Facts
- A Wayne County sheriff’s deputy conducted an undercover internet operation posing as a 14-year-old girl in online chat rooms.
- Christopher Thousand, using a screen name, communicated with the undercover officer over about a week; the exchanges became sexually explicit.
- Thousand sent an obscene image electronically and proposed meeting in person for sexual activity, believing he was communicating with a minor.
- The parties arranged to meet at a McDonald’s; Thousand arrived as planned, and deputies arrested him, finding teddy bears in his vehicle.
- The prosecution charged Thousand with (1) attempted distribution of obscene material to a minor, (2) solicitation to commit third-degree criminal sexual conduct (CSC III), and (3) child sexually abusive activity.
- The trial court dismissed all counts on a legal-impossibility theory because the “minor” was an adult officer; the Court of Appeals reinstated only the child sexually abusive activity count.
Issues
- Whether “impossibility” is a defense to an attempt charge under Michigan’s attempt statute when the defendant believes an attendant circumstance exists (a minor victim) but it does not.
- Whether the solicitation statute requires proof that the defendant asked the solicited person to commit a felony (or an act that would be a felony if completed by that person), and whether that requirement was met by inviting an apparent minor to engage in sexual activity.
Decision
- The Michigan Supreme Court reversed in part, affirmed in part, and remanded.
- It held that impossibility is not a defense to attempt under MCL 750.92 and reinstated the attempted distribution of obscene material to a minor charge.
- It affirmed dismissal of the solicitation to commit CSC III charge, not on impossibility grounds, but because the statutory elements of solicitation were not satisfied.
- It left standing reinstatement of the child sexually abusive activity charge, concluding the absence of an actual minor did not bar that offense.
Legal Principles
- Under MCL 750.92, attempt requires (1) intent to commit the underlying crime and (2) an act toward its commission; the availability of completion under the true facts is not part of the test.
- Michigan does not recognize “impossibility” as a defense to attempt; a defendant’s mistaken belief about an attendant circumstance (such as the victim’s age) does not defeat attempt liability if intent and an overt act are shown.
- Under MCL 750.157b, solicitation requires proof that the defendant solicited another person to commit a felony (or to do/omit an act that, if completed by that person, would be a felony).
- Inviting an apparent minor to participate in sexual activity does not satisfy solicitation to commit CSC III where the felony would be committed by the adult actor, not by the solicited minor.
Conclusion
The court treated attempt liability as turning on criminal intent plus action toward commission, rejecting impossibility as a defense in an undercover “minor” sting, while narrowing solicitation liability by requiring proof that the person solicited was asked to commit felonious conduct under the solicitation statute.