PEOPLE OF MI V RONALD MARVIN MEYERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 16, 2002
9:05 a.m.
Plaintiff-Appellee,
v
No. 231817
Oakland Circuit Court
LC No. 00-174678-FH
Updated Copy
July 19, 2002
RONALD MARVIN MEYERS,
Defendant-Appellant.
Before: Whitbeck, C.J., and Wilder and Zahra, JJ.
PER CURIAM.
Defendant Ronald Meyers pleaded guilty of using the Internet to communicate with a
person for the purpose of attempting to commit conduct proscribed under MCL 750.145a, which
violated MCL 750.145d(1)(b). The trial court initially sentenced Meyers to two years' probation.
The trial court later amended the judgment of sentence to require Meyers to register as a sex
offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. Meyers
appeals by leave granted. We affirm.
I. Basic Facts And Procedural History
On May 11, 2000, Meyers logged onto the Internet on a computer in his home in Berrien
County and accessed a chat room. Meyers, aged sixty-four, entered into a discussion with a
person he believed to be a twelve-year-old girl named Jennie. Their two-hour discussion
concerned oral sex, which Meyers hoped to obtain from the girl. In reality, however, Meyers
was conversing with a West Bloomfield police detective, not a young girl.
The prosecutor charged Meyers with violating MCL 750.145d,1 which, at the time
Meyers committed the offense, provided in pertinent part:
(1) A person shall not use the internet or a computer, computer program,
computer network, or computer system to communicate with any person for the
purpose of doing any of the following:
* * *
1
1999 PA 32, as amended by 1999 PA 235.
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(b) Committing, attempting to commit, conspiring to commit, or soliciting
another person to commit conduct proscribed under section 145a, 157c, 350,
411h, or 411i.
The prosecutor's theory was that Meyers used the Internet to attempt to commit an act in
violation of MCL 750.145a, which provides:
Any person who shall accost, entice, or solicit a child under the age of 16
years with intent to induce or force said child to commit an immoral act, or to
submit to an act of sexual intercourse, or an act of gross indecency, or any other
act of depravity or delinquency, or shall suggest to such child any of the
aforementioned acts, shall on conviction thereof be deemed guilty of a
misdemeanor, punishable by imprisonment in the county jail for not more than 1
year.
Meyers pleaded guilty of this charge without negotiating a plea agreement. The trial court
accepted Meyers' plea after it advised him of his rights and heard his testimony.
At the November 6, 2000, sentencing hearing, defense counsel objected to the
recommendation in the presentence investigator's report that Meyers should register as a sex
offender. Defense counsel contended that, because Meyers had not committed an offense
"listed" under MCL 28.722(d), Meyers did not have to register. Evidently, defense counsel was
arguing that Meyers did not have to comply with MCL 28.723(1)(a), which requires "[a]n
individual who is convicted of a listed offense after October 1, 1995" to register under SORA.
The prosecutor countered that Meyers' criminal conduct implicated MCL 750.145a, which MCL
28.722(d)(1) deems a listed offense subject to registration. Defense counsel replied that MCL
750.145a applied only to offenses committed directly against a child, not an Internet chat with an
adult police officer. Though defense counsel did not give this theory a name at the time, this was
an impossibility argument. The trial court sentenced Meyers to two years' probation, as well as
related conditions, but took the sex offender registration issue under advisement while the parties
briefed the issue.
The parties filed their briefs and, on November 29, 2000, the trial court conducted a
hearing regarding Meyers' argument that he did not have to register as a sex offender. In
addition to reiterating the parties' positions on the issue, defense counsel briefly outlined SORA's
history and recent amendments, noting that the Legislature had never amended SORA to include
MCL 750.145d as a listed offense. Citing People v Thousand (Thousand I),2 defense counsel
maintained that Meyers could not have accosted a child because he was conversing with an adult
and, therefore, could not be found to have been convicted of violating MCL 750.145a as the
listed offense. Noting the rules of statutory construction that militate against interpreting
criminal statutes broadly, to the defendant's disadvantage, defense counsel argued that the trial
court should apply SORA strictly and conclude that Meyers did not commit a listed offense in
this case.
2
People v Thousand, 241 Mich App 102; 614 NW2d 674 (2000).
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Rather than engaging in lengthy oral argument, the prosecutor relied on her brief, which
posited two different statutory theories for requiring Meyers to register under SORA. Under the
first theory, the prosecutor noted the factual connection between Meyers' prohibited computer
activities and the acts prohibited in MCL 750.145a, citing MCL 28.722(d)(1), which includes a
violation of MCL 750.145a in the definition of a listed offense. Alternatively, the prosecutor
suggested that one of SORA's catch-all provisions, MCL 28.722(d)(x), which states that "[a]ny
other violation of a law of this state . . . that by its nature constitutes a sexual offense against an
individual who is less than 18 years of age" constitutes a listed offense, applied in this case. The
prosecutor pointed out that, though Meyers had a sexual discussion with an adult, Meyers
believed the person with whom he was having the discussion was a child under age eighteen.
Thus, the prosecutor contended Meyers' crime was just the sort of sexual offense for which the
Legislature intended individuals to register under SORA.
After considering these arguments, the trial court announced its ruling from the bench:
The Court has listened carefully to the arguments of counsel. Obviously,
there's been a lot of argument and representations in your brief concerning the
legislative intent, but it appears clear to the Court that in this case, what we're
talking about is an individual who was in fact convicted of Computer
Communication with Another for Purpose of Committing a Proscribed Conduct.
This is under a specific subsection of the statute. But the Defendant was involved
in requesting sexual acts from a perceived twelve-year-old female over the
internet. The sexual requests were for oral sex and intercourse, including the
Defendant attempting to make a date to meet the twelve-year-old or alleged
twelve-year-old female.
Obviously, the Defendant in this matter being sixty-four years of age, with
no prior record, finds the burden of registering with the Sex Registration Act
probably onerous, but I believe that the entire legislative intent was specifically
for crimes of this nature, and I believe that under the specific circumstances in
this case, it should be viewed broadly to include same, and therefore the
Defendant's motion is respectfully denied. The Defendant is to comply with the
Court's order as set forth at sentencing.
Having failed to avoid registration, Meyers applied for leave to appeal to this Court. This
Court granted leave and limited the issue on appeal to the issue he raised in the application for
leave to appeal: whether a person convicted under MCL 750.145d must register as a sex
offender pursuant to SORA. Meyers contends that the answer to this question is "no," arguing
that the Legislature purposefully excluded MCL 750.145d as a listed offense and, relying on
Thousand I, that it was factually impossible for him to violate MCL 750.145a with the conduct
underlying his conviction.
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II. Standard Of Review
The issue Meyers presents in this appeal requires us to construe and apply several
statutes, a task we undertake de novo, meaning that we analyze this issue without deferring to the
trial court's decision.3
III. Statutory Construction
The lodestar principle of statutory construction is that courts must ascertain and give
effect to the Legislature's intent in enacting a statute.4 "The task of discerning our Legislature's
intent begins by examining the language of the statute itself."5 Using a dictionary if necessary,6
we construe "[a]ll words and phrases" "according to the common and approved usage of the
language," but give terms of art and "technical words and phrases" any "peculiar and appropriate
meaning" ascribed by the Legislature or acquired in common usage in the absence of legislative
definition.7 If "the language of the statute is unambiguous, the plain meaning reflects the
Legislature's intent and this Court applies the statute as written."8 Yet, "[w]hen reasonable minds
may differ regarding the meaning of a statute, the courts must look to the object of the statute,
the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the
purpose of the statute."9
IV. SORA's Listed Offenses
The factor that makes this case seem complex is the number of overlapping statutory
provisions that affect whether Meyers' offense was subject to SORA's registration requirement.
Had the Legislature drafted MCL 28.722(d) so that it listed MCL 750.145d as an offense subject
to registration, this analysis would be much simpler. However, contrary to Meyers' contention,
we do not think that the Legislature's omission of MCL 750.145d from the offenses listed in
MCL 28.722(d) is dispositive of whether the Legislature intended him and offenders like him to
register pursuant to SORA. Instead, we start our analysis with the relevant text of MCL
28.722(d) itself.
MCL 28.722(d)(i) through (ix) identify substantive criminal laws, listed by the sections
of the Penal Code where they are codified, that are explicitly subject to SORA's registration
requirement. MCL 28.722(d)(i) lists a "violation of section 145a," meaning MCL 750.145a, as
one of the crimes for which an offender must register pursuant to SORA. MCL 750.145a, which
prohibits accosting a child, is also one of the crimes that MCL 750.145d barred individuals from
3
See People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
4
See People v Chavis, 246 Mich App 741, 743; 635 NW2d 67 (2001).
5
People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999).
6
See People v Lawrence, 246 Mich App 260, 265; 632 NW2d 156 (2001).
7
MCL 8.3a; People v Schultz, 246 Mich App 695, 703; 635 NW2d 491 (2001).
8
Borchard-Ruhland, supra at 284.
9
In re Forfeiture of $1,923,235, 247 Mich App 547, 550; 637 NW2d 247 (2001).
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committing, attempting to commit, or conspiring to commit by using a computer or the Internet.
While Meyers did attempt to accost a child, he did not actually commit the crime of accosting,
having never come into contact with a person under the age of sixteen while conducting the
computer activities that brought him to the attention of law enforcement. Unlike MCL 750.145d,
the language in MCL 750.145a does not prohibit an attempt to accost a child. As a result, MCL
28.722(d)(i) would not, alone, require Meyers to register as a sex offender because he did not
actually accost a child.
Nevertheless, SORA's legislative scheme provides more than one way to determine
whether a defendant must register as a sex offender, leaving few loopholes. MCL 28.722(d)(xii)
states that "[a]n attempt or conspiracy to commit an offense described in subparagraphs (i) to
(xi)" is a listed offense subject to the registration requirement. Indeed, the prosecutor's theory
was that Meyers attempted to accost a child contrary to MCL 750.145a by using a computer and
the Internet, which violated MCL 750.145d. Meyers pleaded guilty of this precise offense.
We find nothing ambiguous in MCL 28.722(d)(xii) or the way it applies to the case at bar
by working in conjunction with MCL 28.722(d)(i), MCL 750.145d, and MCL 750.145a. Nor are
we troubled by the Legislature's failure to include MCL 750.145d among the offenses listed
under MCL 28.722(d), regardless of whether this was a purposeful decision. SORA and MCL
750.145d actually work with each other in a seamless manner. Thus, setting aside any effect the
impossibility doctrine might have on the way the law views Meyers' conduct, there is no
question that MCL 28.722(d)(i) and (xii) placed Meyers in the category of individuals required
to register as a sex offender pursuant to SORA, MCL 28.723(1)(a).
V. SORA's Catch-All Provision
As Meyers points out, SORA originally omitted MCL 750.145d from its designation of
listed offenses in MCL 28.722(d) because the Legislature enacted SORA in 1994,10
approximately five years before it outlawed specified computer and Internet crimes in MCL
750.145d.11 At the time the Legislature enacted SORA, it could not have specifically intended to
require individuals convicted under MCL 750.145d to register as sex offenders. However, the
Legislature knew that it would revise the Penal Code in the future or would inadvertently fail to
list certain sexual crimes that would, nevertheless, be considered ripe for registration under
SORA. Thus, the Legislature included a catch-all provision in SORA from its inception.12
At the time Meyers committed his offense, as it does today, SORA's catch-all provision13
appeared at MCL 28.722(d)(x).14 This provision states that a listed offense includes "[a]ny other
10
See 1994 PA 295, effective October 1, 1995.
11
See 1931 PA 328, as amended by 1999 PA 32, effective August 1, 1999.
12
See 1994 PA 295, MCL 28.722(d)(vi) (A listed offense included "[a]n offense substantially
similar to an offense described in subparagraph [i] to [v] under a law of the United States, any
state, or any country.").
13
MCL 28.722(d)(xi), (xii), and (xiii) also function as catch-all provisions. While MCL
28.722(d)(xii) does play a role in deciding the impossibility issue in this appeal, we use "catchall" to refer only to MCL 28.722(d)(x) for the sake of simplicity.
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violation of a law of this state or a local ordinance of a municipality that by its nature constitutes
a sexual offense against an individual who is less than 18 years of age." By the plain language in
MCL 28.722(d)(x), and considering that SORA as a whole speaks in terms of "convictions,"15 a
criminal defendant must register as a sex offender when three conditions exist simultaneously.
First, the defendant must have been convicted of a state law violation or a municipal ordinance
violation. Second, the state law or municipal ordinance violation must, "by its nature," constitute
a "sexual offense." Third, the victim of the state law or municipal ordinance violation must be
under eighteen years of age.
In this case, there is no dispute that Meyers was convicted of another state law violation,
as the first element under MCL 28.722(d)(x) requires. MCL 750.145d is a section of the
Michigan Penal Code, and so it constitutes a state law. The trial court "convicted" Meyers of
this offense by entering a judgment of conviction after Meyers pleaded guilty of the charge and
provided testimony as factual support for his plea.16
With respect to the second element under MCL 28.722(d)(x), the Legislature did not
define what it meant by a violation that, "by its nature," constitutes a "sexual offense." The
dictionary suggests that we should understand the term "by its nature" to mean according to
"inherent qualities."17 A "sexual offense" is the legal "transgression"18 that is "of or pertaining to
sex."19 There can be no debate that conduct violating a state criminal law or municipal ordinance
that has inherent qualities pertaining to or involving sex fits this second element.
Two interlocking statutes work with each other to make Meyer's conduct criminal. The
first aspect of the crime falls under MCL 750.145d, which proscribes using a computer or the
Internet as the means to commit other crimes. In effect, using a computer or the Internet to
commit one of the several substantive, or "underlying,"20 crimes mentioned in MCL 750.145d
could lead to a cumulatively harsher fine or longer incarceration because this statute authorizes
punishment in addition to the punishment for the underlying offense.21 However, not all of these
other substantive crimes are inherently related to sex. The stalking,22 aggravated stalking,23
(…continued)
14
1999 PA 85.
15
See MCL 28.723 (requiring individuals "convicted" of "listed offenses" before and after
certain dates to register as a sex offender); see also MCL 28.722(a) (defining "convicted" under
SORA).
16
See MCL 28.722(a)(i).
17
Random House Webster's College Dictionary (2d ed), p 872.
18
Id. at 907.
19
Id. at 1185.
20
See, generally, MCL 750.145d(2).
21
See MCL 750.145d(2) through (5).
22
MCL 750.411h.
23
MCL 750.411i.
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felony inducement,24 and kidnapping25 statutes do not include any language referring to
prohibited sexual acts or intent. Similarly, though accosting a child contrary to MCL 750.145a
explicitly includes the possibility that the criminal conduct at issue was sexual in nature in that
the statute refers to "sexual intercourse," accosting a child may also consist of nonsexual acts,
such as "delinquency."
At first blush, this possibility—that the conduct that each of these statutes prohibits might
not require a sexual component—suggests that these are not statutes that encompass inherently
sexual offenses. However, by referring to "sexual offenses," rather than "sexual offense
statutes," the language of MCL 28.722(d)(x) directs us to examine the unique nature of the
criminal conduct underlying the charge that the defendant violated a state law or municipal
ordinance to determine whether the criminal conduct was inherently sexual. Only the facts of the
individual "offense" itself will reveal whether the stalking, kidnapping, felony inducement, or
accosting offense was inherently sexual, as this second element requires. In this case, there is no
question that Meyers' online discussion was, "by its nature," sexual in that it specifically
involved graphic discussions of oral sex, which Meyers hoped to obtain from the person with
whom he was conversing over the Internet.
The third element under MCL 28.722(d)(x) mandates that an offense be committed
against a person under the age of eighteen. This simple requirement needs no interpretation.
However, when MCL 28.722(d)(x) is applied to the language of MCL 750.145d, it is clear that
not every computer or Internet offense contrary to MCL 750.145d(1)(b) is necessarily committed
against a person under the age of eighteen. The stalking statutes do not involve any age
requirement whatsoever.26 Only violations of the kidnapping statute, which protects children
under the age of fourteen,27 and the accosting statute,28 which protects children under the age of
sixteen, and the felony inducement statute, which protects children under the age of seventeen,29
necessarily involve offenses against individuals under the age of eighteen. Again, however, we
are mindful that MCL 28.722(d)(x) directs us to examine the behavior underlying the criminal
offense to determine whether it is subject to registration. In this case, setting aside whether the
impossibility doctrine would apply, there is no question that Meyers attempted to accost
someone he thought was a girl under the age of eighteen.
Unlike MCL 28.722(d)(i) through (ix), MCL 28.722(d)(x) does not present a bright-line
rule. It is not clear from the first glance whether any particular offender must satisfy SORA's
registration requirement. Only after analyzing the facts of the specific case is it possible to
determine whether a defendant is subject to SORA's registration requirement by virtue of MCL
28.722(d)(x). There may be other cases in which a defendant convicted of violating MCL
24
MCL 750.157c.
25
MCL 750.350.
26
See MCL 750.411h and 750.411i.
27
MCL 750.350.
28
MCL 750.145a.
29
MCL 750.157c.
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750.145d need not register under SORA because the victim was over the age of eighteen or the
offense was not inherently sexual. In this case, however, it is clear that the particular criminal
actions Meyers took fell within MCL 28.722(d)(x). Thus, this catch-all provision also applied to
his circumstances, obligating him to register as a sex offender pursuant to MCL 28.723(1)(a).
VI. Impossibility
Lurking behind the scenes of this appeal is Meyers' impossibility argument. MCL
750.145a specifically prohibited Meyers from "suggest[ing]" "an act of gross indecency," like
oral sex,30 to a child, and MCL 750.145d prohibited him from using a computer or the Internet to
attempt to do so. He even pleaded guilty of this offense. And, while he does not ask us to
reverse his conviction, he contends that the Legislature did not intend to have individuals register
as sex offenders if the impossibility doctrine applied to their crimes. Meyers, relying on
Thousand I, claims that it was impossible for him to have attempted to accost a child using the
computer or the Internet because the officer with whom he was conversing was not a child and,
therefore, he should not have to register pursuant to SORA.
This Court in Thousand I held that legal impossibility is a valid defense for an attempted
crime, but that factual impossibility, which may also be viewed as hybrid legal impossibility, is
not a valid defense.31 Nevertheless, this Court concluded that it was legally impossible for the
defendant to have committed solicitation to commit criminal sexual conduct with a minor of a
certain age or to have attempted to disseminate sexual material to a minor when the evidence
demonstrated that the intended victim was actually an adult posing as a minor.32 The critical
factor in Thousand I was that the defendant's mistake about the circumstance of the crime he
intended to commit "was of legal significance," meaning that there was no proof of an essential
element of the crime.33 Under the reasoning in Thousand I, Meyers raises a valid legal
impossibility claim because, even though he intended to accost a minor, the person he actually
attempted to accost was an adult.
However, in Thousand II,34 our Supreme Court overruled the portion of this Court's
decision in Thousand I dealing with impossibility. Though the Supreme Court explained in
detail the separate theories of pure legal impossibility, hybrid legal impossibility, and factual
impossibility,35 it focused primarily on the language of MCL 750.92, a general criminal attempt
statute, in determining whether the impossibility could ever be a defense to an attempted crime in
30
See, generally, People v Williams, 237 Mich App 413, 415-417; 603 NW2d 300 (1999),
vacated in part on other grounds 462 Mich 861 (2000), and cases cited therein including oral sex
among the acts that may constitute "gross indecency"; see also People v Lino, 447 Mich 567; 527
NW2d 434 (1994).
31
Thousand I, supra at 105.
32
Id. at 111.
33
Id. at 113.
34
People v Thousand, 465 Mich 149; 631 NW2d 694 (2001).
35
Id. at 156-163.
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violation of this statute.36 The Supreme Court noted that the Legislature had not incorporated
any exceptions for impossibility in the general attempt statute.37 Acknowledging case law
interpreting the general attempt statute to require only evidence that the defendant had the intent
to commit a crime and had taken steps in furtherance of that criminal intent,38 the Court rejected
the idea that a defendant's ability to complete the substantive offense under the circumstances
was at all relevant to determining if an attempt occurred:39
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.[40]
Consequently, the Supreme Court held that "the nonexistence of a minor victim does not give
rise to a viable defense to the attempt charge in this case,"41 disposing of factual impossibility
and hybrid legal impossibility as valid defenses.
The general attempt statute that the Supreme Court interpreted in Thousand II does not
play a role in this case. Instead, both the criminal offense, MCL 750.145d(1)(b), and SORA,
MCL 28.722(d)(xii), incorporate their own attempt language. Case law does not explain whether
the attempts these two statutes mention mirror or differ from attempts under MCL 750.92.
Nevertheless, neither the parties nor the circumstances of this case challenge the notion that an
actual attempt under MCL 750.145d would constitute an attempt for the purposes of MCL
28.722(d)(xii) or that the meaning of an attempt in this area is somehow different from the
meaning ascribed in other criminal contexts. We assume for the sake of analysis that "attempts"
under MCL 750.145d and MCL 28.722(d)(xii) require the same sort of proof necessary to
demonstrate an attempt under MCL 750.92, and that by pleading guilty, Meyers conceded that
his conduct was just such an attempt. Thus, the narrow question we must decide is whether the
Legislature intended to allow impossibility as an exception to the registration requirement for
defendants who attempt to commit a crime and whom MCL 28.722(d)(xii) would otherwise
compel to register.
Taking our cues from the analytical focus in Thousand II42 and the ordinary rules of
statutory construction,43 the language of SORA, which has this attempt provision, remains most
36
Id. at 163-166.
37
Id. at 165.
38
Id. at 164.
39
Id. at 165-166.
40
Id. at 166.
41
Id.
42
See Thousand II, supra at 165.
43
See Borchard-Ruhland, supra at 284.
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important to our decision. Clearly, the Legislature did not indicate in MCL 28.722 that any form
of the impossibility doctrine exists as an exception to the registration requirement for individuals
who have attempted to commit a listed offense. To the contrary, the structure and all-inclusive
language of MCL 28.722(d), especially subsections x through xiii, reveal the Legislature's intent
to have as many sex offenders comply with the registration process as possible. Though pure
legal impossibility is available as a defense,44 we would have to ignore SORA's comprehensive
registration scheme to conclude that the factual impossibility or hybrid legal impossibility of
completing the underlying offense would excuse a defendant convicted of an attempt from
registering. Similar to the holding in Thousand II,45 we conclude that these two variations of the
impossibility doctrine have no relevance when determining if a defendant convicted of an
attempt must register pursuant to SORA.
Despite Meyers' efforts to portray this case as hinging on pure legal impossibility, this
case involves hybrid legal impossibility; Meyers had an illegal goal, which his factual mistake
concerning the identity of the person with whom he was chatting on the Internet made legally
impossible for him to accomplish.46 Having already determined that MCL 28.722(d)(xii)
requires him to register as a sex offender without addressing the impossibility doctrine, it is now
apparent that his argument that it was impossible for him to have completed the substantive
offense of accosting a child is meritless. Nor do we see a basis for concluding that hybrid legal
impossibility has any bearing on whether he falls within MCL 28.722(d)(x). Meyers must
register pursuant to SORA.
Affirmed.
/s/ William C. Whitbeck
/s/ Kurtis T. Wilder
/s/ Brian K. Zahra
44
The Thousand II opinion, though written broadly in the sense that it stated and reiterated that
the Supreme Court had never adopted an "impossibility" doctrine, see id. at 152, 164, appears to
have left intact pure legal impossibility as a valid defense, see id. at 158. Indeed, the language of
MCL 750.92 requires a defendant to have the intent to commit conduct that is criminal and to
take steps to that end. Though a defendant may have a specific intent to commit certain actions
and take steps to that end, if those actions are legal, then it would be impossible to say that the
defendant attempted "to commit an offense prohibited by law" even if the defendant thought he
was committing a crime. MCL 750.92; see also Thousand II, supra at 158-159. This case does
not involve pure legal impossibility because the law prohibited the conduct Meyers intended to
commit. Thousand II, supra at 158.
45
Thousand II, supra at 166.
46
See id. at 159.
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