Michigan v. Thousand

631 N.W.2d 694 (2001)

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Nature of the Case

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Facts

Deputy William 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 Thousand (D), who was using the screen name “Mr. Auto-Mag,” in an Internet chat room. D described himself as a twenty-three-year-old male and Bekka described herself as a fourteen-year-old female from Detroit. D 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 D. During these exchanges, the conversation became sexually explicit. D made repeated lewd invitations to Bekka to engage in various sexual acts, despite various indications of her young age. D also sent Bekka a photograph of male genitalia. D 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.” D asked whether Bekka looked “over sixteen,” so that if his roommates were home, he could lie. They planned to meet at an area McDonald’s restaurant at 5:00 p.m. on the following Thursday. D 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.” Bekka asked D to bring her a present and indicated that she liked white teddy bears. On December 17, 1998, Liczbinski and other deputy sheriffs were present at the specified McDonald’s restaurant when they saw D inside a vehicle matching the description given to Bekka by D. D was dressed as he had indicated on the emails. was wearing a brown suede jacket and black pants, got out of Liczbinski recognized Ds face from the photograph that had been sent to Bekka. D looked around for approximately thirty seconds before leaving the restaurant. D was then taken into custody. Two white teddy bears were recovered from D’s vehicle. A search of D's 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 D. D was bound over for trial on charges of solicitation to commit third-degree criminal sexual conduct, MCL 750.157b(3)(a) and 750.520d(1)(a), attempted distribution of obscene material to a minor, MCL 750.92 and 722.675, and child sexually abusive activity, MCL 750.145c(2).3 D moved 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 D 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. The state appealed to determine (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.