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___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JULY 27 , 2001

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 116967 CHRISTOPHER THOUSAND, Defendant-Appellee.

BEFORE THE ENTIRE BENCH YOUNG, J. We granted l eav e in this case to consider whether the doctrine of “impossibility” provides a defense to a charge of

a ttempt to commit an offense prohibited by law und er MC L 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 committedany of the charged crimes. We conclude that the c oncep t of impossibility, which this Court has never adopted as a defense, is not relevant t o a determination whether a defendant has committed attempt under MCL 750.92, and that the circuit court therefore erred in dismissing t he c harge 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 solicitationof third-degree criminal sexual conduct, the charge was nevertheless properly dismissed because there is no evidence that defendant s olic ited any personto “ commit a felony” o r t o “do or omit to do an act whichif 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 cons istent with this opinion. I. F ACTUAL 1 AND P ROCEDURAL B ACKGROUND Depu tyWilliam Liczbinski was assigned by the Wayne County Sheriff’s Department to conduct an undercover

1 This case has not yet been tried. Our statem ent of facts is derived from the preliminary examination and motion hearing transcripts and from the documentation containe d i n the lower court record, including computer printout s of the Internet dialogue between “Bekka” and “Mr. Auto-Mag.” 2investigationfor the department’s Internet Crimes Bureau. Liczbinski was instructed to pose as a minor and log onto “chat rooms” on the Internet for t he pur pose of identifying persons using the Internet as a means for engaging in criminal activity. OnDecember 8, 1998, while using the screen name “Bekka,” Liczbinski was approached by defendant, who w as u sing the

scre enname “Mr. Auto-Mag,” in an Internet chat room. Defendant described himself as a twenty-three-year-old malefrom Warren, and Bekka described herself as a fourteen-yearold female from Detroit. Bekka indicated that her name was Becky Fellins, and defendant revealed that his name was Chris Thousand. Du ring 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 withdefendant. During these exchanges, the conve rsation became sexually expli cit. Defendant made repeated lewd invitations to Bekka to engage in various sexual acts, despite various indications of her young age. 2

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 o ld 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...) 3During one of his online conversations with Bekka, after asking her whether anyone was “around ther e,” watching her, defendant indicated that he wa s sending her a picture of him self. Within seconds, Liczbinski received over the Internet a photograph of male genitalia. Def enda nt 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

care ful, b ecause 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 me et 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 t ell 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 dres sed in black pants and shirt and a brown suede

2 (...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. 4coat, and that he would be driving a green Du ster . Bekka asked defendant to bring her a present, and indicated that she liked white teddy bears. OnThursday, December 17, 1998, Liczb inski and other deputy sheriffs were present at th e 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 tha t h ad been sent to Be kka. Defendant looked around for approximately thirty seconds before leaving the restaurant. Defendant was then takeninto custody. Two white teddy bears were recovered from defendant’s vehicle. Defendant’s computer was subsequently seized from his home . A searc h of the hard drive revealed electronic logs of Internet conversations matching those 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

ove r for trial on charges of solicitation to commit thirddegree 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 abusi ve

5activity, MCL 750.145c(2). 3 Defendant brought a motion to quash the info rmati on, 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, holdi ng 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).

3 The prosecution’s motion to add a count of attempted thi rd- degree criminal sexual conduct was denied by the district court. Additionally, although the original information charged defendant with the completed offense of d istrib ution of obscene mat eria l to a minor, the circuit court subsequently granted the prosecution’s motion to amend the cha rge to attempted distribution of obscene material to a minor.

4 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 impossibil ity . 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 Inour order, we specifically d irec ted the parties to (continued...) 6II. S TANDARD OF R EVIEW We must determine inthis 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 questionof law that is reviewed de novo. James v Alberts , 464 Mich 12, 14; 626 NW2d 158 (2001). 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 Cla rk , 463 Mich 459, 463, n 9; 619 NW2d 538 (2000); Peopl e v M orey , 461 Mich 325, 329; 603 NW2d 250 (1999). III. A NALYSIS A. T HE “I MPOSSIBILITY ” D OCTRINE The doctrine of “impossibility” as it has been discussed inthe context of inchoate crimes represents t he c onceptual dilemma that arises when, because of the defendant’s mistake of fact or law, his actions could not possibly have resulted inthe commission of the substantive crime underlying an attempt charge. Classic illustrations of the concept of

5 (...continued) addr ess (1) whether legal impossibility is a viable defense under the circumstances of this case, and (2) whether the attempt statute codified the legal impossibility de fens e as part of the common law of attempt. 7impossibility include: (1) the defendant is prosecuted for attempted larceny after he tries to “pick” the victim’s empty pocket 6 ; (2) the defendant is pros ecut ed for attempted rape after he tries to have nonconsensual intercourse, but is unsuccessful because he is impotent 7 ; (3) the defendant is prosecuted for attempting to receive stolen property where the pr oper ty he received was not, in fact, stolen 8 ; and (4) the defendant is prosecuted for attempting to hunt d eer out of

seasonafter 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 fro m his objective actions. The question, then, becomes whether the defendant can be pr osec uted for the attempted offense, and the answer is dependent upon whether he may raise the defense of “impossibility.”

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

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

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

9 See State v Guffey , 262 SW2d 152 (Mo App, 1953). 8Courts and legal scholars have dra wn a d istinction betweentwo categories of impossibility: “factual impossibility” and “legal impossib ilit y.” It has been said that, at common law, legal impossibility is a defense to a charge of attempt, but factual impossibility is not. See AmericanLaw Institute, Model Penal Code and Comme ntaries (1985), comment to § 5.01, pp 307-317 ; P erkins & Boyce, Criminal Law (3d ed), p 632; Dressler, Understanding Criminal Law (1 st ed), § 27.07[B], p 349. However, courts and scholars alike have struggled unsuccessfully over the years to articulate an accurate rule for distinguishing between the categories of “impossibility.” “Factual impossibility,” which has apparently never been recognized in any American jurisdiction as a defense to a charge of attempt, 10 “exists when [t he def endant’s] intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control.” Dressler, supra , § 27.07[C][1], p 350. An example of a “factual impossibility” scenario is where the defendant is prosecuted for attempted murder after pointing an unloaded gunat som eone a nd pulling the trigger, where the defendant

10 See Commonwealth v Hen ley , 504 Pa 408, 411; 474 A2d 1115 (1984); State v Logan , 232 Kan 646, 648; 656 P2d 77 7 (1983). 9believed the gun was loaded. 11 The category of “legal impossibility” is further divided into two subcategories: “pure” legal impossibility and “hybrid” lega l impo ssibility. Although it is generally undisputed that “pure” legal impossibility will bar an attempt conviction , th e concept of “hybrid legal impossibility” has provenproblematic. As Professor Dressler points out, the failure of courts to distinguish between “pure” and “hybrid” legal impossibility has created confusion in this area of the law. Dressler, supra , § 27.07[D][1], p 351. “Pure legal impossibility exists if the criminal law does not prohibit D ’s conduct or the result that she has sought to achieve.” Id. , § 27.07[D][2], p 352 (emphasis in original). Inother words, the concept of pure legal impo ssib ility applies when an actor engages in conduct that he believes is criminal, but is not actually prohibited by law: “There can be

no conviction of criminal attempt based upon D’s erroneous notionthat he was committing a crime.” Perkins & Boyce, supra , p 634. As an example, consider the case of a man who believes that the legal age of consent is sixteen years old, and who believes that a girl with whom he had consensual sexual intercourse is fifteen years old. If the law actually fixed the age of consent at fifteen, this man would not be

11 See State v Damms , 9 Wis 2d 183; 100 NW2d 592 (1960). 10guilty o f attempted statutory rape, despite his mistaken belief tha t t he law prohibited his conduct. See Dressler, supra , § 27.07[D][2], pp 352-353, n 25. Whencourts speak of “l egal impossibility,” they are generally referrin g to what is more accurately described as “hybrid” legal impossibility. Most claims of legal impossibility are of the hybrid variety. Hybrid legal impossibility exists if D ’s goal was illegal, but commission of the offense was impossible due to a factual mistake by her regarding the legal status of som e fact or relevant to her conduct. This version of impossibility is a “hybrid” because, as the definition implies and as is clarified immediately below, D’s impossibility claim includes both a legal and a factual aspect to it. Courts have recognized a defense of legal impossibility or have stated that it would exist if D receives unstolen property believing it was stolen; tries to pick the po cket o f a stone image of a human; offers a bribe to a “juror” who is not a juror; tries to hunt deer out of season by shooting a stuffed animal; shoots a corpse believing that it is alive; or shoots at a tree stump believing that it is a human. Notice that each of the mistakes in th ese cases aff ecte d the legal status of some aspect of the defendant’s conduct. The status of property as “stolen” is necessar y t o commit the crime of “receiving stolen property with knowledge it is stolen”–i.e., a person legally is incapable of comm it ting this offense if the property is not stolen. The status of a person as a “juror” is legally necessary to commit the offense of bribing a juror. The status of a victim as a “human being” (rather than as a corpse, tree stump, or statue) legally is necessary to commit the crime of murder or to “take and carry away the personal property of another .” Finally, putting a bullet into a stuffed deer can never constitute the crime of hunting out of season. 11Onthe other hand, in each example of hybrid legal impossibility D was mistaken about a fact: whether property was stolen, whether a person was a juror, whether the victims were human or whether the victim was an animal subject to being hunted out of season. [Dressler, supra , § 27.07[D][3][a], pp 353-354 (emphasis in original).] As the Court of Ap peals panel in this case accurately noted, it is possible to view virtually any example of “hybrid legal impossibility” as anexample of “factual impossibility”:

“ Ultimately any case of hybrid legal impossibility may reasonably be characterized as factual impossibility . . . . [B]y skillful characterization, one can describe virtually any case of h ybrid legal impossibility, which is a commonlaw defense, as an example of factual impossibility, which is not a defense.” [241 Mich App 106 (emphasis in original), quoting Dressler, Understanding Criminal Law (2d ed), § 27.07[D][3][a], pp 374-375.] See also Weiss, Sco pe, mistake, and impossibility: The philosophy of language and problems of mens rea , 83 Colum L R 1029, 1029-1030 (1983) (“[b]ecause ordinary English cannot adequately distinguish among the various kinds of impossible attempts, courts and commentators have frequently misclassified certain types of cas es”); United States v Thomas , 13 CMA 278, 283; 32 C MR 27 8, 283 (1962) (“[w]hat is ab undantlyclear . . . is that it is most difficult to classify any p arti cular state of facts as positively coming withinone of these categories to the exclusion of the other”); State v Moretti , 52 NJ 182, 189; 244 A2d 499 (1968)

12(“[o]ur examinationof [authorities discussing the doctrine of impossibility] convinces us that the appli cation of the defense of impossibility is so f raug ht with intricacies and artificial distinctions that the defense has little value as an analytical method for reaching substantial justice”). It is notable that “the great majority of jurisdictions have now recognized that legal and factual impossibility are ‘logically indistinguishable’ . . . and have abolished impossibility as a defense.” United States v Hsu , 155 F3d 189, 199 (CA 3, 1998). 12 For example, several states have adopted statutory provisions similar to Model Pena l Code § 5.01(1), 13 which provides: A

person is gu ilty o f an attempt to commit a crime if, acting with the kind o f culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b ) when causing a particular result i s a n element of the crime, does or omits to do anything withthe purpose of causing or with the belief that it will cause such resu lt w ithout further conduct on his part; or

12 A part from judicial abrogation of this doctrine, man y states have done so by legislative enactment. In a 1995 law review article, California Deputy Attorney General Kyle Brodie listed t wenty states that had specifically abolished the defense of impossibi lityby legislative enactment. Brodie, The obviously impossible attempt: A proposed revision to the Model Penal Code , 15 N Ill U L R 237, n 39 (1995).

13 See, e.g., Kan Stat Ann 21, § 3301; Colo Rev Stat 18-2­ 101(1); New York Penal Law 110.10. 13(c) purposely does or om its t o do anything which, under the circumstances as he believes them to be, is an act or omission cons titu ting a substantial step in a course of conduct planned to culminate in his commission of the crime. Inother jurisdictions, courts have considered the “impossibility” de fense under attempt statutes that did not include language explicitly abolishing the defense. Several of these courts have simply declined to participat e i n the sterile academic exercise of categorizing a particular set of facts as representing “factual” or “legal” impossibility, and have instead examined solely the words of the applicable attempt statute. See Darnell v State, 92 Nev 680; 558 P2d 624 (1976); State v Moretti , 52 NJ 182, 189; 244 A2d 499 (1968); People v Rojas , 55 Cal 2d 252; 358 P2d 921 (1961). B. A TTEMPTED D ISTRIBUTION OF O BSCENE M ATERIAL TO A M INOR The Court of Appeals panel in this case, after examining Professor Dressler’s exposition of the doctrine of impossibility, concluded that it was legal ly i mpossible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor. The panel held that, b ecause “Bekka” was, in fact, an adult, an essential requirement of the underlying substantive offense was not met (disseminationto a minor), and therefore it was legally impossible for defendant to have committed the crime. We begin by noting that the concept of “impossibility,” 14ineither its “fac tua l” or “legal” variant, has never been recognized by this Court as a valid defense to a charge of attem pt. In arguing that impossibility is a judicially recognized defense in Mich igan , defendant relies heavily on

our statement in People v Tinskey , 394 Mich 108; 228 NW2d 782 (1975), that [i]t is possible, althoughwe need not decide , that defendants could not have been convicted of attempted abortion; at common law the general rule is that while factual impossibili ty is not a defense ( People v Jones , 46 Mich441; 9 NW 486 [1881]) [ 14 ] , legal impossibility is a defense. LaFave & Scott, Criminal Law, § 62, p 474. [Emphasis supplied.] As is readily apparent, our statement in Tinskey regarding “legal impossibility” as a defense to an attempt charge is nothing more than obiter dictum. The defendants in Tinskey were not charged with attempt; rather, they were charged with statutory conspiracy. Moreover, we specifically declined in Tinskey to express any opinion regarding the viability of the “impossibility” defense in the context of attempts. No other Michiga n Su preme Court case has referenced, much less adopted, the impossibility defense. Finding no recognition of impossibility in our common law, we turn now to the terms of the statute. MCL 750.92

14 InJones , this Court, without mentioning the term “impossibility,” held that a conviction of attempted larceny could stand notwithstanding that the defendant picked an empty pocket. 15provides, in relevant part: Any person who shall at tempt to commit an offense prohibited b y law, and in such attempt shall do any act towards the commissi on o f such offense, b ut sh all fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provisi on is made by law for the punishment of such attempt, shall be punished as follows: * * * 3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 yea rs, or imprisonment in the county jail or by fine , th e offender convicted of such attempt shall be guilty of a misdemeanor . . . . Under our statute, then, 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. We have further explained the elements of attempt under our statute as inc luding “an intent to do an act or to bring about cert ai n consequences which would in law amount to a crime [ 15 ] ; and

. . . an act in furtherance of that intent which, as it is most commonly put, goes beyond me re pre paration.” People v Jones , 443 Mich 88, 100; 504 NW2d 158 (1993), quoting 2 LaFave & Scott, Substantive Criminal Law, § 6.2, p 18.

15 The characterizationof “attempt” as a “specific intent” crime is fully consistent with the plain meaning of the word “attempt.” See Perkins & Boyce, supra at 637 (“[t]he word ‘attempt’ means to try; it implies aneffort to bring about a desired result. Hence an attempt to commit any crime requires a specific intent to commit that particular offense”). 16Ind etermining whether “impossibility,” were we to recognize the doctrine, is a viable defense to a charge of attempt un der MCL 750.92, our obligation is to examine the statute in an effort to discern and give effect to the legislative intent tha t may reasonably be inferred from the text of the statute itself. People v McIntire , 461 Mich 147, 152-153; 599 NW2d 102 (1999). “When a legislature has unambiguously conveyed its intent in a statute, the sta tut e speaks for itself and there is no need for judicial construction; the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case.” Id. at 153 (citation omitted). Accordingly, if our Legislature has ind icat ed its intent to criminalize certain conduct despite the actor’s mistake of fact, this Court does not have the authority to cr eate and apply a substantive defense based upon the concept of “impossibility.” See People v Glass (After Remand) , 464 Mich 266; 627 NW2d 261 (2001). We are unable to discern from the words of the attempt stat ute any legislative intent that the concept of “impossibility” provide any impediment to charging a defendant with, or convicting him of, an attempted cri me , notwithstanding any factual mistake–regarding either the attendant circumstances or the legal status of some factor rel evant thereto–that he may harbor. The attempt statute

17carves out no exception for those who, possessi ng t he 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. Defendant inthi s case is not charged with the substantive crime of distributing obscene material to a minor inviolation of MCL 722.675. 16 It is unque stioned that defendant could not be convicted of that crim e, b ecause

16 At the time of the alleged offense, MCL 722.675 provided, in relevant part: (1) A person is guilty of distributing obscene matter to a minor if that persondoes either of the following: (a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors. * * * (2) A person knowingly disseminates sexually explicit matter to a minor when the person knows boththe nature of the matter and the status of the minor to whom the matter is disseminated. (3) A personknows the nature of matter if the personeither is aware of the character and content of the matter or recklessly disregards circumstances suggesting the character and content of the matter. (4) A person knows the status of a minor if the person either is aware that the person to whom the dissemination is made is under 18 years of age or recklessly disregards a substantial risk that the person to whom the dissemination is made is under 18 years of age.

18defendant allegedly distributed obscene material not to “a minor,” but to an adult man. Instead, defendant is charged withthe distinct offense of attempt, whichrequires only that the prosecution prove intention to c ommit an offense prohibited by law, coupled withconduct toward the commission of that offense. The notion that it would be “impossible” for the defendant to have committed the completed offense is simply irrelevant to the analysis. Rather, in deciding guilt

ona charge of attempt, the trier of fact must examine t he unique circumstances of the particular case and dete rmine whether the prosecution has proven that the defendant possessed the requisite specific intent and that he engaged in some act “towards the commission” of the intended offense. Because the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case, the circuit court erred in dismissing this charge on the basis of “legal impossibility.” C. S OLICITATION TO C OMMIT T HIRD -D EGREE C RIMINAL S EXUAL C ONDUCT 1. A NALYSIS Defendant was additionally charged, on the basis of his Internet conversations with “Bekka,” with solicitation to commit third-degree criminal sexual conduct. Defendant maintains that it was “legally impossible” for h im to have committed this crime, because the underlying felony requires

19the existence of a child under the age of sixteen. 17 The Court of Appeals panel agreed, concluding that it was lega ll y impossible for defendant to have committed the crime because the underlying form of thi rd-d egree criminal sexual conduct charged, MCL 750.520d(1)(a), req ui red the existence of a personunder the age of sixteen. The panel further concluded that it was legally impossible for defendant to have committed the crime for the additional reason that he did not “solicit[]

an other person to commit a felony” as proscribed by t he solicitation statute. Our solicitation statute, MCL 750.157b, provides as follows, in relevant part: (1) For purposes of this section, “solicit” means to offer to give, promis e t o give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation. * * * (3) . . . [A] person who solicits another person to commit a felony , or who solicits another personto do or omit to do an act which if completed would constitute a felony , is punishable as follows: (a) If the offense solicit ed is a felony punishable by imprisonment for life, or for 5 years or more, the person is guilty of a felony . . . . [Emphasis supplied.]

17 MCL 750.520d(1) provides that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and . . . (a) [t]hat other person is at least 13 years of age and under 16 years of age.” 20The Court of Appeals erred to the extent that it relied on the doctrine of “impossibility” as a ground for affirming the circuit court’s dismissal of the solicitationcharge. As

we have explained, Michigan has never adopted the doctrine of impossibility as a defense in its traditional attempt context, muchless in the context of solicitationcrimes. Moreover, we are unable to locate any authority, and defendant has provided none, for the proposition that “impossibility” is a recognized defense to a charge of solicitation in other jurisdictions. 18 Nevertheless, the solicitation charge was properly dismissed for the rea son that there is no evidence that defendant in our case solicited anyone “to commit a felony” or “to do o r omit to do an act which if completed would constitute a felony” as prohibited by MCL 750.157b. Pursuant to the plain statutory language, the prosecution was required to present evidence that defendant requested that anoth er

18 Onth e othe r hand, some courts have had occasion to specifically reject the notion that impossibility is a defense to solicitation. See, e.g., Benson v Superior Court of Los Angeles Co , 57 Cal 2d 240, 243-244; 368 P2d 116 (1962) (“[i]f the solicitor believes that the act can be committed ‘it is immaterial that the crime urged is not possible of fulfilment at the time when the words are spoken’ or becomes impossible at a later time” [citations omitted]). See also Model Penal Code § 5.04(1) (Proposed Official Draft 1985) (“[I]t is imma ter ial to the liability of a person who solicits or conspires with another to commit a crime that: (b) the person whom he solicits or with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime”). 21personperform a criminal act. The evidence here shows only that defendant requested that “Bekka” engage in sexual acts withhim. While the requested acts might well have constituted a crime on defendant’s par t, “Bekka” (or Liczbinski) would not have committed third-degree criminal sexual condu ct had she (or he) done as defendant suggested. As the Court of Appeals properly concluded: What is lacking here is defendant’s request to another person to commit a c rime. “Bekka,” the fourteen-year-old online persona of Deputy Liczbinski, was not asked to commit a crime. That is, while it would be a crim e for defendant toengage in sexual intercourse with a fourteen-yearold girl, a fourteen-year-old girl is not committing a criminal offense (or at least not CSC3) by engaging in sexual intercourse withan adult. T hus, whether we look at this case as defen dan t asking fourteen-year-old “Bekka” to engage in sexual intercourse with him or as defendant asking Deputy Liczbinski to engage in sexual intercourse withhim, he di d not ask another person to commit CSC-3. . . . For the above reaso ns we conclude that the trial court properly dismissed the charge of solicitationto commit criminal sexual conduct. [241 Mich App 111.] Accordingly, while the concept of “impossibility” has no role inthe analysis of this issue, we agree with the panel’s conclusionthat anelement of the statutory offense is missing and that the solicitation charge was therefor e prop erly dismissed. 2. R ESPONSE TO THE D ISSENT Inhis partial dissent, Justice T AYLOR opines that our 22construction of MCL 750.157b(3) renders the second phrase of that subsection a “nullity,” and that this ph rase –“or who solicits another person to do or omit to do an act which if

completed would constitute a felony”–should be read to encompass “situations where the solicitee could not be charged withthe felony, but the solicitor could be.” Slip op, pp 3­ 4. We disagree. We first note that, pursuant to the plain language of this phrase, it is the act of “ another person ” that must, if completed, “constitute a felony.” We believe that the plain language of the statute does no t su pport the interpretation our dissenting colleague gives it. Moreover, our construction of § 157b(3) does not render the s econd phrase of that subsection “nugatory” or “surplusage.” Rather, it appears that the Legislature, by its

use of the phrase “do or omit to do anact which if completed would constitute a felony,” intended to ma ke cle ar that the solicited offense does not have to be completed. It is noteworthy that § 157bwas substantially amended in 1986, following this Court’s holding in People v Rehkopf , 422 Mich198; 370 NW2d 296 (1985). InRehkopf , this Court examined two cases inwhich the defendants were charged under the former version of § 157b. Defendant Rehkopf had asked an undercover police officer to kill her husband, and defendant

23Snyder had asked someone to kill his brother. In neither case did the intended murder ever occur. This Court held that the statute was not violated where the defendants’ conduct did not lead to the results the defendants urged–namely, the deaths of Rehkopf’s husband or Snyder’s brother. In1985, the statute read as follows, in pertinent part: Any personwho incites, induces or exhorts any other person to . . . do any act which would constitute a felony . . . shall be punished in the same manner as if he had committed the offense incited, induced or exhorted. The Rehkopf majority held that § 157b does not subject a person to criminal responsibility for utterances that do not result in the commission of the offe nse sought to be committed. A person who does no more than u tte r words seeking the commission of an off ense is subject to liability only for the common-law offense of solicitation. [ Id . at 205.] [ 19 ] Justice B OYLE and Chief Justice W ILLIAMS dissented, opining that § 157b contained no requirement “that the solicitationresult ineither actual incitement or completion of the solicited offense.” Id. at 223. In1986, the Legislature rewrote § 157 b. The first clause of current subsection 157b(3) (“a person who solicits another person to commit a felony”), apart from using the term

19 This C ourt p ointed out that “[s]olicitation remains a common-law offense in Michigan for which a maximum o f f ive years imprisonment and a $10,000 fine may be imposed” pursuant to MCL 750.505. 422 Mich 204, n 3. 24“solicits,” is quite similar to the phrase “[a]ny person who incites, induces or exhorts any other person to do any act whichwould constitute a felony” as used in the prior version of § 157b. However, the Legislature apparently deemed it necessary–reasonably so, in light o f the Rehkopf Court’s constructionof § 157b–to clarify that the solicited act need not be completed in order to satisfy the elements of the statute. Accordingly, the second clause of subsection 157b(3) prov ides further that the statute is violated where the defendant “solicits another person to do or omit to do an act which if complete dwoul d constitute a felony” (emphasis supplied). It is quite probable that the Legislature believed that the phrase “solicits another person to commit a felony” would not hav e reached solicitations in which the solicited act never came to fruition, and that the second clause was added for this purpose.

IV. C ONCLUSION This Court has never recognized the doctrine of impossibility. Moreover, we are unable to discern any legislative intent that the doctrine may be advanced as a defense to a charge of attempt under MCL 750.92. Accordingly, the circuit court erred in dismissing this charge on the basis that it was “legally impossible” for defendant to have committed the crime. 25Furthermore, altho ugh we do not agree with the circuit court or the Court of Appeals that “legal impossibility” was properly invoked by defendant as a defense to the charge of solicitation, we nevertheless affirm the dismissal of this charge. There is no evidence that defendant solicited anyone “to commit a felony” or “to do or omit to do an act which if completed would constitute a felony.” Accordin gly, we reverse in part, affirm in part, and

rem and this matter to the circuit court for proceedings consistent with this opinion. We do not retain jurisdiction. C ORRIGAN , C.J., and W EAVER and M ARKMAN , JJ., concurred with Y OUNG , J.

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, No. 116967 CHRISTOPHER THOUSAND, Defendant-Appellee. KELLY, J. ( concurring in part and dissenting in part ). I respectfully disagree with the majority's conclusion that the doctrine of "legal impo ssib ility" 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 decisionaffirming the circuit court's dismissal of attempted distributionof obscene material to a minor. MCL 750.92, 722.675. 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 conductinthis case. MCL 750.157b(3)(a), 750.520d(1)(a). I ag ree withthe majority's conclusionthat there is no evidence that defendant solicited anyone to commit CSC-3. T here fore, I would affirm the Court of Appeals decision affirming the circuit court's dismissal of the solicitation charge, but on different grounds. I. "LEGAL IMPOSSIBILITY" IN MICHIGAN The majority errs in concluding that "legal impossibility" has never been adopted in Michigan. It focuses

onlanguage in Tinskey 1 pertaining to "legal impossibility" as

a defense to attempt, but ignores the reasoning of the decision. Viewing the forest as well as the trees, one observes that the reasoning and the conclusion of the Tinskey Court prove tha t it accepted the doctrine of "legal impossibility." Tinskey held that the defendants could not be guilty of conspiracy to commit abortion because the woman who was to be aborted was not pregnant. Tinskey, supra at 109. The Court reasoned that the Legislature, inenact ing the statute, purposely required that conspiracy to abort involve a pregnant woman. It thereby rejected prosecutions where the woman was not pr egnant. It concluded that the defendants in Tinskey coul d not be prosecuted for conspiracy to commit abortion

1 People v Tinskey , 394 Mich 108; 228 NW2d 782 (1975). 2because one of the elements of the crime, a pregnant woman, could not be established. Significantly, the Tinskey Court stated that "[t]he Legislature has not, as to most other offenses, so similarly indicated that impossibility is not a defense." Id. 2 By this language, Tinsk ey e xpressly recognized the existence of the "legal impossibility" defense in the common law of this state. Even though the reference to "legal impossibility" regarding the cri me of attempt may be dictum, the later statement regarding the "impossibility" defense was part of the reasoning and conclusion in Tinskey. Th is Court recognized the defense, even if it did not do so expressly concerning charges for attempt or solicitation. Moreover, Michigan common law 3 is not limite d t o decisions from this Court. The majority should not ig nor e decisions from the Court of Appeals. That Court has accepted

2 I take this to mean that with respect to cons piracy to a bort, as with most other statutory crimes, the Legisla tur e has not indicated that impossibility is not a defense. Hence, it is a defense.

3 Commonlaw is "the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs . . . . In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments." Black's Law Dictionary (6th ed), p 276. 3"legal impossibility" as a defense. For example, in People v Ng , the Court of Appeals distinguished between "factual impossibility" and "legal impossibility" in rejecting a defendant's argument that he was not guilty of attemp ted murder. 156 Mich App 779, 786; 402 NW2d 500 (1986). It found that factual impossibility is not a defense to a charge of attempted murder, but observed that legal impossibility is a defense, citing Tinskey . Similarly, in People v Cain , the court distinguished between "legal impossibility" and a defense based on a claim of right. 238 MichApp 95, 117-119; 605 NW2d 28 (1999). It implicitly read Tinskey as acknowledging the existence of t he " legal impossibility" defense. 4 Accordingly, in this case, the Court of Appeals correctly considered "legal impossibility" a viable defense. II. INTERPRETATION OF THE ATTEMPT STATUTE Evenif "legal impossibility" were not part of Michigan's

com monlaw, I would disagree with the majori ty' s interpretati on of the attempt statute. It does not follow from the fact that the statute does not expressly incorporate

4 See also People v Genoa , 188 Mich App 461, 464; 470 NW2d 447 (1991) . Genoa held that the circuit court correctly dismis sed the charge of attempted possession with intent to deliver 650 grams or more of cocaine. Judge Shepherd based the holding on the fact that it was legally impossible for the defendant to have committed the offense. 4the concept of impossibility that the defense is inapplicable. Examinationof the language of the attempt statute leads to a reasonable inference that the Legislature did not intend to punish conduct that a mistake of legal fact renders unprohibited. The attempt statute makes illegal an ". . . at tempt to commit an offense prohibit by law . . . ." MCL 750.92 (emphasis added). It does not make illegal an action not prohib ite d by law. Hence, one may conclude, the impossibility of completing the underlying crime can provide a defense to attempt. This reasoning is supported by the fact that the attempt statute codified the common-law rule regarding the elements of attempt. See People v Youngs , 122 Mich 292, 293; 81 NW 114 (1899); People v Webb , 127 Mich 29, 31-32; 86 NW 406 (1901). At common law, "legal impossibility" is a defense to attempt. United States v Hsu , 155 F3d 189, 199-200 (CA 3, 1998); Dressler, Understanding Criminal Law (2d ed), § 27.0 7[B], p 369; 21 Am Jur 2d, Criminal Law, § 1 78, p 254. Absent a statute expressly abrogating "legal impossibility," this common-law rule continues to provide a vi able defense. Bandfield v Bandfield , 117 Mich 80, 82; 75 NW 287 (1898), rev'd in part on other grounds Hosko v Hosko , 385 Mich 39; 187

5NW2d 236 (1971). 5 This state's attempt statute, unlike the Model Penal Code and various state statutes that fo llow i t, does not contain language allowing for consideration of a defendant's beliefs regarding "attendant circumstances." Rather, it t akes an "objective" view of criminality, foc us ing on whether the defendant actually came close to completing the prohibited act. 1 Robinson, Criminal Law Defenses, § 85(a), pp 423-424; § 85(b), p 426, n 22. The impossibility of completing the offense is relevan t t o this objective approach because impossibility obviates the state's "concern that the actor may

caus e or come close to causing the harm or evil that the offense seeks to prevent." Id . at 424. The majority's conclusion, that it is irrelevant whether it would be impossible to have committed the completed offense, contradicts the language used in the attempt statute. If an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act. The underlying offense in this case, disseminatin g or exhibiting sexual material to a minor, requires a minor recipient. Because the disseminationwas not to a minor, it is legally impossible for

5 The Bandfield Court stated: "Th e le gislature should speak in no uncertain manner when it seeks to abrogate the p lain a nd long-established rules of the common law. Courts should not be left to co nstruction to sustain such bold innovations." Id . at 82. 6defendant to have committed the prohibited act. This Court should affirm the Court of Appeals decision, determining that it was legally im poss ible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor, MCL 750.92, 722.675. III. THE SOLICITATION STATUTE I further disagree with the majority 's c onclusion that "legal impossibility" is not a recognized defense to a solicitationcharge. As discussed above, the defense has been implicitly acknowledged in Michigan's case law. The majority states that no authority supports the proposition that "legal impossibility" is a defense to solic itat ion in other jurisdictions. However, this fact is unremarkable in light of the rarity with which the defense is invoked. Moreover, "the impossibility is su e can arise in all inchoate offenses," including solicitation. Robinson, § 85(f)(2), p 436. The language of our solicitation statute demonstrates that an illegal solicitation mus t conc ern an act that would constitute a felony if completed. The statute states, "a personwho solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows . . . ." MCL 750.157b(3). "Legal imposs ibil ity" would be a defense if the

7defendant's goal were illegal but the offense incomplete due to the defendant's factual mistake concerning the legal status of a relevant circumstance. See Dressler, § 27.07[D][3][a], p 373 (discussing "hybrid legal impossibility "). In this case, defendant was mistaken regarding the legal status of "Bekka," whom he believed to be a female minor but who was actually a male adult. However, defendant's factual mistake is irrelevant in analyzing the charge of solicitation to commi t th ird-degree criminal sexual conduct. Even if he had made his request to engage in sexual intercourse to a fourteen-ye ar-ol d girl, defendant, not the girl, would have violated the CSC-3 statute. Therefore, I agree with the majority that defendant did not solicit "Bekka" to commit an act that constituted a felony within the meaning of the solicitation statute. I note that this is the same conclusion reached by the Court of Appeals. See People v Thousand , 241 Mich App 102, 111; 614 NW2d 674 (2000). That Court erred, however, in applying a "legal impossibility" analysis. It was not defendant's mistake regarding the minority status of "Bekka" that is significant. Rather, an element of the solicitation charge is missing. "Legal impossibility" is, th erefore, irrelevant under the facts of this case. The so lic itation charge was properly dismissed because the pro secu tion could

8not prove all elements of the crime. IV. CONCLUSION As judges, we often decide cases involving disturbing facts. However repugnant we personally find the criminal conduct charged, we must decide the issues on the basis of the law. I certainly do not wish to have child predators loose in society. However, I believe that neither the law nor society is served by allowing the end of removing them from society to

excuse unjust means to accomplish it. In this case, defendant raised a legal impossibility argument that is supported by Michigancase law. The major ity, i n determining that legal impossibility is not a viable defense in this state, ignores that law. Inkeeping w ith precedent and legal authority, I would affirm the Court of Ap peals decision that it was legally impossible for defendant to commit the charge d of fense of attempted di str ibution of obscene material to a minor. Of course, if this view prevailed, defendant could still be prosecuted for his alleged misconduct. He is to be tried on the most serious of the charges , ch ild sexually abusive activity, MCL 750.145c. With regard to the solicitation charge, I disagree with the majority's conclusion that "legal impossibility" is not a defense to solicitation. However, the defense does not apply

9under the facts of this case. Even if the facts had been as defendant believed, de fendant did not solicit "Bekka" to commit CSC-3. Hence, an essential element of the solicitation charge is missing. The charge was properly dismissed for that

reaso n, n ot because of the availability of the "legal impossibility" defense. C AVANAGH , J., concurred with K ELLY , J.

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant/ Cross-Appellee, No. 116967 CHRISTOPHER THOUSAND, Defendant-Appellee/ Cross-Appellant. TAYLOR, J. ( concurring in part and dissenting in part ). I agree with the majority’s recitation of the facts and its excellent analysis of why “hybrid legal impossibility” should not be recognized as a defense to a charge of attempt under MCL 750.92. Thus, I concur withpart s I, II, III(A), and III(B) of the majority opinion. However, I respectfully dissent from the majority’s analysis of the solicitation of third-degree criminal sexual conduct (CSC 3) charge in part III(C). 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 fourteenyear-old child to engage in an act of sexual penetration eventhougha child vic tim of such an act of CSC 3 would not be guilty of CSC 3 for “voluntarily” engaging in the act. My difference with the majority is in its understanding of the solicitation statut e, M CL 750.157b(3). That section provides in pertinent part: [A] person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows:. . . . [Emphasis added.] As to the first clause (“a person who solicits another personto commit a felony”), I agree with the majority that defendant cannot be considered to have asked “Bekka” to commit the felony of CSC 3 in violation of the solicitation statute because she cannot commit this felony by engaging in sex with

anadult. If an adult and a child aged thirteen to fifteen engage in anact of “consensual” sexual penetration, only the adult would be committing the crime of CSC 3. 1 Thus, an adult who asks a fourteen-year-old child to engage in such an act cannot be considered to have asked the child to commit CSC 3. That is, the solicitor has not breached the first clause in

1 The CSC 3 statute provides, in pertinent part, that “[a] person is g uilt y of [CSC 3] if the person engages in sexual penetration with another person and . . . [t]hat other personis at least 13 years of age and under 16 years of age.” MCL 750.520d(1)(a) . As one would expect, this language is phrased so as to impose criminal liability on an adult who engages in sexua l pene tration with a child aged thirteen to fifteenwithout imposing liability onthe child victim of the crime. 2this section. However, regarding the disjunctive clause that follows the first clause, i.e., “or who solicits another person to do

or omi t to do an act which if completed would constitute a felony,” this language is broader in scope than merely prohibiting a person from soliciting another person to commit

a felony. I believe this language makes it unlawful to solicit another person to do an act that if the act w ere completed would be a felony. While this part of the statute surely is not as clear as it could be, 2 we must use statutory constructionrules to give it meaning. A primary rule is that we should avoid making the second clause a nullity by giving it the same meaning as the first clause. 3 Using this tool, I conclude that the second clause means it is unlawful to solicit another person to join with the solicitor in doing an act that would constitute a felony whether the solicited party could be guilty of the felony or not.

2 Perhaps the Legislature will want to consider revising the solicitation statute to employ more straightforward language in place of the phrase “to do or omit to do an act which if completed would constitute a felony.”

3 “It is a maxim of statutory construction that every word of a s tatute should be read in a way as to be given meaning, and a court shou ld avo id a construction that would render any part of the statute surplusage or nugatory.” Inre MCI Telecommunications Complaint, 460 Mich 396, 414; 596 NW2d 164 (1999); see also People v Warren, 462 Mich 415, 429, n 24; 615 NW2d 691 (2000) (no word of a statute should be treated as surplusage or rendered nugatory). 3This all means tha t the first clause requires that the solicited act would be a felony for which the solicitee could be charged. The second clause enc ompa sses situations where the solicitee could not be charged with the felony, but the solicitor could be . Thi s construction of the statute gives viability to both clauses of the section at issue and is, thus, in my view, not only preferable, but required. The gist of the majority opinion, with regard to the solicitation issue, is that the second phrase, i.e., “or who solicits another person to do or omit to do an act which if completed would constitute a felony,” is merely clarifying language to make clear that the Legislature did not intend to require that the solicitee actually complete the solicited felony in order for the solicitor to have violated the statute. That is, the majority states that the second clause

was “intended to make clear that the solicited o ffense does not have to be completed.” Slip op, p 23. Yet, the majority

seems to acknowledge that the first clause is also violated by

a solicitationto commit a felony evenif the felony is never act ually completed. This, then, makes the second clause a nullity. It is that outcome that discip lined readers of statutes should avoid. Also, the ma jori ty indicates that my interpretation is contrary to the plain language of the statute because “it is

4the act of ‘another person’ that must, if completed, ‘constitute a felony.’” Slip op, p 23. I disa gree because the majority’s view on this point fails to give meaning to the words “if completed.” If, as the majority argues, the conduct of the solicitee in itself must constitute a felony, then the language of the second phrase has no different meaning than if it simply referred to “an act which ... would constitute a felony.” The reason is that, if the statutory language read “or who solicits another person to do or omit to do an act whichwould constitute a felony,” then it might well be argued that the solicited person’s contemplated “act,” standing alone, must const itute a felony for the statute to be violated. However, the “if completed” language allows for the impositionof liability where completionof the solicited act by another person would necessarily constitute a felony. I agree with the majority that the c urrent language of the solicitation statute, MCL 750.157b, seems to be in large

measure a reaction to this Court’s interpretation of the preceding statutory language at issue in People v Rehkopf, 422 Mich198; 370 NW2d 296 (1985). However, that means only that the Legislature intended to include circumstances in which the solicited felony is never actually committed withinthe scope of the solicitation statute. Indeed, the language of the first clause proscribing a person from merely asking another

5person“to commit a felony” suffices, by its plain and unambiguous meaning, to accomplish that goal. That does not mean, however, that the Legislature might not have wanted to

cover more situations inasmuch as it was acting to broaden the scope of the statute. Accordingly, the discussion of Rehkopf does not alter my view that, in keeping with th e ca non of constructionagainst rendering statutory language nugatory or

s urplusage, the second clause must be taken as encompas sin g more than the first clause, standing alone, does. Turning to the circumstances of the present case, there

was evidence that defendant solicited “Bekka,” believing “her” to be a fourteen-year-old child, to engage in an act of sexual penetrationwith him. In other words, defendant solicited “Bekka” to engage with him in an act of sexual penetration betweenan adult and a fourteen-year-old child. Thus, defendant solicited “Bekka” to do an act that, “if completed” by the participation of defendant, would constitute the felony of CSC 3 on defendant’s part. Accordingly, I conclude that such a solicitation falls within the range of conduct in the solicitationstatute’s prohibition of soliciting another person“to do . . . an act which if completed would constitute a felony.” MCL 750.157b(3). Of course, I recognize that because “Bekka” was actually Deputy William Liczbinski, an adult, the solici ted p erson

6could not actually have committed the act envisi oned by defendant. However, that is immaterial. There is nothing in the language of the pertinent part of the solicitation statute, MCL 750.157b(3), that requires that it be possible for the solicited person to carry out the conduct that is solicited in order for the statute to be violated. Thus, consistent with the majority opinion’s rejection of the “legal impossibility” defense, I conclude that it is immaterial that the deputy could not have carried out the solicited act. Accordingly, I agree with the majority’s treatment of the attempted distribution of obscene material to a minor charge. However, I would also reverse the Court of Appeals with regard to the solicitation of CSC 3 charge, and would remand to the circuit court for trial on that charge.

7