Impossibility
In general
• [I]n criminal cases, Indiana generally does not recognize the defense of impossibility.
State v. Burroff, 598 N.E.2d 1081, 1083 (Ind. Ct. App. 1992)
• It is no defense that, because of a misapprehension of the circumstances, including the age of the intended victim in a prosecution for attempted child molesting (IC 35-42-4-3), it would have been impossible for the accused person to commit the crime attempted.
• It is clear that section (b) of our [attempt] statute rejects the defense of impossibility. It is not necessary that there be a present ability to complete the crime, nor is it necessary that the crime be factually possible. When the defendant has done all that he believes necessary to cause the particular result, regardless of what is actually possible under existing circumstances, he has committed an attempt.
Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979)
See King v. State, 469 N.E.2d 1201, 1204 (Ind. Ct. App. 1984), reh’g denied, trans. denied(quoting IC 35-41-5-1(b))(“Furthermore, subsection (b) of the attempt statute specifically rejects the defense of impossibility which defendant attempts to raise: ‘It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted.’”)
See also King v. State, 921 N.E.2d 1288, 1290-91 (Ind. 2010)(quoting Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979))(“Rejected as well were prior views that impossibility was a defense. ‘It is not necessary that there be a present ability to complete the crime, nor is it necessary that the crime be factually possible.’”)
• For more information about the attempt statute, please review Attempt.
Prosecution’s burden
• In accordance with IC 35-41-5-1, the State was not required to prove that [the defendant’s] conduct could actually have killed. It was only necessary for the State to show that [the defendant] did all that he believed necessary to bring about an intended result, regardless of what was actually possible.
State v. Haines, 545 N.E.2d 834, 839 (Ind. Ct. App. 1989), reh’g denied, trans. denied
Examples from case law
• Here, the State alleged that [the defendant’s] conduct established that he had done all that he believed necessary to have solicited a child under fourteen, and that the evidence showed that conduct to include a substantial step toward solicitation of a child under fourteen. The fact that it was not “actually possible,” because [the victim] was not a child, does not bar his conviction for an attempted child solicitation.
Laughner v. State, 769 N.E.2d 1147, 1155 (Ind. Ct. App. 2002), reh’g denied, trans. denied, cert. denied, 538 U.S. 1013 (2003), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n. 9 (Ind. 2007)(quoting Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979))
• [The defendant] also claims the guilty verdict [for attempting to receive stolen property] was contrary to law because the items received as “stolen property” were not in fact stolen, but were owned by the Marion County Police Department. . . . [T]he fact that the items were not actually stolen is unimportant as long as the jury found that [the defendant] believed them to be stolen.
King v. State, 469 N.E.2d 1201, 1203-04 (Ind. Ct. App. 1984), reh’g denied, trans. denied(emphasis added)
• [The defendant] was prosecuted under IC 35-43-1-1(c) for the offense of arson by knowingly damaging property with intent to defraud his insurance company, a class C felony. After the State rested its case in chief, defense counsel moved for a directed verdict on the grounds that there could not have been any intent to defraud because there was no insurance in force at the time of the arson. . . . Although the Zickefoose decision concerned an attempt, the reasoning applies with even greater force here, where the crime has actually been completed. The gravamen of the offense is the accused’s intent to defraud, and the essential inquiry is whether the accused believed he was covered, regardless of the true state of his insurance coverage. If the defendant believes there is coverage, and he burns his property with the intent to defraud the insurer, the crime is committed, even if the defendant’s intent could not have come to fruition.
State v. Burroff, 598 N.E.2d 1081, 1082-83 (Ind. Ct. App. 1992)(emphasis added)