Chen v. State

42 S.W.3d 926 · 2001

Facts

Appellant placed an advertisement on an America Online bulletin board seeking a "nude dancer needed for discreet pleasure," specifying "very attractive and young." Detective Steve Nelson, an undercover officer, responded via email, posing as "J. Cirello" and later as "Julie," a 13-year-old girl. Appellant exchanged emails with the detective, expressing a desire for a girl who "dares to be nude and watched by me while I am masturbating," and made plans to meet. Appellant assured "Julie" he would bring protection and lubrication, and they agreed to meet at a Best Western motel. Police set up surveillance, and when appellant arrived at the motel in his champagne-colored minivan, he was arrested after briefly entering the lobby. Condoms and KY Jelly were found in his vehicle, and he admitted he was going to show a girl how to have sex.

Issue

Whether a 47 year old male undercover officer posing as a 13 year old female for the purposes of internet communications established evidence that was sufficient, as a matter of law, to support a conviction for the offense of attempted sexual performance by a child.

Holding

The court affirmed the judgment of the court of appeals, finding the evidence sufficient to support the conviction for attempted sexual performance by a child.

Rule

The offense of attempted sexual performance by a child requires a defendant with specific intent to commit the offense, who does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense. The court distinguished between legal and factual impossibility, stating that legal impossibility exists when the intended act, if completed, would not be a crime, while factual impossibility occurs when the crime cannot be completed due to a physical or factual condition unknown to the actor. The court reasoned that appellant's case presented factual impossibility because his goal (sexual performance by a child) would have been a crime if the victim were real, and factual impossibility is not a defense to attempt crimes.

Read the full opinion on CourtListener

Case brief last reviewed . Prepared by CaseReader from the published opinion.