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____________________________________________________________________________________________________________________________ 

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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 Opinion Robert P. Young, Jr. 

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 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. We conclude that the concept of
 

impossibility, which this Court has never adopted as a
 

defense, is not relevant to a determination whether a
 

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. FACTUAL1 AND PROCEDURAL BACKGROUND
 

Deputy William Liczbinski was assigned by the Wayne
 

County Sheriff’s Department to conduct an undercover
 

1

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
 
 

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-yearold 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. During these exchanges, the conversation
 

became sexually explicit. 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 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
 
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
 

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.
 

4
 
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
 

seconds before leaving the restaurant. Defendant was then
 

taken into custody. Two white teddy bears were recovered from
 

defendant’s vehicle. Defendant’s computer was subsequently
 

seized from his home. A search 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
 

over 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 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).
 

3The 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. 


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


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.
 

5In 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. 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 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
 

5

(...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
 
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. The
 

question, then, becomes whether the defendant can be
 

prosecuted for the attempted offense, and the answer is
 

dependent upon whether he may raise the defense of
 

“impossibility.”
 

6See 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). 


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

8

See Booth v State, 398 P2d 863 (Okla Crim App, 1964);
 

People v Jaffe, 185 NY 497; 78 NE 169 (1906). 


9See State v Guffey, 262 SW2d 152 (Mo App, 1953). 


8
 
 

Courts and legal scholars have drawn a distinction
 

between two categories of impossibility: “factual
 

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 § 5.01, pp 307-317; Perkins & Boyce,
 

Criminal Law (3d ed), p 632; Dressler, Understanding Criminal
 

Law (1st 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 [the defendant’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
 

gun at someone and pulling the trigger, where the defendant
 

10See Commonwealth v Henley, 504 Pa 408, 411; 474 A2d
 

1115 (1984); State v Logan, 232 Kan 646, 648; 656 P2d 777
 

(1983). 


9
 
believed the gun was loaded.11
 

The category of “legal impossibility” is further divided
 

into two subcategories: “pure” legal impossibility and
 

“hybrid” legal impossibility. Although it is generally
 

undisputed that “pure” legal impossibility will bar an attempt
 

conviction, the concept of “hybrid legal impossibility” has
 

proven problematic. 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).
 

In other words, the concept of pure legal impossibility
 

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
 

notion that 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
 

11See State v Damms, 9 Wis 2d 183; 100 NW2d 592 (1960).
 

10
 
guilty of attempted statutory rape, despite his mistaken
 

belief that the law prohibited his conduct. See Dressler,
 

supra, § 27.07[D][2], pp 352-353, n 25. 


When courts speak of “legal impossibility,” they are
 

generally referring 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 some factor


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 pocket of 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 these
 

cases affected the legal status of some aspect of


the defendant’s conduct. The status of property as
 

“stolen” is necessary to commit the crime of


“receiving stolen property with knowledge it is


stolen”–i.e., a person legally is incapable of


committing 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.
 

11
 
On the 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 Appeals panel in this case accurately
 

noted, it is possible to view virtually any example of “hybrid
 

legal impossibility” as an example 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 hybrid legal impossibility, which is a


common law 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, Scope, 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 cases”); United States v
 

Thomas, 13 CMA 278, 283; 32 CMR 278, 283 (1962) (“[w]hat is
 

abundantly clear . . . is that it is most difficult to
 

classify any particular state of facts as positively coming
 

within one of these categories to the exclusion of the
 

other”); State v Moretti, 52 NJ 182, 189; 244 A2d 499 (1968)
 

12
 
 

 

(“[o]ur examination of [authorities discussing the doctrine of
 

impossibility] convinces us that the application of the
 

defense of impossibility is so fraught 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 Penal Code
 

§ 5.01(1),13 which provides: 


A person is guilty of an attempt to commit a


crime if, acting with the kind of 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 is an


element of the crime, does or omits to do anything


with the purpose of causing or with the belief that


it will cause such result without further conduct
 

on his part; or 


12Apart from judicial abrogation of this doctrine, many


states have done so by legislative enactment. In a 1995 law
 

review article, California Deputy Attorney General Kyle Brodie


listed twenty states that had specifically abolished the


defense of impossibility by 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). 


13See, 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 omits to do anything


which, under the circumstances as he believes them


to be, is an act or omission constituting a


substantial step in a course of conduct planned to


culminate in his commission of the crime.
 

In other jurisdictions, courts have considered the
 

“impossibility” defense under attempt statutes that did not
 

include language explicitly abolishing the defense. Several
 

of these courts have simply declined to participate in 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. ATTEMPTED DISTRIBUTION OF OBSCENE MATERIAL TO A MINOR
 

The Court of Appeals panel in this case, after examining
 

Professor Dressler’s exposition of the doctrine of
 

impossibility, concluded that it was legally impossible for
 

defendant to have committed the charged offense of attempted
 

distribution of obscene material to a minor. The panel held
 

that, because “Bekka” was, in fact, an adult, an essential
 

requirement of the underlying substantive offense was not met
 

(dissemination to a minor), and therefore it was legally
 

impossible for defendant to have committed the crime. 


We begin by noting that the concept of “impossibility,”
 

14
 
in either its “factual” or “legal” variant, has never been
 

recognized by this Court as a valid defense to a charge of
 

attempt. In arguing that impossibility is a judicially
 

recognized defense in Michigan, defendant relies heavily on
 

our statement in People v Tinskey, 394 Mich 108; 228 NW2d 782
 

(1975), that 


[i]t is possible, although we need not decide, that
 

defendants could not have been convicted of
 

attempted abortion; at common law the general rule


is that while factual impossibility is not a
 

defense (People v Jones, 46 Mich 441; 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 Michigan Supreme 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
 

14In Jones, this Court, without mentioning the term


“impossibility,” held that a conviction of attempted larceny


could stand notwithstanding that the defendant picked an empty


pocket. 


15
 
provides, in relevant part:
 

Any person who shall attempt to commit an


offense prohibited by law, and in such attempt


shall do any act towards the commission of such


offense, but shall fail in the perpetration, or


shall be intercepted or prevented in the execution


of the same, when no express provision 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 years, or
 

imprisonment in the county jail or by fine, the


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
 

including “an intent to do an act or to bring about certain
 

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 mere preparation.” People v
 

Jones, 443 Mich 88, 100; 504 NW2d 158 (1993), quoting 2 LaFave
 

& Scott, Substantive Criminal Law, § 6.2, p 18. 


15The characterization of “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 an effort to bring about a


desired result. Hence an attempt to commit any crime requires


a specific intent to commit that particular offense”). 


16
 
 

 In determining whether “impossibility,” were we to
 

recognize the doctrine, is a viable defense to a charge of
 

attempt under MCL 750.92, our obligation is to examine the
 

statute in an effort to discern and give effect to the
 

legislative intent that 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 statute
 

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 indicated its intent to criminalize certain
 

conduct despite the actor’s mistake of fact, this Court does
 

not have the authority to create 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
 

statute any legislative intent that the concept of
 

“impossibility” provide any impediment to charging a defendant
 

with, or convicting him of, an attempted crime,
 

notwithstanding any factual mistake–regarding either the
 

attendant circumstances or the legal status of some factor
 

relevant thereto–that he may harbor. The attempt statute
 

17

carves out no exception for those who, possessing the
 

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 in this case is not charged with the
 

substantive crime of distributing obscene material to a minor
 

in violation of MCL 722.675.16 It is unquestioned that
 

defendant could not be convicted of that crime, because
 

16At 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 person does 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


both the nature of the matter and the status of the
 

minor to whom the matter is disseminated.
 

(3) A person knows the nature of matter if the


person either 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.
 

18
 
defendant allegedly distributed obscene material not to “a
 

minor,” but to an adult man. Instead, defendant is charged
 

with the distinct offense of attempt, which requires only that
 

the prosecution prove intention to commit an offense
 

prohibited by law, coupled with conduct 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
 

on a charge of attempt, the trier of fact must examine the
 

unique circumstances of the particular case and determine
 

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. SOLICITATION TO COMMIT THIRD-DEGREE CRIMINAL SEXUAL CONDUCT
 

1. ANALYSIS
 

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 him to have
 

committed this crime, because the underlying felony requires
 

19
 
the existence of a child under the age of sixteen.17 The Court
 

of Appeals panel agreed, concluding that it was legally
 

impossible for defendant to have committed the crime because
 

the underlying form of third-degree criminal sexual conduct
 

charged, MCL 750.520d(1)(a), required the existence of a
 

person under 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[]
 

another person to commit a felony” as proscribed by the
 

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, promise to 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
 

person to do or omit to do an act which if
 

completed would constitute a felony, is punishable


as follows:
 

(a) If the offense solicited is a felony


punishable by imprisonment for life, or for 5 years


or more, the person is guilty of a felony . . . .


[Emphasis supplied.]
 

17MCL 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.” 


20
 
The 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 solicitation charge. As
 

we have explained, Michigan has never adopted the doctrine of
 

impossibility as a defense in its traditional attempt context,
 

much less in the context of solicitation crimes. 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 reason that there is no evidence that
 

defendant in our case solicited anyone “to commit a felony” or
 

“to do or 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 another
 

18On the other 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


immaterial 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”). 


21
 
person perform a criminal act. The evidence here shows only
 

that defendant requested that “Bekka” engage in sexual acts
 

with him. While the requested acts might well have
 

constituted a crime on defendant’s part, “Bekka” (or
 

Liczbinski) would not have committed third-degree criminal
 

sexual conduct 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 crime. “Bekka,” the


fourteen-year-old online persona of Deputy


Liczbinski, was not asked to commit a crime. That
 

is, while it would be a crime for defendant to


engage 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 with an adult.


Thus, whether we look at this case as defendant


asking fourteen-year-old “Bekka” to engage in
 

sexual intercourse with him or as defendant asking


Deputy Liczbinski to engage in sexual intercourse


with him, he did not ask another person to commit


CSC-3. . . .
 

For the above reasons we conclude that the
 

trial court properly dismissed the charge of
 

solicitation to commit criminal sexual conduct.
 

[241 Mich App 111.]
 

Accordingly, while the concept of “impossibility” has no role
 

in the analysis of this issue, we agree with the panel’s
 

conclusion that an element of the statutory offense is missing
 

and that the solicitation charge was therefore properly
 

dismissed.
 

2. RESPONSE TO THE DISSENT
 

In his partial dissent, Justice TAYLOR opines that our
 

22
 
construction of MCL 750.157b(3) renders the second phrase of
 

that subsection a “nullity,” and that this phrase–“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
 

with the 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 not support the interpretation
 

our dissenting colleague gives it.
 

Moreover, our construction of § 157b(3) does not render
 

the second phrase of that subsection “nugatory” or
 

“surplusage.” Rather, it appears that the Legislature, by its
 

use of the phrase “do or omit to do an act which if completed
 

would constitute a felony,” intended to make clear that the
 

solicited offense does not have to be completed. 


It is noteworthy that § 157b was substantially amended in
 

1986, following this Court’s holding in People v Rehkopf, 422
 

Mich 198; 370 NW2d 296 (1985). In Rehkopf, this Court
 

examined two cases in which the defendants were charged under
 

the former version of § 157b. Defendant Rehkopf had asked an
 

undercover police officer to kill her husband, and defendant
 

23
 
Snyder 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.
 

In 1985, the statute read as follows, in pertinent part:
 

Any person who 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 offense sought to be
 

committed. A person who does no more than utter


words seeking the commission of an offense is


subject to liability only for the common-law
 

offense of solicitation. [Id. at 205.][19]
 

Justice BOYLE and Chief Justice WILLIAMS dissented, opining that
 

§ 157b contained no requirement “that the solicitation result
 

in either actual incitement or completion of the solicited
 

offense.” Id. at 223.
 

In 1986, the Legislature rewrote § 157b. The first
 

clause of current subsection 157b(3) (“a person who solicits
 

another person to commit a felony”), apart from using the term
 

19This Court pointed out that “[s]olicitation remains a


common-law offense in Michigan for which a maximum of five


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
 

which would constitute a felony” as used in the prior version
 

of § 157b. However, the Legislature apparently deemed it
 

necessary–reasonably so, in light of the Rehkopf Court’s
 

construction of § 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)
 

provides further that the statute is violated where the
 

defendant “solicits another person to do or omit to do an act
 

which if completed would 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 have reached solicitations in which the solicited
 

act never came to fruition, and that the second clause was
 

added for this purpose.
 

IV. CONCLUSION
 

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.
 

25
 
Furthermore, although 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.”
 

Accordingly, we reverse in part, affirm in part, and
 

remand this matter to the circuit court for proceedings
 

consistent with this opinion. We do not retain jurisdiction.
 

CORRIGAN, C.J., and WEAVER and MARKMAN, JJ., concurred with
 

YOUNG, J.
 

26
 
___________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

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 impossibility" 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
 

decision affirming the circuit court's dismissal of attempted
 

distribution of 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 conduct
 
 

in this case. MCL 750.157b(3)(a), 750.520d(1)(a). I agree
 

with the majority's conclusion that there is no evidence that
 

defendant solicited anyone to commit CSC-3. Therefore, 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
 

on language in Tinskey1 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 that 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, in enacting the statute,
 

purposely required that conspiracy to abort involve a pregnant
 

woman. It thereby rejected prosecutions where the woman was
 

not pregnant. It concluded that the defendants in Tinskey
 

could not be prosecuted for conspiracy to commit abortion
 

1People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975).
 

2
 
 

because 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, Tinskey expressly recognized the existence of the
 

"legal impossibility" defense in the common law of this state.
 

Even though the reference to "legal impossibility" regarding
 

the crime of attempt may be dictum, the later statement
 

regarding the "impossibility" defense was part of the
 

reasoning and conclusion in Tinskey. This Court recognized
 

the defense, even if it did not do so expressly concerning
 

charges for attempt or solicitation. 


Moreover, Michigan common law3 is not limited to
 

decisions from this Court. The majority should not ignore
 

decisions from the Court of Appeals. That Court has accepted
 

2I take this to mean that with respect to conspiracy to


abort, as with most other statutory crimes, the Legislature


has not indicated that impossibility is not a defense. Hence,


it is a defense.
 

3Common law 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 attempted 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
 

Mich App 95, 117-119; 605 NW2d 28 (1999). It implicitly read
 

Tinskey as acknowledging the existence of the "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
 

Even if "legal impossibility" were not part of Michigan's
 

common law, I would disagree with the majority's
 

interpretation 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


dismissed 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. 


4
 
the concept of impossibility that the defense is inapplicable.
 

Examination of 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 ". . .
 

attempt to commit an offense prohibit by law . . . ." MCL
 

750.92 (emphasis added). It does not make illegal an action
 

not prohibited 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), § 27.07[B], p
 

369; 21 Am Jur 2d, Criminal Law, § 178, p 254. Absent a
 

statute expressly abrogating "legal impossibility," this
 

common-law rule continues to provide a viable 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
 

5
 
NW2d 236 (1971).5
 

This state's attempt statute, unlike the Model Penal Code
 

and various state statutes that follow it, does not contain
 

language allowing for consideration of a defendant's beliefs
 

regarding "attendant circumstances." Rather, it takes an
 

"objective" view of criminality, focusing 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 relevant to this objective approach because
 

impossibility obviates the state's "concern that the actor may
 

cause 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, disseminating or exhibiting sexual
 

material to a minor, requires a minor recipient. Because the
 

dissemination was not to a minor, it is legally impossible for
 

5

The Bandfield Court stated: "The legislature should


speak in no uncertain manner when it seeks to abrogate the


plain and long-established rules of the common law. Courts
 

should not be left to construction to sustain such bold
 

innovations." Id. at 82.
 

6
 
defendant to have committed the prohibited act. 


This Court should affirm the Court of Appeals decision,
 

determining that it was legally impossible 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 conclusion that
 

"legal impossibility" is not a recognized defense to a
 

solicitation charge. 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 solicitation in other
 

jurisdictions. However, this fact is unremarkable in light of
 

the rarity with which the defense is invoked. Moreover, "the
 

impossibility issue 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 must concern an act that would
 

constitute a felony if completed. The statute states, "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
 

. . . ." MCL 750.157b(3).
 

"Legal impossibility" would be a defense if the
 

7
 
defendant'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 commit third-degree
 

criminal sexual conduct. Even if he had made his request to
 

engage in sexual intercourse to a fourteen-year-old 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, therefore,
 

irrelevant under the facts of this case. The solicitation
 

charge was properly dismissed because the prosecution could
 

8
 
not 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
 

Michigan case law. The majority, in determining that legal
 

impossibility is not a viable defense in this state, ignores
 

that law.
 

In keeping with precedent and legal authority, I would
 

affirm the Court of Appeals decision that it was legally
 

impossible for defendant to commit the charged offense of
 

attempted distribution 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, child 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
 

9
 
under the facts of this case. Even if the facts had been as
 

defendant believed, defendant 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
 

reason, not because of the availability of the "legal
 

impossibility" defense.
 

CAVANAGH, J., concurred with KELLY, J.
 

10
 
 

____________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

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 with parts 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 even
 
though a child victim 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 statute, MCL 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
 

person to 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
 

an adult. If an adult and a child aged thirteen to fifteen
 

engage in an act 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 guilty of [CSC 3] if the person engages in


sexual penetration with another person and . . . [t]hat other


person is 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 sexual penetration with a child aged thirteen to


fifteen without imposing liability on the child victim of the


crime.
 

2
 
this section.
 

However, regarding the disjunctive clause that follows
 

the first clause, i.e., “or who solicits another person to do
 

or omit 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 were
 

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
 

construction rules 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 statute should be read in a way as to be given


meaning, and a court should avoid a construction that would


render any part of the statute surplusage or nugatory.” In re
 

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).
 

3
 
This all means that the first clause requires that the
 

solicited act would be a felony for which the solicitee could
 

be charged. The second clause encompasses situations where
 

the solicitee could not be charged with the felony, but the
 

solicitor could be. This 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 offense 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 solicitation to commit a felony even if the felony is never
 

actually completed. This, then, makes the second clause a
 

nullity. It is that outcome that disciplined readers of
 

statutes should avoid.
 

Also, the majority indicates that my interpretation is
 

contrary to the plain language of the statute because “it is
 

4
 
the act of ‘another person’ that must, if completed,
 

‘constitute a felony.’” Slip op, p 23. I disagree 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
 

which would constitute a felony,” then it might well be argued
 

that the solicited person’s contemplated “act,” standing
 

alone, must constitute a felony for the statute to be
 

violated. However, the “if completed” language allows for the
 

imposition of liability where completion of the solicited act
 

by another person would necessarily constitute a felony.
 

I agree with the majority that the current 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
 

Mich 198; 370 NW2d 296 (1985). However, that means only that
 

the Legislature intended to include circumstances in which the
 

solicited felony is never actually committed within the scope
 

of the solicitation statute. Indeed, the language of the
 

first clause proscribing a person from merely asking another
 

5
 
person “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 the canon of
 

construction against rendering statutory language nugatory or
 

surplusage, the second clause must be taken as encompassing
 

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
 

penetration with him. In other words, defendant solicited
 

“Bekka” to engage with him in an act of sexual penetration
 

between an 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
 

solicitation statute’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 solicited person
 

6
 
could not actually have committed the act envisioned 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