## Facts

- Thomas Edward Hix used the screen name “happyone345” in Internet chat rooms and communicated with “heather_boon,” who represented herself as a 13-year-old girl but was actually a Virginia State Police special agent.
- On November 14, 2001, Hix initiated multiple chats; after initially ending contact because she was “too young,” he resumed and engaged in sexually explicit discussions, including questions about her sexual experience and body and descriptions of sexual acts he wanted to perform.
- During the chats, Hix acknowledged the illegality of the conduct, stating he could “get 30 years in prison,” and invited “Heather” to “hook up.”
- On November 27, 2001, Hix again confirmed “Heather” was 13, discussed sexual acts, and suggested meeting at a McDonald’s.
- By March 28, 2002, police had traced the computer to a National Guard Armory; “Heather” contacted Hix again, a meeting was arranged, and Hix was arrested when he arrived at the designated location.
- A jury in the Circuit Court of Stafford County convicted Hix of (1) attempted indecent liberties with a minor (Va. Code § 18.2-370) and (2) use of a computer to solicit a minor (Va. Code § 18.2-374.3).
- Hix argued that attempt liability was barred because no actual minor existed and that the solicitation statute required actual knowledge of the other person’s minor status; the trial court rejected the defenses.
- The Court of Appeals denied his petition for appeal; the Supreme Court of Virginia granted further review.

## Issues

1. Whether a defendant may assert impossibility as a defense to attempted indecent liberties where the purported minor was actually an adult undercover officer.
2. Whether the defendant could obtain appellate review of a claim that the computer-solicitation statute requires actual knowledge the other person is under 15, where that argument was not properly preserved at trial.

## Decision

- The Supreme Court of Virginia affirmed both convictions.
- The court held the absence of an actual child victim in the sting operation made completion factually impossible, not legally impossible, and factual impossibility is not a defense to attempt in Virginia.
- The court concluded the evidence supported specific intent and overt acts toward committing indecent liberties as Hix believed the circumstances to be.
- The court declined to reach the merits of Hix’s mens rea argument under Va. Code § 18.2-374.3 because it was procedurally barred for lack of preservation under the contemporaneous-objection rule.

## Legal Principles

- Legal impossibility may bar attempt liability only where, even if the defendant fully carried out the intended conduct, the conduct would not be criminal.
- Factual impossibility—where an external circumstance unknown to the defendant prevents completion of an otherwise criminal plan—is not a defense to attempt.
- Attempt may be proven where the defendant has the specific intent to commit the target offense and undertakes overt acts in furtherance of that intent, even if the victim is an undercover officer and the crime cannot be completed as believed.
- Appellate courts will not consider a statutory-interpretation or mens rea argument not properly raised and preserved in the trial court.

## Conclusion

The court upheld Hix’s attempt conviction because the undercover officer’s true identity created only factual impossibility, which does not defeat attempt liability, and it upheld the computer-solicitation conviction because Hix’s proposed interpretation of the statute’s knowledge requirement was not preserved for appellate review.


Hix v. Commonwealth, 270 Va. 335, 619 S.E.2d 80 (2005)