Appeals Court (September 5, 2006)

A defendant can be guilty of attempting to rape a child or of soliciting sexual conduct for a fee where, unbeknownst to the defendant, he negotiates with an undercover police officer to arrange for sexual intercourse with a child, when there is no actual child.

A police officer, who was working undercover as part of a "sting" operation, met with the defendant who agreed to pay $200 to have sex with a four-year old child. The undercover officer instructed the defendant to follow the officer to a nearby park where the child would be waiting. When the defendant agreed to this arrangement, the undercover officer signaled other officers, who arrested the defendant. The defendant was indicted with attempting to rape a child and soliciting sex for a fee.

Legal vs. Factual Impossibility

The defendant argued that the evidence was insufficient to support the indictments because both crimes require the presence of a victim as an element and the child never really existed. The court held that factual impossibility is not a defense to the crimes. The fact that the child did not exist does not diminish the evidence that he attempted to victimize a child he believed existed. "The nonexistence of the victim was a factual, not a legal impossibility."

Overt Act

The defendant argued there was insufficient evidence of an overt act to support probable cause that he attempted to rape a child. The court found the defendant had a "present intention to perform the crime coupled with a well thought out plan and a commitment to complete it…." The court held that the "gap here between what was done and what remained to be done was small enough to warrant probable cause for a charge of attempt."