Defendant is the owner of his own jewelry store. A police informant entered his store with five “specially coated chains” with a wiretap and told defendant that they were stolen. He believed they were stolen, per the informant’s statements, and bought them anyway. He also “expressed a willingness to buy more stolen goods in the future.”
Convicted of attempted theft by unlawful taking or disposition. Defendant argued at trial that the items were not stolen in reality because they were in police custody. This was a defense of “legal impossibility.” The trial court granted “demurrer.”
Relevant code states that “impossibility is not a defense if the completed offense could have occurred had the circumstances been as the accused apprehended them to be. Impossibility (factual or legal) is not a defense if the completed offense could have occurred had the circumstances been as the accused believed them to be.”
Whether legal impossibility provides a legitimate defense where stolen goods are in reality police property.
No. “If one forms intent to commit a substantive crime, then proceeds to perform all the acts necessary to commit the crime, and it is shown that completion of the substantive crime is impossible, the actor can still be culpable of attempt to commit the substantive crime.” The defendant must be attempting to violate the laws of the subject jurisdiction. A defendant cannot, however, be convicted of attempting to violate laws that do not exist in the subject jurisdiction. An example is a fisherman who believes he is fishing without a license on a lake that requires one. The fisherman cannot be found guilty and would properly use the legal impossibility defense. In the instant case, the defendant was attempting to violate the established laws of the subject jurisdiction.
Factual Impossibility: “conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing it about.” Example is a pick pocket, picks an empty pocket.
Legal Impossibility: “The intended acts would not amount to a crime even if completed.” The trend is not to recognize legal impossibility. The model penal code also abandons the concept.