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Michigan Supreme Court Lansing, Michigan 48909 _____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v CHRISTOPHER THOUSAND,
Defendant-Appellee.
___________________________________ BEFORE THE ENTIRE BENCH
YOUNG, J.


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 27, 2001


No. 116967


We granted leave in this case to consider whether the
doctrine of "impossibility" provides a defense to a charge of
attempt to commit an offense prohibited by law under MCL
750.92, or to a charge of solicitation to commit a felony
under MCL 750.157b. The circuit court granted defendant's


motion to quash and dismissed all charges against him on the
basis that it was legally impossible for him to have committed


any of the charged crimes. impossibility, defense, is which this

We conclude that the concept of
Court to a has never adopted as a
a


not

relevant

determination

whether

defendant has committed attempt under MCL 750.92, and that the
circuit court therefore erred in dismissing the charge of
attempted distribution of obscene material to a minor on the
basis of the doctrine of legal impossibility. We additionally
conclude that, although the Court of Appeals erred to the
extent that it relied upon the concept of "impossibility" in
dismissing the charge of solicitation of third-degree criminal
sexual conduct, the charge was nevertheless properly dismissed
because there is no evidence that defendant solicited any
person to "commit a felony" or to "do or omit to do an act
which if completed would constitute a felony" as proscribed by
MCL 750.157b. Accordingly, we reverse in part and affirm in


part the decision of the Court of Appeals and remand this
matter to the circuit court for proceedings consistent with
this opinion.
I. FACTUAL 1
AND

PROCEDURAL BACKGROUND


Deputy William Liczbinski was assigned by the Wayne
County Sheriff's Department to conduct an undercover


This case has not yet been tried. Our statement of
facts is derived from the preliminary examination and motion
hearing transcripts and from the documentation contained in
the lower court record, including computer printouts of the
Internet dialogue between "Bekka" and "Mr. Auto-Mag."
2


1

investigation for the department's Internet Crimes Bureau.
Liczbinski was instructed to pose as a minor and log onto
"chat rooms" on the Internet for the purpose of identifying
persons using the Internet as a means for engaging in criminal
activity.
On December 8, 1998, while using the screen name "Bekka,"
Liczbinski was approached by defendant, who was using the
screen name "Mr. Auto-Mag," in an Internet chat room.


Defendant described himself as a twenty-three-year-old male
from Warren, and Bekka described herself as a fourteen-year old female from Detroit. Bekka indicated that her name was


Becky Fellins, and defendant revealed that his name was Chris
Thousand. During this initial conversation, defendant sent


Bekka, via the Internet, a photograph of his face.
From December 9 through 16, 1998, Liczbinski, still using
the screen name "Bekka," engaged in chat room conversation
with defendant. became sexually During these exchanges, the conversation
explicit. Defendant made repeated lewd


invitations to Bekka to engage in various sexual acts, despite
various indications of her young age.2


Defendant at one point asked Bekka, "Ain't I a lil [sic]
old??" Upon Bekka's negative reply, defendant asked, "[Y]ou
like us old guys?" Bekka explained that boys her age "act
like little kids," and reiterated that she was fourteen years
old. Bekka mentioned that her birthday was in 1984 and that
she was in ninth grade, and defendant asked when she would be
(continued...)
3


2

During one of his online conversations with Bekka, after
asking her whether anyone was "around there," watching her,
defendant indicated that he was sending her a picture of
himself. Within seconds, Liczbinski received over the


Internet a photograph of male genitalia.

Defendant asked


Bekka whether she liked and wanted it and whether she was
getting "hot" yet, and described in a graphic manner the type
of sexual acts he wished to perform with her. Defendant


invited Bekka to come see him at his house for the purpose of
engaging in sexual activity. Bekka replied that she wanted to
do so, and defendant cautioned her that they had to be
careful, because he could "go to jail." Defendant asked


whether Bekka looked "over sixteen," so that if his roommates
were home he could lie.
The two then planned to meet at an area McDonald's
restaurant at 5:00 p.m. on the following Thursday. Defendant


indicated that they could go to his house, and that he would
tell his brother that Bekka was seventeen. Defendant


instructed Bekka to wear a "nice sexy skirt," something that
he could "get [his] head into." Defendant indicated that he


would be dressed in black pants and shirt and a brown suede


(...continued)
fifteen. Defendant asked whether Bekka was still "pure," to
which Bekka responded that she was not, but that she did not
have a lot of experience and that she was nervous.
4


2

coat, and that he would be driving a green Duster.

Bekka


asked defendant to bring her a present, and indicated that she
liked white teddy bears.
On Thursday, December 17, 1998, Liczbinski and other
deputy sheriffs were present at the specified McDonald's
restaurant when they saw defendant inside a vehicle matching
the description given to Bekka by defendant. Defendant, who


was wearing a brown suede jacket and black pants, got out of
the vehicle and entered the restaurant. Liczbinski recognized
defendant's face from the photograph that had been sent to
Bekka. Defendant looked around for approximately thirty
Defendant was then


seconds before leaving the restaurant.

taken into custody. Two white teddy bears were recovered from
defendant's vehicle. seized from his home. electronic logs Defendant's computer was subsequently
A search of the hard drive revealed
conversations matching those


of Internet

printed out by Liczbinski from the Wayne County-owned computer
he had used in his Internet conversations with defendant.
Following a preliminary examination, defendant was bound
over for trial on charges of solicitation to commit third degree criminal sexual conduct, MCL 750.157b(3)(a) and


750.520d(1)(a), attempted distribution of obscene material to
a minor, MCL 750.92 and 722.675, and child sexually abusive


5


activity, MCL 750.145c(2).3
Defendant brought a motion to quash the information,
arguing that, because the existence of a child victim was an
element of each of the charged offenses, the evidence was
legally insufficient to support the charges. The circuit


court agreed and dismissed the case, holding that it was
legally impossible for defendant to have committed the charged
offenses. The Court of Appeals affirmed the dismissal of the


charges of solicitation and attempted distribution of obscene
material to a minor, but reversed the dismissal of the charge
of child sexually abusive activity.4 241 Mich App 102 (2000).


We granted the prosecution's application for leave to
appeal.5 463 Mich 906 (2000).


The prosecution's motion to add a count of attempted
third-degree criminal sexual conduct was denied by the
district court.
Additionally, although the original information charged
defendant with the completed offense of distribution of
obscene material to a minor, the circuit court subsequently
granted the prosecution's motion to amend the charge to
attempted distribution of obscene material to a minor.
The Court of Appeals concluded that, because the child
sexually abusive activity statute proscribes mere preparation
to engage in such activity, the circuit court erred in
dismissing that charge on the basis of the doctrine of legal
impossibility. 241 Mich App 102, 115-117; 614 NW2d 674
(2000). We denied defendant's application for leave to appeal
from this portion of the Court of Appeals opinion, and this
charge is not presently before us.

5 4

3

In our order, we specifically directed the parties to
(continued...)
6


II.

STANDARD

OF

REVIEW


We must determine in this case whether the circuit court
and the Court of Appeals properly applied the doctrine of
"legal impossibility" in concluding that the charges against
defendant of attempt and solicitation must be dismissed. The


applicability of a legal doctrine is a question of law that is
reviewed de novo. 158 (2001). James v Alberts, 464 Mich 12, 14; 626 NW2d


Similarly, the issue whether "impossibility" is


a cognizable defense under Michigan's attempt and solicitation
statutes presents questions of statutory construction, which
we review de novo. People v Clark, 463 Mich 459, 463, n 9;


619 NW2d 538 (2000); People v Morey, 461 Mich 325, 329; 603
NW2d 250 (1999).
III. ANALYSIS
A. THE "IMPOSSIBILITY " DOCTRINE
The doctrine of "impossibility" as it has been discussed
in the context of inchoate crimes represents the conceptual
dilemma that arises when, because of the defendant's mistake
of fact or law, his actions could not possibly have resulted
in the commission of the substantive crime underlying an
attempt charge. Classic illustrations of the concept of


(...continued)
address (1) whether legal impossibility is a viable defense
under the circumstances of this case, and (2) whether the
attempt statute codified the legal impossibility defense as
part of the common law of attempt.
7


5

impossibility include: (1) the defendant is prosecuted for
attempted larceny after he tries to "pick" the victim's empty
pocket6; (2) the defendant is prosecuted for attempted rape
after he tries to have nonconsensual intercourse, but is
unsuccessful because he is impotent7; (3) the defendant is
prosecuted for attempting to receive stolen property where the
property he received was not, in fact, stolen8; and (4) the
defendant is prosecuted for attempting to hunt deer out of
season after he shoots at a stuffed decoy deer.9 In each of


these examples, despite evidence of the defendant's criminal
intent, he cannot be prosecuted for the completed offense of
larceny, rape, receiving stolen property, or hunting deer out
of season, because proof of at least one element of each
offense cannot be derived from his objective actions. question, then, becomes whether the defendant can The
be


prosecuted for the attempted offense, and the answer is
dependent upon whether he may raise the defense of


"impossibility."


See People v Jones, 46 Mich 441; 9 NW 486 (1881);
Commonwealth v McDonald, 59 Mass 365 (1850); People v Twiggs,
223 Cal App 2d 455; 35 Cal Rptr 859 (1963).

7

6

See Waters v State, 2 Md App 216; 234 A2d 147 (1967).


See Booth v State, 398 P2d 863 (Okla Crim App, 1964);
People v Jaffe, 185 NY 497; 78 NE 169 (1906).

9

8

See State v Guffey, 262 SW2d 152 (Mo App, 1953).
8


Courts between

and

legal

scholars of

have

drawn

a

distinction
"factual


two

categories

impossibility:

impossibility" and "legal impossibility."

It has been said


that, at common law, legal impossibility is a defense to a
charge of attempt, but factual impossibility is not. See


American Law Institute, Model Penal Code and Commentaries
(1985), comment to

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