VI.B. Attempt

Attempt, an “inchoate” offense, lies somewhere between merely thinking about committing a crime and successfully completing it. How far should someone have to go before his actions are criminal? On the other end of the spectrum, if someone fully intends and attempts to commit a crime—say, fires a bullet intending to kill a person—why should he punished less because he missed, or because he grievously injured but did not kill the target? Why does the law take into account the actual result at all, if the act and the mens rea are the elements that establish individual blameworthiness?

The cases in this section consider the level of mens rea and actus reus needed for an attempted crime. Consider how the court adjusts these requirements in attempt cases to balance a broad variety of social aims, such as punishing blameworthiness; deterrence; creating incentives for abandonment; minimizing the arbitrariness of criminal punishment; and giving potential criminals the opportunity to change their minds.

  • 1 State v. Hutchinson

    1
    135 Ohio App.3d 459 (1999)
    2
    The STATE of Ohio, Appellee,
    v.
    HUTCHINSON, Appellant.
    3
    No. CA99-01-001.
    4

    Court of Appeals of Ohio, Twelfth District, Brown County.

    5
    Decided December 20, 1999.
    6

    7

    [460] Thomas F. Grennan, Brown County Prosecuting Attorney, for appellee.

    8

    David H. Bodiker, State Public Defender, and Jennifer D. Schaffer, for appellant.

    9

    POWELL, Presiding Judge.

    10

    Defendant-appellant, Ronald Brian Hutchinson, appeals from his convictions in the Brown County Court of Common Pleas for attempted rape and attempted aggravated murder. We affirm the decision of the trial court.

    11

    On Friday, April 24, 1998, Eura S. and her husband went away for the weekend, after making arrangements to leave their three sons at the home of their uncle, Wil S. When Eura and her husband returned on Sunday, Wil S. and his wife were having a picnic. Eura's sons and some friends of the family were present, as well as appellant. When Eura spoke with her eight-year-old son, J.S., he told her that appellant was gay. Eura, who already knew about appellant's sexual orientation, told her son that he should not judge other people.

    12

    After J.S. came home from school on Monday, he again told his mother that appellant was gay, and Eura asked her son why he continued to say that. Upset and crying, J.S. said that on Saturday night, appellant had laid down beside him on the floor and "had pulled his pants down and tried to stick his thing in his [461] [J.S.'s] butt." When Eura asked J.S. what he meant by "thing," he pointed to his penis.

    13

    That night Eura took J.S. to the Brown County Hospital, where J.S. was given a physical examination and was referred to the Brown County Department of Human Services. On Tuesday evening J.S. underwent a physical examination at Children's Hospital in Cincinnati.

    14

    Barry Creighton, a criminal investigator for Brown County Department of Human Services who specializes in cases of sexual abuse, interviewed J.S. Creighton then contacted appellant, who agreed to meet with him. When confronted with the allegations against him, appellant admitted that on the night in question he had slept on the floor next to J.S. but denied having sexual intercourse with the boy, saying that because he had AIDS, that would be murder and he would not do that. Appellant also made a statement implying that because he was going to die, there was nothing that anyone could possibly do to punish him.

    15

    Appellant was charged with rape and attempted aggravated murder. At his jury trial, appellant stipulated to the fact that he has tested positive for human immunodeficiency virus ("HIV"). As of the date of the trial, J.S. had not tested positive for HIV. At the conclusion of the state's evidence, appellant moved for acquittal under Crim.R. 29(A), arguing that the state had failed to present sufficient evidence to show that appellant had intended to kill, an element of attempted aggravated murder. Appellant's motion was overruled, and appellant was found guilty of attempted rape and attempted aggravated murder. The trial court sentenced appellant to seven years in prison for attempted rape and eight years in prison for attempted aggravated murder, sentences to be served consecutively. Appellant then filed this appeal, raising the following assignment of error.

    16

    "The trial court erred in dismissing appellant's motion for acquittal as to the attempted aggravated murder offense, in violation of his due process rights pursuant to the Ohio and federal Constitutions."

    17

    In his sole assignment of error, appellant asserts that it was error for the trial court to overrule his motion for acquittal with regard to his attempted aggravated murder charge. Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses."

    18

    An appellate court's review of a ruling on a Crim.R. 29(A) motion must evaluate the sufficiency of the evidence, construing the evidence in a light most favorable to the state. State v. Dunaway (Feb. 18, 1997), Butler App. No. CA96-08-152, [462] unreported, at 3, 1997 WL 71305, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The appellate court must examine the evidence to determine "whether such evidence, if believed, is sufficient for a reasonable mind to conclude that all elements of the crime have been proven beyond a reasonable doubt." Id. at 8, citing Jenks at 273, 574 N.E.2d at 503.

    19

    Appellant was charged with an attempt crime. R.C. 2923.02(A) defines attempt as the following: "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense."

    20

    Appellant was charged with attempted aggravated murder, a violation of R.C. 2903.01(B), which states: "No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape." (Emphasis added.)

    21

    The mens rea of "purposely" is defined in R.C. 2901.22(A):

    22

    "A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."

    23

    Appellant contends that the state failed to present sufficient evidence tending to prove that he possessed the requisite mental state for attempted aggravated murder. Specifically, appellant argues that no inference of intent to kill can be drawn when an individual infected with HIV knowingly exposes another to the risk of HIV infection and the risk of death by Acquired Immune Deficiency Syndrome ("AIDS"). This is a case of first impression in the state of Ohio.[1]

    24

    Because appellant was convicted of attempted aggravated murder under R.C. 2903.01(B), the state had to prove that appellant had attempted murder during the commission or attempt of a felony. In this case, the state presented evidence that appellant had raped or attempted to rape J.S. J.S., who was found to be competent to testify, stated that appellant had "pulled down my pants and he stuck his thing [his penis] up my butt." J.S.'s mother testified to the same.

    25

    [463] J.S.'s statements were supported by medical evidence presented by the state. The state's witness, Dr. Dennis Fitzgerald, the chief resident in emergency at University Hospital and a resident at the Children's Hospital, testified that he had interviewed and examined J.S. Dr. Fitzgerald found that there were two tears in the boy's anal region, as well as evidence of a contusion. The doctor testified that these injuries are indicative of sexual abuse and are consistent with anal penetration. Dr. Mary Patterson, a pediatric emergency medicine physician at Children's Hospital, examined J.S. along with Dr. Fitzgerald and observed the same injuries. Dr. Patterson agreed that the medical findings were consistent with an incident of sexual abuse.

    26

    Considering this testimony, we find that there was evidence sufficient for a reasonable mind to conclude beyond a reasonable doubt that appellant committed or attempted to commit a rape, which, in this case, is the underlying felony of the attempted aggravated murder offense. Appellant concedes as much in his appeal, as he does not argue that it was error for the trial court to overrule his Crim.R. 29(A) motion with regard to attempted rape. However, appellant argues that the state failed to present sufficient evidence to prove attempted aggravated murder because it failed to prove that appellant intended to kill.

    27

    The Supreme Court of Ohio has acknowledged that intent is not directly provable by objective evidence, as it lies within the privacy of a person's intimate thoughts. State v. Garner (1995), 74 Ohio St.3d 49, 60, 656 N.E.2d 623, 634. Intent "'"can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances * * *."'" State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302, quoting State v. Huffman (1936), 131 Ohio St. 27, 5 O.O. 325, 1 N.E.2d 313, paragraph four of the syllabus. See, also, Garner. When determining intent, "persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts." Garner at 60, 656 N.E.2d at 634, citing State v. Carter (1995), 72 Ohio St.3d 545, 554, 651 N.E.2d 965, 974.

    28

    Dr. Siegel, who has completed a fellowship in infectious disease, testified in detail about the HIV virus. He stated that the HIV virus, which is the cause of AIDS, may be transmitted in many ways, and that the highest risk of transmission occurs during anal receptive intercourse. The doctor stated that the risk is even greater when a child is involved. From reviewing appellant's medical records, which indicated that appellant had a CD4 count of 232 on March 20, 1997, Dr. Siegel determined that appellant is HIV positive and either has or is very close to having the AIDS syndrome.

    29

    Dr. Siegel testified that if an HIV positive adult male who had the AIDS syndrome were to anally rape a boy so that the boy suffered anal tears and [464] bruising, this would be a "very, very high risk sexual situation." Adult data estimates that there is about a one in one hundred chance of contracting HIV from unprotected anal receptive intercourse with an HIV infected person. Dr. Siegel stated that the statistical risk of HIV infection is even greater where a child is anally raped by an adult. Dr. Siegel testified that there is no known cure for HIV and that it is fatal. He testified that a person who is HIV positive and possibly suffering from early stages of the AIDS syndrome places others in danger when he has sexual relations; in fact, Dr. Siegel said he would consider such a person's bodily fluids to be a dangerous instrument.

    30

    Appellant knew that he was HIV positive and possibly AIDS infected, and he attempted to anally rape an eight-year-old boy. Appellant's deliberate actions put his victim in grave risk of death. Appellant stated that because he had AIDS, having sexual intercourse with the boy would be murder and commented that there was nothing that anyone could possibly do to punish him. Reviewing appellant's actions as well as his words, a reasonable mind could conclude beyond a reasonable doubt that appellant intended to kill.

    31

    Therefore, we find that the trial court did not commit error when it overruled appellant's Crim.R. 29(A) motion as it pertained to the offense of attempted aggravated murder. Appellant's assignment of error is overruled.

    32

    Judgment affirmed.

    33

    WILLIAM W. YOUNG and VALEN, JJ., concur.

    35

    [1] The Supreme Court of Ohio reviewed a case containing an issue similar to the one sub judice but resolved that case without ruling on the issue. In State v. Bird (1998), 81 Ohio St.3d 582, 692 N.E.2d 1013, the defendant appealed his conviction for felonious assault with a deadly weapon, which was based on an incident in which defendant, who was infected with HIV, spat in the face of a police officer. The Supreme Court of Ohio stated, "It is unnecessary to decide whether the human immunodeficiency virus may be communicated through saliva and whether saliva may be considered a deadly weapon. By pleading no contest, appellant admitted the truth of the allegations in the indictment." Id. at 585, 692 N.E.2d at 1015.

  • 2 People v. Rizzo

    1

    246 N.Y. 334, 158 N.E. 888, 55 A.L.R. 711

    2
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
    3
    v.
    4
    CHARLES Rlzzo, Appellant, Impleaded with Others.
    5

    Court of Appeals of New York.

    6

    Argued October 17, 1927.

    7

    Decided November 22, 1927.

    8


    Crimes -- attempt to commit robbery -- construction of section 2 of Penal Law defining attempt to commit crime defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery.

    9

    1. In construing section 2 of the Penal Law, providing that an act done with intent to commit a. crime, and tending but failing to effect its commission, is an attempt to commit that crime, the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.

    10

    2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.

    11

    People v. Rizzo, 221 App. Div. 353, reversed.

    12

    (Argued October 17, 1927; decided November 22, 1927.)

    13

    APPEAL, by permission, from a, judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.

    14

    James F. Donnelly, Mark Eisner and Merwin Lewis for appellant. The evidence failed to establish the crime. John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent. The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep.22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stiles, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People V. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’C0nnell, 60 Hun, 109.)

    15

     

    16

    CRANE, J.

    17

    The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide­-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a, payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. . The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four `men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

    18

    Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a, given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference." The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People Mills (178 N. Y. 274,284) it was said: “Felonious intent alone is not enough, but there must be an overt: act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.” Halsbury in his Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth V. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.

    19

    The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People V. Collins, 234 N. Y. 355; People V. Sobieskoda, 235 N. Y. 411; People V. Werblow, 241 N.Y. 55.)

    20

    How shall we apply this rule of immediate nearness to this case? The defendants were looking fort the payroll man to rob him of his money. This is the charge -in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of- robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)

    21

    For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.
    A very strange situation has arisen in this case.. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same, evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only` one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now he1d that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

    22

    The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.

    23

    KELLOGG and O’BR1EN, JJ., concur.

    24

    Judgment accordingly.

    25

     

  • 3 Ross v. State

    1
    601 So.2d 872 (1992)
    2
    Sammy Joe ROSS
    v.
    STATE of Mississippi.
    3
    No. 89-KA-1013.
    4

    Supreme Court of Mississippi.

    5
    June 17, 1992.
    6

     

    7

    Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for appellant.

    8

    Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.

    9

    Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

    10

    PRATHER, Justice, for the Court:

    11
    I. INTRODUCTION
    12

     

    13

    This attempted-rape case arose on the appeal of Sammy Joe Ross from the ten-year sentence imposed on July 7, 1988 by the Circuit Court of Union County. The appellant timely filed a notice of appeal and dispositively raises the issue:

    14
    Whether the trial court erred in denying the defendant's motion for directed verdict on the charge of attempted rape.
    15

     

    16

    This Court reverses and renders the conviction for attempted rape.

    17
    A. Facts
    18

     

    19

    On September 16, 1987, sometime around 2:15 in the afternoon, Deputy Sheriff Edwards of the Union County Sheriff's Department was driving on Highway 30 heading east. Before he turned south onto Highway 9, he saw an oncoming truck, a white, late-model Ford pickup, turn left onto the first gravel road. Because the truck had out-of-county tags and turned down a road on which several crimes had occurred, Edwards jotted down the tag number, which action he described as routine practice.

    20

    [873] Dorothy Henley[1] and her seven-year-old daughter lived in a trailer on the gravel road. Henley was alone at home and answered a knock at the door to find Sammy Joe Ross asking directions. Henley had never seen Ross before. She stepped out of the house and pointed out the house of a neighbor who might be able help him. When she turned back around, Ross pointed a handgun at her. He ordered her into the house, told her to undress, and shoved her onto the couch. Three or four times Ross ordered Henley to undress and once threatened to kill her. Henley described herself as frightened and crying. She attempted to escape from Ross and told him that her daughter would be home from school at any time. She testified:

    21
    I started crying and talking about my daughter, that I was all she had because her daddy was dead, and he said if I had a little girl he wouldn't do anything, for me just to go outside and turn my back.
    22

     

    23

    As instructed by Ross, Henley walked outside behind her trailer. Ross followed and told her to keep her back to the road until he had departed. She complied.

    24

    Henley was able to observe Ross in her sunlit trailer with the door open for at least five minutes. She stated that she had an opportunity to look at him and remember his physical appearance and clothing. Henley also described Ross's pickup truck, including its color, make, and the equipment i.e., a tool-box.

    25

    Deputy Sheriff Edwards, while returning on Highway 9 where he had previously observed the white pickup, saw Union County Sheriff Bryant's car parked, but did not stop. A short time later, he heard the sheriff radio for county units to be on the lookout for a white pickup truck driven by a white male. Edwards "radioed" back to tell Bryant of the previous sighting. Edwards then radioed in a registration check on the tag number, which turned out to be registered to Ross. Later that day, Sheriff Bryant photographed the tire tracks at Henley's home and compared them with photographs of the tires on Ross's truck. He described the comparison as a "definite match." Ross claimed an alibi as his defense.

    26
    B. Procedural History
    27

     

    28

    On December 21, 1987, a Union County grand jury indicted Sammy Joe Ross for the attempted rape of Henley, charging that Ross "did unlawfully and feloniously attempt to rape and forcibly ravish" the complaining witness, an adult female. On January 25, 1988, Ross waived arraignment and pled not guilty.

    29

    On June 23, 1988, The jury found Ross guilty. On July 7, the court sentenced Ross to a ten-year term. When Ross moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial, the court denied the motion. Ross timely filed a notice of appeal.

    30
    II. ANALYSIS
    31
     
    32
    Whether the trial court erred in denying the defendant's motion for directed verdict on the charge of attempted rape.
    33

     

    34

    Although other issues relating to pre-trial lineup and in-court identification are raised, the primary issue here is whether sufficient evidence presents a question of fact as to whether Ross abandoned his attack as a result of outside intervention. Ross claims that the case should have gone to the jury only on a simple assault determination. Ross asserts that "it was not ... Henley's resistance that prevented her rape nor any independent intervening cause or third person, but the voluntary and independent decision by her assailant to abandon his attack." The state, on the other hand, claims that Ross "panicked" and "drove away hastily."

    35

    As recited above, Henley told Ross that her daughter would soon be home from school. She also testified that Ross stated if Henley had a little girl, he wouldn't do anything to her and to go outside [the house] and turn her back [to him]. Ross moved that the court direct a verdict in his favor on the charge of attempted rape, which motion the court denied.

    36

    [874] The trial court instructed the jury that if it found that Ross did "any overt act with the intent to have unlawful sexual relations with [the complainant] without her consent and against her will" then the jury should find Ross guilty of attempted rape. The court further instructed the jury that:

    37
    before you can return a verdict against the defendant for attempted rape, that you must be convinced from the evidence and beyond a reasonable doubt, that the defendant was prevented from completing the act of rape or failed to complete the act of rape by intervening, extraneous causes. If you find that the act of rape was not completed due to a voluntary stopping short of the act, then you must find the defendant not guilty.
    38

     

    39

    Ross did not request, and the court did not give, any lesser included offense instructions.

    40

    Review of a directed verdict made at the close of the Defendant's case consists of this Court's applying a reasonable doubt standard to the verdict, while viewing the evidence in a light most favorable to the verdict. Stever v. State, 503 So.2d 227, 230 (Miss. 1987). This Court may not then discharge the defendant unless the Court concludes that no reasonable, hypothetical juror could have found the defendant guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss. 1983).

    41

    The statutory definition of the crime of attempted rape lies in two statutes: rape, section 97-3-65(2)[2] and attempt[3], section 97-1-7. In the Interest of R.T., 520 So.2d 136, 137 (Miss. 1988); see Miss. Code Ann. §§ 97-3-65(2) (Supp. 1988), 97-1-7 (1972). The Mississippi Code defines rape as "forcible ravish[ing]." Miss. Code Ann. § 97-3-65(2) (Supp. 1988). In Harden v. State, 465 So.2d 321, 325 (Miss. 1985), this Court held that lewd suggestions coupled with physical force constituted sufficient evidence to establish intent to rape. See also Clemons v. State, 470 So.2d 653, 655 (Miss. 1985).

    42

    The crime of attempt to commit an offense occurs when a person

    43
    shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same... .
    44

     

    45

    Miss. Code Ann. § 97-1-7 (1972). Put otherwise, attempt consists of "1) an intent to commit a particular crime; 2) a direct ineffectual act done toward its commission, and 3) failure to consummate its commission." Pruitt v. State, 528 So.2d 828, 830 (Miss. 1988) (attempted rape was voluntarily abandoned by defendant when he told victim she was free to leave); accord Edwards v. State, 500 So.2d 967, 969 (Miss. 1986); Bucklew v. State, 206 So.2d 200, 202 (Miss. 1968).

    46

    The Mississippi attempt statute requires that the third element, failure to consummate, result from extraneous causes. West v. State, 437 So.2d 1212, 1214 (Miss. 1983) (attempted sexual battery case). Thus, a defendant's voluntary abandonment may negate a crime of attempt. Where a defendant, with no other impetus but the victim's urging, voluntarily ceases his assault, he has not committed attempted rape. See In the Interest of R.T., 520 So.2d 136, 137 (Miss. 1988). In Pruitt, 528 So.2d at 830-831, where the assailant released his throathold on the unresisting victim and told her she could go, after [875] which a third party happened on the scene, the Court held that the jury could not have reasonably ruled out abandonment. See also West v. State, 437 So.2d at 1213-14 (Miss. 1983) (finding no attempted sexual battery).

    47

    In comparison, this Court has held that where the appellant's rape attempt failed because of the victim's resistance and ability to sound the alarm, the appellant cannot establish an abandonment defense. Alexander v. State, 520 So.2d 127, 130 (Miss. 1988). In the Alexander case, the evidence sufficiently established a question of attempt for the jury. The defendant did not voluntarily abandon his attempt, but instead fled after the victim, a hospital patient, pressed the nurse's buzzer; a nurse responded and the victim spoke the word "help." Alexander, 520 So.2d at 128. The Court concluded, "[T]he appellant ceased his actions only after the victim managed to press the buzzer alerting the nurse." Alexander, 520 So.2d at 130. In another case, the court properly sent the issue of attempt to the jury where the attacker failed because the victim resisted and freed herself. Harden v. State, 465 So.2d 321, 325 (Miss. 1985).

    48

    Thus, abandonment occurs where, through the verbal urging of the victim, but with no physical resistance or external intervention, the perpetrator changes his mind. At the other end of the scale, a perpetrator cannot claim that he abandoned his attempt when, in fact, he ceased his efforts because the victim or a third party intervened or prevented him from furthering the attempt. Somewhere in the middle lies a case such as Alexander, where the victim successfully sounded an alarm, presenting no immediate physical obstacle to the perpetrator's continuing the attack, but sufficiently intervening to cause the perpetrator to cease his attack.

    49

    In this case, Ross appeals the denial of his motion for directed verdict; thus, he challenges only the sufficiency of the evidence, that is, whether it raised a sufficient factual issue to warrant a jury determination. Even under this rigorous standard of review, Ross's appeal should succeed on this issue. The evidence does not sufficiently raise a fact question as to whether he attempted rape. The evidence uncontrovertibly shows that he did not, but instead abandoned the attempt.

    50

    The key inquiry is a subjective one: what made Ross leave? According to the undisputed evidence, he left because he responded sympathetically to the victim's statement that she had a little girl. He did not fail in his attack. No one prevented him from completing it. Henley did not sound an alarm. She successfully persuaded Ross, of his own free will, to abandon his attempt. No evidence shows that Ross panicked and hastily drove away, but rather, the record shows that he walked the complainant out to the back of her trailer before he left. Thus, the trial court's failure to grant a directed verdict on the attempted rape charge constituted reversible error. As this Court stated in Pruitt, 528 So.2d 831, this is not to say that Ross committed no criminal act, but "our only inquiry is whether there was sufficient evidence to support a jury finding that [Ross] did not abandon his attempt to rape [Henley]." This Court holds that there was not.

    51
    III. CONCLUSION
    52

     

    53

    Ross raises a legitimate issue of error in the sufficiency of the evidence supporting his conviction for attempted rape because he voluntarily abandoned the attempt. This Court reverses and renders.

    54

    REVERSED AND APPELLANT DISCHARGED.

    55

    ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.

    56

    [1] The complainant's name has been changed.

    57

    [2] Miss. Code Ann. § 97-3-65(2) (Supp. 1991) provides:

    58

    Every person who shall forcibly ravish any person of the age of fourteen (14) years and upward, or who shall have been convicted of carnal knowledge of any person about the age of fourteen (14) years without such person's consent, ...

    59

    [3] Miss. Code Ann. § 97-1-7 Attempt to commit offense

    60

    Every person who shall design and endeavor to commit an offense, and shall do any overt act toward commission thereof, but shall fail therein, or shall be prevented from committing the same, or conviction thereof, shall where no provision is made by law for the punishment of such offense, be punished as follows:

    61

    ... .

    62

    if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

  • 4 McQuirter v. State

    1
    63 So.2d 388 (1953)
    2
    McQUIRTER
    v.
    STATE.
    3
    3 Div. 947.
    4

    Court of Appeals of Alabama.

    5
    February 17, 1953.
    6

     

    7

    Windell C. Owens, Monroeville, for appellant.

    8

    Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the State.

    9

    PRICE, Judge.

    10

    Appellant, a Negro man, was found guilty of an attempt to commit an assault with intent to rape, under an indictment charging an assault with intent to rape. The jury assessed a fine of $500.

    11

    [389] About 8:00 o'clock on the night of June 29, 1951, Mrs. Ted Allen, a white woman, with her two children and a neighbor's little girl, were drinking Coca-Cola at the "Tiny Diner" in Atmore. When they started in the direction of Mrs. Allen's home she noticed appellant sitting in the cab of a parked truck. As she passed the truck appellant said something unintelligible, opened the truck door and placed his foot on the running board.

    12

    Mrs. Allen testified appellant followed her down the street and when she reached Suell Lufkin's house she stopped. As she turned into the Lufkin house appellant was within two or three feet of her. She waited ten minutes for appellant to pass. When she proceeded on her way, appellant came toward her from behind a telephone pole. She told the children to run to Mr. Simmons' house and tell him to come and meet her. When appellant saw Mr. Simmons he turned and went back down the street to the intersection and leaned on a stop sign just across the street from Mrs. Allen's home. Mrs. Allen watched him at the sign from Mr. Simmons' porch for about thirty minutes, after which time he came back down the street and appellant went on home.

    13

    Mrs. Allen's testimony was corroborated by that of her young daughter. The daughter testified the appellant was within six feet of her mother as she approached the Lufkin house, and this witness said there was a while when she didn't see appellant at the intersection.

    14

    Mr. Lewis Simmons testified when the little girls ran up on his porch and said a Negro was after them, witness walked up the sidewalk to meet Mrs. Allen and saw appellant. Appellant went on down the street and stopped in front of Mrs. Allen's home and waited there approximately thirty minutes.

    15

    Mr. Clarence Bryars, a policeman in Atmore, testified that appellant stated after his arrest that he came to Atmore with the intention of getting him a white woman that night.

    16

    Mr. W. E. Strickland, Chief of Police of Atmore, testified that appellant stated in the Atmore jail he didn't know what was the matter with him; that he was drinking a little; that he and his partner had been to Pensacola; that his partner went to the "Front" to see a colored woman; that he didn't have any money and he sat in the truck and made up his mind he was going to get the first woman that came by and that this was the first woman that came by. He said he got out of the truck, came around the gas tank and watched the lady and when she started off he started off behind her; that he was going to carry her in the cotton patch and if she hollered he was going to kill her. He testified appellant made the same statement in the Brewton jail.

    17

    Mr. Norvelle Seals, Chief Deputy Sheriff, corroborated Mr. Strickland's testimony as to the statement by appellant at the Brewton jail.

    18

    Appellant, as a witness in his own behalf, testified he and Bill Page, another Negro, carried a load of junk-iron from Monroeville to Pensacola; on their way back to Monroeville they stopped in Atmore. They parked the truck near the "Tiny Diner" and rode to the "Front," the colored section, in a cab. Appellant came back to the truck around 8:00 o'clock and sat in the truck cab for about thirty minutes. He decided to go back to the "Front" to look for Bill Page. As he started up the street he saw prosecutrix and her children. He turned around and waited until he decided they had gone, then he walked up the street toward the "Front." When he reached the intersection at the telegraph pole he decided he didn't want to go to the "Front" and sat around there a few minutes, then went on to the "Front" and stayed about 25 or 30 minutes, and came back to the truck.

    19

    He denied that he followed Mrs. Allen or made any gesture toward molesting her or the children. He denied making the statements testified to by the officers.

    20

    He testified he had never been arrested before and introduced testimony by two residents of Monroeville as to his good reputation for peace and quiet and for truth and veracity.

    21

    [390] Appellant insists the trial court erred in refusing the general affirmative charge and in denying the motion for a new trial on the ground the verdict was contrary to the evidence.

    22

    "`An attempt to commit an assault with intent to rape,' * * * means an attempt to rape which has not proceeded far enough to amount to an assault". Burton v. State, 8 Ala.App. 295, 62 So. 394, 396.

    23

    Under the authorities in this state, to justify a conviction for an attempt to commit an assault with intent to rape the jury must be satisfied beyond a reasonable doubt that defendant intended to have sexual intercourse with prosecutrix against her will, by force or by putting her in fear. Morris v. State, 32 Ala.App. 278, 25 So.2d 54; Burton v. State, 8 Ala.App. 295, 62 So. 394.

    24

    Intent is a question to be determined by the jury from the facts and circumstances adduced on the trial, and if there is evidence from which it may be inferred that at the time of the attempt defendant intended to gratify his lustful desires against the resistance of the female a jury question is presented. McCluskey v. State, 35 Ala.App. 456, 48 So.2d 68.

    25

    In determining the question of intention the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and defendant was a Negro man. Pumphrey v. State, 156 Ala. 103, 47 So. 156; Kelly v. State, 1 Ala.App. 133, 56 So. 15.

    26

    After considering the evidence in this case we are of the opinion it was sufficient to warrant the submission of the question of defendant's guilt to the jury, and was ample to sustain the judgment of conviction.

    27

    Defense counsel contends in brief that the testimony of the officers as to defendant's declarations of intent was inadmissible because no attempt or overt act toward carrying that intent into effect had been proven.

    28

    Defendant's grounds of objection to this evidence were that it was "irrelevant, incompetent and immaterial." Proper predicates were laid for the introduction of each of said statements. In the absence of a ground of objection calling the court's attention to the fact that the corpus delicti has not been sufficiently proven to authorize admission of a confession such question cannot be reviewed here. Edgil v. State, Ala.App., 56 So.2d 677 and authorities there cited.

    29

    Moreover, if any facts are proven from which the jury may reasonably infer that the crime has been committed proof of the confession is rendered admissible. Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Ratliff v. State, 212 Ala. 410, 102 So. 621; Hill v. State, 207 Ala. 444, 93 So. 460.

    30

    We find no reversible error in the record and the judgment of the trial court is affirmed.

    31

    Affirmed.

  • 5 State v. Green

    1
    The State, Respondent,
    v.
    Benjamin P. Green, Appellant.
    2
    Opinion No. 27108.
    3

    Supreme Court of South Carolina.

    4
    Heard February 23, 2012.
    5
    Filed April 4, 2012.
    6

    7

    Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant.

    8

    Attorney General Alan Wilson, Chief Deputy Attorney General John McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., of Columbia, Solicitor James Strom Thurmond, Jr, of Aiken, for Respondent.

    9

    JUSTICE BEATTY:

    10

    Benjamin P. Green appeals his convictions for criminal solicitation of a minor[1] and attempted criminal sexual conduct ("CSC") with a minor in the second-degree.[2] In challenging his convictions, Green contends the trial judge erred in: (1) denying his motion to dismiss the charge of criminal solicitation of a minor on the ground the statute is unconstitutionally overbroad and vague; (2) denying his motions to dismiss and for a directed verdict on the charge of attempted CSC with a minor in the second-degree; (3) admitting certain photographs; and (4) denying his request for a jury charge on attempted assault and battery of a high and aggravated nature ("ABHAN"). We affirm.

    11
    I. Factual/Procedural History
    12

    On October 13, 2006 at 5:38 p.m., Green entered a Yahoo! online chat room under the screen name "blak slyder" and initiated an online chat with "lilmandy14sc" ("Mandy"). On Mandy's profile page was a picture of a female sitting on a bed. Unbeknownst to Green, Mandy was actually an online persona created by Investigator Tommy Platt of the Aiken County Sheriff's Office as part of the Internet Crimes Against Children Task Force.

    13

    In response to Green's initial question, Mandy answered "i hooked up with a 16 year old." Green then asked Mandy, "how young are you?" to which Mandy stated, "14." Green countered that he was "21."[3] Immediately thereafter, the chat turned sexual in nature with Green asking Mandy whether she would have sex with him. During the chat, Green sent Mandy two pictures of his penis and stated that he could "show it to [her] in person."[4] Green then arranged to meet Mandy at 7:30 p.m. on a secluded road in Beech Island, South Carolina, which is located in Aiken County.

    14

    When Green arrived at the predetermined location, he was met by several law enforcement officers who arrested him. In response to the officers' questions, Green admitted that "he was there to meet a 14-year-old girl." A search of Green's vehicle revealed a cell phone, a bottle of alcohol, two DVDs, condoms, male enhancement cream and drugs, and handwritten directions to the location.

    15

    Subsequently, Green was indicted and ultimately convicted by a jury for criminal solicitation of a minor and attempted CSC with a minor in the second-degree. Green appealed his convictions to the Court of Appeals. This Court certified the appeal from the Court of Appeals pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

    16
    II. Discussion
    17
    A. Constitutionality of Criminal Solicitation of a Minor Statute
    18

    In a pre-trial hearing and at the conclusion of the State's case, Green moved for the trial judge to declare unconstitutional section 16-15-342, the criminal solicitation of a minor statute, on the grounds it is overbroad and vague. Specifically, he claimed the statute is not narrowly tailored and, as a result, "chills free speech." The judge summarily denied the motion.

    19

    On appeal, Green challenges section 16-15-342 as facially overbroad because one can be found guilty under the statute "when he contacts a minor for any one of six activities under 16-15-375(5) or any one of at least twenty-nine activities under 16-1-60." Because the statute does not identify what forms of communication are prohibited, Green claims the content of any communication would "trigger a violation of the statute." Ultimately, Green claims the statute is "so overbroad that it ensnares" protected speech.

    20

    In a related argument, Green asserts this lack of specificity demonstrates that the statute is vague. Green contends the provisions of the statute are vague as to "what forms of communications and what content of such communications would be criminalized as solicitations." Because the statute is not sufficiently definite, Green avers that "[a] person of ordinary intelligence would not know what speech, expression or contact would result in a violation of the statute."

    21

    "When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution." State v. Gaster, 349 S.C. 545, 549-50, 564 S.E.2d 87, 89-90 (2002). "This presumption places the initial burden on the party challenging the constitutionality of the legislation to show it violates a provision of the Constitution." State v. White, 348 S.C. 532, 536-37, 560 S.E.2d 420, 422 (2002).

    22

    Applying these well-established rules regarding the constitutionality of a statute, our analysis begins with a review of the text of the challenged statute. Section 16-15-342 provides in pertinent part:

    23
    (A) A person eighteen years of age or older commits the offense of criminal solicitation of a minor if he knowingly contacts or communicates with, or attempts to contact or communicate with, a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16-15-375(5) or a violent crime as defined in Section 16-1-60, or with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen.
    24
    (B) Consent is a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is at least sixteen years old.
    25
    (C) Consent is not a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is under the age of sixteen.
    26
    (D) It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity.
    27

    S.C. Code Ann. § 16-15-342 (Supp. 2011). Section 16-15-375 defines "sexual activity" by identifying six acts, which include "vaginal, anal, or oral intercourse" and "touching, in an act of apparent sexual stimulation or sexual abuse." S.C. Code Ann. § 16-15-375(5) (2003).

    28
    1. Overbroad[5]
    29

    "It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).

    30

    In discussing the overbreadth doctrine, the United States Supreme Court ("USSC") has stated:

    31
    According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed.
    32

    United States v. Williams, 553 U.S. 285, 292-93 (2008) (citations omitted) (emphasis in original). "To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615.

    33

    In analyzing Green's constitutional challenge to section 16-15-342, we initially note that speech used to further the sexual exploitation of children has been routinely denied constitutional protection as the State has a compelling interest in preventing the sexual abuse of children. In fact, the USSC has expressly stated that "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection." Williams, 553 U.S. at 297. Moreover, "[c]ourts have recognized that speech used to further the sexual exploitation of children does not enjoy constitutional protection, and while a statute may incidentally burden some protected expression in carrying out its objective, it will not be held to violate the First Amendment if it serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose." Cashatt v. State, 873 So. 2d 430, 434-35 (Fla. Dist. Ct. App. 2004); see New York v. Ferber, 458 U.S. 747, 756-57 (1982) (recognizing that the prevention of sexual exploitation of children and abuse of children constitutes a government objective of surpassing importance).

    34

    In view of this compelling interest, the question becomes whether section 16-15-342 is narrowly tailored to achieve the interest for which it was intended. As will be discussed, we find the statute is narrowly drafted to prohibit criminal conduct rather than protected speech.

    35

    Significantly, the statute includes the term "knowingly." Thus, it affects only those individuals who intentionally target minors for the purpose of engaging or participating in sexual activity or a violent crime. Conversely, it does not criminalize any inadvertent contact or communications with minors. See United State v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (concluding that statute proscribing knowing efforts to persuade minors to engage in illegal sexual activity did not violate First Amendment); State v. Ebert, 263 P.3d 918, 922 (N.M. Ct. App. 2011) (concluding that statute criminalizing child solicitation by electronic communication device was not constitutionally overbroad as "[t]ailoring [was] primarily accomplished through the `knowingly' scienter requirement"; noting that "the statute does not restrict adults from communicating about sex to children, nor does it restrict adults from soliciting sex from one another over the internet," in fact, "the statute prohibits only that conduct necessary to achieve the State's interest"); State v. Snyder, 801 N.E.2d 876, 883 (Ohio Ct. App. 2003) (finding statute that prohibited adults from using telecommunications device to solicit minor for sexual activity is not "aimed at the expression of ideas or beliefs; rather, it is aimed at prohibiting adults from taking advantage of minors and the anonymity and ease of communicating through telecommunications devices, especially the Internet and instant messaging devices, by soliciting minors to engage in sexual activity").

    36

    Because the statute does not criminalize protected speech and is narrowly tailored to achieve a compelling state interest, we find the statute is not unconstitutionally overbroad as any alleged overbreadth is unsubstantial when considered in relation to "its plainly legitimate sweep."

    37
    2. Vague
    38

    In view of our finding, the analysis turns to a determination of whether the statute is void for vagueness.

    39

    "The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication." City of Beaufort v. Baker, 315 S.C. 146, 152, 432 S.E.2d 470, 473 (1993) (quoting State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 605, 606 (1971)). "The constitutional standard for vagueness is the practical criterion of fair notice to those to whom the law applies." Huber v. S.C. State Bd. of Physical Therapy Exam'rs, 316 S.C. 24, 26, 446 S.E.2d 433, 435 (1994). A law is unconstitutionally vague if it forbids or requires the doing of an act in terms so vague that a person of common intelligence must necessarily guess as to its meaning and differ as to its application. Toussaint v. State Bd. of Med. Exam'rs, 303 S.C. 316, 400 S.E.2d 488 (1991). "[O]ne to whose conduct the law clearly applies does not have standing to challenge it for vagueness as applied to the conduct of others." In re Amir X.S., 371 S.C. 380, 391, 639 S.E.2d 144, 150 (2006) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).

    40

    As an initial matter, we find that Green does not have standing to assert a facial challenge for vagueness as the statute provided adequate notice that his conduct fell within that proscribed by section 16-15-342. Green, who was twenty-seven years old at the time of the offense, knowingly initiated an online chat with a female he reasonably believed to be fourteen years old. As evidenced by the text of the chat, Mandy represented her age to be 14, Green acknowledged that she was too young to drive his vehicle, and admitted to the arresting officers that he was there to meet a fourteen-year-old girl. Moreover, Green's sexually-explicit conversation was intended for no other purpose than to persuade Mandy to engage in sexual activity as defined in section 16-15-675(5).

    41

    Even assuming standing, we find that Green's challenge is without merit. We hold that section 16-15-342 is sufficiently precise to provide fair notice to those to whom the statute applies. The criminal solicitation statute specifically identifies the following distinct elements: "(1) the defendant is eighteen years of age or older; (2) he or she knowingly contacts or communicates with, or attempts to contact or communicate with; (3) a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen; (4) for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16-15-375(5) or a violent crime as defined in Section 16-1-60; or (5) with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen." State v. Reid, 383 S.C. 285, 301, 679 S.E.2d 194, 202 (Ct. App. 2009), aff'd, 393 S.C. 325, 713 S.E.2d 274 (2011).

    42

    Although each of these terms is not defined, we believe a person of common intelligence would not have to guess at what conduct is prohibited by the statute. We also find the Legislature purposefully did not define "contacts" or "communicates," as we believe it sought to encompass all methods of communications. Unlike the solicitation statutes found in other jurisdictions, the South Carolina statute does not confine the method of solicitation strictly to computers.[6] Instead, one charged with this crime could have used a letter, a telephone, a computer, or other electronic means to communicate with or contact the minor victim.

    43

    Based on the foregoing, we conclude that Green has not satisfied his burden to prove that section 16-15-342 violates the First Amendment of the Constitution.

    44

    We note that other jurisdictions, which have analyzed statutes similar to this state's, have also determined that the statutes are neither unconstitutionally overbroad nor vague. See, e.g., Cashatt v. State, 873 So. 2d 430 (Fla. Dist. Ct. App. 2004); People v. Smith, 806 N.E.2d 1262 (Ill. App. Ct. 2004); LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005); State v. Penton, 998 So. 2d 184 (La. Ct. App. 2008); State v. Pribble, 285 S.W.3d 310 (Mo. 2009) (en banc); State v. Rung, 774 N.W.2d 621 (Neb. 2009); State v. Snyder, 801 N.E.2d 876 (Ohio Ct. App. 2003); Maloney v. State, 294 S.W.3d 613 (Tex. Ct. App. 2009); State v. Gallegos, 220 P.3d 136 (Utah 2009). See generally Marjorie A. Shields and Jill M. Marks, Annotation, Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications, 33 A.L.R. 6th 373, §§ 4-10 (2008 & Supp. 2012) (analyzing state cases that have determined state child-luring statute was constitutionally valid).

    45

    Having rejected Green's constitutional challenges, the question becomes whether the trial judge erred in declining to grant Green's motions to dismiss or for a directed verdict as to the charged offenses.

    46
    B. Motions to Dismiss and for a Directed Verdict
    47

    Prior to trial, Green moved to dismiss the charged offenses. In support of this motion and his directed verdict motion, Green claimed it was legally impossible to "carry out the criminal sexual conduct" because the alleged victim was not a minor but, rather, a fictitious person created by Investigator Platt. During trial, Green also established that the picture on Mandy's profile page was actually that of Lynda Williamson, a twenty-four-year-old former probation officer who provided the photograph to an investigator with the Aiken County Sheriff's Office. Because the woman in the picture was "over the age of consent," Green claimed he could not be convicted of attempted CSC with minor in the second-degree.

    48

    As an additional ground, Green asserted the State failed to prove his specific intent to commit CSC with a minor in the second-degree and an overt act in furtherance of the crime. During his argument, Green pointed to the text of the online chat where he stated that he would not pressure Mandy to do anything that she did not want to do and that she could change her mind about having sex.

    49

    On appeal, Green reiterates these arguments in support of his contention that the trial judge erred in denying his motions to dismiss and for a directed verdict. In addition, Green elaborates on his claim of legal impossibility. Citing United States v. Frazier, 560 F.2d 884 (8th Cir. 1977), Green explains that this defense applies "where the impossibility of a defendant's successfully committing a crime eliminates the culpability of his having tried to do so." According to this statement, Green claims he should not have been convicted of the charged offenses as he "could not commit criminal sexual conduct with a fictitious person."

    50
    1. Legal Impossibility
    51

    "[L]egal impossibility occurs when the actions that the defendant performs or sets in motion, even if fully carried out as he or she desires, would not constitute a crime, whereas factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him or her from bringing about that objective." 21 Am. Jur. 2d Criminal Law § 156 (2008). "According to some authorities, legal impossibility is a defense to a charge of attempt, but factual impossibility is not." Id. In view of this distinction and Green's arguments, we have confined our analysis of this issue to the defense of legal impossibility.

    52

    As we interpret Green's trial and appellate arguments, his claim of legal impossibility encompasses both the solicitation charge and the CSC charge. Specifically, the intent element in the solicitation statute and the necessary intent for the attempted CSC charge warrant a similar analysis with respect to Green's challenge that no actual minor was involved. Accordingly, we address Green's claims as to both charges.

    53

    Section 16-15-342(D) definitively discounts Green's arguments with respect to the solicitation charge as this provision states, "It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity." S.C. Code Ann. § 16-15-342(D) (Supp. 2011). Thus, based on the plain language of the statute, the Legislature clearly intended to eliminate the defense of impossibility as to the charge of criminal solicitation of a minor if a law enforcement officer impersonated the minor. State v. Dingle, 376 S.C. 643, 659 S.E.2d 101 (2008) (recognizing that in interpreting statutes, appellate courts look to the plain meaning of the statute and the intent of the Legislature).

    54

    Similarly, the fact that an actual minor was not the subject of Green's intent did not preclude his prosecution and conviction for attempted CSC with a minor in the second-degree.

    55

    A person is guilty of CSC with a minor in the second-degree if "the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age." S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011). "A person who commits the common law offense of attempt, upon conviction, must be punished as for the principal offense." S.C. Code Ann. § 16-1-80 (2003). "Thus, the elements of attempted CSC with a minor in the second degree are: (1) an attempt; (2) to engage in a sexual battery; (3) with a victim; (4) who is fourteen years of age or less; (5) but who is at least eleven years of age." Reid, 383 S.C. at 292, 679 S.E.2d at 197.

    56

    In discussing attempt crimes, this Court has stated, "In the context of an `attempt' crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense." State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000). Accordingly, "[t]o prove attempt, the State must prove that the defendant had the specific intent to commit the underlying offense, along with some overt act, beyond mere preparation in furtherance of the intent." State v. Reid, 393 S.C. 325, 329, 713 S.E.2d 274, 276 (2011) (emphasis in the original).

    57

    Based on the above-outlined definitions, we find Green's actions were sufficient to prove the offense of attempted CSC with a minor in the second-degree. As noted, an attempt crime does not require the completion of the object offense. Thus, Green was not required to complete the sexual battery in order to be prosecuted and convicted of the offense. Accordingly, the fact that the intended victim was not an actual minor was irrelevant as the State was only required to prove Green had the specific intent to commit a sexual battery on a victim between the ages of eleven and fourteen years old coupled with some overt act toward the commission of the offense. See State v. Curtiss, 65 P.3d 207 (Idaho Ct. App. 2002) (holding that impossibility did not constitute a defense to charge of attempted lewd conduct with a minor under the age of sixteen in a case where detective posed as a fourteen-year-old girl in online chat room); Hix v. Commonwealth, 619 S.E.2d 80 (Va. 2005) (holding that the fact defendant was communicating with an adult law enforcement officer posing as a child was not a defense to the charge of attempted indecent liberties with a minor).

    58

    A decision to this effect is consistent with our state's limited jurisprudence regarding Internet sex crimes. See Reid, 383 S.C. at 300, 679 S.E.2d at 201-02 (recognizing "the policy goal of stopping dangerous persons through earlier intervention by law enforcement by punishing the attempted conduct as a crime, especially in any cybermolester type cases where the conduct also clearly manifests or strongly corroborates the intent to commit such a dangerous object crime").

    59

    Finally, other state jurisdictions have concluded that a defendant may be prosecuted for criminal solicitation of a minor, as well as attempted sexual offenses, where the online persona is an undercover officer and not an actual minor. See, e.g., Karwoski v. State, 867 So. 2d 486 (Fla. Dist. Ct. App. 2004); People v. Thousand, 631 N.W.2d 694 (Mich. 2001); State v. Coonrod, 652 N.W.2d 715 (Minn. Ct. App. 2002); Shaffer v. State, 72 So. 3d 1070 (Miss. 2011); Johnson v. State, 159 P.3d 1096 (Nev. 2007); State v. Robins, 646 N.W.2d 287 (Wis. 2002).[7]

    60
    C. Sufficiency of the Evidence As to Specific Intent and Overt Act in Furtherance of Attempted CSC with a Minor
    61

    Finding that an actual minor was not required for the prosecution of the charge of attempted CSC with a minor, the question becomes whether the State proved that Green possessed the requisite intent and that he engaged in some overt act in furtherance of the charge.

    62

    Viewing the evidence in the light most favorable to the State, we conclude the trial judge properly denied Green's motion for a directed verdict as to the charge of attempted CSC with a minor in the second-degree. Green clearly expressed his specific intent to have a sexual encounter with Mandy, a fourteen-year-old female. A review of the online chat reveals that Green was not dissuaded by the fact that Mandy stated she was fourteen years old. Instead, Green continued the sexually explicit conversation and sent Mandy pictures of his genitals.

    63

    In furtherance of his specific intent, Green committed an overt act in orchestrating a meeting for the sexual encounter. Green asked Mandy whether her parents would let her out after dark and whether he could meet her at her home. Ultimately, Green arranged to meet Mandy on a secluded street that night at a specific time. Green then traveled to the predetermined location where he was arrested and found to be in possession of alcohol, condoms, and male enhancement products. Accordingly, the trial judge properly submitted the charge to the jury. See State v. Reid, 393 S.C. 325, 713 S.E.2d 274 (2011) (finding attempted second-degree CSC with a minor charge was properly submitted to the jury where appellant, who through a chat with an online persona created by a law enforcement officer, clearly communicated his desire to have a sexual encounter with a fourteen-year-old girl, arranged to meet the fictitious minor at a designated place and time, and travelled to that location); State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) (recognizing that if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury).

    64
    D. Admission of Photographs
    65

    In a pre-trial hearing and during the trial, Green objected to the admission of the two photographs of his penis. Green contended the photographs were more prejudicial than probative and, thus, should be excluded. In response, the Solicitor offered the photographs "to show the furtherance of the conduct to solicit sex from the underage child as a form of grooming, as a form of soliciting sex." The trial judge rejected Green's motion, finding the photographs were "highly relevant" and that "any prejudicial effect" was outweighed.

    66

    On appeal, Green contends the trial judge erred in allowing the jury to view these photographs as "the prejudicial value of a visual of [his] computer screen name of ["blak slyder"] through pictures of the same far outweighed its probative value." Although Green concedes the "sexual conversation" in the chat room was relevant, he contends the photographs should have been excluded as they were "inflammatory to both male and female" jurors. He characterizes the admission of these photographs as an "exceptional circumstance" that warrants reversal of his convictions as he was deprived of his constitutional right to a fair trial.

    67

    "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of South Carolina, statutes, [the South Carolina Rules of Evidence], or by other rules promulgated by the Supreme Court of South Carolina." Rule 402, SCRE. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, SCRE.

    68

    The relevancy, materiality, and admissibility of photographs as evidence are matters left to the sound discretion of the trial court. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). If the offered photograph serves to corroborate testimony, it is not an abuse of discretion to admit it. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986). To warrant reversal based on the wrongful admission of evidence, the complaining party must prove resulting prejudice. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005). Prejudice occurs when there is reasonable probability the wrongly admitted evidence influenced the jury's verdict. Id.

    69

    We find the trial judge did not abuse his discretion in admitting the photographs. Although clearly offensive, the photographs corroborated Investigator Platt's testimony and served to establish Green's intent to solicit the minor to engage in sexual activity. Furthermore, the photographs negated Green's claim that he did not intend to have sex with a minor. After sending the photographs, Green commented that "I can show it to you in person." This comment in conjunction with the photographs provided the jury with evidence of Green's specific intent as to the charged crimes. Accordingly, we agree with the trial judge that the photographs were relevant and that their probative value outweighed any prejudicial impact. See State v. Martucci, 380 S.C. 232, 249, 669 S.E.2d 598, 607 (Ct. App. 2008) (finding no abuse of discretion where trial judge admitted photographs that were relevant and necessary and were not introduced with the intent to inflame, elicit the sympathy of, or prejudice the jury; recognizing that a trial judge is not required to exclude evidence because it is unpleasant or offensive).

    70

    Moreover, even if the judge erred in admitting the photographs, we find any error to be harmless given that the text of the online chats, the testimony of the investigating officers, and the evidence found in Green's car conclusively established the elements of the crimes for which Green was charged. See State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (recognizing that an insubstantial error not affecting the result of the trial is harmless where "guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached"); State v. Knight, 258 S.C. 452, 454, 189 S.E.2d 1, 2 (1972) ("[A] conviction will not be reversed for nonprejudicial error in the admission of evidence.").

    71
    E. Request to Charge ABHAN
    72

    At the conclusion of the State's case, Green requested the judge charge the lesser-included offense of attempted ABHAN. The trial judge denied Green's request on the ground there was "no evidence [or] conduct that could have been construed as an ABHAN."

    73

    On appeal, Green asserts the trial judge erred in denying his request to charge as the evidence warranted a charge on attempted ABHAN. Because he believed Mandy was actually a woman in her twenties, based on the online profile picture, and that he did not intend to engage in sexual activity once he met Mandy,[8] Green claims he was entitled to a charge on the lesser-included offense of attempted ABHAN.

    74

    "The law to be charged must be determined from the evidence presented at trial." State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). A trial judge is required to charge the jury on a lesser-included offense if there is evidence from which it could be inferred the lesser, rather than the greater, offense was committed. State v. Drayton, 293 S.C. 417, 428, 361 S.E.2d 329, 335 (1987).

    75

    "ABHAN is a lesser included offense of ACSC, notwithstanding that technically ACSC does not contain all of the elements of ABHAN." State v. Geiger, 370 S.C. 600, 606, 635 S.E.2d 669, 672 (Ct. App. 2006); see 3 S.C. Jur. Assault and Battery § 26 (Supp. 2012) (discussing cases involving a jury instruction for ABHAN as a lesser-included offense). "ABHAN is the unlawful act of violent injury to another accompanied by circumstances of aggravation." State v. Fennell, 340 S.C. 266, 274, 531 S.E.2d 512, 516 (2000). "Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority." Id. at 274, 531 S.E.2d at 516-17.[9]

    76

    As previously stated, a person is guilty of CSC with a minor in the second-degree if "the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age." S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011).

    77

    We find the trial judge properly declined to charge attempted ABHAN. As evidenced by the text of the online chat, Green's clear intent was to engage in sexual activity with Mandy, who he believed to be fourteen years old. After Mandy responded that she was fourteen years old, the conversation turned sexual in nature with Green asking Mandy about her previous sexual experiences, whether she would have sex with him, and sending her the explicit pictures. Moreover, when Mandy asked Green, "u aint like gonna kill me or kidnap me r u?", Green responded "lol hell no." Thus, Green intended only to "engage in sexual battery with a victim who is fourteen years of age or less." Accordingly, there was no evidence demonstrating that Green was guilty of the lesser-included offense of attempted ABHAN rather than the crime of attempted CSC with a minor in the second-degree.

    78
    III. Conclusion
    79

    In conclusion, we affirm Green's convictions for criminal solicitation of a minor and attempted CSC with a minor in the second-degree as: (1) the criminal solicitation of a minor statute is not unconstitutionally overbroad or vague; (2) the use of a law enforcement officer to impersonate a minor victim was legally permissible to support both convictions; (3) Green had the requisite specific intent and committed an overt act in furtherance of the CSC charge under Reid; (4) the challenged photographs were relevant and their probative value outweighed any prejudicial effect; and (5) there was no evidence to support Green's request to charge attempted ABHAN.

    80

    AFFIRMED.

    81

    TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.

    83

    [1] S.C. Code Ann. § 16-15-342 (Supp. 2011).

    84

    [2] S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011).

    85

    [3] At the time of the chat, Green was actually twenty-seven years old as his date of birth is December 9, 1978.

    86

    [4] The officers executed a search warrant for Green's home computer and discovered the photographs that Green sent to Mandy during the online chat.

    87

    [5] Although we have not definitively ruled on an overbreadth challenge to the statute at issue, we have implicitly rejected a First Amendment objection. See State v. Gaines, 380 S.C. 23, 28 n.1, 667 S.E.2d 728, 731 n.1 (2008) (affirming defendant's convictions for criminal solicitation of a minor and stating, "the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent").

    88

    [6] See, e.g., La. Rev. Stat. Ann. § 14:81.3(A)(1) (West 2012) ("Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen."); Utah Code Ann. § 76-4-401(2)(a) (Supp. 2011) ("A person commits enticement of a minor when the person knowingly uses or attempts to use the Internet or text messaging to solicit, seduce, lure, or entice a minor or another person that the actor believes to be a minor to engage in any sexual activity which is a violation of state criminal law.").

    89

    [7] The majority of federal jurisdictions have also rejected Green's argument with respect to a similar federal statute, 18 U.S.C. § 2422(b), which prohibits a person from using the mail or interstate commerce to "knowingly persuade [], induce [], entice [], or coerce []" someone under the age of 18 "to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempt [] to do so." See United States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006) ("After examining the text of the statute, its broad purpose and its legislative history, we conclude that Congress did not intend to allow the use of an adult decoy, rather than an actual minor, to be asserted as a defense to § 2422(b)."); United States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006); ("[A] defendant may be convicted of attempting to violate § 2422(b) even if the attempt is made towards someone the defendant believes is a minor but who is actually not a minor."); see also United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007); United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001); United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004); United States v. Sims, 428 F.3d 945 (10th Cir. 2005).

    90

    [8] In support of this assertion, Green references this Court's decision in State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986), wherein this Court reversed the defendant's conviction for assault with intent to commit criminal sexual conduct in the first degree for failure to charge ABHAN based on the defendant's testimony that "he did not want to do anything" with the victim. We find Drafts to be inapposite as the defendant in that case admitted "taking indecent liberties" with the female victim, which clearly would have supported an ABHAN charge. Id. at 33-34, 340 S.E.2d at 786.

    91

    [9] In 2010, after this matter arose, the South Carolina General Assembly codified offenses involving assault and battery and these provisions are now applicable. S.C. Code Ann. § 16-3-600 (Supp. 2011).

  • 6 People v. Thousand

    1
    631 N.W.2d 694 (2001)
    2
    465 Mich. 149
    3
    PEOPLE of the State of Michigan, Plaintiff-Appellant,
    v.
    Christopher THOUSAND, Defendant-Appellee.
    4
    Docket No. 116967, Calendar No. 9.
    5

    Supreme Court of Michigan.

    6
    Argued March 7, 2001.
    7
    Decided July 27, 2001.
    8

    9

    [695] Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training and Appeals, Detroit, MI, for the people.

    10

    David E. Fregolle, Southfield, MI, for the defendant-appellee.

    11
    Opinion
    12

    YOUNG, J.

    13

    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 M.C.L. § 750.92, or to a charge of solicitation to commit a felony under M.C.L. § 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 M.C.L. § 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 M.C.L. § 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.

    14
    I. FACTUAL[1] AND PROCEDURAL BACKGROUND
    15

    Deputy William Liczbinski was assigned by the Wayne County Sheriff's Department [696] to conduct an undercover 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.

    16

    On December 8, 1998, while using the screen name "Bekka," Liczbinski was approached by defendant, who was using the screen name "Mr. Auto-Mag," in an Internet chat room. Defendant described himself as a twenty-three-year-old male from Warren, and Bekka described herself as a fourteen-year-old female from Detroit. Bekka indicated that her name was Becky Fellins, and defendant revealed that his name was Chris Thousand. During this initial conversation, defendant sent Bekka, via the Internet, a photograph of his face.

    17

    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]

    18

    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.

    19

    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 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.

    20

    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 [697] 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.

    21

    Following a preliminary examination, defendant was bound over for trial on charges of solicitation to commit third-degree criminal sexual conduct, M.C.L. § 750.157b(3)(a) and 750.520d(1)(a), attempted distribution of obscene material to a minor, M.C.L. § 750.92 and 722.675, and child sexually abusive activity, M.C.L. § 750.145c(2).[3]

    22

    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, 614 N.W.2d 674 (2000).

    23

    We granted the prosecution's application for leave to appeal.[5] 463 Mich. 906, 618 N.W.2d 772 (2000).

    24
    II. STANDARD OF REVIEW
    25

    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 N.W.2d 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 N.W.2d 538 (2000); People v. Morey, 461 Mich. 325, 329, 603 N.W.2d 250 (1999).

    26
    III. ANALYSIS
    27
    A. THE "IMPOSSIBILITY" DOCTRINE
    28

    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 [698] could not possibly have resulted in the commission of the substantive crime underlying an attempt charge. Classic illustrations of the concept of impossibility include: (1) the defendant is prosecuted for attempted larceny after he tries to "pick" the victim's empty pocket[6]; (2) the defendant is prosecuted 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 property he received was not, in fact, stolen[8]; 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."

    29

    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."

    30

    "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 believed the gun was loaded.[11]

    31

    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.

    32

    [699] "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 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.

    33

    When courts speak of "legal impossibility," they are generally referring to what is more accurately described as "hybrid" legal impossibility.

    34

    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.

    35
    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.
    36

    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).]

    37

    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":

    38

    "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. at 106, 614 N.W.2d 674 (emphasis [700] in original), quoting Dressler, Understanding Criminal Law (2d ed.), § 27.07[D][3][a], pp. 374-375.]

    39

    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 USCMA 278, 283, 32 C.M.R. 278, 283, 1962 WL 4490 (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 N.J. 182, 189, 244 A.2d 499 (1968) ("[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").

    40

    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 F.3d 189, 199 (C.A.3, 1998).[12] For example, several states have adopted statutory provisions similar to Model Penal Code § 5.01(1),[13] which provides:

    41
    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(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.
    42

    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 P.2d 624 (1976); State v. Moretti, 52 N.J. 182, 189, 244 A.2d 499 (1968); People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961).

    43
    B. ATTEMPTED DISTRIBUTION OF OBSCENE MATERIAL TO A MINOR
    44

    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 [701] 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.

    45

    We begin by noting that the concept of "impossibility," 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 N.W.2d 782 (1975), that

    46
    [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 N.W. 486 [1881])[14], legal impossibility is a defense. LaFave & Scott, Criminal Law, § 62, p. 474. [Emphasis supplied.]
    47

    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.

    48

    Finding no recognition of impossibility in our common law, we turn now to the terms of the statute. MCL 750.92 provides, in relevant part:

    49
    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....
    50

    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 N.W.2d 158 (1993), quoting 2 LaFave & Scott, Substantive Criminal Law, § 6.2, p. 18.

    51

    [702] In determining whether "impossibility," were we to recognize the doctrine, is a viable defense to a charge of attempt under M.C.L. § 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 N.W.2d 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, 599 N.W.2d 102 (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 N.W.2d 261 (2001).

    52

    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 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.

    53

    Defendant in this case is not charged with the substantive crime of distributing obscene material to a minor in violation of M.C.L. § 722.675.[16] It is unquestioned that defendant could not be convicted of that crime, because 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.

    54

    [703] 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."

    55
    C. SOLICITATION TO COMMIT THIRD-DEGREE CRIMINAL SEXUAL CONDUCT
    56
    1. ANALYSIS
    57

    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 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, M.C.L. § 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.

    58

    Our solicitation statute, M.C.L. § 750.157b, provides as follows, in relevant part:

    59
    (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.]
    60

    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]

    61

    Nevertheless, the solicitation charge was properly dismissed for the reason that there is no evidence that defendant [704] 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 M.C.L. § 750.157b. Pursuant to the plain statutory language, the prosecution was required to present evidence that defendant requested that another 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:

    62
    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-year-old girl, a fourteen-year-old girl is not committing a criminal offense (or at least not CSC-3) 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. at 111, 614 N.W.2d 674.]
    63

    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.

    64
    2. RESPONSE TO THE DISSENT
    65

    In his partial dissent, Justice TAYLOR opines that our construction of M.C.L. § 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." Dissenting op., p. 710. We disagree.

    66

    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.

    67

    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.

    68

    It is noteworthy that § 157b was substantially amended in 1986, following this Court's holding in People v. Rehkopf, 422 Mich. 198, 370 N.W.2d 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 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.

    69

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

    70
    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.
    71

    The Rehkopf majority held that

    72
    § 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, 370 N.W.2d 296.][19]
    73

    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, 370 N.W.2d 296.

    74

    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 "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.

    75
    IV. CONCLUSION
    76

    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 M.C.L. § 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.

    77

    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."

    78

    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.

    79

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

    80

    MARILYN J. KELLY, J. (concurring in part and dissenting in part).

    81

    I respectfully disagree with the majority's conclusion that the doctrine of "legal [706] 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.

    82

    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.

    83
    I. "LEGAL IMPOSSIBILITY" IN MICHIGAN
    84

    The majority errs in concluding that "legal impossibility" has never been adopted in Michigan. It focuses on language 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 that it accepted the doctrine of "legal impossibility."

    85

    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, 228 N.W.2d 782. 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 because one of the elements of the crime, a pregnant woman, could not be established.

    86

    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.

    87

    Moreover, Michigan common law[3] is not limited to decisions from this Court. The majority should not ignore decisions from the Court of Appeals. That Court has accepted "legal impossibility" as a defense.

    88

    For example, in People v. Ng, the Court of Appeals distinguished between "factual impossibility" and "legal impossibility" in [707] rejecting a defendant's argument that he was not guilty of attempted murder. 156 Mich.App. 779, 786, 402 N.W.2d 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 N.W.2d 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.

    89
    II. INTERPRETATION OF THE ATTEMPT STATUTE
    90

    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 the concept of impossibility that the defense is inapplicable.

    91

    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 prohibited by law...." M.C.L. § 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.

    92

    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 N.W. 114 (1899); People v. Webb, 127 Mich. 29, 31-32, 86 N.W. 406 (1901). At common law, "legal impossibility" is a defense to attempt. United States v. Hsu, 155 F.3d 189, 199-200 (C.A.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 N.W. 287 (1898), rev'd in part on other grounds Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971).[5]

    93

    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, 187 N.W.2d 236.

    94

    [708] 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 defendant to have committed the prohibited act.

    95

    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, M.C.L. § 750.92, 722.675.

    96
    III. THE SOLICITATION STATUTE
    97

    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.

    98

    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...." M.C.L. § 750.157b(3).

    99

    "Legal impossibility" would be a defense if the 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.

    100

    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.

    101

    I note that this is the same conclusion reached by the Court of Appeals. See People v. Thousand, 241 Mich.App. 102, 111, 614 N.W.2d 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 not prove all elements of the crime.

    102
    IV. CONCLUSION
    103

    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 [709] 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.

    104

    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, M.C.L. § 750.145c.

    105

    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 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.

    106

    MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.

    107

    TAYLOR, J. (concurring in part and dissenting in part).

    108

    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 M.C.L. § 750.92. Thus, I concur with parts I, II, III(A), and III(B) of the majority opinion.

    109

    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 fourteen-year-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.

    110

    My difference with the majority is in its understanding of the solicitation statute, M.C.L. § 750.157b(3). That section provides in pertinent part:

    111

    [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.]

    112

    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 [710] the child to commit CSC-3. That is, the solicitor has not breached the first clause in this section.

    113

    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.

    114

    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.

    115

    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." Op., p. 704. 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.

    116

    Also, the majority indicates that my interpretation is contrary to the plain language of the statute because "it is the act of `another person' that must, if completed, `constitute a felony.'" Op., p. 704. 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.

    117

    [711] 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.

    118

    I agree with the majority that the current language of the solicitation statute, M.C.L. § 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 N.W.2d 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 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.

    119

    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).

    120

    Of course, I recognize that because "Bekka" was actually Deputy William Liczbinski, an adult, the solicited person 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, M.C.L. § 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.

    121

    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.

    123

    [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."

    124

    [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 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.

    125

    [3] The prosecution's motion to add a count of attempted third-degree criminal sexual conduct was denied by the district court.

    126

    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.

    127

    [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 N.W.2d 674 (2000). We denied defendants application for leave to appeal from I this portion of the Court of Appeals opinion, and this charge is not presently belore us.

    128

    [5] In our order, we specifically directed the parties to address (1) whether legal impossibility is aviable 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.

    129

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

    130

    [7] See Waters v. State, 2 Md.App. 216, 234 A.2d 147 (1967).

    131

    [8] See Booth v. State, 398 P.2d 863 (Okla.Crim.App., 1964); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906).

    132

    [9] See State v. Guffey, 262 S.W.2d 152 (Mo.App., 1953).

    133

    [10] See Commonwealth v. Henley, 504 Pa. 408, 411, 474 A.2d 1115 (1984); State v. Logan, 232 Kan. 646, 648, 656 P.2d 777 (1983).

    134

    [11] See State v. Damms, 9 Wis.2d 183, 100 N.W.2d 592 (1960).

    135

    [12] Apart 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 111 U L R 237, n. 39 (1995).

    136

    [13] See, e.g., Kan. Stat. Ann. 21, § 3301; Colo. Rev. Stat. 18-2-101(1); New York Penal Law 110.10.

    137

    [14] In 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.

    138

    [15] The 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").

    139

    [16] At the time of the alleged offense, M.C.L. § 722.675 provided, in relevant part:

    140

    (1) A person is guilty of distributing obscene matter to a minor if that person does either of the following:

    141

    (a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors.

    142

    * * *

    143

    (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.

    144

    (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.

    145

    (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.

    146

    [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."

    147

    [18] On 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, 18 Cal.Rptr. 516, 368 P.2d 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").

    148

    [19] This 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 M.C.L. § 750.505. 422 Mich, at 204, n. 3, 370 N.W.2d 296.

    149

    [1] People v. Tinskey, 394 Mich. 108, 228 N.W.2d 782 (1975).

    150

    [2] I 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.

    151

    [3] Common 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.

    152

    [4] See also People v. Genoa, 188 Mich.App. 461, 464, 470 N.W.2d 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.

    153

    [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, 75 N.W. 287.

    154

    [1] The CSC-III statute provides, in pertinent part, that "[a] person is guilty of [CSC-III] 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.

    155

    [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."

    156

    [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 N.W.2d 164 (1999); see also People v. Warren, 462 Mich. 415, 429, n. 24, 615 N.W.2d 691 (2000) (no word of a statute should be treated as surplusage or rendered nugatory).

  • 7 Model Penal Code sec. 5.05

  • 8 State v. Davis

    1

    319 Mo 1222
    6 S.W. (2d) 609

    2
    THE STATE
    v.
    CARL B DAVIS, Appellant
    3

    Court en Banc
    May 18, 1928.

    4

    [1226] The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.

    5

    On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief, as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of AIberdina, killed, so that they could obtain the insurance on his life; aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or: three weeks In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined, his plan, offering Dill the sum of six hundred dollars, with the further agreement that AIberdina, who was to be with her husband at the time of the contemplated, assault; would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences, on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie, could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina  that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P. M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alber[1227] dina was to be mussed up and the diamonds taken from her so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to bake his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o 'clock P. M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person.  As Dill and the officers entered the room; she turned her face to the wall as planned.  Two officers took charge of Edmon and Alberdina,  Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.

    6

    Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, to whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie.  It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds, Alberdina telling defendant that she thought  he was a master mind among criminals. The confession was made o the night of February 13, 1926. The evidence establishes that all of the acts complained of occurred in Kansas City, Jackson County, Missouri, during January and February, 1923.

    7

    The evidence on the part of defendant tends to establish that defendant was urged to agree to the arrangement by Dill and Leverton, but that after paying the money he abandoned the crime before ' an overt act was committed. There was also testimony that Alberdina, the co-conspirator, abandoned the plot, which abandonment was communicated to Dill and defendant. Defendant was addicted to; drink and had been an inmate of a sanatorium. It was asserted that all these facts were known to Dill and Leverton, who purchased and gave him liquor while persuading him to continue the plot. Such other facts as we find pertinent, if any, will later be noted.

    8

    [1228] Section 3683, Revised Statutes 1919, upon; which the indictment and prosecution are based, reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented, or intercepted in executing the same, upon conviction thereof, shall, in cases where no, provision is made by law for the punishment of such attempt, be punished as follows." The remaining portion of the section sets forth the punishment prescribed, which it is unnecessary to recite.

    9

    The sufficiency of the evidence to sustain the conviction is raised. The defining of an attempt to commit a crime and the ascertaining of its essential elements is necessary in the consideration of its essential elements is necessary in the consideration of the question. 16 Corpus Juris, page 112, in defining an attempt, says: “An attempt to commit a crime 'may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to  consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime.” The elements of an attempt are stated in 16 Corpus Juris, page 113, thus: “An attempt to commit a crime consists of three elements: (1) The intention to commit, the crime; (2) performance of some  act  toward  the commission  of the crime; and (3) the failure to consummate its commission."

    10

    The proof adduced advises us that the only debatable question is the presence of sufficient facts to demonstrate the second element. The record develops the presence of the intent to commit  the crime and the failure to consummate its commission. We therefore dismiss the first and third elements of an attempt from further consideration. However, as there must be coincidence as to every element of the offense, the lack of one essential element demonstrates a failure to commit the crime of attempted murder. Our sole inquiry then relates to the performance of some act upon the part of defendant toward the commission of the crime.

    11

    The physical overt act, which, with intent and failure to consummate, brings the crime of attempt into existence, is distinguishable from solicitation and preparation. An attempt to commit a crime involves an act on the part of the defendant moving directly toward the commission of the offense. With these concepts in mind we proceed to review the solicitations and preparations by defendant to murder Lourie as constituting an overt act.

    12

    In State v. Hayes, 78 Mo. 307, this court through PHILIPS, C., said: “It is the recognized law of this country that the solicitation of another to commit a crime is an act toward the commission." How [1229] ever, the proof in the above case developed in addition to solicitations an act on the part of the accused extending beyond solicitation or preparation, that of saturating  a portion of  the floor with coal oil as well as, the furnishing of plans and an oil can. Conceding that the court reached the proper result in, that case, concerning which it is unnecessary to express an opinion, the basic facts there shown extend far beyond the facts here developed. While a few of the courts have treated solicitation to commit a crime as an attempt, the great weight of authority warrants the assertion that mere solicitation, unaccompanied by, an act moving directly toward the commission  of the intended crime, is not an overt act constituting an element of the crime of attempt. Solicitation of itself is a distinct offense when declared so by law. [16 C. J. 118; 8 R. C. L. 277.] Therefore, in conformity with the weight of authority, we hold that, merely soliciting one to commit a crime does not constitute an attempt.

    13

    The State contends that the arrangement of a plan for the accomplishment of the murder of Lourie and the selecting and hiring of the means or instrumentality by which the murder was to be consummated were demonstrated. We take it that the State means by the foregoing declarations that overt acts were shown. To that we do not agree. The evidence goes no further than developing a verbal arrangement with Dill, the selection of Dill as the one to kill Lourie, the delivery of a certain drawing and two photographs of Lourie to Dill and the payment of a portion of the agreed consideration. These things were mere acts of preparation failing to lead directly or proximately to the consummation of the intended crime. In this regard we have found no authority which holds that preparations constitute an overt act.

    14

    The distinguishment between the overt act and preparation is stated by FIELDs, C. J., in People v. Murray, 14 Cal. 159, reading "Between preparation for, the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.”

    15

    In Reg. v. Taylor, 1 Fost. &. F. 512, the court say: "The act to constitute a criminal attempt must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner in such, circumstances that he has the power of carrying ,his intent  into execution.”

    16

    The plans or arrangements amounted to nothing more than mere preparation. The contract of hiring entered into between defendant and Dill also fails to extend beyond mere preparation. In regard to the hiring the trial court instructed the jury that the payment of [1230] money by defendant to Dill to commit the intended crime did not constitute such an overt act as was tantamount to an attempt. The ruling of the court we think was right, for the payment of money was not an act moving directly toward the consummation of the intended crime. The only case we have found involving the actual payment of money to another as the consideration for the proposed crime is Reg. v Williams 1 Car. & K. 589, 1 Den. C. C. 39. In that case the facts develop the actual delivery of money to the agent who straight-way went with the poison given him for that purpose to the home of the intended victims. However, on his arrival he disclosed to them the plan to kill, handing over the poison. The fifteen judges who considered the case on appeal held the conviction erroneous.

    17

    The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. [Ex: parte Floyd, 95 Pac. 175; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. 891, Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653; State v. Rider,  90 Mo. 54; State v. Baller, 26 W. Va. 90; People v. Youngs, 122 Mich. 292; McDade v. People, 29 Mich. 50; State v. Fraker, 148 Mo. 143, 49 S.W. 1017; State v. Harney, 101 Mo. 470, 14 S. W. 657.]

    18

    Whether it is necessary to make an actual assault before the crime of attempt can be said to come into existence, we need not decide, for the solicitations and preparations upon the part of defendant were not equivalent to an overt act which must take place before the crime of attempt comes into existence. In addition to the case of State v. Hayes, 78 Mo. 307, we have considered the case of State v. Mitchell, 170 Mo. 633; 71 S. W. 175, but do not think it is apposite to the facts here developed, for in that case the intended victim was absent from the bed where he usually slept when defendant, with intent to harm him, fired through the window into the pillow of the bed. In that case the proof shows an overt act which develops the crime.

    19

    Our statute, Section 3683, Revised Statutes 1919, in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt.  The statute we think follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act, must move direct [1231] ly in consummation of the crime, in other words, toward the commission of the offense. People v. Youngs, 122 Mich. 292, supports this ruling.

    20

    It follows from what we have said that the judgment must be reversed and the defendant discharged. It is so ordered. Higbee and Henwood, CC., concur.

    21

    PER CURIUM:—This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of court en Banc. Graves, Atwood and Ragland, JJ., concur; White, J., concurs in a separate opinion, in which Blair and Gantt, J.J., concur; Walker, C. J. dissents in separate opinion.

    22

    WHITE, J., (concurring).— I concur the conclusion reached in  the opinion, of DAVIS,C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is the decisive of the case.

    23

    Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687, Revised Statues 1919.He did not attempt to commit the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.

    24
    I. 
    25

    The principle of the law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:

    26

    “There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed (3) that the principle committed the crime."

    27

    And again (pp. 134-5):  

    28

    "To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam sui principalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."

    29

    A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where the defendant [1232] was charged as accessory before the fact in commission of murder. The court said, at page 596:

    30

    “The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .

    "The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).

    31

    In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:

    32

    "The error in this instruction is glaring and manifest.  . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased.”

    33

    The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.

    34

    In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:

    35

    "The offense of the accessory, though different from that of the principal, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot subsist without it.”

    36

    In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l. c. 253):

    37

    "It is not a violation of the law with reference to the conviction of an accomplice in that he simply furnished the means, advised or aided; there would be no offense  unless  the offense in contemplation was subsequently committed.”

    38

    In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said: (l. c. 52):

    39

    “It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that person must be established.”

    40

    In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as [1233] principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l. c. 332):

    41

    "Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting was done by Sam Hickam in the attempted accomplishment of a purpose in his mind to kill Davenport of which such defendant had knowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given.”

    42

    The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal. In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l. c. 252):

    43

    “If appellant be punished under the facts in this case, it must be because her offense is within the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal there is no accessory.

    44

    That was concurred in by all of the judges of Division Two.

    45

    The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l. c. 80):

    46

    “The trial court told the jury in this instruction that defendant was guilty of burglary; if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal.”

    47

    And at page 81:

    48

    “The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter’s felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent.  But he was not a passive agent in this transaction. He was an active one.  He acted of his own volition.  He [319 Mo. Sup.78] [1234] did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured.

    49

    Quoting from a Kansas case, the court added:

    50

    “’The act of a detective may, perhaps, be not imputable to the defendant, as there is want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.’”

    51

    The court then cites authorities and reasons at length upon the principle, too long to quote here.

    52

    The effect of the above authorities is that, in order to convict one  as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed' by the overt act in the commission or attempted commission of the crime.

    53
    II.
    54

    But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent.

    55

    Counsel for the State in his argument suggests that it is an indictable offense at common law to counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an, offense, at common law. [16 C. J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C. J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C. J. 119.] The common law recognizes these three distinct offenses.  The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. St. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit a crime at all.  That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. St. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a felonious attempt to poison one Waring with intent to commit the crime of murder.  The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing.  He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme.  The defendant was convicted on [1235] both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l. c. 654):

    56

    “The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed.”

    57

    And further:

    58

    “In the present case it 'is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested.”

    59

    And further commenting on the facts, the court said (l. c. 655):

    60

    "If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860.”

    61

    That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State’s position.

    62

    Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the “Old Man’s coffee," the old man being the intended victim. L had no intention to administer the poison.  It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (1. c. 896):

    63

    "'Merely soliciting someone to do an act is an attempt to do that act’ (citing an old case).

    “‘In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted but at the ensuing term the case was considered by the fifteen judges who held the conviction wrong.’” 

    64

    And further.

    65

    “Here, undoubtedly, there was an intent to commit murder, but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."

    66

    That case and this are as like as two peas.

    67

    In the case of Hall v. State, 52 Tex. Crim. l. c. 253, the appellant was charged as an accomplice in a burglary, and the court said:

    68

    “It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed."

    69

    [1236] Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.

    70

    State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.

    71

    In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.

    72

    It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done—things, absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the! first man who offered his services.

    73

    The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.

    74

    Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine eases upon the law, as it is written, and as it has been adjudged for generations.

    75

    The judgment is properly reversed.

    76

    WALKER, C. J., (dissenting).—The charge against the defendant was based upon the following statute,  so far as the same is definitory of the offense: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any [1237] act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall in cases where no provision is made by law for the punishment of such  attempt, be punished as follows:” (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).

    77

    "An attempt,” as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if hot hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter,  then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l. c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l. c. 298.] The presence of the essentials necessary to constitute the crime are, threefold: (1) the intent; (2) the doing of acts toward the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l. c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S. W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a mariner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.

    78

    In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure—due to no cause of his.

    79

    Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are out introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: “or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished,: etc.

    80

    [1238] Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.  He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67, L. R. A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act toward its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l. c. 316.] The evil intent in the mind of the defendant—the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]

    81

    I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no. intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.

    82

    In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.”  In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.

    83

    Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110, Mo. App. l. c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar.  It there said:

    84

    “It has been at times suggested that to merely: solicit the unlawful offense was not doing an act, and that the law could not notice a mere [1239] desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l. c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may, also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation, is not an attempt to have the offense committed. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.

    “Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor.  [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: ‘According to the well-established principles of the common law, the proposal, to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked by appropriate punishment. [Walsh v. The People, 65 Ill. 58]’”

    85

    The proof of defendant’s guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended, victim planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur, the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for, news of the murder. His paramour—but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband.

    86

    [1240] The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no  horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually  participating in its commission.

    87

    Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.

  • 9 U.S. v. Church

    1

    29 M.J. 679

    2
    UNITED STATES
    3
    v.
    4
    Senior Airman William M. CHURCH, FR United States Air Force.
    5
    ACM 27324.
    6

    U.S. Air Force Court of Military Review.

    7

    Sentence Adjudged 16 Sept. 1988.

    8

    Decided 26 Oct. 1989.

    9

    Accused, a senior airman in the United States Air Force, Was convicted by general court-martial convened at Grand Forks Air Force Base, North Dakota, Stephen R. Bloss, J., of attempted premeditated murder of his wife, and he appealed. The United States Air Force Court of Military Review, Blommers, J., held that evidence supported conviction, although person whom accused attempted to hire to kill wife was undercover agent and accused argued that his conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder.

    10

    Affirmed.

    11

    1. Military Justice

    12

    There can be no conspiracy when supposed participant merely feigns acquiescence in criminal venture to secure another’s detection and apprehension by proper authorities.

    13

    2. Military Justice

    14

    Evidence supported accused’s conviction for attempted premeditated murder of his Wife, although person he attempted to hire to kill Wife was undercover agent and it was claimed accused’s conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder; accused obtained services of purported hit man to murder his wife, participated in detailed planning of intended crime, and paid agreed-upon consideration before crime and after he was apprised that crime had occurred. UCMJ, Art. 80, 10 U.S.C.A. § 880; MCM 1984, Pt. IV, H4, subd. c.

    15

    3. Military Justice

    16

    Variances between attempted murder specification, which alleged that crime occurred at particular Air Force base and alleged dates on or about 25-26 April, and proof of meeting between accused and undercover agent posing as hit man 78 miles from where -base was located and on 22 April, were not fatal variances; companion attempted conspiracy charge that was dismissed alleged offense occurring between 19-22 April at both air base and town in which meeting took place, so accused was not misled so as to affect his ability to adequately prepare for trial and would be fully protected against another prosecution for the same offense.

    17

    Appellate Counsel for the Appellant: Colonel Richard F. O'Hair and Major Lynne H. Wetzell.

    18

    Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and Captain Morris D. Davis.

    19

    Before LEWIS, BLOMMERS and KASTL, Appellate Military Judges.

    20
    Decision
    21

     

    22

    BLOMMERS, Judge:

    23

    [1] Before a general court-martial with members, the appellant, contrary to his pleas, was found guilty of the attempted premeditated murder of his wife in violation of Article 80, UCMJ, 10 U.S.C. 880.[1] His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances; and reduction to airman basic (E-1). The principal issue raised before us is framed by appellate counsel as follows:

    24

    WHETHER THE MILITARY JUDGE ERRED IN DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR A FINDING OF NOT GUILTY OF THE CHARGE AND SPECIFICATION OF ATTEMPTED PREMEDITATED MURDER, AS THE EVIDENCE FAILED TO SHOW ANY ACTS ON THE PART OF THE APPELLANT BEYOND MERE PREPARATION, NOR THAT ANY ACT OF THE APPELLANT TENDED TO EFFECT THE COMMISSION OF THE INTENDED OFFENSE.

    25

     

    26

    Simply stated, it is asserted that the evidence is not sufficient to support findings of guilty of attempted murder. We disagree and affirm. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).

    27

    This case involves contracting out for the commission of a crime. As appellate counsel note, the facts of this case present an issue of first impression for the military appellate courts in applying principles of law relating to “attempt" crimes. The specification in question alleges that the appellant “did, at Grand Forks Air Force Base, North Dakota, from on or about 25 April 1988 to on or about 26 April 1988, attempt to, with premeditation, murder [his wife] by procuring, assisting, and counseling Nicholas J. Karnezis to commit, for payment in United States currency, the premeditated murder of the said [wife]." In order to be found guilty of an attempt, the evidence must establish “a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM, Part IV, para. 4c(1) (1984). The act in question must amount to more than mere preparation to commit the offense.[2] A solicitation to commit an offense in violation of Article 134, UCMJ, 10 U.S.C. 934, on the other hand, is committed if one counsels or advises another to commit an offense with the specific intent that the offense solicited be committed. No overt act directly tending to accomplish the unlawful purpose is required. During oral argument, appellate defense counsel conceded that the appellant is guilty of soliciting another to commit murder, but argued forcefully that he was not guilty of attempted murder because no act beyond mere preparation was proven.[3] To resolve this matter, it will be necessary to review the evidence of record in some detail.

    28
    Facts
    29

     

    30

    The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.

    31

    Sometime between Thanksgiving and Christmas of 1987, the appellant, a security policeman, asked Senior Airman Mohon, a former co-worker, if he knew anyone the appellant could hire to kill his wife. Mohon did not take the appellant seriously. Sometime January 1988, Senior Airman Kowalkowski, a co-worker, and the appellant were talking about the appellants, marital difficulties, and the appellant commented that he would be better off if was dead. Shortly thereafter, during another conversation, the appellant asked Kowalkowski if he had any friends from a big city. Kowalkowski did not take the appellant seriously either.

    32

    On about 31 March 1988, Airman Meyer, another co-worker, was talking with the appellant in the hallway of their dormitory. The appellant said that since. Meyer was from a big city, he wondered if Meyer knew anybody who could do a job for him. Knowing the appellant’s family situation, Meyer believed the appellant was talking about getting someone to kill his wife so he could regain custody of his son. Meyer replied that he would check around and make some calls, but really did not take the appellant seriously. A couple of days later, he made one call to a friend back in New York in the appellant’s presence. He asked his friend, “Do you know anybody that you could find to eliminate this guy’s wife so he can get custody of his kid?” The appellant gave no indication he had just been kidding around or joking when Meyer asked this question. On another occasion when Meyer was present, the appellant made a rough drawing of the residence where his wife was living and explained how easily someone could gain access to it. On about 6 April, Meyer went with the appellant to the city of Grand Forks to pick up tax returns. During the trip, the appellant said he was expecting an $800.00 refund and implied it could be used to pay for his wife’s killing.

    33

    On 7 April 1988, Sergeant Skyberg, a co-worker and friend, received a message that the appellant wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could . . . [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but some» thing he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).

    34

    After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.

    35

    Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It Was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.

    36

     

    37

    The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick„With pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, Where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30

    38

    Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.

    39

    On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial). 

    40
    An Attempt or Only a Solicitation?

     

    [2] On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. See Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 810, 56 L.Ed. 1114, 1134 (1911) (Justice Holmes dissenting); Perkins, Criminal Law 572 (2d Ed.1969). Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma.[4] See, e.g., State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Ct.App.1977); Johnson v. Sheriff Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal. App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); State v. Miller, 252 A.2d 321 (Me.1969); State v. Laurie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928). In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime.[5] For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.

    Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an ex­convict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Lourie’s. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape~ On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Lourie’s were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Lourie S, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:

    The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime.  He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)

     

    State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State.v Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)

    41

    Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. See, e.g., Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will Support an attempt conviction. For example in Gay, payment by the solicitor was considered a sufficient overt act directed toward commission of the intended crime.

    42

    Appellate defense counsel urge that it would be inappropriate to adopt this minority view under military law. Doing so, it is argued, would violate “the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.” Perhaps so, because our law requires “a direct movement toward the commission of the offense," and provides that “[s]oliciting another to commit an offense does not constitute an attempt” (though solicitation can be a lesser included offense). MCM, Part IV, para. 4c (1984).[6]

    43

    We are not convinced, however, that military law should extend so far as to hold that a factual situation such as that present in the Davis and Laurie cases will not constitute an attempt to commit a crime. In this regard, we find solace in the reasoning of some of the dissenters in the foregoing cases. In Davis, Chief Justice Walker wrote: “Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.” State v. Davis, 6 S.W.2d at 616. In State v. Otto (defendant soliciting undercover agent to commit murder, paying him $250.00 up front with promise of larger sum after crime was committed, not sufficient to support conviction of attempted murder), Chief Justice Bakes observed:

    44

    [T]he acts here went far beyond an offer of “employment” [a solicitation]. . .. [T]he type of weapon to be utilized and the manner in which the hit was to be made were discussed, an agreement was reached, payment was made, and the defendant completed all necessary steps preliminary to the “hit” being made.

    The real question is whether acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law’s notice.

    Whether a person takes on for himself the task of trying to kill another person, or tries to bring about that killing through hiring another to perform the deed, is in actuality nothing but a matter of personal choice. While the principal is guilty of murder when the contract is performed, an attempt has been made when the bargain is struck…If criminals are going to contract out their services, and if there are persons who will retain those services, there is no reason why the criminal courts should decline to respect those contracts.

    45

     

    46

    State v. Otto, P.2d at 653-654.

    47

    To a great extent, resolution of the issue we face is dependent upon the facts of the case. United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976); 40 Am.Jur.2d 830. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.

    48

    As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” United States v. Guevara, 26 M.J. 779, 781 (A.F.C.M.R.1988). In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:

    49

    [T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); ALI Model Penal Code, Sec. 5.01 (1962).

    50

     

    51

    See also United States v. Stallworth, 543 F.2d 1038 (2d Cir.1976); United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278, 285-286 (1962). The Court of Military Appeals most recently affirmed reliance upon this test in United States v. Hyska, 29 MJ. 122 (C.M.A.1989)~but the Court did not apply the test to the facts of the case as it was decided on other grounds. See also United States v. Presto, 24 M.J. 350 (C.M.A.1987).

    52

    In Mandujano, an informant introduced an undercover narcotics agent to the defendant. After some general conversation, the subject turned to drugs. The agent said he was from out of town, and was looking for an ounce sample of heroin to determine the quality of the material in the local area. Mandujano replied that he could get good brown Mexican heroin for $650.00 an ounce. He indicated he had a good contact, but would need the money up front. The agent gave Mandujano $650.00, and he departed. He returned about an hour later, explained that he was unable to locate his contact, and gave the money back to the agent. The Court found that the request for and receipt of the $650.00 from the agent constituted a substantial step toward distribution of heroin.” United States v. Mandujano, 499 F.2d at 379. Thus, the jury’s verdict of guilty of an attempt to distribute heroin in violation of 21 U.S.C. § 846 was upheld. The Court, noting that the statute did not define an “attempt" assessed the case law and concluded that in order to constitute a criminal attempt, the defendant must have (1) acted “with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,” and, (2) “engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” at 376~377. This test was derived in large part from the Model Penal Code standard.[7]

    53

    United States v. Jackson, supra, involved an attempted bank robbery. The Court examined various approaches taken in an effort to distinguish preparation from attempt, and then affirmed the trial court’s use of the Mandujano test. The Court noted that once criminal intent is established, the key question remaining is “the substantiality of the steps taken and how strongly this corroborates the firmness of [the] obvious criminal intent.” 560 F.2d at 120. This determination is a matter of degree, and a mixed question of law and fact.

    54

    As noted above, the Court of Military Appeals applied the Mandujano/Jackson test in United States v. Byrd, supra. Byrd met SP4 Calloway (who was a drug suppression team member, though Byrd did not know this at the time) at the Community Center on Fort Gordon, Georgia. After some general conversation, Byrd mentioned Something about marijuana. Calloway asked Byrd if he could get some marijuana for him. Byrd said he knew someone who could get him a five dollar bag for ten dollars. Byrd attempted to contact a certain taxi cab driver for this purpose, but found out he was not working that day. He told Calloway to meet him at the Community Center the following day. When they met, Calloway was accompanied by an undercover military police investigator who was posing as an individual interested in obtaining drugs. Byrd took them to another location on post and introduced them to the cab driver Byrd knew. The Cab driver told them he could get marijuana for them for ten dollars. The investigator then gave Byrd ten dollars. It was agreed that Byrd would meet the investigator at the Community Center in half an hour with the marijuana. The cab driver then took Byrd to an off­post liquor store where marijuana was sold. The stipulation of fact in this guilty plea case provided: “The accused purchased a bottle of liquor with the money . . . [the investigator] gave him because he was afraid he’d be caught lf he tried bringing marijuana back on post.” During the providence inquiry, Bryd explained that on the way to the liquor store he decided not to purchase any marijuana. He did not want to get a reputation as a drug peddler.

    55

    Based upon these facts, the Court of Military Appeals found that Byrd’s guilty plea to attempted distribution of marijuana was improvident. Receipt of $10.00 from the undercover agent and traveling to a liquor store where marijuana could be purchased did not constitute conduct going beyond preparation. The Court concluded:

    56

    Riding to the liquor store with the other occupants` of the taxi-cab was not ‘strongly corroborative of the firmness of’ Byrd’s intent to distribute marijuana. The act is simply too ambiguous; and too many other steps remained before the distribution could be consummated.

    57

     

    58

    United States v. Byrd, 24 MJ. at 290. We believe that Byrd’s renunciation of his criminal purpose was an important factor to the outcome in his case. Chief Judge Everett, writing for the Court, discussed the principle of renunciation and the defense of Voluntary abandonment in some detail. Id. at 290-293.

    59

    In United States v. Presto, supra, the accused, pursuant to his pleas, was found guilty of the attempted sale of three kilograms of marijuana. He had previously sold over 500 grams of marijuana to two acquaintances, one a confidential source, the other an undercover agent. They asked if he could get them an additional ten kilograms. He agreed to try to do so, but told them he doubted he could get more than two or three kilograms. He contacted the people he had dealt with, indicated they would try to get the ten kilograms. A couple days later he contacted them again, but they did not have it yet. Later that day he was arrested. The Court stated: “Although placing a call to a potential source in order to determine the availability of drugs tends to corroborate appellant’s criminal intent, we are unconvinced that the statutory requirement of ‘more than mere preparation’ has been met.” United States v. Presto, 24 M.J. at 352. The Court relied upon the test adopted in Byrd in reaching this conclusion. In the case now before us, the appellant’s acts far exceed those of the accused in Byrd and Presto.

    60
    Conclusion
    61

     

    62

    Applying the test adopted in Byrd and the principles set forth in the Manual (MCM, Part IV, para. 4 (1984)), we are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. See also Article 66(c), UCMJ. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108, 113 (1969). Or, using an example contained in the Manual: “if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire.” MCM, Part IV, para. 4c(3) (1984). If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense»-no contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. Cf. United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278, 283 (1957). To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime. United States v. Guevara, supra.

    63

    Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gun shot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.[8]

    64

    We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder. We further find the sentence to be appropriate for commission of this crime. Our attention has also been invited to issues raised at trial which centered around the composition of the court panel. We find them to be without merit.  Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Smith, 27 M.J. 242, 250 (C.M.A.1988); United States v. Cunningham, 21 M.J. 585 (A.C.M.R.1985), pet. denied, 22 M.J. 275 (C.M.A.1986); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981); Article 25, UCMJ, 10 U.S.C. 825; R.C.M. 502(a)(1), 503(a)(v.

    65

    [3] One other matter warrants brief comment. As noted early on in this opinion, the attempted murder specification alleged that the crime occurred “at Grand Forks Air Force Base,” yet the evidence established that the two meetings between the appellant and Nick took place in a motel room in Fargo, North Dakota, a distance of some 78 miles from Grand Forks, North Dakota, where the base is located. Additionally, the dates alleged in the specification were on or about 25-26 April 1988, but the key meeting between Nick and the appellant where plans for this crime were made occurred on 22 April. We do not find these to be fatal variances between pleadings and proof. The companion attempted conspiracy charge dismissed by the military Judge alleged that the offense occurred between 19-22 April 1988 at both Grand Forks Air Force Base and Fargo. Clearly, the appellant was in no Way misled so as to affect his ability to adequately prepare for trial, and he will be fully protected against another prosecution for the same offense. Therefore, there is no prejudice. United States v. Lee, 1 M.J. 15 (C.M.A.1975); United States v. Rath, 27 M.J. 600 (A.C.M. R.1988); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984).

    66

    The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

    67

    AFFIRMED.

    68

    Senior Judges LEWIS and KASTL concur.

    69

    Senior Judge LEWIS took final action on this case prior to his retirement.

    70

     

    71

     

    72

    [1] He was also charged with attempted conspiracy to commit premeditated murder, but the military judge granted a defense motion to dismiss that offense as being multiplicious with the offense of attempted premeditated murder. We also note that there can be no conspiracy when a supposed participant merely feigns acquiescence in the criminal venture to secure another's detection and apprehension by proper authorities. United States v. LaBossiere, 13 MA. 337, 32 C.M.R. 337 (1962).

    73

    [2] Other parts of paragraph 4c, Part IV of the Manual provide the following guidance:

    74

    (2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson lo applying [sic] a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the Combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

    (3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger. A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

    (4) Solicitation. Soliciting another to commit an offense does not constitute an attempt

    75

     

    76

    The Analysis to the 1984 Manual indicates that these provisions are based on paragraph 159 of the 1969 Manual. MCM, App. 21, para. 4 at (1984). Paragraph 159 provided in part:

    77

    An accused may be guilty of an attempt even though the commission of the intended offense was impossible because of unexpected intervening circumstances or even though the consummation of the intended offense was prevented by a mistake on the part of the accused. The physical impossibility of committing the intended crime does not constitute a defense.

    78

     

    79

    MCM. 1969 (Rev.), para. 159 at 28-7.

    80

    [3] Among other punishments, confinement for 20 years is authorized for attempted murder, whereas the period of confinement authorized for soliciting another to commit murder is 5 years. At trial, the parties agreed that solicitation to commit murder was a lesser included offense to the attempt as charged, and the court members were appropriately so instructed.

    81

    [4] Our research has revealed only two reported military cases involving a factual situation (contract murder) similar to the one present in this case. United States v. Vanderlip, 28 MJ. 1070 (N.M.C.M.R.l989); United States v. Jones, 14 M.J. 740 (A.F.C.M.R.l982). In both those cases the accused was charged with soliciting another to commit murder, not attempted murder. They are not dispositive of the issue we face. See also United States v. Thomas, 13 U.S.C.M.A. 278. 32 C.M.R. 278 (1962) for an excellent and extensive discussion of the various principles developed by courts and legal scholars in an effort to deal with attempt crimes where impossibility of completion of the substantive crime is involved.

    82

    [5] It should be recognized that many of these decisions rest, at least in part, upon interpretation of state statutes.

    83

    [6] See Annotation, What Constitutes Attempted Murder. 54 ALR 3d 612 (1974) for an extensive discussion of this subject.

    84

    [7] Section 5.01 of the ALI Model Penal Code addresses criminal attempt. It provides in part:

    85

    (3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another t0 commit a crime which would establish his complicity under Section 2.06 if the crime were committed by such other person is guilty of an attempt to commit the crime, although the crime is not Committed or attempted by such other person.

    86

     

    Section 2.06 deals with liability for conduit of another.

    87

    [8] The defense theory at trial was that Senior Airman Church was a peaceful, happy-go-lucky individual, hurting from a difficult divorce, who fell victim to an OSI machine. His counsel forcefully argued this position on his behalf. “This machine was used lo scare, intimidate, and overwhelm Airman Church lo go along with the plan that was designed and created by the OSI. The situation was induced. They create an offense where there never was one." The military judge provided the members instructions on the defense of entrapment.  By their findings, the jury determined this defense did not exist. We agree.

  • 10 Model Penal Code sec. 5.01