary examination, defendant was bound over on charges including solicitation to commit third-degree criminal sexual conduct (CSC-3), attempted distribution of obscene material to a minor, and child sexually abusive activity. The circuit court quashed the information and dismissed all charges, reasoning that the absence of an actual child made the charged crimes legally impossible. The Court of Appeals affirmed dismissal of the solicitation and attempted-distribution charges but reinstated the child-sexually-abusive-activity charge. The Michigan Supreme Court granted the prosecution leave concerning the attempt and solicitation charges.

Issues

Issue #1

Whether legal impossibility is a defense to attempted distribution of obscene material to a minor under MCL 750.92 when the supposed minor was an adult undercover officer.

Holding

No. Michigan's attempt statute does not recognize impossibility as a defense, and the absence of an actual minor did not require dismissal of the attempted-distribution charge.

Reasoning

The Court explained that impossibility doctrine addresses cases in which a defendant intends a criminal result but, because of a factual or legal mistake, cannot complete the underlying offense. Courts have traditionally distinguished factual impossibility from legal impossibility, including so-called “hybrid” legal impossibility. But the distinctions are unstable: the same circumstances can often be characterized either way, and many jurisdictions have abandoned the doctrine altogether.

Michigan had never adopted impossibility as a defense to attempt. Defendant relied on language in People v. Tinskey suggesting that common law recognized legal impossibility, but that statement was dicta because Tinskey involved statutory conspiracy rather than attempt, and the Court expressly declined to decide the issue. No other Michigan Supreme Court decision adopted the defense.

The text of MCL 750.92 controls. Attempt requires an intent to commit an offense prohibited by law and an act toward its commission that goes beyond mere preparation. The statute creates no exception for a defendant who acts under a mistaken belief about an attendant circumstance or the legal status of a relevant fact.

Defendant could not be convicted of the completed offense of disseminating obscene material to a minor because the recipient was an adult. But he was charged with the separate offense of attempt. The relevant questions are whether he specifically intended to distribute the material to a minor and whether he took an act toward doing so; the factual nonexistence of a minor is therefore irrelevant. The circuit court erred by dismissing this charge on legal-impossibility grounds.

Issue #2

Whether the solicitation charge for third-degree criminal sexual conduct was properly dismissed under MCL 750.157b.

Holding

Yes, but not because of impossibility. The charge failed because defendant did not solicit another person to commit a felony or to perform an act that would itself constitute a felony if completed.

Reasoning

The Court rejected impossibility as the basis for dismissing a solicitation charge. Michigan had not adopted impossibility even in the traditional attempt setting, much less for solicitation, and the Court found no basis in the solicitation statute for importing that defense.

Under MCL 750.157b(3), solicitation requires that the defendant solicit another person to commit a felony, or to do or omit an act that, if completed, would constitute a felony. The statute thus required evidence that defendant asked another person to engage in criminal conduct.

The evidence showed that defendant asked “Bekka” to engage in sexual acts with him. If “Bekka” had actually been a fourteen-year-old girl, defendant's sexual penetration of her would have been CSC-3, but the child would not commit CSC-3 by participating. Likewise, the adult undercover deputy would not commit CSC-3. Defendant therefore did not solicit another person to commit that felony.

The Court rejected the argument that its reading made the statute's second clause surplusage. In light of the Legislature's 1986 amendment responding to People v. Rehkopf, the second clause reasonably clarifies that the solicited offense need not actually be completed. It does not extend solicitation liability to a request that another person participate in conduct criminal only for the solicitor.

Dissents

Justice Kelly

Reasoning

Justice Kelly agreed that the solicitation charge was properly dismissed because defendant did not ask “Bekka” to commit CSC-3. She also agreed that legal impossibility did not matter to that conclusion, because the prosecution lacked proof of a statutory element of solicitation.

She disagreed, however, with the majority's conclusion that Michigan had never recognized legal impossibility. In her view, People v. Tinskey's reasoning accepted the defense: Tinskey barred a conspiracy-to-abort prosecution where the woman was not pregnant, treating the missing legally required circumstance as decisive. Michigan Court of Appeals decisions likewise recognized legal impossibility as a defense.

Justice Kelly also read the attempt statute differently. Because MCL 750.92 criminalizes an attempt to commit an “offense prohibited by law,” and because the statute largely codified common-law attempt, she concluded that the Legislature did not abrogate the common-law legal-impossibility defense. Unlike Model Penal Code-style statutes, Michigan's statute does not expressly make liability turn on circumstances as the defendant believes them to be.

On that view, dissemination of obscene material to a minor requires an actual minor recipient. Since defendant sent the image to an adult deputy, completing the underlying offense was legally impossible. Justice Kelly would have affirmed dismissal of the attempted-distribution charge while noting that defendant could still be prosecuted on the remaining child-sexually-abusive-activity charge.

Justice Taylor

Reasoning

Justice Taylor agreed that hybrid legal impossibility is not a defense to attempt and therefore joined the majority's resolution of the attempted-distribution charge. He disagreed only with dismissal of the solicitation-to-commit-CSC-3 charge.

He read the two clauses of MCL 750.157b(3) as covering different conduct. The first prohibits soliciting another person to commit a felony, which does not apply because a fourteen-year-old child who engages in sex with an adult does not commit CSC-3. But the second prohibits soliciting another person to do an act that, if completed, would constitute a felony.

In Justice Taylor's view, the second clause would be surplusage if it merely repeated that the solicited felony need not be completed. Instead, it reaches a request that another person join the solicitor in conduct that would amount to a felony for the solicitor, even if the solicited person could not personally be charged with that felony.

Defendant allegedly asked a person he believed was fourteen to engage in sexual penetration with him. If that requested joint act had been completed as defendant envisioned, it would have constituted CSC-3 by defendant. The fact that “Bekka” was actually an adult deputy did not matter under the majority's rejection of impossibility. Justice Taylor would have reinstated the solicitation charge for trial.