JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Stanley Gentry, was convicted of attempted murder (El. Rev. Stat. 1983, ch. 38, pars. 8 — 4(a), 9 — 1(a)) and aggravated battery (El. Rev. Stat. 1983, ch. 38, par. 12 — 4). At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and on the charge of attempted murder sentenced Gentry to the Illinois Department of Corrections for a term of 45 years’ imprisonment.

On appeal, Gentry asserts that his conviction should be reversed because: (1) the trial court’s instruction regarding the intent necessáry for attempted murder was prejudicially erroneous; (2) the State’s use of certain hearsay statements denied Gentry a fair trial; and (3) the prosecutor committed reversible error by making several improper and prejudicial remarks during closing argument.

Background

The record indicates that on December 13, 1983, Gentry and Ruby Hill, Gentry’s girlfriend, were in the apartment they shared at 1756 North Taiman in Chicago, Illinois. At approximately 9 p.m. the couple began to argue. During the argument, Gentry spilled gasoline on Hill, and the gasoline on Hill’s body ignited. Gentry was able to smother the flames with a coat, but only after Hill had been severely burned. Gentry and Hill were the only eyewitnesses to the incident.

Police and paramedics were called to the scene. James Fahey was the first Chicago police officer to arrive. Fahey testified that when he entered Gentry and Hill’s apartment, he found Hill’s upper body (including her head, face, and arms) to be badly burned. He further testified that Gentry was the only person in the apartment other than Hill. Fahey also stated that he found no matches on the floor of the apartment.

The paramedics who arrived at the scene testified that Hill had suffered third degree bums over 70% of her body. They further testified that after some initial treatment, Hill was transported by ambulance to Cook County Hospital and that Gentry accompanied Hill in the ambulance.

. Wayne Milla, a detective for the Chicago police department, also testified. Milla stated that he arrived on the scene shortly after Fa-hey. Milla also stated that a gas stove was the only possible source of *901ignition in the apartment’s kitchen. Milla averred that he originally classified the fire as “accidental” but later changed his mind when he discovered that Hill’s clothing had been doused with gasoline.

The victim, Ruby Hill, also testified at trial. Hill stated that she and Gentry had been drinking all afternoon and that both of them were “pretty high.” She further testified that Gentry had poured gasoline on her and that the gasoline ignited only after she had gone near the stove in the kitchen. Hill also related how Gentry tried to snuff the fire out by placing a coat over the flames.

Hill also testified as to her relationship with Gentry. She stated that she had lived with Gentry for three years prior to the accident, that she wanted to marry Gentry, and that she still loved Gentry notwithstanding the fire incident. Hill claimed that the entire episode was an accident and that she intended to again live with Gentry after the case was over.

In addition, over the objection of Gentry’s counsel, the prosecution proffered certain impeachment evidence. The claimed purpose of this evidence was to impeach Hill as to her assertion that the fire incident was an accident. The prosecution first established the foundation for the impeachment by asking Hill if she had previously claimed that Gentry had threatened her with matches after he had poured gasoline on her. Hill denied it. The prosecution also asked her if she had previously claimed that she was terrified of Gentry. Hill again denied making such a statement. Hill also denied ever stating that she was afraid of Gentry and denied that Gentry had ever tried to choke her while she was taking a bath in the apartment’s bathtub.

After Hill denied making positive answers to the aforementioned questions posed by the prosecution, the prosecution set out to “prove-up” the impeachment. First, the prosecution called Jeffrey Zitzka, a Chicago police officer who interviewed Hill while she was in the hospital after the incident. Zitzka testified that Hill had nodded “no” when asked if the incident was an accident and had nodded “yes” as to whether she wanted to press charges.

Diane Meyer, a law clerk for the State’s Attorney’s office, then testified. Meyer stated that she had heard Hill tell prosecutors that Gentry had lit matches after pouring gasoline on her, that Hill had claimed that' the incident was not an accident, and that Hill had also said that she was afraid of Gentry.

Hill’s brother, Bill Starnes, testified that Hill had previously told him that Gentry had once tried to choke Hill while she was in the bathtub. Hill’s mother also testified. She stated that some time before the incident, Hill had written a letter to her in which Hill *902claimed to be “scared to death” of Gentry and that Gentry had once attempted to choke her while she was in the apartment’s bathtub.

During the prosecution’s closing argument, the record reveals that the prosecutors relied heavily on the impeachment testimony and invited the jury to consider the evidence for its substantive value as well as for what it revealed about Hill’s credibility

At the close of the case, the jury found Gentry guilty of attempted murder and aggravated battery. The lesser aggravated battery conviction was merged into the greater attempted murder conviction at sentencing, where Gentry was sentenced to the Illinois Department of Corrections for a term of 45 years. From his conviction for attempted murder and his sentence, Gentry now appeals.

Gentry contends that the jury was improperly instructed on the required mental state for attempted murder where the instructions given would permit a conviction without a finding that Gentry possessed the specific intent to kill. The State, on the other hand, contends that the instructions as given show Gentry’s assertion to be illogical. Alternatively, the State maintains that any error in instructing the jury was harmless and that defendant has waived review of this issue by failing to object at trial.

The record evinces the fact that Gentry did indeed fail to object at trial to the instructions in question. However, the specific intent to kill is an essential element of the crime of attempted murder. (People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.) Accordingly, the alleged error affects Gentry’s substantial rights, and we will review this issue under the plain error doctrine. 87 Ill. 2d R 615(a); of. People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1156 (error in attempted murder instruction held to be plain error; attempted murder conviction reversed on appeal).

At the . close of the presentation of evidence in this case, the following instructions were given. First, the trial court defined “attempt” as it relates to the underlying felony of murder:

“A person commits the offense of murder when he, with intent to commit the offense of murder does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been completed.” (Emphasis added.)

Second, after giving this definition, the trial court set forth the necessary elements of attempted murder, to wit, an act and intent:

“To sustain the charge of attempt, the State must prove the following propositions:

First: That the defendant performed an act which consti*903tuted a substantial step towards the commission of the offense of murder; and

Second: That the defendant did so with intent to commit the crime of murder.” (Emphasis added.)

Finally, the trial court defined the crime of murder, including all four culpable mental states:

“A person commits the crime of murder where he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual.” (Emphasis added.)

Gentry contends that the inclusion of all the alternative states of mind in the definitional murder instruction was erroneous because the crime of attempted murder requires a showing of specific intent to kill. Gentry, posits that inclusion of all four alternative states of mind permitted the jury to convict him of attempted murder upon a finding that he intended to harm Hill, or acted with the knowledge that his conduct created a strong probability of death or great bodily harm to Hill, even if the jury believed that Gentry did not act with specific intent to kill. We agree with Gentry’s position that the jury was misinstructed in this case.

Our supreme court has repeatedly held that a finding of specific intent to kill is a necessary element of the crime of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) Indeed, a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of that offense, and that intent to do bodily harm, or knowledge that the consequences of defendant’s act may result in death or great bodily harm, is not enough. (People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, 346. Accord, People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270; People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404; People v. Coleman (1985), 131 Ill. App. 3d 76, 475 N.E.2d 565.) Recently, in People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154, this court found an identical instruction to be erroneous based on the legal principle cited above. Accordingly, the instructions given in this case were erroneous, since it is clear that the jury was permitted to convict Gentry without specifically finding that Gentry intended to kill Hill. New errors are more highly prejudicial than the trial court’s failure to give the proper instruction on the intent element of a *904crime. People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.

The State attempts to minimize the significance of this error by arguing that the instructions as given actually did require the jury to find specific intent to kill. The State labels as illogical those cases which distinguish between the specific intent to kill and the three other alternative states of mind also found in the definitional murder instruction.

The State would read the attempted murder instruction as requiring a showing of any of the alternative mental states sufficient for a conviction of murder. In other words, the State makes no distinction between the mental state required to prove murder and the mental state required to prove attempted murder. We find the State’s analysis and conclusion to be erroneous and lacking in legal substance since it fails to contain the judicial reasoning which recognizes the distinction between the intent elements of murder and attempted murder.

Specifically, we cite the Kraft case, where defendant’s attempted murder conviction was reversed where the jury instructions would have permitted a conviction without a finding of specific intent to kill. (People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154.) In reversing the defendant’s attempted murder conviction in that case, the Kraft court analyzed the distinction between the culpable mental states required for murder and attempted murder, noting as follows:

“Our criminal code contains separate statutory definitions for the four culpable mental states of intent, knowledge, recklessness, and negligence, with knowledge encompassing a distinct and less purposeful state of mind than intent. *** [0]ur State legislature manifested a desire to treat intent and knowledge as distinct mental states when imposing criminal liability for conduct. *** Knowledge is not intent as defined by our statutes, and the jury instructions should reflect this distinction. Accordingly, we hold that in a prosecution for attempted murder, where alternative culpable mental states will satisfy the target crime of murder, but only one is compatible with the mental state imposed by our attempt statute, the incompatible elements must be omitted from the jury instructions.” 133 Ill. App. 3d 294, 302, 478 N.E.2d 1154, 1160.

Consequently, it is sufficient only for us to say that we recognize the distinction between the alternative states of mind delineated in the definitional murder instruction, as well as the fact that only the specific intent to kill satisfies the intent element of the crime of at*905tempted murder. Accordingly, the State’s assertion that the instructions as given actually required the jury to find that Gentry had a specific intent to kill Hill is doomed.

Alternatively, the State argues that this error is harmless. We note that there are apparently two lines of cases on this point. In the first, our supreme court has reversed convictions for attempted murder without evaluating the evidence to determine if the error is harmless where the jury has not been correctly instructed on the issue of intent. (See People v. Trinkle (1977), 68 Ill. 2d 198, 203-04, 369 N.E.2d 888, 891; accord, People v. Viser (1975), 62 Ill. 2d 568, 581-83, 343 N.E.2d 903, 909-11.) These cases take the position that when a jury is misinstructed on a fundamental issue (like defendant’s intent in this case) the jury lacks a tool necessary for the performance of its function as trier of fact. Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.

In the second line of cases regarding misinstruction of the jury, our supreme court recognized that errors in giving or refusing to give instructions will not always justify reversal when evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably find defendant not guilty. (See People v. Truelock (1966), 35 Ill. 2d 189, 192, 220 N.E.2d 187, 190 (evidence of defendant’s knowledge of the presence of narcotics was clear and convincing); People v. Ward (1965), 32 Ill. 2d 253, 256, 204 N.E.2d 741, 743.) The factual distinction between these two rules, however, is based on the issue of defendant’s intent to kill. In the first line of cases, the question of defendant’s intent is in issue, which has been held to be sufficient to require reversal without further consideration of the evidence. (See, e.g., People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) In the second line of cases, on the other hand, the fact that defendant formed the requisite intent to kill is blatantly evident from the facts, such that the intent element is not at issue. People v. Jones (1979), 81 Ill. 2d 1, 9-10, 405 N.E.2d 343, 346-47 (where the only question was whether the defendant was the perpetrator or one of the perpetrators of the crime, and where the trial court gave an accurate directive attempted murder instruction, followed by an inappropriately complete definitional murder instruction).

In the instant case, it is clear that the essential task before the jury was the determination of whether Gentry sufficiently formed the specific intent to kill, in order to satisfy the elements of attempted murder. This is evidenced by the State’s efforts to prove that Gentry knew that splashing gasoline on Hill would kill her, as *906well as by the State’s attempts to impeach Hill’s testimony that the incident was accidental. As such, we are faced with a situation where proving that Gentry formed the intent to kill was a necessary predicate to a finding of his guilt.

Given the circumstances delineated above, and given the misinstruction on the crime of attempted murder, we must necessarily conclude that Gentry was prejudiced by the inclusion of the alternative states of mind in the definitional murder instruction. We find this to be a fundamental error and not merely a technical defect cured by the evidence in this case. Indeed, the error which occurred here was in a definition essential for the jury to make a legally permissible judgment as to Gentry’s guilt or innocence as to the crime of attempted murder. (Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.) Justice would best be served by our application of the line of cases which would entitle Gentry to a new trial before a properly instructed jury, precluding our further consideration of the evidence in this case. We note that even if we were to apply the standard used in cases like Ward and its progeny (clear and convincing proof of guilt), we would not find the error harmless, as other evidentiary problems surrounding the impeachment of Hill foreclose a clear and convincing showing of Gentry’s guilt. This is because proof of Gentry’s guilt is inextricably tied to proving the requisite mental state for the crime of attempted murder, which was clearly misstated by the trial court when it gave an erroneous definitional murder instruction. Thus, because we find this to be a fundamental error, it is not necessary for us to continue any further.

In conclusion, based upon the discussion of law and fact stated above, we reverse defendant’s conviction and sentence and remand this cause for a new trial in front of a properly instructed jury.

Reversed and remanded.

McMORROW, P.J., and JOHNSON, J., concur.

MURPHY, Chief Judge.

The question presented is whether “attempted felony murder” is a crime in this State.

I.

On December 2, 1986, three men entered Barry Tensor’s shoe store. One man, later identified as Leon Bruce, was masked and armed with a handgun. He ordered Tensor to open the cash register. One of Bruce’s confederates jumped over the counter, and emptied the drawer of its money. Tensor was then ordered to open a second register. Upon finding it empty, Bruce demanded to know where the money could be found. Tensor testified:

“I said it’s empty, that is all there is and then he took the gun and aimed it right at my face, at my head. And he said I’m going to kill you in a very serious voice, and the gun was continuously held right at my face.

“At that point, I was incredibly afraid and I just tucked my head down and kind of tried to get out of the way and ducked down and moved forward. And at that point, I guess I banged into him or something and he shot me.”

*644Tensor was hospitalized for five weeks from a gunshot wound to his stomach.

On March 10, 1987, Bruce was charged by criminal information with attempted first degree murder, robbery with a deadly weapon, and two counts of unlawful use of a handgun. A jury in the Circuit Court for Baltimore City found him not guilty of attempted first degree premeditated murder, guilty of attempted first degree felony murder, guilty of robbery with a deadly weapon, and guilty of the two handgun charges. The presiding judge (Noel, J.) subsequently granted Bruce’s motion for a new trial on all charges. He concluded that his jury instructions pertaining to attempted felony murder were erroneous because no such offense existed under Maryland law.

Bruce was tried a second time before a jury in the Circuit Court for Baltimore City (Ross, J., presiding). Again, he was found guilty of attempted felony murder, robbery with a deadly weapon, and upon the two handgun violations. For the attempted felony murder conviction, Bruce was sentenced to a life term to run consecutively to all outstanding sentences, and to twenty years- for using a handgun in the commission of a crime of violence. Bruce’s other handgun conviction, as well as that for armed robbery, was merged into the attempted felony murder conviction.

On appeal to the Court of Special Appeals, Bruce argued that attempted felony murder was not a crime in Maryland. We granted certiorari prior to decision by the intermediate appellate court to consider the significant issue raised in the case.

II.

Maryland Code (1982 Repl.Vol.), Article 27, § 407 provides that murder “perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Section 410—the so-called felony murder statute—provides that all murder committed in the perpetration of, or attempt to *645perpetrate, certain designated felonies, of which robbery is one, is also murder in the first degree. These statutes do not create new statutory crimes but rather divide the common law crime of murder into degrees for purposes of punishment. See Hook v. State, 315 Md. 25, 28, 553 A.2d 233 (1989); Campbell v. State, 293 Md. 438, 441, 444 A.2d 1034 (1982); Wood v. State, 191 Md. 658, 666, 62 A.2d 576 (1948).

We observed in Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969), that at common law “a killing in the perpetration of a robbery was murder, regardless of intent.” See also Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958); Clark and Marshall, Crimes § 245 (4th ed. 1940). To secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove a specific intent to commit the underlying felony and that death occurred in the perpetration or attempt to perpetrate the felony; it is not necessary to prove a specific intent to kill or to demonstrate the existence of wilfulness, deliberation, or premeditation. Hook v. State, supra, 315 Md. at 31, 553 A.2d 233; State v. Frye, 283 Md. 709, 712-13, 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 269, 373 A.2d 262 (1977); Thompson v. State, 230 Md. 113, 117, 186 A.2d 461 (1962); Thomas v. State, 206 Md. 575, 581-82, 112 A.2d 913 (1954). As we said in Jackson v. State, 286 Md. 430, 435, 408 A.2d 711 (1979), “homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice.”

III.

In determining whether attempted felony murder is a crime in Maryland, we note that criminal attempts are common law misdemeanors in Maryland, applicable to any existing crime, whether statutory or common law. Cox v. State, 311 Md. 326, 329-30, 534 A.2d 1333 (1988); Young v. *646State, 303 Md. 298, 301, 493 A.2d 352 (1985); Hardy v. State, 301 Md. 124, 139, 482 A.2d 474 (1984). Under Maryland law, a criminal attempt consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation. Cox, supra, 311 Md. at 330, 534 A.2d 1333 and cases there cited.

In Cox, the question presented was whether an individual could be convicted of attempted voluntary manslaughter. Recognizing that criminal attempt is a specific intent crime, we held that an individual may be convicted of the crime of attempted voluntary manslaughter since the substantive offense is “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation.” Id. at 331, 534 A.2d 1333 (emphasis in original). On the other hand, we noted that involuntary manslaughter is an “unintentional killing done without malice, by doing some unlawful act endangering life, or in negligently doing some act lawful in itself”; accordingly, we held that it may not form the basis of a criminal conviction for attempt. Id. at 332, 534 A.2d 1333 (emphasis in original).

IV.

The elements of wilful, deliberate and premeditated attempted murder in the first degree are the intent to commit the offense and some overt act towards its commission. State v. Holmes, 310 Md. 260, 271-72, 528 A.2d 1279 (1987). In that case, we distinguished this species of first degree murder from murder committed in the perpetration of one of the felonies enumerated in the felony murder statute. As we said earlier, the criminal intent requisite to proving a felony murder is the specific intent to commit the underlying felony. Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in Maryland.

The majority of jurisdictions which have considered the question have concluded that “attempted felony murder” is *647not a crime. See, e.g., People v. Franklyn, 157 Cal.App.3d 518, 203 Cal.Rptr. 813, 824 (1984); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 910 (1975); Head v. State, 443 N.E.2d 44, 51 (Ind.1982); State v. Darby, 200 NJ.Super. 327, 491 A.2d 733, 736 (1984), cert. denied, 101 N.J. 226, 501 A.2d 905 (1985); State v. Price, 104 N.M. 703, 726 P.2d 857 (1986); People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253, 254 (1975); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171, 177-78 (1983); State v. Maestas, 652 P.2d 903, 904 (Utah 1982).

In People v. Viser, supra, 343 N.E.2d at 910, the Supreme Court of Illinois said:

“There can be no felony murder where there has been no death, and the felony murder ingredient of the offense of murder cannot be made the basis of an indictment charging attempted murder. Moreover, the offense of attempt requires an ‘intent to commit a specific offense’, while the distinctive characteristic of felony murder is that it does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.” (Citations omitted.)

Similarly, the Supreme Court of Indiana flatly concluded that “absent death the applicability of the felony murder rule is never triggered.” Head v. State, supra, 443 N.E.2d at 50. The Court of Appeals of New Mexico, noting the absence of a mens rea (an intent to kill) in a felony murder prosecution, has held that even when a specific intent to kill is established, the felony murder rule is not applicable to an attempted murder. State v. Price, supra. And the court in State v. Darby, supra, 491 A.2d at 736, bluntly stated that “the purported crime of attempted felony murder is manifestly unintelligible____ The fact is that the concepts of attempt and felony murder cannot rationally be joined.”

These holdings are fully in accord with the rationale advanced by LeFave & Scott, Criminal Law, § 6.2 at 500 (2nd ed. 1986):

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state *648which need not be an intent to bring about that result. Thus, if A, B, C, and D have each taken the life of another, A acting with the intent to kill, B with an intent to do serious bodily injury, C with a reckless disregard of human life, and D in the course of a dangerous felony, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm, that he acted in reckless disregard for human life, or that he was committing a dangerous felony. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).”

Reaching a contrary result is Amlotte v. State, 456 So.2d 448 (Fla.1984) (attempted felony murder is a valid crime). See also White v. State, 266 Ark. 499, 585 S.W.2d 952, 954 (1979) (recognizing the existence of attempted felony murder under that state’s statutory definition of attempt, but noting a distinction from precode cases).

The State maintains that because the evidence in the case sufficiently supported a finding that Bruce harbored a specific intent to kill Tensor, the crime of attempted felony murder was necessarily established. But, as we have said, the criminal intent necessary to convict for attempted murder requires, as one of its essential elements, a specific intent to kill. Consequently, as Maryland does not recognize attempted felony murder as a crime, Bruce’s conviction for committing that non-existent offense must be reversed. Bruce’s convictions for armed robbery, as well as the handgun violations, are unaffected by our holding in this case. Since the court merged the armed robbery conviction into the now vacated conviction for attempted felony murder, we shall remand the case for sentencing on the armed robbery count.

*649AS TO THE CONVICTION OF ATTEMPTED FELONY MURDER: JUDGMENT REVERSED; AS TO THE CONVICTION FOR ARMED ROBBERY: CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR IMPOSITION OF SENTENCE ON THE ARMED ROBBERY COUNT; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

McAULIFFE, Judge,

dissenting.

The jury in this case found that Leon Bruce, in the course of committing a robbery, shot Barry Tensor in the chest with the specific intent to kill him. Had Tensor died, Bruce would have been guilty of murder in the first degree. Ross v. State, 308 Md. 337, 341-42, 519 A.2d 735 (1987). The fact that Tensor did not die does not absolve Bruce of liability for his dangerous and deadly action. Rather, it changes the nature of the offense from murder in the first degree to attempted murder in the first degree.

There are complications inherent in applying the law of attempt to the concept of felony murder. By mechanical application of established principles, one might, in a facially logical manner, reach the result that every assault committed in the course of an enumerated felony is punishable as an attempted first degree murder. The rationale for that result is that if the victim had died, the result would be first degree murder, and because the defendant had taken every step necessary to commit such a crime, the failure of the victim to die should operate only to change the crime to an attempt. The majority properly rejects that possibility. Our cases have consistently held that proof of an attempt requires proof of a specific intent to commit the underlying crime. See, e.g., Cox v. State, 311 Md. 326, 330, 534 A.2d 1333 (1988); Young v. State, 303 Md. 298, 302-03, 493 A.2d 352 (1985). That portion of the felony murder concept which obviates the need for a specific intent to kill cannot logically be transplanted into the law of attempt.

No such abstruse application of the law is suggested by this case. Here, the trial judge correctly instructed the jury *650that in order to find the defendant guilty of attempted murder, they were required to find that Bruce harbored a specific intent to kill Tensor at the time he shot him.1 The relevant instructions given were: *651That instruction is in accordance with our statement in Young v. State, 308 Md. 298, 311, 493 A.2d 352 (1985) that:

*650In order for one to be guilty of attempted murder in the first degree, three things must be shown: it must be shown that the person intended to kill the victim without excuse or justification or circumstances of mitigation. It has to be a specific intent to kill the victim without excuse, without justification, and without circumstances of mitigation. That’s the first thing.

Then it must be shown that that—that a substantial step was taken toward the commission of that crime. A substantial step toward intentionally killing that human being.

And third, in order for it to be attempted murder in the first degree, that intent and that substantial step or act toward the commission must occur during the course of the commission of the crime of robbery or robbery with a dangerous or deadly weapon.

Those are the three elements that must be proved in order for there to be guilt of attempted murder in the first degree. A specific intent to kill the victim without excuse or justification, a substantial step toward the commission, toward carrying out that intent, and both the intent and the substantial step or act must occur during the course of the commission of the crime of robbery or robbery with a dangerous or deadly weapon.

*651A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention be accomplished.

Accepting, as I have, and as the trial judge did below, the premise that a specific intent to kill is a necessary element in any attempted murder, the sole remaining question is whether the fact that the murder was attempted during the perpetration, or attempted perpetration, of an enumerated felony operates to make it an attempted murder in the first degree. History and logic compel the conclusion that it does.

At common law, all murder was punishable by death. In 1809, in recognition of the fact that the several forms of murder varied greatly in degree of atrociousness, and with an express desire to match the penalty to the seriousness of the offense, our legislature divided murder into degrees. Ross v. State, supra, 308 Md. at 340-41, 519 A.2d 735; Hardy v. State, 301 Md. 124, 137, 482 A.2d 474 (1984). The legislature considered the following circumstances sufficiently egregious to warrant inclusion of the offense within the highest degree: murder perpetrated by means of poison, or by lying in wait, or any kind of wilful, deliberate and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies. Ross, supra, 308 Md. at 341, 519 A.2d 735. All other murder was murder in the second degree. No significant change in the treatment of this aspect of the law of murder has been made in the intervening 180 years. See Maryland Code (1957, 1987 Repl.Vol.) Art. 27, §§ 407-411.

It is entirely logical to conclude that an attempted murder committed under the aggravating circumstances singled out by the legislature should be treated as an attempted murder in the first degree. Certainly this is true of attempted premeditated murder. Hardy, supra, 301 Md. at 137, 482 *652A.2d 474. It should be no less true of an attempted murder committed during the perpetration of an enumerated felony, provided that there exists a specific intent to kill. This portion of the concept of felony murder, embracing as it does the clear intent of the legislature, translates very nicely into the law of attempts. As Judge Cole wrote for the Court in Hardy, supra, 301 Md. at 139-40, 482 A.2d 474:

If the evidence satisfies the fact finder by proof beyond a reasonable doubt that the conduct of the defendant falls within the proscribed conduct in the statute labeled as first degree murder that did not result in death of the victim, then the crime of attempted murder in the first degree has been established. If the evidence of criminal culpability is something less, the crime proved may be attempted murder in the second degree or attempted voluntary manslaughter. We emphasize that the basic characteristic of an attempt is that it adjusts according to the proof established at trial.

I would affirm the judgment of the trial court.

RIVES, Circuit Judge:

Mandujano appeals from the judgment of conviction and fifteen-year sentence imposed by the district court, based upon the jury’s verdict finding him guilty of attempted distribution of heroin in violation of 21 U.S.C. § 846.1 We affirm.

I.

The government’s case rested almost entirely upon the testimony of Alfonso H. Cavalier, Jr., a San Antonio police officer assigned to the Office of Drug Abuse Law Enforcement. Agent Cavalier testified that, at the time the case arose, he was working in an undercover capacity and represented himself as a narcotics trafficker. At about 1:30 P. M. on the afternoon of March 29, 1973', pursuant to information Cavalier had received, he and a government informer went to the Tally-Ho Lounge, a bar located on Guadalupe Street in San Antonio. Once inside the bar, the informant introduced Cavalier to Roy Mandujano. After some general conversation, Mandujano asked the informant if he was looking for “stuff.” Cavalier said, “Yes.” Mandujano then questioned Cavalier about his involvement in narcotics. Cavalier answered Mandujano’s questions, and told Mandujano he was looking for an ounce sample of heroin to determine the quality of the material. Mandujano replied that he had good brown Mexican heroin for $650.00 an ounce, but that if Cavalier wanted any of it he would have to wait until later in the afternoon when the regular man made his deliveries. Cavalier said that he was from out of town and did not want to wait that long. Mandujano offered to locate another source, and made four telephone calls in an apparent effort to do so. The phone calls appeared to be unsuccessful, for Mandujano told Cavalier he wasn’t having any luck contacting anybody. Cavalier stated that he could not wait any longer. Then Mandujano said he had a good contact, a man who kept narcotics around his home, but that if he went to see this man, he would need the money “out front.” To reassure Cavalier that he would not simply abscond with the money, Mandujano stated, “[Y]ou are in my place of business. My wife is here. You can sit with my wife. I am not going to jeopardize her or my business for $650.00.” Cavalier counted out $650.00 to Mandujano, and Mandujano *372left the premises of the Tally-Ho Lounge at about 3:30 P.M. About an hour later, he returned and explained that he had been unable to locate his contact. He gave back the $650.00 and told Cavalier he could still wait until the regular man came around. Cavalier left, but arranged to call back at 6:00 P.M. When Cavalier called at 6:00 and again at 6:30, he was told that Mandujano was not available. Cavalier testified that he did not later attempt to contact Mandujano, because, “Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.”

The only other government witness was Gerald Courtney, a Special Agent for the Drug Enforcement Administration. Agent Courtney testified that, as part of a surveillance team in the vicinity of the Tally-Ho Lounge on March 29, 1973, he had observed Mandujano leave the bar around 3:15 or 3:30 P.M. and drive off in his automobile. The surveillance team followed Mandujano but lost him almost immediately in heavy traffic. Courtney testified that Mandujano returned to the bar at about 4:30 P.M.

II.

Section 846 of Title 21, entitled “Attempt and conspiracy,” provides that,

“Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

The theory of the government in this case is straightforward: Mandujano’s acts constituted an attempt to distribute heroin; actual distribution of heroin would violate section 841(a)(1) of Title 21; 2 therefore, Mandujano’s attempt to distribute heroin comes within the terms of section 846 as an attempt to commit an offense defined in the subchapter.

Mandujano urges that his conduct as described by agent Cavalier did not rise to the level of an attempt to distribute heroin under section 846. He claims that at most he was attempting to acquire a controlled substance, not to distribute it; that it is impossible for a person to attempt to distribute heroin which he does not possess or control; 3 that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury’s verdict.

Apparently there is no legislative history indicating exactly what Congress meant when it used the word “attempt” in section 846.4 There are two reported federal cases which discuss the question of what constitutes an attempt under this section. In United States v. Noreikis, 7 Cir. 1973, 481 F.2d 1177, where *373the defendants possessed the various chemicals necessary to synthesize Dimethyltryptamine (DMT), a controlled substance, the court held that the preparations had progressed to the level of an attempt to manufacture a controlled substance. In its discussion, the court commented that,

“While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, 22 C.J.S. Criminal Law § 75(2)b, at 230 et seq., it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit.’ 22 C.J.S., supra at 231.”

481 F.2d at 1181.

In United States v. Heng Awkak Roman, S.D.N.Y.1973, 356 F.Supp. 434, aff’d, 2 Cir. 1973, 484 F.2d 1271, where the defendants’ actions would have constituted possession of heroin with intent to distribute in violation of section 841 if federal agents had not substituted soap powder for the heroin involved in the case, the court held that the defendants’ acts were an attempt to possess with intent to distribute. The district court in its opinion acknowledged that “ ‘Attempt,’ as used in section 846, is not defined. Indeed, there is no comprehensive statutory definition of attempt in federal law.” The court concluded, however, that it was not necessary in the circumstances of the case to deal with the “complex question of when conduct crosses the line between ‘mere preparation’ and ‘attempt.’ ” 356 F.Supp. at 437.

The courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt. See the Comment at 39-48 of Tent. Draft No. 10, 1960 of the Model Penal Code.5 In cases involving statutes other than section 846, the federal courts have confronted this issue on a number of occasions.

Wooldridge v. United States, 9 Cir. 1916, 237 F. 775, involved a conviction for an attempted rape prosecuted under a general criminal attempt provision of the Alaska code. The court reviewed the state authorities and several treatises and then opined as follows:

“In light of these and many other cases that might be cited, it must be held that there was a failure of proof with respect to the doing of an overt act toward the commission of the crime charged. The undisputed evidence of the occurrences at Rose’s store is that no act was done by Wooldridge toward the commission of *374the crime, and although it may have been his intention when he went to the store to have intercourse with the girl, in the absence of evidence of an attempt to carry out such purpose, there could be no conviction of an attempted rape.”

237 F. at 779. Thus, the court indicated that an attempt requires an intent to commit the specific crime and, in addition, an overt act toward its commission. A more recent Ninth Circuit opinion uses language similar to that used in Wooldridge: In Lemke v. United States, 9 Cir. 1954, 211 F.2d 73, 75, 14 Alaska 587, the court states, “Of course it is elementary that mere preparation to commit a crime, not followed by an overt act done toward its commission, does not constitute an attempt.” The definition of attempt in United States v. Baker, S.D.Cal.1955, 129 F.Supp. 684, 685, is also consistent with the language of Wooldridge: “The classical legal elements of an ‘attempt’ are the intent to commit a crime, the execution of some overt act in pursuance of the intention, and a failure to consummate the crime.” Also see Giles v. United States, 9 Cir. 1946, 157 F.2d 588, 590, where the court found no error in the following jury instruction: “ ‘An attempt is an act tending toward the accomplishment, and done in part execution of the design to commit a crime, exceeding an intent but falling short of an execution of it.’ ”

United States v. De Bolt, S.D. Ohio 1918, 253 F. 78, involved an apparent attempt to sabotage the manufacture of war materials in violation of federal law. With regard to the elements of an attempt, the court in this case quoted Bishop’s New Crim. Law (1892) vol. 1, §§ 728, 729:

“ ‘An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime.’ ”

The court also cited Wooldridge v. United States, supra, and United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, 8 L.Ed. 458, discussed infra.

Gregg v. United States, 8 Cir. 1940, 113 F.2d 687, involved in part a conviction for an attempt to import intoxicating liquor into Kansas. The court in this case acknowledges with apparent approval the definition of attempt urged by appellant Gregg:

“He calls attention to the fact that an attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution, and that it must be a step in the direct movement towards the commission of the crime after preparations have been made. People v. Collins, 234 N.Y. 355, 137 N.E. 753. The act must ‘carry the project forward within dangerous proximity to the criminal end to be attained.’ Cardozo, J., in People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 789; People v. Rizzo, 246 N.Y 334, 158 N.E. 888, 55 A.L.R. 711; People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913; State v. McCarthy, 115 Kan. 583, 224 P. 44; State v. Davis, 319 Mo. 1222, 6 S.W 2d 609; Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55; Wooldridge v. United States, 9 Cir., 237 F. 775.”

113 F.2d at 690. The court held, however, that Gregg’s conduct went beyond “mere preparation”:

“The transportation of goods into a state is essentially a continuing act not confined in its scope to the single instant of passage across a territorial boundary. In our view the appellant advanced beyond the stage of mere preparation when he loaded the liquor into his car and began his journey toward Kansas. From that moment he was engaged in an attempt to transport liquor into Kansas within the clear intent of the statute.”

113 F.2d at 691. Also see United States v. Duane, D.Neb 1946, 66 F.Supp. 459.

In United States v. Coplon, 2 Cir. 1950, 185 F.2d 629, where the defendant *375was arrested before passing to a citizen of a foreign nation classified government documents contained in defendant’s purse, Judge Learned Hand surveyed the law and addressed th.e issue of what would constitute an attempt:

“Because the arrest in this way interrupted the consummation of the crime one point upon the appeal is that her conduct still remained in the zone of ‘preparation,’ and that the evidence did not prove an ‘attempt.’ This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has ‘attempted’ to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; but Judge Cullen’s discussion in People v. Sullivan,1 and Mr. Justice Holmes’ in two Massachusetts decisions,2 are particularly enlightening. In the second of the Massachusetts opinions Holmes, J., said: “Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.’ We have found scarcely any decisions of federal courts, but, so far as they go, they are in accord.3 There can be no doubt in the case at bar that ‘preparation’ had become ‘attempt.’ The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide ‘attempt’ from ‘preparation’ by the very instant of consummation would be to revert to the old doctrine.”

185 F.2d at 632, 633. Also see United States v. Butler, S.D N.Y.1962, 204 F.Supp. 339, 343, where the court considered “whether the conduct of the defendant went sufficiently far towards the commission of the crime to constitute an attempt or whether it merely constituted preparation.”

In United States v. Robles, N.D.Cal.1960, 185 F.Supp. 82, 85, a case in which the defendant was charged with using communication facilities in attempting to import heroin illegally, the court enunciated the following test:

“The language of Title 18 U.S.C. § 1403 is such as to compel a conclusion that an attempt may be made by the mere use of communication facilities. To attempt to do an act does not imply a completion of the act, or in fact any definite progress towards it. Any effort or endeavor to effect the act will satisfy the terms of the law. United States v. Quincy, 6 Pet. 445, 31 U.S 445, 8 L.Ed. 458; and see: United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553; and Simpson v. United States, 9 Cir., 195 F.2d 721, 13 Alaska 635 ”

The language used in Robles, supra, is drawn directly from United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, at 464, 8 L.Ed. 458, which involved an indictment under a statute which made it unlawful to attempt to fit out and arm a *376vessel with intent to employ her in the service of a foreign people. The Supreme Court in Quincy further stated that, “The offence consists principally in the intention with which the preparations were made .... And this must be a fixed intention .... This intention is a question belonging exclusively to the jury to decide It is the material point on which the legality of criminality of the act must turn.” 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458.

In Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 148, we noted that, “Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparations ends [sic] and attempt begins,” and that the question had not been decided by this Court. The Court in Mims, at 148 n. 40, did note that the following test from People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, 321, has been “frequéntly approved”:

“ ‘Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature. * * * ’ (Emphasis added.)”

Although the foregoing cases give somewhat varying verbal formulations, careful examination reveals fundamental agreement about what conduct will constitute a criminal attempt. First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. United States v Quincy, supra, 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458 (“The offence consists principally in the intention with which the preparations were made”); Wooldridge v. United States, supra, 237 F. at 779 (“although it may have been his intention”); United States v. Baker, supra, 129 F.Supp. at 685 (“the intent to commit a crime”); Giles v. United States, supra, 157 F.2d at 590 (“the design to commit a crime”); United States v. Coplon, supra, 185 F.2d at 633 (“the intent to complete [the crime] renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime” [emphasis added]); United States v. Noreikis, supra, 481 F.2d at 1181 (“ ‘the crime he intends to commit’ ” [emphasis added]); United States v. Heng Awkak Roman, supra, 356 F.Supp at 437 n. 5 (“There is no doubt here, and I so find, that the defendants had the requisite mens rea; that is, that their actions were knowing and intentional, and with the purpose of distributing the heroin.”); People v. Buffum, supra (“the will of the attempter”).

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. Wooldridge v. United States, supra, 237 F. at 779 (“an overt act toward the commission of the crime charged”); Lemke v. United States, supra, 211 F.2d at 75 (“an overt act done toward its [the crime’s] commission”); United States v. Baker, supra (“some overt act in pursuance of the intention”) ; Giles v. United States, supra (“an act tending toward the accomplishment, and done in part execution of the design to commit a crime”); Gregg v. United States, supra, 113 F.2d at 690 (“a step in the direct movement towards the commission of the crime after preparations have been made”); United States v. Coplon, supra, 185 F.2d at 633 (“there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps . . . there is, and obviously can be, no definite line”); United States v. Robles, supra 185 F.Supp. at 85 (“Any effort or endeavor to effect the act”); United States v. Noreikis, supra 481 F.2d at 1181 (“the commission of an overt act, the ‘doing some*377thing directly moving toward, and bringing him nearer, the crime he intends to commit’ ”); People v. Buffum, supra, 256 P.2d at 321 (“there must be some appreciable fragment of the crime committed .... the act must not be equivocal in nature”). The use of the word “conduct” indicates that omission or possession, as well as positive acts, may in certain cases provide a basis for liability. The phrase “substantial step,” rather than “overt act,” is suggested by Gregg v. United States, supra (“a step in the direct movement toward the commission of the crime”); United States v. Coplon, supra (“before he has taken the last of his intended steps”) and People v. Buffum, supra (“some appreciable fragment of the crime”) and indicates that the conduct must be more than remote preparation. The requirement that the conduct be strongly corroborative of the firmness of the defendant’s criminal intent also relates to the requirement that the conduct be more than “mere preparation,” and is suggested by the Supreme Court’s emphasis upon ascertaining the intent of the defendant, United States v. Quincy, supra, and by the approach taken in United States v. Coplon, supra 185 F.2d at 633 (“. . . some preparation may amount to an attempt. It is a question of degree”).6

*378III.

The district court charged the jury in relevant part as follows:

“Now, the essential elements required in order to prove or to establish the offense charged in the indictment, which is, again, that the defendant knowingly and intentionally attempted to distribute a controlled substance, must first be a specific intent to commit the crime, and next that the accused wilfully made the attempt, and that a direct but ineffectual overt act was done toward its commission, and that such overt act was knowingly and intentionally done in furtherance of the attempt.

“ * -x- x- jn determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt, but the acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain unambiguous intent to wilfully commit that specific crime and in themselves are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.”

(Tr. Jury Trial Proc., pp. 138-139.) These instructions, to which the defendant did not object, are compatible with our view of what constitutes an attempt under section 846.

After the jury brought in a verdict of guilty, the trial court propounded a series of four questions to the jury:

“(1) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally placed several telephone calls in order to obtain a source of heroin in accordance with his negotiations with Officer Cavalier which were to result in the distribution of approximately one ounce of heroin from the defendant Roy Mandujano to Officer Cavalier?”

“(2) Do you find beyond a reasonable doubt that the telephone calls inquired about in question no. (1) constituted overt acts in furtherance of the offense alleged in the indictment?”

“(3) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally requested and received prior payment in the amount of $650.00 for approximately one ounce of heroin that was to be distributed by the defendant Roy Mandujano to Officer Cavalier ?”

“(4) Do you find beyond a reasonable doubt that the request and receipt of a prior payment inquired about in question no. (3) constituted an overt act in furtherance of the offense alleged in the indictment?"

Neither the government nor the defendant objected to this novel procedure. After deliberating, the jury answered “No” to question (1) and “Yes” to questions (3) and (4). The jury’s answers indicate that its thinking was consistent with the charge of the trial court.

The evidence was sufficient to support a verdict of guilty under section 846. Agent Cavalier testified that at Mandujano’s request, he gave him $650.-00 for one ounce of heroin, which Mandujano said he could get from a “good contact.” From this, plus Mandujano’s comments and conduct before and after the transfer of the $650.00, as described in Part I of this opinion, the jury could have found that Mandujano was acting knowingly and intentionally and that he *379engaged in conduct — the request for and the receipt of the $650.00 — which in fact constituted a substantial step toward distribution of heroin. From interrogatory (4), it is clear that the jury considered Mandujano’s request and receipt of the prior payment a substantial step toward the commission of the offense. Certainly, in the circumstances of this case, the jury could have found the transfer of money strongly corroborative of the firmness of Mandujano’s intent to complete the crime. Of course, proof that Mandujano’s “good contact” actually existed, and had heroin for sale, would have further strengthened the government’s case; however, such proof was not essential.

IV.

Mandujano claims prejudicial error with regard to two evidentiary questions. The first question arose near the beginning of Agent Cavalier’s testimony:

“A. Shortly after we have been talking for awhile, Mr. Mandujano looks at Mr. O’Leary and asks Mr. O’Leary if he was looking for stuff. I entered saying, ‘Yes, I was.’

“Q. In your understanding, what were you talking about, the stuff?

“MR. ALEXANDER [Attorney for Defendant]: Objection. This would be a conclusion on the witness’ part.

“MR. PINCKNEY [U.S. Attorney] : Of his own state of mind, your Honor, not someone else’s.

“THE COURT: How long have you been in the .job that you have?

“A. Since May, 1972, sir, on my present assignment.

“THE COURT: And how many times have you acted in an undercover capacity?

“A. Between November of ’72 and May of ’73 I acted in a total undercover capacity eighty-six times, I believe, sir. .

“THE COURT: In your experience dealing in the narcotics traffic, what have you understood the word ‘stuff’ to mean? I am asking it, counsel, and the record will reflect that you are objecting to it, and the Court will overrule the objection.

“A. ‘Stuff’ on the street, between narcotic traffickers and some of the local people in those streets, ‘stuff’ refers to narcotics.”

(Tr. 24-25.) Mandujano argues that allowing Cavalier to testify as to his understanding of the word “stuff” exposed the jury to the inference that Mandujano dealt in narcotics. In the light of Cavalier’s later testimony that Mandujano said he had good brown Mexican heroin available for sale, if Cavalier would wait until the regular man made his deliveries, and that Mandujano later tried to locate an immediate source of heroin for Cavalier, it is doubtful that Cavalier’s testimony on this point was prejudicial. At any rate, a trial court has some latitude in permitting a witness on direct examination to testify as to his conclusions, based on common knowledge or experience. See United States v. Trenton Potteries, 1927, 273 U.S. 392, 407, 47 S.Ct. 377, 71 L.Ed. 700; Batsell v. United States, 8 Cir. 1954, 217 F.2d 257, 262; Wiley v. United Sates, 8 Cir. 1958, 257 F.2d 900, 908; VII Wigmore Evidence (3rd ed.) §§ 1923, 1924, 1925. The court in this instance ascertained that Cavalier had wide experience as an undercover agent dealing in the narcotics traffic. We conclude that the trial court acted within its discretion in allowing Cavalier to testify as to his understanding of the word “stuff.”

The second evidentiary question developed near the end of Cavalier’s testimony. Cavalier had just testified that “We aborted the deal” (Tr. 31), and the United States Attorney proposed to ask Cavalier why he didn’t try to contact Mandujano again After a bench con*380ference and then a conference in the absence of the jury, the trial court decided to allow the following which was read to the jury by the court reporter:

“Q. Subsequent to the calls that you received on the evening of March 29th, 1973, why did you not again attempt to contact Mr. Mandujano?

“A. Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.”

(Tr. 40.) The court cautionéd the jury immediately that the answer to this question was admitted “only to show what was in his mind, not as proof to you or any evidence to you that it actually was unsafe, but only what he had been told and why he didn’t go back.” As limited by the trial court, the testimony was admissible to show Cavalier’s state of mind. See VI Wigmore, Evidence (3rd ed.) § 1789. This testimony was not so inherently prejudicial that the trial court should have suppressed it.

For the reasons stated in this opinion, the judgment is

Affirmed.

Holmes, C. J.

This is an indictment for an attempt to burn a building and certain goods therein, with intent to injure the insurers of the same. Pub. Sts. c. 210, § 8. The substantive *271offence alleged to have been attempted is punished by Pub. Sts. c. 203, § 7. The defence is that the overt acts alleged and proved do not amount to an offence. It was raised by a motion to quash and also by a request to the judge to direct a verdict for the defendant. We will consider the case in the first place upon the evidence, apart from any question of pleading, and afterwards will take it up in connection with the indictment as actually drawn.

The evidence was that the defendant had constructed and arranged combustibles in the building in such a way that they were ready to be lighted, and if lighted would have set fire to the building and its contents. To be exact, the plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted. The defendant offered to pay a young man in his employment if he would go to the building, seemingly some miles from the place of the dialogue, and carry out the plan. This was refused. Later the defendant and the young man drove toward the building, but when within a quarter of a mile the defendant said that he had changed his mind and drove away. This is as near as he ever came to accomplishing what he had in contemplation.

The question on the evidence, more precisely stated, is whether the defendant’s acts come near enough to the accomplishment of the substantive offence to be punishable. The statute does not punish every act done toward the commission of a crime, but only such acts done in an attempt to commit it. The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption, as in this case if the candle had been set in its place and lighted but had been put out by the police, or ah act which is intended to bring about the substantive crime and would bring it about but.for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man but misses him, or when one tries to pick a pocket which turns out to be empty. In either case the would-be criminal has done his last act.

Obviously new considerations come in when further acts on *272the part of the person who has taken the first steps are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning. People v. Murray, 14 Cal. 159, 160. That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is .expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplish men t of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentice in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22. (See also Commonwealth v. Willard, 22 Pick. 476.) A few instances of liability of this sort are mentioned on the page cited.

As a further illustration, when the servant of a contractor had delivered short rations of meat by the help of a false weight which he had substituted for the true one, intending to steal the meat left over, it was held by four judges, two of whom were Chief Justice Erie and Mr. Justice Blackburn, that he could be convicted of an attempt to steal. Regina v. Cheeseman, L. & C. 140; S. C. 10 W. R. 255. So lighting a match with intent to set fire to a haystack, although the pi-isoner desisted on discovering that he was watched. Regina v. Taylor, 1 F. & F. 511. So getting into a stall with a poisoned potato, intending to give it to a horse there, which the prisoner was prevented from doing by his arrest. Commonwealth v. McLaughlin, 105 Mass. 460. See Clark v. State, 86 Tenn. 511. So in this Commonwealth it was held criminal to let a house to a woman of ill fame with intent that it should be used for purposes of prostitution, although it would seem that the finding of intent meant only knowledge of the intent of the lessee. Commonwealth v. Harring*273ton, 3 Pick. 26. See Commonwealth v. Willard, 22 Pick. 476, 478. Compare Brockway v. People, 2 Hill, 558, 562. The same has been held as to paying a man to burn a barn, whether well laid as an attempt or more properly as soliciting to commit a felony. Commonwealth v. Flagg, 135 Mass. 545, 549. State v. Bowers, 35 So. Car. 262. Compare Regina v. Williams, 1 C. & K. 589; S. C. 1 Denison, 39. McDade v. People, 29 Mich. 50, 56. Stabler v. Commonwealth, 95 Penn. St. 318. Hicks v. Commonwealth, 86 Va. 223.

On the other hand, making up a false invoice at the place of exportation with intent to defraud the revenue is not an offence if not followed up by using it or attempting to use it. United States v. Twenty-eight Packages, Gilpin, 306, 324. United States v. Riddle, 5 Cranch, 311. So in People v. Murray, 14 Cal. 159, the defendant’s elopement with his niece and his requesting a third person to bring a magistrate to perform the marriage ceremony, was held not to amount to an attempt to contract the marriage. But the ground on which this last decision was put clearly was too broad. And however it may be at common law, under a statute like ours punishing one who attempts to commit a crime “and in such attempt does any act towards the commission of such offence ” (Pub. Sts. c. 210, § 8,) it seems to be settled elsewhere that the defendant could be convicted on evidence like the present. People v. Bush, 4 Hill, 133, 134. McDermott v. People, 5 Parker Cr. Rep. 102. Griffin v. State, 26 Ga. 493. State v. Hayes, 78 Mo. 307, 316. See Commonwealth v. Willard, 22 Pick. 476. People v. Bush is distinguished in Stabler v. Commonwealth as a decision upon the words quoted. 95 Penn. St. 322.

Under the cases last cited we assume that there was evidence of a crime and perhaps of an attempt, — the latter question we do not decide. Nevertheless, on the pleadings a majority of the court is of opinion that the exceptions must be sustained. A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place *274where he was able to carry it out. We are not aware of any carefully considered case that has gone further than this. We assume without deciding that that is the meaning of the indictment, and it would have been proved if for instance the evidence had been that the defendant had been frightened by the police as he was about to light the candle. On the other hand, if the offence is to be made out by showing a preparation of the room and a solicitation of some one else to set the fire, which solicitation if successful would have been the defendant’s last act, the solicitation must be alleged as one of the overt acts. It was admissible in evidence on the pleadings as they stood to show the defendant’s intent, but it could not be relied on as an overt act unless set out. The necessity that the overt acts should be alleged has been taken for granted in our practice and decisions, (see e. g. Commonwealth v. Sherman, 105 Mass. 169; Commonwealth v. McLaughlin, 105 Mass. 460, 463; Commonwealth v. Shedd, 140 Mass. 451, 453,) and is expressed in the forms and directions for charging attempts appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark, 6 Gratt. 675. State v. Colvin, 90 No. Car. 717. The solicitations were alleged in McDermott v. People. In New York it was not necessary to lay the overt acts relied upon. Mackesey v. People, 6 Parker Cr. Rep. 114, 117, and New York cases supra. See 3 Encyc. Pl. & Pr., “ Attempts,” 98. A valuable collection of authorities concerning the crime will be found under the same title in 3 Am. & Eng. Encyc. of Law (2d ed.). If the indictment had been properly drawn we have no question that the defendant might have been convicted.

Exceptions sustained.

OPINION

DROWOTA, Judge.

The defendant, Trade Reeves, appeals from the Court of Appeals’ affirmance of the trial court’s order designating her a delinquent child. The trial court’s delinquency order, which was entered following a jury trial, was based on the jury’s finding that the defendant had attempted to commit second degree murder — a violation of Tenn.Code Ann. § 39-12-101. The specific issue for our determination is whether the defendant’s actions constitute a “substantial step,” under § 39-12~101(a)(3), toward the commission of that crime. For the following reasons, we hold that they do, and therefore affirm the judgment of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On the evening of January 5, 1993, Trade Reeves and Molly Coffman, both twelve years of age and students at West Carroll Middle School, spoke on the telephone and decided to kill their homeroom teacher, Janice Geiger. The girls agreed that Coffman would bring rat poison to school the following day so that it could be placed in Geiger’s drink. The girls also agreed that they would thereafter steal Geiger’s car and drive to the Smoky Mountains. Reeves then contacted Dean Fouteh, a local high school student, informed him of the plan, and asked him to drive Geiger’s car. Fouteh refused this request.

On the morning of January 6, Coffman placed a packet of rat poison in her purse and boarded the school bus. During the bus ride Coffman told another student, Christy Hernandez, of the plan; Coffman also showed Hernandez the packet of rat poison. Upon their arrival at school Hernandez informed her homeroom teacher, Sherry Cock-rill, of the plan. Cockrill then relayed this information to the principal of the school, Claudia Argo.

When Geiger entered her classroom that morning she observed Reeves and Coffman leaning over her desk; and when the girls noticed her, they giggled and ran back to their seats. At that time Geiger saw a purse lying next to her coffee cup on top of the desk. Shortly thereafter Argo called Coff-man to the principal’s office. Rat poison was found in Coffman’s purse and it was turned over to a Sheriffs Department investigator. Both Reeves and Coffman gave written statements to the investigator concerning their plan to poison Geiger and steal her car.

Reeves and Coffinan were found to be delinquent by the Carroll County Juvenile Court, and both appealed from that ruling to the Carroll County Circuit Court. After a jury found that the girls attempted to commit second degree murder in violation of Tenn.Code Ann. § 39-12-101, the “criminal attempt” statute, the trial court affirmed the juvenile court’s order and sentenced the girls to the Department of Youth Development for an indefinite period. Reeves appealed from this judgment to the Court of Appeals, which affirmed the judgment of the trial court. Reeves then applied to this Court for permission to appeal pursuant to Tenn.RApp.P. 11. Because we have not addressed the law of criminal attempt since the comprehensive reform of our criminal law undertaken by the legislature in 1989, we granted that application.

Prior and Current Law of Criminal Attempt

Before the passage of the reform legislation in 1989, the law of criminal attempt, *911though sanctioned by various statutes, was judicially defined. In order to submit an issue of criminal attempt to the jury, the State was required to present legally sufficient evidence of: (1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and (3) a failure to consummate the crime. Bandy v. State, 575 S.W.2d 278, 281 (Tenn.1979); Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449, 451 (1963); Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238, 240 (1959).

Of the elements of criminal attempt, the second, the “overt act” requirement, was by far the most problematic. By attempting to draw a sharp distinction between “mere preparation” to commit a criminal act, which did not constitute the required overt act, and a “direct movement toward the commission after the preparations had been made,” Dupuy, 325 S.W.2d at 239, 240, which did, Tennessee courts construed the term “overt act” very narrowly. The best example of this extremely narrow construction occurred in Dupuy. In that case, the Memphis police sought to lay a trap for a pharmacist suspected of performing illegal abortions by sending a young woman to request these services from him. After the woman had made several attempts to secure his services, he finally agreed to perform the abortion. The pharmacist transported the young woman to a hotel room, laid out his instruments in preparation for the procedure, and asked the woman to remove her clothes. At that point the police came into the room and arrested the pharmacist, who then admitted that he had performed abortions in the past. The defendant was convicted under a statute that made it illegal to procure a miscarriage, and he appealed to this Court.

A majority of this Court reversed the conviction. After admitting that the defendant’s “reprehensible” course of conduct would doubtlessly have resulted in the commission of the crime “had he not been thwarted in his efforts by the arrival of the police,” Dupuy, 325 S.W.2d at 239, the majority concluded that:

While the defendant had completed his plan to do this crime the element of attempt [overt act] does not appear in this record. The proof shows that he did not use any of the instruments and did not touch the body of the girl in question. Under such facts we do not think that the defendant is guilty under the statute.

Dupuy, 325 S.W.2d at 240.

To support its holding, the Dupuy court quoted a treatise passage concerning actions that constituted “mere preparation,” as opposed to actions that would satisfy the overt act requirement:

In a general way, however, it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt [overt act] is the direct movement toward the commission after the preparations are made. Even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some overt act.

Id. (quoting 14 Am.Jur. § 68 (1940)). To further illustrate the foregoing principle the majority provided the following example: “the procurement by a prisoner of tools adapted to breaking jail does not render him guilty of an attempt to break jail.” Id.

As indicated above, the sharp differentiation in Dupuy between “mere preparation” and “overt act,” or the “act itself,” was characteristic of the pre-1989 attempt law. See e.g., Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963) (criminal solicitation does not constitute an attempt); McEwing v. State, 134 Tenn. 649, 185 S.W. 688 (1915) (conviction for attempted rape affirmed because defendant actually laid hands on the victim). In 1989, however, the legislature enacted a general criminal attempt statute, Tenn.Code Ann. § 39-12-101, as part of its comprehensive overhaul of Tennessee’s criminal law. In that statute, the legislature did not simply codify the judicially-created elements of the crime, but utilized language that had up to then been entirely foreign to Tennessee attempt law. Section 39-12-101 provides, in pertinent part, as follows:

*912(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believe them to be, and the conduct constitutes a substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

(emphasis added.)

The Substantial Step Issue

As stated above, our task is to determine whether the defendant’s actions in this case constitute a “substantial step” toward the commission of second degree murder under the new statute. The “substantial step” issue has not yet been addressed by a Tennessee court in a published opinion, and the question is made more difficult by the fact that the legislature declined to set forth any definition of the term, preferring instead to “leave the issue of what constitutes a substantial step [to the courts] for determination in each particular case.” § 39-12-101, Comments of Sentencing Commission.

In addressing this issue, we first note that the legislature, in enacting § 39-12-101, clearly looked to the criminal attempt section set forth in the Model Penal Code. That section provides, in pertinent part, as follows:

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime

Model Penal Code, Section 5.01 (emphasis added.)

The State argues that the striking similarity of Tenn.Code Ann. § 39-12-101 and the Model Penal Code evidences the legislature’s intention to abandon the old law of criminal attempt and instead adopt the Model Penal Code approach. The State then avers that the model code contains examples of conduct which, if proven, would entitle, but not require, the jury to find that the defendant had taken a “substantial step;” and that two of these examples are applicable to this case. The section of the model code relied upon by the State, § 5.01(2), provides, in pertinent part, as follows:

(2) Conduct which may be held substantial step under paragraph (l)(c). Conduct shall not be held to constitute a substantial step under paragraph (l)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:

(e) possession of materials to be employed in the commission of the crime, *913which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(emphasis added.)

The State concludes that because the issue of whether the defendant’s conduct constitutes a substantial step may be a jury question under the model code, the jury was justified in finding her guilty of attempting to commit second degree murder.

The defendant counters by arguing that despite the similarity of Tenn.Code Ann. § 39-12-101 and the Model Penal Code’s attempt provision, the legislature intended to retain the sharp distinction between “mere preparation” and the “act itself’ characteristic of such decisions as Dupuy. She supports this assertion by pointing out that although the legislature could have easily included the examples set forth in § 5.01(2) of the model code, the Tennessee statute does not include the examples. The defendant concludes that the new statute did not substantially change Tennessee attempt law, and that her conviction must be reversed because her actions constitute “mere preparation” under Dupuy.

Initially, we cannot accept the argument that the legislature intended to explicitly adopt the Model Penal Code approach, including the examples set forth in § 5.01(2). Although § 39-12-101 is obviously based on the model code, we agree with the defendant that the legislature could have, if it had so desired, simply included the specific examples in the Tennessee statute. That it did not do so prohibits us from concluding that the legislature explicitly intended to adopt the model code approach in all its particulars.

This conclusion does not mean, however, that the legislature intended to retain the distinction between “mere preparation” and the “act itself.” Moreover, while we concede that a strong argument can be made that the conviction conflicts with Dupuy because the defendant did not place the poison in the cup, but simply brought it to the crime scene, we also are well aware that the Dupuy approach to attempt law has been consistently and effectively criticized. One persistent criticism of the endeavor to separate “mere preparation” from the “act itself’ is that the question is ultimately not one of kind but of degree;1 the “act itself’ is merely one of the termini on a continuum of criminal activity. Therefore, distinguishing between “mere preparation” and the “act itself’ in a principled manner is a difficult, if not impossible, task.2 See U.S. v. Dworken, 855 F.2d 12, 19 (1st Cir.1988); U.S. v. Brown, 604 F.2d 347, 350 (5th Cir.1979); Levenbook, Prohibiting Attempts and Preparations, 49 U.M.K.C.L.Rev. 41 (1980); Hall, Criminal Attempt—A Study of Foundations of Criminal Liability, 40 Yale L.J. 789, 821-22 (1940). The other principal ground of criticism of the Dupuy approach bears directly on the primary objective of the law — that of preventing inchoate crimes from becoming full-blown ones. Many courts and commen*914tators have argued that failing to attach criminal responsibility to the actor — and therefore prohibiting law enforcement officers from taking action' — until the actor is on the brink of consummating the crime endangers the public and undermines the preventative goal of attempt law. See People v. Tenell, 99 Ill.2d 427, 77 Ill.Dec. 88, 92, 459 N.E.2d 1337, 1341 (1984); U.S. v. Prichard, 781 F.2d 179, 182 (10th Cir.1986); U.S. v. Stallworth, 543 F.2d 1038,1040 (2d Cir.1976). See generally Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum.L.Rev. 571, 586-611 (1961).

The shortcomings of the Dupuy rule with respect to the goal of prevention are particularly evident in this case. As stated above, it is likely that under Dupuy no criminal responsibility would have attached unless the poison had actually been placed in the teacher’s cup. This rigid requirement, however, severely undercuts the objective of prevention because of the surreptitious nature of the act of poisoning. Once a person secretly places a toxic substance into a container from which another person is likely to eat or drink, the damage is done. Here, if it had not been for the intei’vention of the teacher, she could have been rendered powerless to protect herself from harm.

After carefully weighing considerations of stare decisis against the persuasive criticisms of the Dupuy rule, we conclude that this artificial and potentially harmful rule must be abandoned. We hold that when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose.3 For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

ANDERSON, C.J., and REID and WHITE, JJ., concur.

BIRCH, J., files separate concurring and dissenting opinion.

BIRCH, Justice,

concurring and dissenting.

I concur in the majority’s statement of the rule to be applied in deciding whether a criminal attempt has occurred. I dissent, however, from their application of that rule to this case.

The applicable standard of review for this case is “[findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn.R.App.P. 13(e); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (“[T]he relevant question [in reviewing the sufficiency of the evidence] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). Applying this standard of review, I would find that under the test adopted by the *915majority for determining whether a “substantial step” was taken, the evidence in this case is insufficient as a matter of law.

Tenn.Code Ann. § 39-12-101, the criminal attempt statute, states, in pertinent part:

(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the pei'son believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

(Emphasis added). Based upon this record, I would find that the “entire course of action” of these two twelve-year-old girls was not “strongly corroborative” of intent to commit second-degree murder and that the evidence was insufficient as a matter of law. In looking at the “entire course of action,” we should remember that these were twelve-year-old girls, not explosive-toting terrorists.

Accordingly, while I concur in the majority’s abandonment of the rule stated in Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959), I dissent from the conclusion of the majority in this case.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

On April 4, 1995, a jury convicted Francisco Martin Duran of ten criminal counts, all of which centered on the fact that on October 29, 1994, at around 3:00 in the afternoon, Duran stood on the Pennsylvania Avenue sidewalk in front of the White House and fired at least twenty-nine rounds across the North Lawn with an assault weapon. On appeal, the defendant challenges his convictions on three grounds. First, Duran claims that the district court erred by failing to bifurcate the trial for separate presentation of his merits and insanity defenses. Second, Duran asserts that his actions on October 29, 1994, did not render him guilty of attempting to assassinate the President of the United States under 18 U.S.C. § 1751(c). Third, Duran claims that there was insufficient evidence presented at trial to support his conviction under 18 U.S.C. § 111 for “forcibly assaulting], resisting], oppos[ing], imped[ing], intimidating], or interfer[ing] with” four Secret Service officers who were present on the North Lawn of the White House as he was shooting. We find merit in none of these claims, and affirm Duran’s convictions.

*1498The district judge did not abuse his discretion by denying Duran’s motion to bifurcate the trial, because the defense had not demonstrated that the merits and insanity defenses were so incompatible as to require bifurcation. Nor did the joint presentation of the merits and insanity defenses at the trial result in prejudice making remand for a new bifurcated trial necessary, because the two defenses were not in fact incompatible. Duran violated § 1751(c) by engaging in a series of “substantial steps” towards his goal of killing the President in the days and hours leading up to the afternoon of October 29, 1994. We also uphold Duran’s convictions under § 111 because, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that as the defendant ran east along the White House fence, spraying gunfire across the North Lawn, he acted with the purpose of putting Secret Service agents on the North Lawn in fear of imminent serious bodily harm.

I. Background

In mid-September of 1994 Francisco Martin Duran, a 26-year-old upholsterer from a suburb of Colorado Springs, Colorado, began to purchase a number of assault weapons. Evidence presented at trial established that on September 13, Duran bought an assault rifle and about 100 rounds of ammunition. Two days later, he bought a thirty-round clip and had the rifle equipped with a folding stock. Thirteen days after that, Duran bought a shotgun, and the following day still more ammunition. On September 30, Duran left work and, without contacting his family or employer, began his journey to Washington, D.C. He purchased another thirty-round clip in Charlottesville, Virginia on October 10, and the next day bought a large overcoat in Richmond, Virginia. Later that day Duran arrived in Washington, D.C., and checked into a hotel. He stayed at various hotels in the Washington area between the tenth and the twenty-ninth of October.

Shortly before 6:00 on the morning of October 29, Duran checked out of the Embassy Suites Hotel in Tysons Comer, drove to downtown Washington, and parked his track on 17th Street, between D and E Streets. By early afternoon, he was standing in front of the north side of the White House, wearing the overcoat he had purchased earlier on his trip. As Duran stood by the White House fence, two eighth-grade students on a field trip, Robert DeCamp and Brent Owens, ran to a point along the fence thirteen feet away. DeCamp pointed toward a small group of men in dark suits standing near the White House. One of these men, civilian Dennis Basso, bore a strong resemblance to President Clinton. DeCamp remarked that the man “looked like Bill Clinton,” and Owens said “Yeah, it does.” Almost immediately after this exchange, Duran began firing the rifle at Basso.

Four Secret Service officers who were stationed on the north side of the White House reacted to the sound of shots by taking cover and attempting to move toward the source of the gunfire. After firing about twenty rounds from his original position, Duran began running east along the fence, continuing to fire in the direction of the White House. Then he stopped, apparently trying to reload a second thirty-round clip — at this point civilian Harry Rakowsky tackled him, and soon thereafter several Secret Service agents arrived to help subdue Duran and confiscate his rifle.

Searching his truck after his arrest, agents found one of the rifles Duran had purchased en route to Washington, several boxes of ammunition, nerve gas antidote, a letter in which Duran had written “Can you imagine a higher moral calling than to destroy someone’s dreams with one bullet?,” a road atlas on which Duran had written “Kill the Pres!,” a cover tom from a telephone book bearing a picture of President Clinton, which Duran had defaced by drawing a circle around Clinton’s head and an “X” on his faee, a handwritten document with the heading “Last will and words,” an order form for the book “Hit Man,” and several books about out-of-body experiences. When they searched his house and office, law enforcement agents found a business card on the back of which Duran had written “Kill all government offices (sic) and department heads” and assorted other pieces of anti-government literature.

*1499II. Discussion

A. Failure to Bifurcate the Trial for Separate Presentation of Merits and Insanity Defenses

The defendant claims that the district court abused its discretion by denying his pretrial motion to bifurcate the trial into two phases dealing separately with the issues of guilt and sanity. We find that the district judge was within his discretion in denying Duran’s motion to bifurcate, and that the court’s failure to bifurcate the trial resulted in no unfair prejudice to either of Duran’s defenses.

1. Denial of Duran’s Motion to Bifurcate the Trial

Circuit law holds that a defendant should have the opportunity to benefit from both a merits-based defense and an insanity defense even when these defenses are incompatible, and thus the court should bifurcate a trial for separate presentation of these two defenses if it appears likely that either would be adversely affected by a jury hearing evidence regarding the other. Holmes v. United States, 363 F.2d 281 (D.C.Cir.1966); Contee v. United States, 410 F.2d 249 (D.C.Cir.1969). District judges must consider the possibility of such prejudice in exercising their discretion to grant or deny a motion to bifurcate, and the motion should be granted when the potential for such prejudice is apparent at the outset; that is, when the defendant demonstrates that he has “substantial,” and incompatible, defenses on both the merits and insanity issues. See Contee, 410 F.2d at 250.

Before trial, Duran made a motion to bifurcate pursuant to which the parties would first try the issue of Duran’s guilt on the merits, and then, if the jury found him guilty, proceed to a second “phase” in which Duran would present an insanity defense. Duran also requested, but did not condition his bifurcation request upon, the impanelment of two separate juries to hear the two different phases of the case.

To show that he was prepared to offer a “substantial” defense on the merits, Duran’s counsel notified the court that he intended to prove that Duran shot toward the White House as part of a “dramatic suicide mission,” rather than as part of an attempt to kill the President or anyone else. The defense described the evidence it would use in support of this theory: the defendant’s disintegrating marriage, his financial troubles, statements he made to his wife just before the incident indicating that he thought she would never see him again, a note with the heading “Last will and words” found in his truck just after the shooting, his statement to the agents arresting him that he wished they had shot him, the low accuracy of his chosen weapon and his careless manner of firing it, and the testimony of doctors indicating that he was suicidal.

The evidence the defendant proffered to the court in order to show that he would offer a “substantial” insanity defense, and that this defense would be incompatible with his merits defense, included a handwritten paean to murder that he had written before the shooting, and reports by two psychiatrists and a psychologist describing him as a paranoid schizophrenic.

In denying the bifurcation motion, the court noted that “the caselaw does not provide a clear definition.as to what constitutes a ‘substantial defense,’” but added that a defense is not “substantial” when it consists merely of “putting the Government to its proof,” or when the government’s case is so strong that it would be “irrational” to suppose that the proffered defense could sway a jury. United States v. Duran, 884 F.Supp. 529, 531-32 (D.D.C.1995) (quoting United States v. Grimes, 421 F.2d 1119, 1123 (D.C.Cir.), cert. denied, 398 U.S. 932, 90 S.Ct. 1831, 26 L.Ed.2d 98 (1970)). The court found that neither Duran’s merits defense nor his insanity defense could be considered “substantial” in light of the strength of the evidence the government intended to introduce at trial. The government had indicated that it would offer two videotapes of Duran firing toward the White House, and would call three experts who would rebut the testimony of Duran’s three experts by testifying that Duran was not suffering from a severe mental disorder, and that Duran was in fact feigning insanity. The court further rea*1500soned that, notwithstanding any question of the “substantiality” of the two defenses, bifurcation was unnecessary because the two defenses were mutually-reinforcing, rather than contradictory.

The district court correctly asserted that our caselaw has not heretofore articulated a precise definition of “substantiality” in the context of this type of bifurcation decision. In Harried v. United States, we stated that a simple denial, by which the defendant merely “puts the government to its proof,” does not qualify as a “substantial” defense. See Harried v. United States, 389 F.2d 281, 284 (D.C.Cir.1967). But as the defendant there had offered only a bare denial of guilt, we found it unnecessary to determine just how much further a defendant must go in showing the. court that he has a potential defense in order to cross the threshold into “substantiality.”

In Contee, this court went a bit further in discussing the “substantiality” of two defenses proffered by a defendant who had been convicted of murdering his wife with an ax. The trial court had denied Contee’s pretrial bifurcation motion, based on two defenses, one self-defense and the other lack of premeditation. Contee, 410 F.2d at 250. Con-tee’s proffered self-defense theory was based exclusively on his own testimony that all he remembered about the event was waking up to find his wife on top of him and blood spurting from cuts on his arms, then pushing his wife off, seeing a “devil” standing over his wife, and passing out. Id. at 251. On appeal after Contee’s conviction, this court held that the trial court was within its discretion in denying Contee’s pretrial bifurcation motion. After reviewing the evidence Contee had proffered in support of his self-defense theory, we concluded: “[i]t is doubtful that this evidence would have required an instruction on self-defense had one been requested. In any event, we think it is too insubstantial to warrant reversal for lack of bifurcation in the circumstances of this case.” Id. at 251. The Contee court thus suggested that a defense which appears extremely weak or implausible, although it goes beyond merely “putting the government to its proof,” may be considered “insubstantial.” Contee had also proffered, in his pre-trial bifurcation motion, the defense of lack of premeditation, which he proposed to support with the same testimony regarding his memory of the events surrounding his wife’s death. Id. This court noted as to that defense that “[t]he Government’s evidence of premeditation, though sufficient, was relatively weak, and [Contee’s] testimony, if believed, negated any consciously formulated design to kill his wife,” and so the proffered premeditation defense was “substantial.” Id.

Fortunately we need not, even if we could, articulate a precise definition of the requirements of “substantiality” in order to decide this case; it is sufficient to note that the central concern underlying the relevant bifurcation cases is the danger that prejudice to a defendant could result from the unitary structure of the trial. That is, our bifurcation cases dealing with defendants who proffer both merits and insanity defenses suggest that a trial judge should not allow the manner in which different defense theories are presented at trial to affect the outcome of the trial. By breaking the bifurcation determination down into the subsidiary questions of the “substantiality” and “compatibility” of various defenses, we endeavor to ensure that any plausible and supported defense will be given a chance to stand on its own. We do not thereby intend, however, on the one hand to mandate bifurcation when defendants proffer only flimsy and patently unsupportable defenses or, on the other, to require trial judges to conduct mini-trials in order to determine how proffered defenses may fare at trial. Trial judges must exercise their sound discretion in deciding whether to satisfy bifurcation requests, based on the information presented to them by the parties and any other information reasonably available to them at the time bifurcation is requested. Such discretion will generally weigh in favor of bifurcation only when “a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other.” Id. at 250.

In assessing Duran’s proffered merits and insanity defenses, the trial court may have *1501applied too daunting a “substantiality” standard. With regard to Duran’s merits defense, the court observed that the government was prepared to show the jury two videotapes of Duran firing a rifle toward the White House, and on this basis concluded that “any defense to the acts depicted in the video tapes cannot be substantial.” Duran, 884 F.Supp. at 532. The problem with this rationale is that Duran did not propose to deny committing the acts depicted in the videotapes; rather, Duran proffered a merits defense premised on an assertion about his state of mind while committing those acts. The court dealt with Duran’s insanity defense in one sentence, explaining “[n]or can the Court hold that the Defendant presents a substantial insanity defense, as the Government also intends to call at trial two psychologists and one psychiatrist to rebut the testimony presented by the Defendant on this issue.” Id. Given that the parties intended to present an equal number of experts on the insanity issue, such a terse determination of “insubstantiality” resembles a mere guess at which side’s experts would appear more credible to the jury.

On this record, we would hesitate to uphold the trial judge’s refusal to bifurcate had he based his decision solely on his determination that Duran’s proffered defenses were “insubstantial,” but we find the court’s conclusion that these defenses also were not fundamentally incompatible compelling enough to support the refusal to bifurcate the trial without recourse to the question of “substantiality.” The trial court here noted that, in Contee, this court upheld a denial of a motion to bifurcate when the evidence proffered in support of the insanity theory served to bolster, rather than to undermine, Con-tee’s merits defense of lack of premeditation. Id. at 532-33. In making this determination, the Contee court concluded that “much of [the testimony offered in support of the insanity defense] in fact gave substance and plausibility to appellant’s claim that he killed impulsively and without premeditation,” and declared itself “unable to determine with any confidence whether appellant was on balance helped or hurt” by the cross-pollination of these two defenses. Contee, 410 F.2d at 251-52. The Contee court recognized that, in ruling on a bifurcation motion, “the court must depend largely on defense counsel for the relevant information,” and thus a trial judge may deny the motion when the defendant has failed to convince him of both sub-stantiality and incompatibility.1 Id. at 250-51.

This trial court was similarly unable, when faced with the pretrial bifurcation motion, to determine whether Duran would on balance be helped or hurt by the presentation of his merits defense in tandem with his insanity defense. See Duran, 884 F.Supp. at 532-33. The proposed merits defense was based on the theory that Duran shot toward the White House, not with the intention of killing the President or anyone else, but with the intention of attracting fatal return fire from security agents. The proposed insanity defense theory posited that Duran shot towards the White House, not with the intention of killing the President or anyone else, but with the intention of killing an “evil mist” that his paranoid schizophrenia made him believe was hovering over the White House. The cornerstone of each theory was the lack of an intent to kill any person; they differed primarily in regard to the particular form of mental aberration compelling Duran’s actions, and the defendant did not suggest in his pretrial motions, nor does he argue before this court, that a suicidal mental state is fundamentally incompatible with paranoid schizophrenia. Thus the trial court could reasonably conclude that the evidence regarding Duran’s emotional distress and possible death wish would, if anything, serve to “soften up” the *1502jury for the expert and other evidence offered in support of his insanity defense. In light of the reasonableness of this conclusion regarding the compatibility of the two proffered defenses, the denial of Duran’s motion to bifurcate the trial was not an abuse of discretion.

2. Prejudice Resulting from the Failure to Bifurcate the Trial

Even though a trial court acted within its discretion in denying a pretrial motion to bifurcate, a showing of actual prejudice resulting from the failure to bifurcate may still require a remand for a new, bifurcated trial. See Contee, 410 F.2d at 251; United States v. Bennett, 460 F.2d 872 (D.C.Cir.1972). In Bennett, this court held that the district judge exercised sound discretion in denying the pretrial bifurcation motion of a defendant charged with sexually assaulting a 13-year-old boy. Nevertheless, the court was deeply concerned about the effect that certain evidence presented at trial in support of the insanity defense might have had on Bennett’s merits defense. At trial, Bennett had asserted both that he had not committed the acts charged and that he suffered from a severe mental illness that rendered him incapable of appreciating the wrongfulness of his acts. On appeal, Bennett claimed that the presentation of evidence relevant only to the merits issue had prejudiced his insanity defense, and vice-versa. The government’s presentation of its case on the merits had allegedly prejudiced Bennett’s insanity defense by exposing the jury to the “unpleasant details” of the crime, which this court agreed could make the jury “reluctant to ñnd a defendant not guilty by reason of insanity if the crime at issue is especially heinous,” and which the jury deciding the issue of Bennett’s sanity would not have heard had Bennett’s trial been bifurcated and used two separate juries, as he had requested. Bennett, 460 F.2d at 881. Bennett claimed that his insanity defense had prejudiced his merits defense because it had included the testimony of a government expert who recounted Bennett’s virtual confession to the very acts he denied having committed. The doctor testified that he had concluded that the defendant was sane because the defendant had a “very good recollection of the events of the alleged events. He recalls minutely what happened prior to the offense, of the alleged offense, and following it. He expressed his own version of the story, his feeling about it_” Id. at 878. On appeal, this court observed that “it seems clear that the defense was, in fact, prejudiced by the admission of a confession which could obviously be expected to have an impact on the jury’s determination of the merits.” Id. at 879.

Duran complains of prejudice necessitating a remand for a bifurcated trial based on the prejudicial effect of several items of evidence elicited from witnesses in his trial; he claims that, in a bifurcated trial, these witnesses would not have testified unless and until his guilt had first been determined in the merits phase of the trial. He refers specifically to testimony regarding his prior conviction for drunk driving and aggravated assault, and testimony elicited from doctors regarding Duran’s descriptions of himself, statements about wanting to kill the President, and his “gruesome and graphic” fantasy about killing and mutilating the President and First Lady. Brief of Appellant at 37.

a. Duran’s Prior Conviction

In order to determine whether the introduction of Duran’s prior conviction for drunk driving and assault represented unfair prejudice to his merits defense, we must first determine whether it would, in any case, have been introduced in the merits phase of a bifurcated trial. The process of constructing this hypothetical bifurcated trial requires a close look at the sequence and use by the parties of those witnesses responsible for the introduction of this evidence.

In the course of making its case against Duran for attempted murder of the President of the United States, the government called as witnesses David Millis and Stacy Stallwood, Duran’s co-workers at the Broadmoor Hotel in Colorado Springs. Mil-lis testified on direct examination that Duran “really hated taxes and basically the government,” and that Duran had often talked about wanting to kill the President. Tran*1503script (“Tr.”) 3/21/95 at 14.2 StaUwood testified that Duran “didn’t want to have any government official telling him what to do,” and that Duran had told her that “he hated [President Clinton] and if he had the chance he would kiU him.” Tr. 3/20/95 at 193. Duran’s witnesses included several people who knew him when he served in the military, including former military superiors Ronald Beatty and Manuel Flores, and his father-in-law Wayne Warner. The defense’s direct examination of each witness followed a virtu-aUy identical pattern: after introducing the witness and establishing his relationship with Duran, the defense asked some variant of these two questions: “did [Duran] ever say anything unusual to you about the United States government?” and “did [Duran] ever talk to you about killing or harming the President?” Tr. 3/27/95 at 14, 37-38, 54. Each of these witnesses answered “no” to both questions. In a sidebar conversation foUowing the direct examination of Beatty, Duran’s counsel said that her purpose in calling Beatty was to impeach StaUwood and Millis on the merits issue of Duran’s desire to Mil the President.3

For reasons that are unclear from the record, Duran’s own counsel ehcited the fact of his prior conviction. The parties had previously agreed that the fact of Duran’s dishonorable discharge from the mihtary, wMch resulted from his conviction, would be admissible, but that neither side would seek to introduce the fact of the conviction. The government elicited the fact of the discharge from Flores, but did not eUcit the conviction that underlay the discharge; rather, Duran’s counsel ehcited testimony describing the conviction on direct examination of Duran’s father-in-law, Wayne Warner.

Duran now claims that “neither Flores nor Warner would have been eaUed during the merits phase of a bifurcated trial, as their evidence went only to the sanity issue,” and therefore the fact of Duran’s prior conviction would not have been heard by the jury in a separate merits phase of a bifurcated trial. Reply Brief of Appellant at 4. It is not readily apparent, however, that the testimony of Flores and Warner would have had any value to Duran in his presentation of a separate insanity defense. Flores testified that he had never heard Duran say unusual things about the government or about wanting to kill the President, and that “Duran was a very good man when he was under me.” Tr. 3/27/95 at 41. Warner’s testimony was similar, referring to Duran as being “a little bit unhappy with the government, because he couldn’t change it.” Tr. 3/27/95 at 54-55. Overall, the testimony of Flores and Warner suggested that Duran was well able to understand the wrongfulness of firing an assault weapon across the North Lawn of the White House.

At oral argument in this court, defense counsel elaborated somewhat on the assertion that Flores and Warner would not have been called until the insanity phase of a bifurcated trial, suggesting that the defense had intended to use these witnesses only to help prove that Duran was insane, by demonstrating the radical change in Duran’s mental state between his time in the military and his time as an upholsterer at the Broadmoor Hotel. The record does, in fact, provide some support for this assertion. The defense delivered two separate closing arguments, the first summarizing Duran’s merits defenses and the second his insanity defense; the second closing argument used the testimony of people who knew Duran from his military service to demonstrate the radical change in his mental state that had taken place by the time of the shootings. It seems unclear to us, however, that the defense would have used Flores and Warner solely to set the scene for its narrative description of Duran’s descent into madness in a bifurcated trial. The intuitively much stronger reason for calling Flores and Warner — to rebut government witnesses on the merits issue of Du*1504ran’s desire to kill the President — was the one actually articulated at sidebar by defense counsel during the trial.4 Furthermore, the first defense closing argument, dealing with Duran’s defenses on the merits, reflected a strong desire on the defendant’s part to undermine the testimony of Stallwood and Mil-lis regarding his statements about killing the President.5

Finally, even if the defense had intended to save Flores and Warner for the insanity phase of a bifurcated trial, and even if refusing to call these two as defense witnesses in the merits phase could have prevented the jury from hearing about the prior conviction, the overwhelming evidence presented at trial regarding Duran’s hatred of the government and of the President, his announced desire to kill the President, and the extensive actions he took in pursuit of this desire, make it impossible for us to conclude that Duran’s prior conviction for drunk driving and assault played a significant role in the jury’s deliberations centering on Duran’s attempt to assassinate the President. Therefore, we cannot conclude that the admission of testimony regarding the prior conviction represented unfair prejudice to his merits defense resulting from the failure to bifurcate the trial.

b. Testimony of Doctors Evaluating Duran

Duran’s claim that his merits defense was prejudiced by the insanity-related testimony of Doctors Rappeport and Phillips is a more substantial one. The government cross-examined defense witness Rappeport, and examined its own witness Phillips, regarding the substance of their notes from evaluation sessions with Duran. These notes recorded various statements Duran made to the doctors, including his description of himself as a “hateful” “pervert” and an anarchist opposed to government, his desire “to kill people in a way that might horrify others,” and his fantasy about killing President Clinton “by [his] hands, very privately, intimately.” Tr. 3/29/95 at 43-45. Dr. Phillips related a fantasy Duran had described to him, in which Duran removes the First Lady’s heart from her body and eats it in front of the President, then removes and eats the President’s heart. Dr. Phillips also testified that Duran had á narcissistic and antisocial personality disorder, which he described as not a chronic or severe mental disturbance but rather a condition which made Duran “what we would characterize as not a very nice person, as a person who essentially will do things primarily for their own benefit.... [T]he kinds of individuals that we frequently find in courtroom settings because they not infrequently run aground with the law.” Tr. 3/29/95 at 137.

This testimony admittedly bears a surface resemblance to the expert testimony that provided the basis for a remand in Bennett. In this case, however, the testimony at issue was far less likely to have unfairly prejudiced the defendant. This is because the defendant in Bennett denied having committed the physical acts with which he was charged, and the testimony Bennett objected to directly contradicted this defense by recounting his own statements describing how he felt while committing these physical acts. Duran, by contrast, does not deny that he stood in front of the White House and fired repeatedly across the North Lawn. The only contested issue was whether Duran committed these acts with the state and condition of mind required to convict him for the attempted assassination of the President and the other crimes which the defense contested.

In our discussion of the compatibility of the merits and insanity defenses, we noted that each of these defense theories began with the premise that Duran’s state of mind as he fired his weapon was not that of an assassin acting out of hatred for the President and the government, and that each the*1505ory was premised on the further assertion that Duran was afflicted with an abnormal mental condition that accounted for his severely aberrant behavior. The merits defense, summarized for the jury in the first defense closing argument, described Duran’s mental condition as a delusional state which, regardless of whether it could be labeled a severe mental illness, precluded a finding that Duran had the intent to assassinate the President and to assault the four Secret Service officers named in the indictment.6 The insanity defense, summarized in the second defense closing argument, categorized Duran’s mental state as a severe mental illness rendering him incapable of appreciating the wrongfulness of his actions.7

The jury saw and heard extensive evidence about the defendant’s obsession with the government and the President, including the testimony of Duran’s co-workers at the Broadmoor who heard him say he “would kill Clinton if he had the chance,” cards on which he had written such statements as “[t]ime to take our country back,” a picture of the President on which he had drawn an “X” across the President’s forehead, and a road atlas on which he had written, “Kill the Pres!” The jury heard evidence establishing that Duran had traveled from Colorado to Washington, D.C., purchasing weapons, ammunition, and a bulky overcoat along the way, until the day he parked near the White House, stood by the North Gate with the weapons and ammunition concealed under the overcoat, and then fired at a man who looked a lot like the President.

All of this evidence must have strongly pulled the jury toward the same conclusion reached by Doctors Rappeport and Phillips— that Duran’s mental state was dangerously abnormal and that he had an unhealthy and hostile obsession with the President, even before the doctors took the stand. Furthermore, Dr. Rappeport downplayed the significance of Duran’s gruesome fantasy in a way that likely reduced the force of this evidence, and may have mitigated the impact of other damning items of evidence as well. As the government elicited these statements in its cross-examination, Doctor Rappeport twice stressed that what Duran had said about killing the President described “more of a fantasy than a desire.” This expert characterization of Duran’s hostile statements could have led the jury to find that some or all of the other damning statements by the defendant were likewise merely expressions of Duran’s “fantasies.”

There was indeed “gruesome and graphic” testimony presented at Duran’s trial that would not have been presented during the merits phase of a bifurcated trial. We conclude, however, that Duran was not unfairly prejudiced by this testimony because overwhelming independent evidence of Duran’s murderous hostility towards the President would have been presented in the merits phase of a bifurcated trial, and so the incremental impact of this macabre fantasy was minimal.

c. The Trial Judge’s Conduct Toward Defense Experts

The defense also argues that statements made by the court to the insanity experts exacerbated the prejudice caused by the unitary trial by revealing to the jury the court’s bias in favor of the prosecution. *1506Brief of Appellant at 39-40. The defendant stresses that he makes this claim as a sub-part of his argument regarding bifurcation, rather than as an independent claim for relief,8 urging that the judge’s comments, when added to the other allegedly prejudicial factors affecting his trial, tip the balance toward the conclusion that he deserves some remedy for the failure to bifurcate. But the judge’s comments cannot be the last straw in the bifurcation analysis unless they were improper in their own right, so we must begin by asking whether these comments tended to prejudice the defendant by creating an impression of judicial partiality in the minds of the jurors.

Our eases addressing claims of improper judicial questioning have established that a trial judge is not a “mere moderator,” but rather is charged with assisting the inexperienced laypersons who will render a verdict in understanding the nature and import of the often complex and always conflicting evidence presented at trial.9 To this end, the judge may properly make comments and ask questions designed to clarify testimony or to manage the presentation of evidence, but the judge must avoid any appearance of partiality and must avoid becoming, or seeming to become, an advocate for either party.10

Viewed in context, all but two of the nine allegedly improper comments to defense experts appear to us to have been clearly appropriate efforts to manage the presentation of evidence or to clarify issues for the benefit of the jury.11 Two of the judge’s comments were more problematic, in that they tended to veer away from clarification and towards cross-examination. In one instance, after a defense expert testified that twenty studies of schizophrenia supported his conclusions about the defendant, the judge asked the witness whether he had reviewed any studies conducted by the Menninger Foundation, and seemed to press the witness to acknowledge that it would be appropriate to include a Menninger Foundation study in a survey of studies dealing with schizophrenia.12 At the close of the direct examination of the same witness, the judge interposed a series of *1507questions suggesting extreme skepticism on the expert witness’ claim that the word “sputing,” which Duran had used in the course of a Rorschach test and which the witness had described as a made-up word evidencing Duran’s insanity, was indeed not a legitimate word.

Because the defendant failed to object to these two lines of judicial questioning at trial, we determine whether they created unfair prejudice in their own right under the “plain error” standard elaborated in United States v. Olano,13 which directs us to focus on whether the questioning “seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceeding[ ].”14 We cannot conclude that these two sets of questions so affected this proceeding. They consisted of two brief and largely peripheral exchanges with a single witness in the course of a long trial and, though arguably improper, the questions were not so hostile or slanted that they could on their own have convinced the jury that the judge was endorsing the government’s case and disparaging the defendant’s.

The defendant’s claim that the judge’s comments exacerbated the prejudice resulting from the failure to bifurcate is based not only on the judge’s treatment of defense experts, but also on the judge’s allegedly more complimentary treatment of the government’s experts, which the defendant says exacerbated the appearance of judicial partiality towards the government. But the three comments singled out by the defense as creating the appearance of favoritism toward the prosecution do not appear likely to have suggested any such partiality, and we find no merit in the defendant’s contention that the judge’s comments to the defense and government experts, taken together, sent the message that the judge believed the govem-mentis experts to be more credible.15 Thus the defendant’s argument that the judge’s comments and questions created unfair prejudice is without merit.

After reviewing all of the elements of Duran’s argument that he was unfairly prejudiced by the court’s failure to bifurcate his trial, and after considering the likelihood that these elements could have created unfair prejudice either individually or in their aggregate effect, we find that the trial court’s refusal to bifurcate Duran’s trial did not create unfair prejudice.

B. Application of the Attempted Assassination Statute to Duran’s Actions

18 U.S.C. § 1751(c) provides, in pertinent part: ‘Whoever attempts to kill [the President of the United States] shall be punished by imprisonment for any term of years or for life.” The defense argues that Duran’s conviction under § 1751(c) should be reversed because Duran shot at Dennis Basso, who is not the President. But under the statute and the common law of attempt which it incorporates, the identity of the person at whom Duran fired his assault rifle is irrelevant, given the overwhelming evidence that, in the days and hours before the shooting, he engaged in numerous “substantial steps” towards his objective of assassinating the President.

Although § 1751 does not define “attempt,” we have deemed it to incorporate the common law definition of criminal attempt.16 We have also noted elsewhere that most federal courts adhere to the definition of criminal attempt outlined in the Model Penal Code,17 which establishes that a defendant is *1508guilty of an attempt to commit a crime if, “acting with the kind of culpability otherwise required for commission of the crime,” he “purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”18

The trial judge here instructed the jury on the “criminal purpose” and “substantial step” components of attempt,19 and the jury heard evidence indicating that Duran had on numerous occasions expressed, both verbally and in writing, a strong desire to kill the President, and that Duran had purchased a rifle, ammunition clips, and an overcoat large enough to conceal the rifle (all of which he would eventually use in firing toward a man on the White House lawn who resembled the President), then traveled to Washington, D.C. and stood by the White House gate with the rifle and ammunition concealed. The jury had ample evidence, then, from which to conclude that Duran purchased weapons, ammunition, and the overcoat, traveled from Colorado Springs to Washington, D.C., and stood in front of the White House for several hours with the weapons and ammunition on his person, with the purpose of assassinating the President. Furthermore, the jury was entitled to find that these acts constituted “substantial steps” taken in pursuit of this objective. See Lam Kwong-Wah, 924 F.2d at 301 (defendants accomplished a “substantial step” towards completing the crime of drug distribution by negotiating with an undercover agent and giving the agent samples of heroin); State v. Smith, 115 Wash.2d 775, 801 P.2d 975, 979-80 (1990) (holding that the State had made a prima facie showing of attempted murder with $100 bills found in defendant’s pocket, a survival-type knife found strapped to defendant’s leg, a pair of handcuffs in another suspect’s possession, guns, knives, and ammunition found in the passenger compartment of the car the defendant was driving, and several more weapons and survival items found in the trunk of the car). See also Model Penal Code § 5.01(2) (1985) (“the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient [to prove the completion of a ‘substantial step’] as a matter of law: ... lying in wait, searching for or following the contemplated victim of the crime ... reconnoitering the place contemplated for the commission of the crime ... possession ... of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.”).

Because the jury had ample evidence from which to conclude that Duran had already completed the crime of attempted assassination of the President before he began firing towards Dennis Basso, we need not decide whether the evidence would have been sufficient to support the conviction had the government been unable to prove that Duran had already taken such “substantial steps” before he began firing. It remains significant that the man Duran eventually fired at resembled President Clinton, because this fact reflected back on Duran’s actions prior to the shooting, helping to show that he bought the weapons, ammunition, and overcoat, and brought himself and these items to the sidewalk in front of the North Lawn of the White House, with the purpose of nearing his objective of taking the President’s life. The fact that Duran was mistaken in thinking that the man he fired at was the President could not erase the multitude of “substantial steps” that he had already completed, and therefore we hold that the jury *1509was presented with sufficient evidence to support its conclusion that Duran violated § 1751 by attempting to assassinate the President of the United States.

C. Sufficiency of the Evidence Supporting Duran’s Convictions for Assaulting Federal Officers

Four Secret Service Officers stationed on the North Lawn took cover, and attempted to approach and subdue Duran, while he was firing across the lawn. On that basis, the government charged Duran with four counts of violating 18 U.S.C. § 111. The jury convicted him on all four counts, and he was sentenced to ten years’ imprisonment on each. Section 111 reads, in pertinent part:

Whoever ... forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties ... shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other eases, be fined under this title or imprisoned not more than three years, or both.... Whoever, in the commission of any acts described [above], uses a deadly or dangerous weapon or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.

Persons designated in 18 U.S.C. § 1114 include “any officer or employee of the Secret Service.”

The Model Penal Code’s definition of Assault includes the following language:

“a person is guilty of [simple] assault if he: (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury_a person is guilty of aggravated assault if he: (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.”20

The defendant contends that the jury was not presented with sufficient evidence from which it could have concluded beyond a reasonable doubt that Duran saw or aimed at any of these four Secret Service officers as he was firing. We agree. There was no evidence that Duran actually saw Officers Persons, Coffey, or Wilson, and only scant evidence that he saw Officer Tejeda.21 The evidence thus did not permit the jury to conclude beyond a reasonable doubt that Duran “attempted to cause ... bodily injury to” any of these officers, because an attempt requires that the defendant have acted with the purpose of completing the attempted crime, and Duran cannot be said to have had the purpose of injuring four complete strangers when there was no evidence that he aimed at them, or even saw them, while he was firing. And although his act of firing twenty-nine bullets across the North Lawn certainly evinced a reckless state of mind with regard to anyone present on the North Lawn, Duran did not “recklessly cause[] bodily injury” to any of the four Secret Service officers, because none of these officers was actually injured.

The jury did, however, have sufficient evidence from which to conclude that Duran fired his last several shots across the North Lawn, as he was running east along the fence, with the purpose of putting the Secret Service officers on the North Lawn in fear of imminent serious bodily injury. More particularly, the jury could reasonably have concluded that Duran’s purpose in firing a bar*1510rage of bullets as he ran along the fence was tó fend off Secret Service agents he knew or had every reason to believe would be present somewhere on the North Lawn, in order to prevent them from apprehending him before he had a chance to reload his weapon.

Ample evidence was presented at trial to demonstrate that Duran was aware that Secret Service agents would be present on the grounds of the White House, and that these agents would quickly respond to shots fired in the direction of the Presidential residence. In fact, Duran seemed resigned to the fact that he would be killed in the course of his attack. Just before leaving for Washington, Duran told co-worker David Millis that Millis probably would never see him again, because Duran “figured he was going to be shot and killed.” Tr. 3/21/95 at 18. Just after the shooting, as the officers wrested Duran’s weapon from him, Duran told them: “I wish you would have shot me.” Tr. 3/22/95 at 161. The officers found a folded piece of paper in Duran’s wallet on the outside of which Duran had written “‘Hey!’ Secret Service.” Ap-pellee Appendix (“App.”) Volume B, Tab 1, Gov. Exh. 155A-2. Inside, the note included Duran’s address and this request: “Please send my truck to my wife and son.” App. Volume B, Tab 1, Gov. Exh. 155A-1. Searching his truck after Duran was arrested, law enforcement agents found a handwritten document with the heading: “Last will and words.” Tr. 3/22/95 at 9.

The jury also was given evidence showing that, between the time Duran stopped shooting and his apprehension by civilian Harry Rakowsky, he was trying to reload his weapon. The jury heard that Duran had purchased a very large amount of ammunition, including extra thirty-round clips that he carried in his overcoat, and that he fired about thirty rounds from one such clip before he stopped shooting. Officer Persons testified, as he watched the videotape being replayed in the courtroom, that Duran was “reaching for his pocket” just after firing these shots. Tr. 3/22/95 at 143. Another witness testified that just before tackling Duran, he saw him look down at his weapon, and move his hand toward it. This witness concluded that Duran “was probably either trying to reload the weapon or unjam it.” Tr. 3/22/95 at 213-14. Officer Tejeda testified that, after the shooting, he saw Duran “holding some dark weapon, a dark rifle”; Tejeda described Duran’s actions thus: “He — I guess he was trying to reload, because he had stopped shoot-ing_” Tr. 3/23/95 at 83-84. All of this testimony provided a solid basis for the conclusion that Duran was trying to reload his weapon just after he stopped firing, which supports the inference that he fired the last several shots with the purpose of fending off Secret Service officers whom he expected would otherwise be close enough to apprehend him before he finished reloading his weapon.

The conclusion that Duran fired while running east along the fence with the purpose of putting Secret Service agents stationed on the North Lawn in fear of imminent serious bodily injury squares with the overall militaristic character of his attack. Duran, who had served in the military, arrived at the White House well-equipped with weapons and a large quantity of ammunition. Until he began running, his firing had been deliberate and focused, peppering the ground and trees around a small group of men. It would have been odd for Duran subsequently to begin firing haphazardly for no purpose at all, and the jury was entitled to reject Duran’s claim that he was firing at an “evil mist.” The testimony of three separate witnesses, one of whom was close enough to tackle Duran immediately after making his observation, supports the conclusion that Duran was trying, just after he fired these last several shots, to reload his weapon. Therefore, the conclusion that Duran fired his last several shots with the purpose of making the Secret Service officers present on the North Lawn fear that they would be struck by one of these shots, and thus that he assaulted the officers by “attempt[ing] by physical menace to put [the officers] in fear of imminent serious bodily injury,” was well supported by the evidence.

Finally, although this issue was not raised by the parties, we recognize the need to provide some explanation not only for the facial applicability of § 111 to Duran’s actions, but also for the application of that portion of the statute describing the crime *1511for which a ten-year sentence is appropriate. Duran received ten-year sentences for each of his four § 111 convictions, and the statute caps the sentence at one year in prison when the acts in violation of the statute constitute “only simple assault.” The Model Penal Code includes the form of assault involving an “attempt[] by physical menace to put another in fear of imminent serious bodily injury” within the category of “simple assault,” and this is the only variety of assault of which the jury could have found Duran guilty beyond a reasonable doubt, based on the evidence presented at trial. Despite its language limiting the sentence for “simple assault” violations to one year, however, § 111 authorizes courts to impose ten-year sentences on defendants who “use[ ] a deadly or dangerous weapon” in the course of “assault[ing], resisting], oppos[ing], imped[ing], intrmidat[ing], or interfer[ing] with” federal officers. Under the Model Penal Code, by contrast, the use of a deadly weapon can ratchet the offense up from “simple assault” to “aggravated assault” only if the defendant used the weapon to “attempt[] to cause or purposely or knowingly eause[ ] bodily injury to another,” and according to the assault theory applicable to Duran’s actions, he used the weapon with the purpose of creating the apprehension of bodily injury, but not with the purpose of actually causing bodily injury. That is, Duran was indifferent as to whether his scattered shots actually hit any of the officers, because his sole purpose was to keep them far enough away from himself that he would have time to reload. Thus, § 111 seems both to authorize the imposition of a ten-year sentence on Duran, by its reference to the use of a deadly or dangerous weapon, and to prohibit the imposition of this sentence in this ease, by its one-year cap for violations that constitute “only simple assault.”

We resolve this ambiguity by reference to another passage from the statute, which we believe demonstrates a legislative intent to diverge from the common-law definition in regard to the significance of the use of a deadly or dangerous weapon in setting the level of the assault. Specifically, the statute provides for a ten-year sentence for defendants who “use[] a deadly or dangerous weapon or infliet[] bodily injuiy” in the course of assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer (emphasis added). The disjunctive language in this passage indicates the legislature’s intent to make the use of a deadly or dangerous weapon sufficient, even for defendants who were not attempting to cause, and who did not purposely or knowingly cause, bodily injury, to boost the crime above the level of “simple assault.” Accordingly, we find that the act of using a deadly weapon with the purpose of causing Secret Service agents to fear imminent serious bodily injuiy constituted a crime punishable by ten years’ imprisonment under § 111.

III. Conclusion

The trial judge exercised reasonable discretion in denying Duran’s motion to bifurcate the trial, and the failure to bifurcate the trial did not prejudice the defendant’s merits or insanity defenses. The attempted assassination statute, 18 U.S.C. § 1751, was properly applied to Duran, and the jury had sufficient evidence to find him guilty, under 18 U.S.C. § 111, of assaulting the four Secret Service agents stationed on the North Lawn. Accordingly, the defendant’s convictions are

Affirmed.

DYER, Circuit Judge.

Oviedo appeals from a judgment of conviction for the attempted distribution of heroin, in violation of 21 U.S.C.A. § 846.1 Oviedo contends that under the facts of this case, he is not guilty of any criminal offense. We agree and reverse.

Oviedo was contacted by an undercover agent, who desired to purchase narcotics. Arrangements were made for the sale of one pound of heroin. The agent met Oviedo at the appointed time and place. Oviedo transferred the substance to the agent, and asked for his money in return. However, the agent informed Oviedo that he would first have to test the substance. A field test was performed with a positive result. Oviedo was placed under arrest.

Subsequent to the arrest, a search warrant was issued for Oviedo’s residence. When the search was executed, two pounds of a similar substance was found hidden in a television set. Up to this point, the case appeared unexceptional.

A chemical analysis was performed upon the substances seized, revealing that the substances were not in fact heroin, but rather procaine hydrochloride, an uncontrolled substance.2 Since any attempt to prosecute for distribution of heroin would have been futile, the defendant was charged with an attempt to distribute heroin.

At trial, Oviedo took the stand and stated that he knew the substance was not heroin, and that he, upon suggestion of his cohorts, was merely attempting to “rip off” the agent. It was, in his view, an easy way to pocket a few thousand dollars.

The court instructed the jury that they could find Oviedo guilty of attempted distribution if he delivered the substance thinking it to be heroin.3 The jury rejected Oviedo’s claimed knowledge of the true nature of the substance, and returned a verdict of guilty. Although Oviedo argues on appeal that there was insufficient evidence to establish that he thought the substance was heroin, this contention is without merit.4 *883We thus take as fact Oviedo’s belief that the substance was heroin.

The facts before us are therefore simple — Oviedo sold a substance he thought to be heroin, which in reality was an uncontrolled substance. The legal question before us is likewise simple — -are these combined acts and intent cognizable as a criminal attempt under 21 U.S.C.A. § 846. The answer, however, is not so simple.

Oviedo and the government both agree the resolution of this case rests in an analysis of the doctrines of legal and factual impossibility as defenses to a criminal attempt. Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. U. S. v. Conway, 5 Cir. 1975, 507 F.2d 1047. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective. Id. at 1050. The traditional analysis recognizes legal impossibility as a valid defense, but refuses to so recognize factual impossibility. U. S. v. Berrigan, 3 Cir. 1973, 482 F.2d 171.

These definitions are not particularly helpful here, for they do nothing more than provide a different focus for the analysis. In one sense, the impossibility involved here might be deemed legal, for those acts which Oviedo set in motion, the transfer of the substance in his possession, were not a crime. In another sense, the impossibility is factual, for the objective of Oviedo, the sale of heroin, was proscribed by law, and failed only because of a circumstance unknown to Oviedo.5

Although this issue has been the subject of numerous legal commentaries,6 federal cases reaching this question are few, and no consensus can be found.7 United States v. Berrigan, 3 Cir. 1973, 482 F.2d 171; United States v. Heng Awkak Roman, S.D.N.Y.1973, 356 F.Supp. 434, aff’d 2 Cir. 1973, 484 F.2d 1271; Rosado v. Martinez, D.P.R., 1974, 369 F.Supp. 477; United States v. Hair, D.C.1973, 356 F.Supp. 339; see also United States v. Marin, 2 Cir. 1975, 513 F.2d 974.

In Roman, the defendants were transporting a suitcase containing heroin. *884Through the aid of an informer and unknown to the defendants, the contents of the suitcase were replaced with soap powder. The defendants were arrested when they attempted to sell the contents of the suitcase, and were subsequently charged with attempted possession with intent to distribute. The court rejected defendants’ contention that they could not be charged with attempted possession, since it was impossible for them to possess heroin. Recognizing the difficulty in distinguishing between legal and factual impossibility, the court never so categorized the case. Nevertheless, the court concluded that since the objective of the defendants was criminal, impossibility would not be recognized as a defense.

The defendants in Berrigan were charged with attempting to violate 18 U.S.C.A. § 1791, prohibiting the smuggling of objects into or out of a federal correctional institution. Since the evidence established that the warden had knowledge of the smuggling plan, and since lack of knowledge was a necessary element of the offense, the defendants could not be found guilty of violating the statute. The court held that such knowledge by .the warden would also preclude conviction for the attempt, since “attempting to do that which is not a crime is not attempting to commit a crime.” Berrigan, at 190.

The Berrigan court rested its determination on a strict view of legal impossibility. According to the court, such impossibility exists when there is an intention to perform a physical act, the intended physical act is performed, but the consequence resulting from the intended act does not amount to a crime. In this analysis, the intent to perform a physical act is to be distinguished from the motive, desire or expectation to violate the law.8

The application of the principles underlying these cases leads to no clearer result than the application of our previous definitions of legal and factual impossibility. Applying Roman, we would not concern ourselves with any theoretical distinction between legal and factual impossibility, but would affirm the conviction, since the objective of Oviedo was criminal. Applying Berrigan, we would look solely to the physical act which Oviedo “intended”, the transfer of the procaine in his possession, and we would conclude that since the transfer of procaine is not criminal, no offense is stated. The choice is between punishing criminal intent without regard to objective acts, and punishing objective acts, regarding intent as immaterial.

In our view, both Roman and Berrigan miss the mark, but in opposite directions. A strict application of the Berrigan approach would eliminate any distinction between factual and legal impossibility, and such impossibility would always be a valid defense, since the “intended” physical acts are never criminal.9 The Roman approach turns the attempt statute into a new substantive criminal statute where the critical element to be proved is mens rea simpliciter. It would allow us to punish one’s thoughts, desires,..or motives, through indirect evidence, without reference to any objective fact. See Berrigan, supra at 189, fn. 39. The danger is evident.

We reject the notion of Roman, adopted by the district court, that the conviction in the present case can be sustained since there is sufficient proof of intent, not because of any doubt as to the sufficiency of the evidence in that regard, but because of the inherent dangers such a precedent would pose in the future.

When the question before the court is whether certain conduct consti*885tutes mere preparation which is not punishable, or an attempt which is, the possibility of error is mitigated by the requirement that the objective acts of the defendant evidence commitment to the criminal venture and corroborate the mens rea. United States v. Mandujano, 5 Cir. 1974, 499 F.2d 370. To the extent that this requirement is preserved it prevents the conviction of persons engaged in innocent acts on the basis of a mens rea proved through speculative inferences, unreliable forms of testimony, and past criminal conduct.

Courts could have approached the preparation — attempt determination in another fashion, eliminating any notion' of particular objective facts, and simply could have asked whether the evidence at hand was sufficient to prove the necessary intent. But this approach has been rejected for precisely the reasons set out above, for conviction upon proof of mere intent provides too great a possibility of speculation and abuse.

In urging us to follow Roman, which found determinative the criminal intent of the defendants, the government at least implicitly argues that we should reject any requirement demanding the same objective evidentiary facts required in the preparation — attempt determination. We refuse to follow that suggestion.

When the defendant sells a substance which is actually heroin, it is reasonable to infer that he knew the physical nature of the substance, and to place on him the burden of dispelling that inference. United States v. Moser, 7 Cir. 1975, 509 F.2d 1089, 1092; United States v. Joly, 2 Cir. 1974, 493 F.2d 672, 676.10 However, if we convict the defendant of attempting to sell heroin for the sale of a non-narcotic substance, we eliminate an objective element that has major evidentiary significance and we increase the risk of mistaken conclusions that the defendant believed the goods were narcotics.11

Thus, we demand that in order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant’s conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.

Here we have only two objective facts. First, Oviedo told the agent that the substance he was selling was heroin, and second, portions of the substance were concealed in a television set. If another objective fact were present, if the substance were heroin, we would have a strong objective basis for the determination of criminal intent and conduct consistent and supportative of that intent. The test set out above would be met, and, absent a delivery, the criminal attempt would be established. But when this objective basis for the determination of intent is removed, when the substance is not heroin, the conduct becomes ambivalent, and we are left with a sufficiency-of-the-evidence determination of in*886tent rejected in the preparation — attempt dichotomy. We cannot conclude that the objective acts of Oviedo apart from any indirect evidence of intent mark his conduct as criminal in nature. Rather, those acts are consistent with a noncriminal enterprise. Therefore, we will not allow the jury’s determination of Oviedo’s intent to form the sole basis of a criminal offense.

The government also argues that United States v. Mandujano, supra, although involving a preparation — attempt determination, compels a contrary result. In Mandujano, the defendant negotiated a sale of heroin with an undercover agent. After taking the agent’s money, the defendant set about to find his source. He was unsuccessful, and returned a few hours later with the money and without the heroin. We found the evidence sufficient to take the case beyond preparation, and to support his conviction for attempted distribution.

In making that determination, we recognized that in order to be guilty of an attempt, the objective conduct of the defendant must strongly corroborate the firmness of the defendant’s criminal intent. Id. at 376. The objective acts must not be equivocal in nature. In that case, we had as objective facts defendant’s act of taking money and his personal statements that he would purchase heroin with that money. Importantly, there were no objective facts which made these acts equivocal.

The situation in Mandujano is distinguishable from that now before us. Just as it is reasonable to infer a person’s knowledge and criminal intent from the possession of a substance which is in fact narcotics, United States v. Moser, supra; United States v. Joly, supra, it is also reasonable to infer that same knowledge and intent from an individual’s statements of future intention. Mutual Life Ins. Co. v. Hillmon, 1892, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706; Shurman v. United States, 5 Cir. 1955, 219 F.2d 282, 290, fn. 9; United States v. Hoffa, 6 Cir. 1965, 349 F.2d 20, 45; United States v. Annunziato, 2 Cir. 1961, 293 F.2d 373, 377. However, just as it is impossible to infer that intent when the substance possessed is not in fact narcotics, it is also impossible to infer that intent when objective facts indicate that the person did not carry out his self-proclaimed intention.

Thus, when Mandujano stated that he would purchase heroin, we could infer that he intended to purchase heroin since there were no objective facts to the contrary. But here, Oviedo stated he would sell heroin and then sold procaine. Based on these objective facts, we cannot infer that he intended to do that which he said he was going to do, because he in fact did something else.

Reversed.

Young, J.

We granted leave in this case to consider whether the doctrine of “impossibility” provides a defense to a charge of attempt to commit an offense prohibited by law under MCL 750.92, or to a charge of solicitation to commit a felony under MCL 750.157b. The circuit court granted defendant’s motion to quash and dismissed all charges against him on the basis *152that it was legally impossible for him to have committed any of the charged crimes. We conclude that the concept of impossibility, which this Court has never adopted as a defense, is not relevant to a determination whether a defendant has committed attempt under MCL 750.92, and that the circuit court therefore erred in dismissing the charge of attempted distribution of obscene material to a minor on the basis of the doctrine of legal impossibility. We additionally conclude that, although the Court of Appeals erred to the extent that it relied upon the concept of “impossibility” in dismissing the charge of solicitation of third-degree criminal sexual conduct, the charge was nevertheless properly dismissed because there is no evidence that defendant solicited any person to “commit a felony” or to “do or omit to do an act which if completed would constitute a felony” as proscribed by MCL 750.157b. Accordingly, we reverse in part and affirm in part the decision of the Court of Appeals and remand this matter to the circuit court for proceedings consistent with this opinion.

I. FACTUAL1 AND PROCEDURAL BACKGROUND

Deputy William Liczbinski was assigned by the Wayne County Sheriffs Department to conduct an undercover investigation for the department’s Internet Crimes Bureau. Liczbinski was instructed to pose as a minor and log onto “chat rooms” on the Internet for *153the purpose of identifying persons using the Internet as a means for engaging in criminal activity.

On December 8, 1998, while using the screen name “Bekka,” Liczbinski was approached by defendant, who was using the screen name “Mr. Auto-Mag,” in an Internet chat room. Defendant described himself as a twenty-three-year-old male from Warren, and Bekka described herself as a fourteen-year-old female from Detroit. Bekka indicated that her name was Becky Fellins, and defendant revealed that his name was Chris Thousand. During this initial conversation, defendant sent Bekka, via the Internet, a photograph of his face.

From December 9 through 16, 1998, Liczbinski, still using the screen name “Bekka,” engaged in chat room conversation with defendant. During these exchanges, the conversation became sexually explicit. Defendant made repeated lewd invitations to Bekka to engage in various sexual acts, despite various indications of her young age.2

During one of his online conversations with Bekka, after asking her whether anyone was “around there,” watching her, defendant indicated that he was sending her a picture of himself. Within seconds, Liczbinski received over the Internet a photograph of male genitalia. Defendant asked Bekka whether she liked and wanted it and whether she was getting “hot” yet, *154and described in a graphic manner the type of sexual acts he wished to perform with her. Defendant invited Bekka to come see him at his house for the purpose of engaging in sexual activity. Bekka replied that she wanted to do so, and defendant cautioned her that they had to be careful, because he could “go to jail.” Defendant asked whether Bekka looked “over sixteen,” so that if his roommates were home he could lie.

The two then planned to meet at an area McDonald’s restaurant at 5:00 P.M. on the following Thursday. Defendant indicated that they could go to his house, and that he would tell his brother that Bekka was seventeen. Defendant instructed Bekka to wear a “nice sexy skirt,” something that he could “get [his] head into.” Defendant indicated that he would be dressed in black pants and shirt and a brown suede coat, and that he would be driving a green Duster. Bekka asked defendant to bring her a present, and indicated that she liked white teddy bears.

On Thursday, December 17, 1998, Liczbinski and other deputy sheriffs were present at the specified McDonald’s restaurant when they saw defendant inside a vehicle matching the description given to Bekka by defendant. Defendant, who was wearing a brown suede jacket and black pants, got out of the vehicle and entered the restaurant. Liczbinski recognized defendant’s face from the photograph that had been sent to Bekka. Defendant looked around for approximately thirty seconds before leaving the restaurant. Defendant was then taken into custody. Two white teddy bears were recovered from defendant’s vehicle. Defendant’s computer was subsequently seized from his home. A search of the hard drive *155revealed electronic logs of Internet conversations matching those printed out by Liczbinski from the Wayne County-owned computer he had used in his Internet conversations with defendant.

Following a preliminary examination, defendant was bound over for trial on charges of solicitation to commit third-degree criminal sexual conduct, MCL 750.157b(3)(a) and 750.520d(l)(a), attempted distribution of obscene material to a minor, MCL 750.92 and 722.675, and child sexually abusive activity, MCL 750.145c(2).3

Defendant brought a motion to quash the information, arguing that, because the existence of a child victim was an element of each of the charged offenses, the evidence was legally insufficient to support the charges. The circuit court agreed and dismissed the case, holding that it was legally impossible for defendant to have committed the charged offenses. The Court of Appeals affirmed the dismissal of the charges of solicitation and attempted distribution of obscene material to a minor, but reversed the dismissal of the charge of child sexually abusive activity.4 241 Mich App 102 (2000).

*156We granted the prosecution’s application for leave to appeal.5 463 Mich 907 (2000).

H. STANDARD OF REVIEW

We must determine in this case whether the circuit court and the Court of Appeals properly applied the doctrine of “legal impossibility” in concluding that the charges against defendant of attempt and solicitation must be dismissed. The applicability of a legal doctrine is a question of law that is reviewed de novo. James v Alberts, 464 Mich 12, 14; 626 NW2d 158 (2001). Similarly, the issue whether “impossibility” is a cognizable defense under Michigan’s attempt and solicitation statutes presents questions of statutory construction, which we review de novo. People v Clark, 463 Mich 459, 463, n 9; 619 NW2d 538 (2000); People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).

m. ANALYSIS

A. THE “IMPOSSIBILITY” DOCTRINE

The doctrine of “impossibility” as it has been discussed in the context of inchoate crimes represents the conceptual dilemma that arises when, because of the defendant’s mistake of fact or law, his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge. Classic illustrations of the concept of impossibility *157include: (1) the defendant is prosecuted for attempted larceny after he tries to “pick” the victim’s empty pocket6; (2) the defendant is prosecuted for attempted rape after he tries to have nonconsensual intercourse, but is unsuccessful because he is impotent7; (3) the defendant is prosecuted for attempting to receive stolen property where the property he received was not, in fact, stolen8; and (4) the defendant is prosecuted for attempting to hunt deer out of season after he shoots at a stuffed decoy deer.9 In each of these examples, despite evidence of the defendant’s criminal intent, he cannot be prosecuted for the completed offense of larceny, rape, receiving stolen property, or hunting deer out of season, because proof of at least one element of each offense cannot be derived from his objective actions. The question, then, becomes whether the defendant can be prosecuted for the attempted offense, and the answer is dependent upon whether he may raise the defense of “impossibility.”

Courts and legal scholars have drawn a distinction between two categories of impossibility: “factual impossibility” and “legal impossibility.” It has been said that, at common law, legal impossibility is a defense to a charge of attempt, but factual impossibility is not. See American Law Institute, Model Penal Code and Commentaries (1985), comment to § 5.01, pp 307-317; Perkins & Boyce, Criminal Law (3d ed), *158p 632; Dressier, Understanding Criminal Law (1st ed), § 27.07[B], p 349. However, courts and scholars alike have struggled unsuccessfully over the years to articulate an accurate rule for distinguishing between the categories of “impossibility.”

“Factual impossibility,” which has apparently never been recognized in any American jurisdiction as a defense to a charge of attempt,10 “exists when [the defendant’s] intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control.” Dressier, supra, § 27.07[C][1], p 350. An example of a “factual impossibility” scenario is where the defendant is prosecuted for attempted minder after pointing an unloaded gun at someone and pulling the trigger, where the defendant believed the gun was loaded.11

The category of “legal impossibility” is further divided into two subcategories: “pure” legal impossibility and “hybrid” legal impossibility. Although it is generally undisputed that “pure” legal impossibility will bar an attempt conviction, the concept of “hybrid legal impossibility” has proven problematic. As Professor Dressier points out, the failure of courts to distinguish between “pure” and “hybrid” legal impossibility has created confusion in this area of the law. Dressier, supra, § 27.07[D][1], p 351.

“Pure legal impossibility exists if the criminal law does not prohibit D’s conduct or the result that she has sought to achieve.” Id., § 27.07[D][2], p 352 *159(emphasis in original). In other words, the concept of pure legal impossibility applies when an actor engages in conduct that he believes is criminal, but is not actually prohibited by law: “There can be no conviction of criminal attempt based upon d’s erroneous notion that he was committing a crime.” Perkins & Boyce, supra, p 634. As an example, consider the case of a man who believes that the legal age of consent is sixteen years old, and who believes that a girl with whom he had consensual sexual intercourse is fifteen years old. If the law actually fixed the age of consent at fifteen, this man would not be guilty of attempted statutory rape, despite his mistaken belief that the law prohibited his conduct. See Dressier, supra, § 27.07[D][2], pp 352-353, n 25.

When courts speak of “legal impossibility,” they are generally referring to what is more accurately described as “hybrid” legal impossibility.

Most claims of legal impossibility are of the hybrid variety. Hybrid legal impossibility exists if d’s goal was illegal, but commission of the offense was impossible due to a factual mistake by her regarding the legal status of some factor relevant to her conduct. This version of impossibility is a “hybrid” because, as the definition implies and as is clarified immediately below, d’s impossibility claim includes both a legal and a factual aspect to it.

Courts have recognized a defense of legal impossibility or have stated that it would exist if D receives unstolen property believing it was stolen; tries to pick the pocket of a stone image of a human; offers a bribe to a “juror” who is not a juror; tries to hunt deer out of season by shooting a stuffed animal; shoots a corpse believing that it is alive; or shoots at a tree stump believing that it is a human.

Notice that each of the mistakes in these cases affected the legal status of some aspect of the defendant’s conduct. The status of property as “stolen” is necessary to commit *160the crime of “receiving stolen property with knowledge it is stolen”—i.e., a person legally is incapable of committing this offense if the property is not stolen. The status of a person as a “juror” is legally necessary to commit the offense of bribing a juror. The status of a victim as a “human being" (rather than as a corpse, tree stump, or statue) legally is necessary to commit the crime of murder or to “take and carry away the personal property of another.” Finally, putting a bullet into a stuffed deer can never constitute the crime of hunting out of season.

On the other hand, in each example of hybrid legal impossibility D was mistaken about a fact: whether property was stolen, whether a person was a juror, whether the victims were human or whether the victim was an animal subject to being hunted out of season. [Dressier, supra, § 27.07[D][3][a], pp 353-354 (emphasis in original).]

As the Court of Appeals panel in this case accurately noted, it is possible to view virtually any example of “hybrid legal impossibility” as an example of “factual impossibility”:

“Ultimately any case of hybrid legal impossibility may reasonably be characterized as factual impossibility. . . . [B]y skillful characterization, one can describe virtually any case of hybrid legal impossibility, which is a common law defense, as an example of factual impossibility, which is not a defense.” [241 Mich App 106 (emphasis in original), quoting Dressier, Understanding Criminal Law (2d ed), § 27.07[D][3][a], pp 374-375.]

See also Weiss, Scope, mistake, and impossibility: The philosophy of language and problems of mens rea, 83 Colum L R 1029, 1029-1030 (1983) (“[because ordinary English cannot adequately distinguish among the various kinds of impossible attempts, courts and commentators have frequently misclassified certain types of cases”); United States v Thomas, 13 CMA 278, 283; 32 CMR 278, 283 (1962) (“[w]hat is abun*161dantly clear ... is that it is most difficult to classify any particular state of facts as positively coming within one of these categories to the exclusion of the other”); State v Moretti, 52 NJ 182, 189; 244 A2d 499 (1968) (“[o]ur examination of [authorities discussing the doctrine of impossibility] convinces us that the application of the defense of impossibility is so fraught with intricacies and artificial distinctions that the defense has little value as an analytical method for reaching substantial justice”).

It is notable that “the great majority of jurisdictions have now recognized that legal and factual impossibility are ‘logically indistinguishable’ . . . and have abolished impossibility as a defense.” United States v Hsu, 155 F3d 189, 199 (CA 3, 1998).12 For example, several states have adopted statutory provisions similar to Model Penal Code, § 5.01(1),13 which provides:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

*162(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

In other jurisdictions, courts have considered the “impossibility” defense under attempt statutes that did not include language explicitly abolishing the defense. Several of these courts have simply declined to participate in the sterile academic exercise of categorizing a particular set of facts as representing “factual” or “legal” impossibility, and have instead examined solely the words of the applicable attempt statute. See Darnell v State, 92 Nev 680; 558 P2d 624 (1976); Moretti, supra at 189; People v Rojas, 55 Cal 2d 252; 358 P2d 921 (1961).

B. ATTEMPTED DISTRIBUTION OF OBSCENE MATERIAL TO A MINOR

The Court of Appeals panel in this case, after examining Professor Dressler’s exposition of the doctrine of impossibility, concluded that it was legally impossible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor. The panel held that, because “Bekka” was, in fact, an adult, an essential requirement of the underlying substantive offense was not met (dissemination to a minor), and therefore it was legally impossible for defendant to have committed the crime.

We begin by noting that the concept of “impossibility,” in either its “factual” or “legal” variant, has never been recognized by this Court as a valid defense to a charge of attempt. In arguing that impossibility is a judicially recognized defense in Michigan, defendant *163relies heavily on our statement in People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975), that

[i]t is possible, although we need not decide, that defendants could not have been convicted of attempted abortion; at common law the general rule is that while factual impossibility is not a defense (People v Jones, 46 Mich 441; 9 NW 486 [1881])[14], legal impossibility is a defense. LaFave & Scott, Criminal Law, § 62, p 474. [Emphasis supplied.]

As is readily apparent, our statement in Tinskey regarding “legal impossibility” as a defense to an attempt charge is nothing more than obiter dictum. The defendants in Tinskey were not charged with attempt; rather, they were charged with statutory conspiracy. Moreover, we specifically declined in Tinskey to express any opinion regarding the viability of the “impossibility” defense in the context of attempts. No other Michigan Supreme Court case has referenced, much less adopted, the impossibility defense.

Finding no recognition of impossibility in our common law, we turn now to the terms of the statute. MCL 750.92 provides, in relevant part:

Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

*1643. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor ....

Under our statute, then, an “attempt” consists of (1) an attempt to commit an offense prohibited by law, and (2) any act towards the commission of the intended offense. We have further explained the elements of attempt under our statute as including “an intent to do an act or to bring about certain consequences which would in law amount to a crime[15]; and ... an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.” People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993), quoting 2 LaFave & Scott, Substantive Criminal Law, § 6.2, p 18.

In determining whether “impossibility,” were we to recognize the doctrine, is a viable defense to a charge of attempt under MCL 750.92, our obligation is to examine the statute in an effort to discern and give effect to the legislative intent that may reasonably be inferred from the text of the statute itself. People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999). “When a legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular *165case.” Id. at 153 (citation omitted). Accordingly, if our Legislature has indicated its intent to criminalize certain conduct despite the actor’s mistake of fact, this Court does not have the authority to create and apply a substantive defense based upon the concept of “impossibility.” See People v Glass (After Remand), 464 Mich 266; 627 NW2d 261 (2001).

We are unable to discern from the words of the attempt statute any legislative intent that the concept of “impossibility” provide any impediment to charging a defendant with, or convicting him of, an attempted crime, notwithstanding any factual mistake—regarding either the attendant circumstances or the legal status of some factor relevant thereto—that he may harbor. The attempt statute carves out no exception for those who, possessing the requisite criminal intent to commit an offense prohibited by law and taking action toward the commission of that offense, have acted under an extrinsic misconception.

Defendant in this case is not charged with the substantive crime of distributing obscene material to a minor in violation of MCL 722.675.16 It is unquestioned that defendant could not be convicted of that *166crime, because defendant allegedly distributed obscene material not to “a minor,” but to an adult man. Instead, defendant is charged with the distinct offense of attempt, which requires only that the prosecution prove intention to commit an offense prohibited by law, coupled with conduct toward the commission of that offense. The notion that it would be “impossible” for the defendant to have committed the completed offense is simply irrelevant to the analysis. 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.

Because the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case, the circuit court erred in dismissing this charge on the basis of “legal impossibility.”

C. SOLICITATION TO COMMIT THIRD-DEGREE CRIMINAL SEXUAL CONDUCT

1. ANALYSIS

Defendant was additionally charged, on the basis of his Internet conversations with “Bekka,” with solicita*167tion to commit third-degree criminal sexual conduct. Defendant maintains that it was “legally impossible” for him to have committed this crime, because the underlying felony requires the existence of a child under the age of sixteen.17 The Court of Appeals panel agreed, concluding that it was legally impossible for defendant to have committed the crime because the underlying form of third-degree criminal sexual conduct charged, MCL 750.520d(l)(a), required the existence of a person under the age of sixteen. The panel further concluded that it was legally impossible for defendant to have committed the crime for the additional reason that he did not “solicit^ another person to commit a felony” as proscribed by the solicitation statute.

Our solicitation statute, MCL 750.157b, provides as follows, in relevant part:

(1) For purposes of this section, “solicit” means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.

(3) . . . [A] person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows:

(a) If the offense solicited is a felony punishable by imprisonment for life, or for 5 years or more, the person is guilty of a felony .... [Emphasis supplied.]

*168The Court of Appeals erred to the extent that it relied on the doctrine of “impossibility” as a ground for affirming the circuit court’s dismissal of the solicitation charge. As we have explained, Michigan has never adopted the doctrine of impossibility as a defense in its traditional attempt context, much less in the context of solicitation crimes. Moreover, we are unable to locate any authority, and defendant has provided none, for the proposition that “impossibility” is a recognized defense to a charge of solicitation in other jurisdictions.18

Nevertheless, the solicitation charge was properly dismissed for the reason that there is no evidence that defendant in our case solicited anyone “to commit a felony” or “to do or omit to do an act which if completed would constitute a felony” as prohibited by MCL 750.157b. Pursuant to the plain statutory language, the prosecution was required to present evidence that defendant requested that another person perform a criminal act. The evidence here shows only that defendant requested that “Bekka” engage in sexual acts with him. While the requested acts might well have constituted a crime on defendant’s part, “Bekka” (or Liczbinski) would not have committed third-degree criminal sexual conduct had she (or he) done *169as defendant suggested. As the Court of Appeals properly concluded:

What is lacking here is defendant’s request to another person to commit a crime. “Bekka,” the fourteen-year-old online persona of Deputy Liczbinski, was not asked to commit a crime. That is, while it would be a crime for defendant to engage in sexual intercourse with a fourteen-year-old girl, a fourteen-year-old girl is not committing a criminal offense (or at least not csc-m) by engaging in sexual intercourse with an adult. Thus, whether we look at this case as defendant asking fourteen-year-old “Bekka” to engage in sexual intercourse with him or as defendant asking Deputy Liczbinski to engage in sexual intercourse with him, he did not ask another person to commit csc-m. . . .

For the above reasons we conclude that the trial court properly dismissed the charge of solicitation to commit criminal sexual conduct. [241 Mich App 111.]

Accordingly, while the concept of “impossibility” has no role in the analysis of this issue, we agree with the panel’s conclusion that an element of the statutory offense is missing and that the solicitation charge was therefore properly dismissed.

2. RESPONSE TO THE DISSENT

In his partial dissent, Justice Taylor opines that our construction of MCL 750.157b(3) renders the second phrase of that subsection a “nullity,” and that this phrase—“or who solicits another person to do or omit to do an act which if completed would constitute a felony”—should be read to encompass “situations where the solicitee could not be charged with the felony, but the solicitor could be.” Post at 181. We disagree.

*170We first note that, pursuant to the plain language of this phrase, it is the act of “another person” that must, if completed, “constitute a felony.” We believe that the plain language of the statute does not support the interpretation our dissenting colleague gives it.

Moreover, our construction of § 157b(3) does not render the second phrase of that subsection “nugatory” or “surplusage.” Rather, it appears that the Legislature, by its use of the phrase “do or omit to do an act which if completed would constitute a felony,” intended to make clear that the solicited offense does not have to be completed.

It is noteworthy that § 157b was substantially amended in 1986, following this Court’s holding in People v Rehkopf, 422 Mich 198; 370 NW2d 296 (1985). In Rehkopf, this Court examined two cases in which the defendants were charged under the former version of § 157b. Defendant Rehkopf had asked an undercover police officer to kill her husband, and defendant Snyder had asked someone to kill his brother. In neither case did the intended murder ever occur. This Court held that the statute was not violated where the defendants’ conduct did not lead to the results the defendants urged—namely, the deaths of Rehkopf’s husband or Snyder’s brother.

In 1985, the statute read as follows, in pertinent part:

Any person who incites, induces or exhorts any other person to ... do any act which would constitute a felony . . . shall be punished in the same manner as if he had committed the offense incited, induced or exhorted.

The Rehkopf majority held that

*171§ 157b does not subject a person to criminal responsibility for utterances that do not result in the commission of the offense sought to be committed. A person who does no more than utter words seeking the commission of an offense is subject to liability only for the common-law offense of solicitation. [Id. at 205.][19]

Justice Boyle and Chief Justice Williams dissented, opining that § 157b contained no requirement “that the solicitation result in either actual incitement or completion of the solicited offense.” Id. at 223.

In 1986, the Legislature rewrote § 157b. The first clause of current subsection 157b(3) (“a person who solicits another person to commit a felony”), apart from using the term “solicits,” is quite similar to the phrase “[a]ny person who incites, induces or exhorts any other person to do any act which would constitute a felony” as used in the prior version of § 157b. However, the Legislature apparently deemed it necessary—reasonably so, in light of the Rehkopf Court’s construction of § 157b—to clarify that the solicited act need not be completed in order to satisfy the elements of the statute. Accordingly, the second clause of subsection 157b(3) provides further that the statute is violated where the defendant “solicits another person to do or omit to do an act which if completed would constitute a felony” (emphasis supplied). It is quite probable that the Legislature believed that the phrase “solicits another person to commit a felony” would not have reached solicitations in which the *172solicited act never came to fruition, and that the second clause was added for this purpose.

IV. CONCLUSION

This Court has never recognized the doctrine of impossibility. Moreover, we are unable to discern any legislative intent that the doctrine may be advanced as a defense to a charge of attempt under MCL 750.92. Accordingly, the circuit court erred in dismissing this charge on the basis that it was “legally impossible” for defendant to have committed the crime.

Furthermore, although we do not agree with the circuit court or the Court of Appeals that “legal impossibility” was properly invoked by defendant as a defense to the charge of solicitation, we nevertheless affirm the dismissal of this charge. There is no evidence that defendant solicited anyone “to commit a felony” or “to do or omit to do an act which if completed would constitute a felony.”

Accordingly, we reverse in part, affirm in part, and remand this matter to the circuit court for proceedings consistent with this opinion. We do not retain jurisdiction.

Corrigan, C.J., and Weaver and Markman, JJ., concurred with Young, J.

Kelly, J.

(concurring in part and dissenting in part). I respectfully disagree with the majority’s conclusion that the doctrine of “legal impossibility” has never been adopted in Michigan. There is ample evidence to the contrary in the case law of the state. Because “legal impossibility” is a viable defense, I *173would affirm the Court of Appeals decision affirming the circuit court’s dismissal of attempted distribution of obscene material to a minor. MCL 750.92, 722.675.

- I would also find that legal impossibility, while a viable defense to solicitation, is inapplicable to the charge of solicitation to commit third-degree criminal sexual conduct in this case. MCL 750.157b(3)(a), 750.520d(l)(a). I agree with the majority’s conclusion that there is no evidence that defendant solicited anyone to commit csc-m. Therefore, I would affirm the Court of Appeals decision affirming the circuit court’s dismissal of the solicitation charge, but on different grounds.

I. “LEGAL IMPOSSIBILITY” IN MICHIGAN

The majority errs in concluding that “legal impossibility” has never been adopted in Michigan. It focuses on language in Tinskey1 pertaining to “legal impossibility” as a defense to attempt, but ignores the reasoning of the decision. Viewing the forest as well as the trees, one observes that the reasoning and the conclusion of the Tinskey Court prove that it accepted the doctrine of “legal impossibility.”

Tinskey held that the defendants could not be guilty of conspiracy to commit abortion because the woman who was to be aborted was not pregnant. Tinskey, supra at 109. The Court reasoned that the Legislature, in enacting the statute, purposely required that conspiracy to abort involve a pregnant woman. It thereby rejected prosecutions where the woman was not pregnant. It concluded that the defen*174dants in Tinskey could not be prosecuted for conspiracy to commit abortion because one of the elements of the crime, a pregnant woman, could not be established.

Significantly, the Tinskey Court stated that “[t]he Legislature has not, as to most other offenses, so similarly indicated that impossibility is not a defense.” Id.2 By this language, Tinskey expressly recognized the existence of the “legal impossibility” defense in the common law of this state. Even though the reference to “legal impossibility” regarding the crime of attempt may be dictum, the later statement regarding the “impossibility” defense was part of the reasoning and conclusion in Tinskey. This Court recognized the defense, even if it did not do so expressly concerning charges for attempt or solicitation.

Moreover, Michigan common law3 is not limited to decisions from this Court. The majority should not ignore decisions from the Court of Appeals. That Court has accepted “legal impossibility” as a defense.

For example, in People v Ng, the Court of Appeals distinguished between “factual impossibility” and “legal impossibility” in rejecting a defendant’s argument that he was not guilty of attempted murder. 156 Mich App 779, 786; 402 NW2d 500 (1986). It found *175that factual impossibility is not a defense to a charge of attempted murder, but observed that legal impossibility is a defense, citing Tinskey. Similarly, in People v Cain, the court distinguished between “legal impossibility” and a defense based on a claim of right. 238 Mich App 95, 117-119; 605 NW2d 28 (1999). It implicitly read Tinskey as acknowledging the existence of the “legal impossibility” defense.4 Accordingly, in this case, the Court of Appeals correctly considered “legal impossibility” a viable defense.

H. INTERPRETATION OF THE ATTEMPT STATUTE

Even if “legal impossibility” were not part of Michigan’s common law, I would disagree with the majority’s interpretation of the attempt statute. It does not follow from the fact that the statute does not expressly incorporate the concept of impossibility that the defense is inapplicable.

Examination of the language of the attempt statute leads to a reasonable inference that the Legislature did not intend to punish conduct that a mistake of legal fact renders unprohibited. The attempt statute makes illegal an “. . . attempt to commit an offense prohibited by law . . . .” MCL 750.92 (emphasis added). It does not make illegal an action not prohibited by law. Hence, one may conclude, the impossibility of completing the underlying crime can provide a defense to attempt.

*176This reasoning is supported by the fact that the attempt statute codified the common-law rule regarding the elements of attempt. See People v Youngs, 122 Mich 292, 293; 81 NW 114 (1899); People v Webb, 127 Mich 29, 31-32; 86 NW 406 (1901). At common law, “legal impossibility” is a defense to attempt. United States v Hsu, 155 F3d 189, 199-200 (CA 3, 1998); Dressier, Understanding Criminal Law (2d ed), § 27.07[B], p 369; 21 Am Jur 2d, Criminal Law, § 178, p 254. Absent a statute expressly abrogating “legal impossibility,” this common-law rule continues to provide a viable defense. Bandfield v Bandfield, 117 Mich 80, 82; 75 NW 287 (1898), rev’d in part on other grounds Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971).5

This state’s attempt statute, unlike the Model Penal Code and various state statutes that follow it, does not contain language allowing for consideration of a defendant’s beliefs regarding “attendant circumstances.” Rather, it takes an “objective” view of criminality, focusing on whether the defendant actually came close to completing the prohibited act. 1 Robinson, Criminal Law Defenses, § 85(a), pp 423-424; § 85(b), p 426, n 22. The impossibility of completing the offense is relevant to this objective approach because impossibility obviates the state’s “concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.” Id. at 424.

*177The majority’s conclusion, that it is irrelevant whether it would be impossible to have committed the completed offense, contradicts the language used in the attempt statute. If an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act. The underlying offense in this case, disseminating or exhibiting sexual material to a minor, requires a minor recipient. Because the dissemination was not to a minor, it is legally impossible for defendant to have committed the prohibited act.

This Court should affirm the Court of Appeals decision, determining that it was legally impossible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor, MCL 750.92, 722.675.

m. THE SOLICITATION STATUTE

I further disagree with the majority’s conclusion that “legal impossibility” is not a recognized defense to a solicitation charge. As discussed above, the defense has been implicitly acknowledged in Michigan’s case law. The majority states that no authority supports the proposition that “legal impossibility” is a defense to solicitation in other jurisdictions. However, this fact is unremarkable in light of the rarity with which the defense is invoked. Moreover, “the impossibility issue can arise in all inchoate offenses,” including solicitation. Robinson, supra at § 85(f)(2), p 436.

The language of our solicitation statute demonstrates that an illegal solicitation must concern an act that would constitute a felony if completed. The stat*178ute states, “a person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows . . . MCL 750.157b(3).

“Legal impossibility” would be a defense if the defendant’s goal were illegal but the offense incomplete due to the defendant’s factual mistake concerning the legal status of a relevant circumstance. See Dressier, supra at § 27.07[D][3][a], p 373 (discussing “hybrid legal impossibility”). In this case, defendant was mistaken regarding the legal status of “Bekka,” whom he believed to be a female minor but who was actually a male adult.

However, defendant’s factual mistake is irrelevant in analyzing the charge of solicitation to commit third-degree criminal sexual conduct. Even if he had made his request to engage in sexual intercourse to a fourteen-year-old girl, defendant, not the girl, would have violated the csc-m statute. Therefore, I agree with the majority that defendant did not solicit “Bekka” to commit an act that constituted a felony within the meaning of the solicitation statute.

I note that this is the same conclusion reached by the Court of Appeals. See 241 Mich App 102, 111; 614 NW2d 674 (2000). That Court erred, however, in applying a “legal impossibility” analysis. It was not defendant’s mistake regarding the minority status of “Bekka” that is significant. Rather, an element of the solicitation charge is missing. “Legal impossibility” is, therefore, irrelevant under the facts of this case. The solicitation charge was properly dismissed because the prosecution could not prove all elements of the crime.

*179iv. conclusion

As judges, we often decide cases involving disturbing facts. However repugnant we personally find the criminal conduct charged, we must decide the issues on the basis of the law. I certainly do not wish to have child predators loose in society. However, I believe that neither the law nor society is served by allowing the end of removing them from society to excuse unjust means to accomplish it. In this case, defendant raised a legal impossibility argument that is supported by Michigan case law. The majority, in determining that legal impossibility is not a viable defense in this state, ignores that law.

In keeping with precedent and legal authority, I would affirm the Court of Appeals decision that it was legally impossible for defendant to commit the charged offense of attempted distribution of obscene material to a minor. Of course, if this view prevailed, defendant could still be prosecuted for his alleged misconduct. He is to be tried on the most serious of the charges, child sexually abusive activity, MCL 750.145c.

With regard to the solicitation charge, I disagree with the majority’s conclusion that “legal impossibility” is not a defense to solicitation. However, the defense does not apply under the facts of this case. Even if the facts had been as defendant believed, defendant did not solicit “Bekka” to commit csc-m. Hence, an essential element of the solicitation charge is missing. The charge was properly dismissed for that reason, not because of the availability of the “legal impossibility” defense.

Cavanagh, J., concurred with Kelly, J.

*180Taylor, J.

(concurring in part and dissenting in part). I agree with the majority’s recitation of the facts and its excellent analysis of why “hybrid legal impossibility” should not be recognized as a defense to a charge of attempt under MCL 750.92. Thus, I concur with parts i, n, m(A), and m(B) of the majority opinion.

However, I respectfully dissent from the majority’s analysis of the solicitation of third-degree criminal sexual conduct (csc-m) charge in part m(c). In my view, defendant may be charged with solicitation on the basis of the evidence that he solicited a person whom he believed to be a fourteen-year-old child to engage in an act of sexual penetration even though a child victim of such an act of csc-m would not be guilty of csc-m for “voluntarily” engaging in the act.

My difference with the majority is in its understanding of the solicitation statute, MCL 750.157b(3). That section provides in pertinent part:

[A] person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows: .... [Emphasis added.]

As to the first clause (“a person who solicits another person to commit a felony”), I agree with the majority that defendant cannot be considered to have asked “Bekka” to commit the felony of csc-m in violation of the solicitation statute because she cannot commit this felony by engaging in sex with an adult. If an adult and a child aged thirteen to fifteen engage in an act of “consensual” sexual penetration, only the *181adult would be committing the crime of csc-m.1 Thus, an adult who asks a fourteen-year-old child to engage in such an act cannot be considered to have asked the child to commit csc-m. That is, the solicitor has not breached the first clause in this section.

However, regarding the disjunctive clause that follows the first clause, i.e., “or who solicits another person to do or omit to do an act which if completed would constitute a felony,” this language is broader in scope than merely prohibiting a person from soliciting another person to commit a felony. I believe this language makes it unlawful to solicit another person to do an act that if the act were completed would be a felony. While this part of the statute surely is not as clear as it could be,2 we must use statutory construction rules to give it meaning. A primary rule is that we should avoid making the second clause a nullity by giving it the same meaning as the first clause.3 Using this tool, I conclude that the second clause means it is unlawful to solicit another person to join with the solicitor in doing an act that would constitute a fel*182ony whether the solicited party could be guilty of the felony or not.

This all means that the first clause requires that the solicited act would be a felony for which the solicitee could be charged. The second clause encompasses situations where the solicitee could not be charged with the felony, but the solicitor could be. This construction of the statute gives viability to both clauses of the section at issue and is, thus, in my view, not only preferable, but required.

The gist of the majority opinion, with regard to the solicitation issue, is that the second phrase, i.e., “or who solicits another person to do or omit to do an act which if completed would constitute a felony,” is merely clarifying language to make clear that the Legislature did not intend to require that the solicitee actually complete the solicited felony in order for the solicitor to have violated the statute. That is, the majority states that the second clause was “intended to make clear that the solicited offense does not have to be completed.” Ante at 170. Yet, the majority seems to acknowledge that the first clause is also violated by a solicitation to commit a felony even if the felony is never actually completed. This, then, makes the second clause a nullity. It is that outcome that disciplined readers of statutes should avoid.

Also, the majority indicates that my interpretation is contrary to the plain language of the statute because “it is the act of ‘another person’ that must, if completed, ‘constitute a felony.’ ” Ante at 170. I disagree because the majority’s view on this point fails to give meaning to the words “if completed.” If, as the majority argues, the conduct of the solicitee in itself must constitute a felony, then the language of the sec*183ond phrase has no different meaning than if it simply referred to “an act which . . . would constitute a felony.” The reason is that, if the statutory language read “or who solicits another person to do or omit to do an act which would constitute a felony,” then it might well be argued that the solicited person’s contemplated “act,” standing alone, must constitute a felony for the statute to be violated. However, the “if completed” language allows for the imposition of liability where completion of the solicited act by another person would necessarily constitute a felony.

I agree with the majority that the current language of the solicitation statute, MCL 750.157b, seems to be in large measure a reaction to this Court’s interpretation of the preceding statutory language at issue in People v Rehkopf, 422 Mich 198; 370 NW2d 296 (1985). However, that means only that the Legislature intended to include circumstances in which the solicited felony is never actually committed within the scope of the solicitation statute. Indeed, the language of the first clause proscribing a person from merely asking another person “to commit a felony” suffices, by its plain and unambiguous meaning, to accomplish that goal. That does not mean, however, that the Legislature might not have wanted to cover more situations inasmuch as it was acting to broaden the scope of the statute. Accordingly, the discussion of Rehkopf does not alter my view that, in keeping with the canon of construction against rendering statutory language nugatory or surplusage, the second clause must be taken as encompassing more than the first clause, standing alone, does.

Turning to the circumstances of the present case, there was evidence that defendant solicited “Bekka,” *184believing “her” to be a fourteen-year-old child, to engage in an act of sexual penetration with him. In other words, defendant solicited “Bekka” to engage with him in an act of sexual penetration between an adult and a fourteen-year-old child. Thus, defendant solicited “Bekka” to do an act that, “if completed” by the participation of defendant, would constitute the felony of csc-m on defendant’s part. Accordingly, I conclude that such a solicitation falls within the range of conduct in the solicitation statute’s prohibition of soliciting another person “to do ... an act which if completed would constitute a felony.” MCL 750.157b(3).

Of course, I recognize that because “Bekka” was actually Deputy William Liczbinski, an adult, the solicited person could not actually have committed the act envisioned by defendant. However, that is immaterial. There is nothing in the language of the pertinent part of the solicitation statute, MCL 750.157b(3), that requires that it be possible for the solicited person to carry out the conduct that is solicited in order for the statute to be violated. Thus, consistent with the majority opinion’s rejection of the “legal impossibility” defense, I conclude that it is immaterial that the deputy could not have carried out the solicited act.

Accordingly, I agree with the majority’s treatment of the attempted distribution of obscene material to a minor charge. However, I would also reverse the Court of Appeals with regard to the solicitation of csc-m charge, and would remand to the circuit court for trial on that charge.

Opinion by

Hoffman, J.,

Appellant contends that the Commonwealth’s evidence at trial was insufficient to sustain his conviction for an attempted prison breach.1

*579At the time of the alleged offense, appellant was serving a one- to three-years sentence for larceny in the Luzerne County Prison. At about 12:15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the alarm had been “tripped”. Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson that “I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences.” Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson’s version of the episode: “... in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more .... So I went back to the boiler room and continued working.”

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial on May 25, 1973, before a judge sitting without a jury and was found guilty of attempted prison *580breach. Thereafter, appellant filed motions in arrest of judgment and for a new trial. Motions were heard in October, 1973, and denied on June 10, 1974, by the Luzerne County Court of Common Pleas en banc. This appeal followed.

A criminal attempt is defined as “an overt act done in pursuance of an intent to do a specific thing, tending to the end by falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts.” Commonwealth v. Eagan, 190 Pa. 10, 21-22 (1899) (Emphasis added). Thus, we must locate the line between an act which is mere preparation and one that is sufficiently proximate to be labelled an attempt.

A review of the cases on the law of attempt indicates that “[i]t is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result.” 21 Am. Jur. 2d Criminal Law §111. “At what point does a potential criminal pass beyond preparation and become guilty of an attempt? Among the various tests suggested or applied are: the last act doctrine, holding that the defendant will not be guilty of an attempt until he does the last act necessary to the commission of a crime; Justice Holmes’ dangerous-proximity test which focusses on both the dangerousness of the crime and the nearness to which the defendant has come to accomplishing it; and the movie camera test, which disregards the defendant’s declarations of intent and instead focusses on the extent to which his acts demonstrate a specific intent or commitment to the criminal purpose.” White, The Inchoate Crimes Provisions of *581the New Pennsylvania Penal Code, 35 Pitt. L. Rev. 235, 237-38 (1973). Professor White suggests that the law in Pennsylvania approximates the last act doctrine, Id.

Commonwealth v. Willard, 179 Pa. Superior Ct. 368, 116 A. 2d 751 (1955), represents the broadest statement of what constitutes mere preparation. In Willard, this Court reversed the appellant’s conviction for attempt to perform an abortion. The Commonwealth proved that the appellant accepted $160 from a police undercover agent, told her to undress and to lie on a bed equipped for the operation, left the room momentarily and returned with surgical instruments. At that point, the police agent and her “paramour”, stationed in the next room, arrested the appellant. These acts were held not “sufficiently close or proximate to the completed crime so that it could be said that they were done in pursuance of the intent to commit the crime as distinguished from mere preparation to commit the crime.” 179 Pa. Superior Ct. at 371, 116 A.2d at 752-753.2

In Commonwealth v. Eagan, supra, a seminal case on the law of attempts, the Court noted that “. . . the acts of the prisoner in going to [the victim’s] place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sustained. But the moment a blow was struck on [the victim] the first step of the actual crime had been taken, and *582the intent was merged in the attempt. Subsequent abandonment might prevent the completion of the crime, but could not save from the consequences of acts done in the attempt.” 190 Pa. at 22.

We recently dealt with an attempted prison breach in Commonwealth v. Skipper, 222 Pa. Superior Ct. 242, 294 A. 2d 780 (1972). In Skipper, appellant approached a fellow prisoner and asked him to procure hacksaw blades to be used in an escape attempt. The fellow prisoner, Commonwealth’s witness at trial, worked in a bakery in a day release program and was to hide the blades in loaves of bread bound for the prison kitchen. Prison officials intercepted a note that the Commonwealth’s witness attempted to pass to a third prisoner, one Schaef-fer, who was to pay him for smuggling the blades into the prison. Subsequently, prison officials caught Schaeffer attempting to go over the prison wall. They found one of the smuggled blades on Schaeffer. A “shake-down” of the prison uncovered two additional blades in appellant’s cell. We reversed appellant’s conviction, noting that “discovery of the hacksaw blades in appellant’s cell did no more than interrupt appellant’s alleged plan in a preparatory stage. If the hacksaw blades were in fact procured by the appellant for use in an intended prison breach, appellant would have had sufficient time to withdraw before the commission of the offense.” 222 Pa. Superior Ct. at 245, 294 A. 2d at 781.

In the instant case, the evidence on the record indicates that appellant scaled a fence within the prison walls that led to the recreation yard and then to the prison wall. Appellant testified that “I went over the fence. I was in the yard.

“Q. Well, when you say you went over the fence, this is still in the prison?

“A. This is still in the prison, yes, sir. . .”

The Commonwealth’s evidence supports the appellant’s claim that he went only as far as the yard before giving *583up his plan to escape. Guard Szmulo testified that “We checked the trip wire. We couldn’t find nothing broke. And then when I got to the gate that goes into the recreation yard between center and left wing, I found one barbed wire was cut.” Thus appellant was still within the prison, still only contemplating a prison breach, and not yet attempting the act. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility.

Judgment of sentence is vacated and appellant ordered discharged on the conviction of attempted prison breach.

Watkins, P. J., and Jacobs and Spaeth, JJ., join in this opinion.

Van dee Voort, J., concurs in the result.

Concurring Opinion by

Cercone, J.:

I agree with the majority that appellant’s conviction for attempted prison breach should not be permitted to stand. However, I disagree with the basis for the majority’s conclusion, that the acts done by appellant prior to his decision to abandon his escape were insufficient to constitute an attempt. I would have found little difficulty, for instance, in affirming appellant’s conviction had he been apprehended by the guards immediately after he had snipped the barbed wire and crossed the inner fence. To hold otherwise is to require that prisoners must literally be plucked from the prison wall before their conduct may be characterized as attempted prison breach.

I respectfully suggest that the majority has fallen into a trap peculiarly common to the law of attempts. As Professor Perkins has stated in discussing when conduct ceases to be merely preparatory and becomes perpetration:

“The preparatory-perpetrating dichotomy is useful in discussing situations of a rather general nature, but the actual dividing line between the two is shadowy *584in the extreme. There is reason to believe that in close cases the decision is based wpon other considerations and that the label attached is that appropriate to the conclusion reached — after it is reached.” R. Perkins, Criminal Law 561 (2d ed. 1969). [Emphasis added.]

The “other consideration” which has influenced the majority herein is appellant’s voluntary abandonment of his escape plan. In my opinion, appellant’s abandonment of his plan is a sufficient defense to the crime of attempted prison breach and should be recognized as such.

As a practical matter, it has long been recognized that plans voluntarily abandoned are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators. Unfortunately, in jurisdictions where voluntary abandonment or renunciation of a criminal purpose has not been recognized as an affirmative defense, the courts have sought to give effect to the defendant’s abandonment, sub silentio, by characterizing his conduct as “preparatory.” See Model Penal Code §501, comment 19 at p. 70 (Tent. Draft No. 10, 1958). That is precisely the error which the majority has made in the instant case. The difficulty with this position is that, with regard to the preparation-perpetration dichotomy, it breeds results superficially inconsistent. If voluntary abandonment is to be given effect in attempt cases, it should not be done covertly.

For some time the trend in the law has been to recognize voluntary abandonment as an affirmative and complete defense to a charge of attempt, despite the exhortations to the contrary by some commentators.1 Id. And, in *585following this trend our legislature substantially adopted section 5.01 of the Model Penal Code in drafting the attempt provisions in our recently enacted Crimes Code.2 Our Code now recognizes that abandonment under circumstances indicating voluntariness, is a complete defense to a charge of attempt. Appellant, however, was charged under our old Penal Code which did not speak to whether voluntary abandonment was a defense to a charge of attempt.3

In one of the first cases ever decided by this court, we stated:

“In the case under consideration, Johanna Tadriek left her mother’s house, intending to steal the prosecutor’s money, entered the house of the prosecutor and seated herself on the bed where she knew the money was concealed. Nothing remained to be done save to insert her hand and secure the money. Each of the three acts mentioned was intended to be, and actually was, a step towards the consummation of her felonious purpose. Taken together and in connection with the uninterrupted intent existing in her mind, we are compelled to hold that they constituted an attempt at larceny which would have been punishable had she gone no further. If the offense of larceny were not completed, we must assume, from the evidence, that *586the failure was not owing to a change of purpose, which of course would leave her guiltless, but to extraneous circumstances, over which she had no control. An overt act is one which manifests an intention to commit the crime: Bouvier’s L.D. 267. It need not be the last proximate act prior to the consummation of the attempted crime, if the latter be a felony: Uhl v. Commonwealth, 6 Grattan, 706; 1 Bish. Crim. Law, sec. 764.” Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555, 566 (1896) [Emphasis added.]

It is clear that this court long ago perceived voluntary abandonment to be an affirmative defense to the crime of attempt; and, I have not been referred to any Pennsylvania authority which persuades me that this court’s implicit conclusion was then erroneous, nor any authority to indicate that this court’s observation in Tadrick has not withstood the test of time. On the contrary, as aforementioned, voluntary abandonment is now recognized in Pennsylvania as a statutory defense to an attempt charge.

Sound policy reasons also underlie the recognition of voluntary abandonment as an affirmative defense. As the drafters of the Model Penal Code have pointed out, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous; and, the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime. Model Penal Code §5.01, comment 19 at pp. 71-72 (Tent. Draft No. 10, 1958). See also Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Co-lum. L. Rev. 571, 617 (1961).4

*587Thus, I have concluded that the law in Pennsylvania recognized voluntary abandonment as an affirmative defense even prior to the adoption of the Crimes Code. In any event, the trend in the United States is so profoundly in favor of such a defense that we should have recognized its existence in the instant case even had the Crimes Code not been enacted. Furthermore, I think it would be erroneous to construe the attempts provision of the Crimes Code as somehow implying that the law was otherwise prior to the Code’s adoption. On the contrary, I think the adoption of that provision only fortifies the conclusion I have reached herein.

Therefore, I would not rest the decision of this case on the basis that appellant’s acts prior to renunciation of his criminal purpose were merely preparatory; for, as has my brother, Judge PRICE, I have concluded that appellant had clearly gone further than preparation. Rather, I would rest the instant decision on appellant’s unequivocal and undisputedly voluntary abandonment of his criminal purpose. Thus, I only concur in the result reached by the majority herein.

Spaeth, J., joins in this opinion.

Dissenting Opinion by

Price, J.:

I cannot agree with the majority’s conclusion that appellant’s acts were confined to preparation and contemplation, therefore, I must respectfully dissent.

The facts are fully set forth in the majority opinion and need not be repeated. The evidence is sufficient to establish that appellant went over a forbidden fence, albeit still within the physical confines of the prison, cut a piece of barbed wire and tripped the alarm system designed and equipped to alert the authorities to attempts *588at prison breach. Any one of these three acts "would, in my opinion, take appellant beyond preparation and contemplation. Accordingly, there is more than sufficient evidence to sustain appellant’s conviction.

I would affirm the judgment of sentence.

*85TOOKEY, J.

Defendant appeals a judgment convicting him of nine crimes, contending that the trial court erred in denying his motion for judgment of acquittal and entering convictions on four counts of attempted aggravated murder (Counts 1 through 4), three counts of attempted murder (Counts 5 through 7), and two counts of tampering with a witness (Counts 15 and 16).1 Defendant argues that the trial court erred in denying his motion for judgment of acquittal on those counts, because defendant did not take a substantial step toward the commission of each of those crimes, and thus cannot be guilty of attempt. For the reasons that follow, we affirm.

In reviewing a trial court’s denial of a defendant’s motion for judgment of acquittal, “[w]e view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).

Defendant was incarcerated pending prosecution on a burglary charge. Defendant became cellmates with another inmate, Crowley. Defendant told Crowley that defendant “wanted his witnesses [to his burglary case] to not show up to trial,” and that “he wanted people dead.” Specifically, defendant mentioned his father-in-law, brother-in-law, and the Wasco County District Attorney. Defendant asked Crowley whether Crowley knew of anyone who had killed a person before. Crowley responded, “Yeah, I have. I mean, I’ve been to prison. I mean, I know people that have killed people.” Defendant asked whether Crowley “could have somebody killed” and Crowley responded affirmatively. In fact, Crowley did not know of such a person. After hearing that Crowley “might know somebody that could *86do something,” defendant began “writing stuff,” including writing people’s names. Within hours, Crowley sent several inmate request forms to jail staff, asking to speak to detectives because “someone could get hurt.” Sergeant Birchfield visited Crowley, and Crowley told Birchfield what defendant had said.

When Crowley returned to his cell, defendant was writing a letter. According to Crowley, defendant “wrote out a couple letters, and he wanted to get it perfect. His detail about it had to be perfect.” When defendant finished writing the letter, he gave it to Crowley to read, then put the letter in an envelope, placed it underneath his mattress, and asked Crowley if he was a cop. The next morning, defendant gave Crowley the envelope. Defendant believed that Crowley would “put [the envelope in Crowley’s personal] property” and release it to someone outside the prison “so that a hit man could get it for [defendant] and take care of what he wanted [taken] care of.”2 The envelope contained a map of defendant’s father-in-law’s house and a letter stating:

“Dear stranger,

“I have a job for you. I need your help. There are three people I need taken care of. First one is my father-in-law. * * * Second is my brother-in-law. * * * The third is the D.A. (District Attorney). He is a piece of shit, and tears families apart. He is just as crooked as the cops in this town. * * * [My father-in-law] is leaving town October 15 for two [and a] half weeks. [Father-in-law] - Age 64 - address *** - health - bad - has had a [triple] bypass 15 years ago - takes handful of pills a day. (Dead) Net worth 150,000 to 200,000 dollars + life insurance policy. Not sure [of the] value.

“[Brother-in-law] - Age 36 - address - halfway house in Oregon or Washington/Life insurance 100,000 to 150,000. He is a recovering meth addict. Liked doing his meth through a [syringe]. (Dead)

“D.A. (District Attorney) - [first and last name] - Age 40s - (Dead) [Oregon State Bar Number].

*87“Witnesses in my and my wife’s Burg I case. I just want them threatened.

“1) [Witness’s name, address, telephone number, and date of birth]

“2) [Witness’s name, address, telephone number, and date of birth]

“There are three safes in the house. I want you to get the stuff out of the safe. You can hang on to the stuff in the safe until you are [paid]. * * *

“Stuff in safes: 1) guns 2) car titles/1968 Dodge Charger RT/value 150,000 easy 3) jewelry 4) life insurance 5) money.

“Final bill = 80.000 I will be paying you. [Father-in-law]- Natural death - heart attack. [Brother-in-law]- Drug OD. DA-Your choice.

“How I would like it to look.”

(Underscoring in original.) After giving Crowley the envelope with the letter, defendant repeatedly asked Crowley, “Are they coming yet? Are they coming yet? Is he going to do it yet? Why ain’t this done yet?”

Shortly thereafter, defendant and Crowley were placed in separate isolation cells across the hall from one another. Defendant and Crowley exchanged handwritten notes by using strings to fling cylinder-shaped papers into one another’s cells. Defendant wrote, “Any idea when dude is coming man? I decided I’m not going to let DA tear me and my family up.” Crowley responded, “I’ll give you his name [when] I get it then you can go to visit and give him the hit that way [you’re] face to face with the killer and he can talk to you and say what[’]s up.” Defendant wrote, “Ok that sounds good to me. Just got [to] let me know the day [and the] name so I can put the person on my visitors list.”

In another exchange, Crowley asked defendant whether defendant still wanted the district attorney killed even though the district attorney has a family. Defendant responded, “Hell yeah, I can deal with it. Remember toes *88pointing up to the clouds.” Crowley saved the notes that he received from defendant and gave them to jail staff.

Defendant was charged with four counts of attempted aggravated murder, three counts of attempted murder, four counts of solicitation of aggravated murder, three counts of solicitation of murder, and two counts of tampering with a witness. Defendant tried his case to the court. After the state rested, defendant moved for a judgment of acquittal as to the four counts of attempted aggravated murder, three counts of attempted murder, and two counts of tampering with a witness. Defendant argued that the state failed to present sufficient evidence that defendant engaged in conduct constituting a substantial step towards the commission of the charged crimes, as required by ORS 161.405. The trial court denied defendant’s motion for judgment of acquittal and found defendant guilty of the attempted aggravated murder, attempted murder, and tampering with a witness counts. As to the solicitation counts, the trial court found defendant guilty of attempted solicitation.

On appeal, defendant contends that the trial court erred by denying his motion for judgment of acquittal on the counts of attempted aggravated murder, attempted murder, and tampering with a witness. Defendant renews his argument that he did not take a substantial step toward the commission of the crimes of aggravated murder, murder, and tampering with a witness. According to defendant, he “did not meet with a purported ‘hit man,’ he did not engage in detailed planning, and he did not pay money or arrange to pay money,” and therefore his conduct was insufficient to satisfy the substantial step element of his attempt convictions and his convictions for tampering with a witness.3 Defendant contends that “ [h] is desire to meet with someone to make a plan is not a plan in itself, much less a substantial step toward the commission of the objective.” In response, the state argues that defendant’s conduct was “more than enough to amount to a substantial step.”

*89As noted above, our task is to determine “whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” Hall, 327 Or at 570. We begin with the text of ORS 161.405(1), which provides that “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” In State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209 (1991), the Supreme Court observed that “ORS 161.405 codifies the Model Penal Code’s ‘substantial step’ test for distinguishing acts of preparation from an attempt.” (Footnote omitted.)

To constitute a substantial step, a “defendant’s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose.” Id. “Under that standard, an attempt *** must be established by conduct that is corroborative of the actor’s criminal purpose.” State v. Carlton, 361 Or 29, 45, 388 P3d 1093 (2017). “[T]he same conduct may constitute a substantial step toward the commission of more than one charged crime, as long as that conduct strongly corroborates the actor’s criminal purpose underlying each charged crime.” Walters, 311 Or at 86 n 9. There is no special rule regarding whether a solicitation is also an attempt: “[U]nder Oregon law, ‘[s]olicitation *** qualifies as a “substantial step” if, under the facts, the defendant’s actions exceed mere preparation, advance the criminal purpose charged, and provide some verification of the existence of that purpose.’” State v. Badillo, 260 Or App 218, 223, 317 P3d 315 (2013) (quoting State v. Johnson, 202 Or App 478, 489, 123 P3d 304 (2005), rev den, 340 Or 158 (2006) (second brackets in Badillo)).

Viewing the evidence in the light most favorable to the state, we conclude that a reasonable factfinder could determine that defendant’s conduct constituted a substantial step toward the commission of the murders of his father-in-law, brother-in-law, and the Wasco County District Attorney. As recounted above, defendant told Crowley that he “wanted people dead,” specifically mentioning his father-in-law, brother-in-law, and the Wasco County District Attorney. *90Defendant then asked Crowley whether Crowley “could have somebody killed.” When Crowley answered in the affirmative, defendant carefully composed a letter to an unknown “hit man” that set out the details of his intended murders. Then, defendant gave the letter to Crowley for the purpose of delivering it to the purported hit man. Finally, defendant inquired of Crowley why the murders were not “done yet.” As the trial court explained,

“With regard to advancing the purpose, it’s very clear from the content of the letter that the Defendant gave great consideration to the details of the offenses. And had he just sat around and thought about that, * * * we’d have no offense here. But he did the next step of writing it all down. And then he went beyond that, delivering it to a third person with the intent that it be carried out, believing that that third person had a relationship with individuals that could carry it out. And he actively inquired about the progress of the events related to his letter.”

Defendant’s contention that his “desire to meet with someone to make a plan is not a plan in itself,” mischar-acterizes the evidence. Indeed, viewed in the light most favorable to the state, the evidence shows that defendant advanced his criminal purpose by seeking out a hit man, and writing and delivering the letter to Crowley, with the intention that Crowley deliver the letter to the hit man; as a result, defendant believed that the letter alone would result in the murders of his father-in-law, brother-in-law, and the district attorney. As the trial court noted, defendant’s letter provided detail with regards to whom he wanted killed, how be wanted them killed, and how the hit man would be compensated, and after delivering the letter to Crowley, defendant repeatedly asked why the murders had not taken place. To explain why the murders were not committed promptly, Crowley later told defendant that the hit man would visit defendant to finalize the details of the murders. Before that point, however, a trier of fact could find that defendant believed that the letter alone would cause the hit man to commit the murders; indeed, defendant’s actions exceeded mere preparation because defendant had done all that he could have done under the circumstances to cause the murders of his intended victims. See State v. Taylor, 47 Or 455, *91459, 84 P 82 (1906) (holding that the defendant’s actions exceeded mere preparation for purposes of attempt where “he had * * * done all that he was expected to do, and his felonious design and action was then just as complete as if the crime had been consummated” and that “failure to commit the crime was not due to any act of [the defendant], but to the insufficiency of the agencies employed for carrying out his criminal design”). Thus, defendant’s actions advanced his criminal purpose in having his father-in-law, brother-in-law, and the district attorney murdered. Moreover, a reasonable factfinder could also conclude that that same evidence of defendant’s conduct verified his criminal purpose. In that way, defendant’s conduct was corroborative of his criminal purpose.

The facts in this case are similar to the circumstances in Johnson. In that case, the defendant solicited a woman he met in a public Internet chat room to kill his wife and daughter. 202 Or App at 481. The defendant reaffirmed his desire during “at least one” telephone conversation with the woman. Id. at 482. The defendant “described his house plan and mentioned that the sliding glass doorway to his wife’s bedroom was not lockable. Further, he stated that it would be easy to continue down a hallway to shoot his daughter.” Id. “A quid pro quo was discussed; once the plan was completed, [the] defendant stated, [the woman] would ‘never want for anything.’” Id. Ultimately, the woman informed the police of the defendant’s conversation with her, and the defendant was convicted of various counts of attempted aggravated murder, attempted murder, solicitation to commit murder, and solicitation to commit aggravated murder. Id. at 482-83. On appeal, we concluded that the defendant’s conduct constituted a “substantial step” for the purposes of proving attempt because “ample evidence would permit a finding that [the] defendant solicited [the woman] to kill his wife and daughter. That solicitation, it could be concluded, served to advance defendant’s criminal purpose—murdering his wife and daughter.” Id. at 489.

Here, defendant’s conduct was similar to the defendant’s conduct in Johnson. It is immaterial that, there, the defendant successfully solicited the woman to kill his wife *92and daughter, whereas here, defendant’s attempt to solicit the hit man failed because the hit man did not exist. As defendant concedes, for purposes of attempt, it is not necessary that conduct constituting a substantial step actually be capable of causing the crime. See ORS 161.425 (“In a prosecution for an attempt, it is no defense that it was impossible to commit the crime which was the object of the attempt where the conduct engaged in by the actor would be a crime if the circumstances were as the actor believed them to be.”)4 Accordingly, the trial court did not err in concluding that defendant took a substantial step toward the crimes of attempted aggravated murder and attempted murder.

Similarly, as to the two counts of witness tampering, a reasonable factfinder could conclude that defendant’s conduct constituted a substantial step toward the commission of tampering with the witnesses to his burglary case. Defendant initially told Crowley that he “wanted his witnesses [to his burglary case] to not show up to trial.” In his letter to the hit man, defendant wrote that he wanted the two witnesses threatened. Following his instruction to threaten the witnesses, defendant included both of the witness’s names, addresses, telephone numbers, and dates of birth. As previously mentioned, the letter also contained information on how the hit man would be paid with the personal property stolen from defendant’s father-in-law’s home. A reasonable factfinder could conclude that defendant’s conduct in instructing the purported hit man to threaten the two witnesses, with the inclusion of specific identifying information about each of the witnesses, and a method of payment, both advanced and provided verification of his criminal purpose; in that way, defendant’s conduct was corroborative of his criminal purpose. Thus, the trial court did not err in concluding that defendant took a substantial step *93toward inducing the witnesses to offer false testimony or withhold testimony.

Accordingly, because a reasonable factfinder could conclude that defendant’s conduct constituted a substantial step toward the commission of aggravated murder, murder, and tampering with a witness, the trial court did not err in denying defendant’s motion for judgment of acquittal.

Affirmed.

SERCOMBE, P. J.,

concurring.

ORS 161.405(1) provides that “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” To constitute a “substantial step” toward the commission of a crime, “ah act must be strongly corroborative of the actor’s criminal purpose; that is, the actor’s conduct must (1) advance the criminal purpose charged; and (2) provide verification of the existence of that purpose.” State v. Carlton, 361 Or 29, 45, 388 P3d 1093 (2017). I agree with the majority that, under our case law, defendant’s actions in instructing a hypothetical hit man on the details of the crimes and the amount of compensation to be paid for commission of the crimes and delivering those instructions to a courier were a substantial step toward the commission of those crimes. See State v. Johnson, 202 Or App 478, 487-89, 123 P3d 304 (2005), rev den, 340 Or 158 (2006) (solicitation of crime as a substantial step); State v. Taylor, 47 Or 455, 459, 84 P 82 (1906) (mere preparation exceeded .when defendant had “done all that he was expected to do”).

I question whether this decision and our case law have pushed the substantial step line too far into the territory of conduct that is merely preparatory in nature. Even if actual solicitation of a crime can be a substantial step, how is an attempted solicitation equally substantial? It seems to me that conduct that advances a criminal purpose is conduct that makes the crimes more likely to occur. Defendant’s delivery of the letter to his cellmate did not make the crimes any more likely, even though the delivery corroborates defendant’s intent to commit the crimes.

*94The test that a defendant has “done all that he was expected to do” in determining whether a substantial step has been taken, while suggested by our precedents, should be re-examined and discarded, and the meaning of “advancing the criminal purpose charged” should be clarified.

MARTIN, Justice.

The primary issue raised on this appeal is one of first impression: whether solicitation to commit common law robbery is an infamous crime. We hold that it is and therefore reverse the decision of the Court of Appeals as to this issue.

At trial, the state’s evidence showed that Penelope Dawkins, the fiancee of Richard Lockamy, lived with Lockamy in a Mebane trailer park which was managed by codefendant Keith Barts. In September 1983, while visiting Lockamy’s sister, Penelope and Lockamy met defendant, Charlie Mann. Thereafter, Penelope and Lockamy would, about two to three times a week, help Mann with his sawmill, straighten up his yard, and clean his house. At some *166point, Mann told Lockamy that he knew Lockamy had a criminal record and that Lockamy and Penelope needed money. Penelope testified that Mann told them that he knew an elderly man in Snow Camp who carried large sums of money in his bib overalls and that “[h]e would be an easy man to rob. It would take two men to rob the man. The best thing to do would be to go to a shed and wait for him to come home and after he got out of his truck, rob him from there.” Lockamy told Mann he would think about it. Penelope testified that thereafter the subject came up three or four times a week. Mann would ask Lockamy if he had thought about it, and Lockamy would respond that he had, but that “he hadn’t done anything about it. And, Mr. Mann kept telling him that if he didn’t do it himself, . . . that he would find somebody else to do it or he would do it.” About a week later, Mann picked up Lockamy at his trailer one morning in order to show him where the intended victim, Richard Braxton, lived.

Sometime later, it was discovered that Mann knew Keith Barts. About a week later, Barts told Penelope and Lockamy that he had known Mann for several years and that Mann “had set him up on three jobs,” and he told Penelope and Lockamy “of the jobs he pulled off.” Barts also said “[t]hat the set-up, the job in the country sounded like a good lick.” Then, one Monday night approximately two weeks before Braxton was killed, Lockamy, Barts, and John David “Fireball” Holmes rode to Braxton’s home planning to rob the old man. Their plan was thwarted when they saw Braxton’s son or grandson was with him.

On 20 November 1983, Barts arrived at Penelope’s trailer. He told Lockamy, “I did that job last night. . . . The job in the country, but I think I killed the man.” Barts went on to say that he had gone to the old man’s house, hidden in the shed, and waited for him to come home. When the old man arrived home, Barts jumped him and began beating him. Barts said, “I beat the old . . . until I got plumb tired of beating him. ... I beat him until he quit moving. The whole time the old man screamed, ‘Oh, God, you’re gonna kill me.’ ” Barts said that the old man was strong and that when he “bucked” on him and hit Barts in the back with something, Barts got mad. Barts then said that the only way to know if he had actually killed the man would be to read about it in the newspaper.

*167In exchange for his testimony for the state, as well as for his guilty pleas to conspiracy to commit robbery and armed robbery, all other charges against Richard Lockamy were dismissed. Lockamy substantially corroborated Penelope’s testimony, saying that Mann had told him he probably could tie Braxton up with a rope and wouldn’t have to use any weapons to get the money. Mann also told Lockamy what he considered to be “the best way to do the job.” Lockamy testified that Mann “was very persistent about someone doing the job.” Mann was “interested in some of the merchandise out of [Braxton’s] home or either a thousand dollars.” Mann said Braxton often carried with him $10,000 to $15,000 at a time. Mann also told Lockamy he had previously set up a burglary job for Keith Barts, who went on to actually commit that burglary. After the robbery and killing of Braxton, Barts told Lockamy that he had broken into Braxton’s house “and messed it up quite a bit” and that he had also broken into the tool shed. Barts admitted he’d beat Braxton with a hammer and “some type of tool.”

“Fireball” Holmes testified that on 19 November 1983, he drove Earl and Keith Barts to Braxton’s house, arriving there at about 8:00 p.m. When they left the car, Keith had a baseball bat and a crowbar, and Earl had Holmes’ .25-caliber automatic pistol and a rubber hubcap hammer. Holmes drove the car to a bridge some distance away and waited. About thirty minutes later, Holmes drove into Braxton’s driveway and encountered Earl, who was carrying the baseball bat, a .22-caliber revolver which they had found in Braxton’s house, and some brass knuckles. Braxton had not yet come home, so Holmes returned in the car to the bridge. About one and a half to two hours later, Keith and Earl came barrelling down the road in Braxton’s pickup truck. Keith said they had had to beat the old man. After arriving at Earl’s trailer, the three men split up the money, each taking approximately $1,000.

Written statements given by Keith Barts, Penelope Dawkins, and Richard Lockamy to SBI agent Terry Johnson, substantially corroborating the trial testimony of Dawkins, Lockamy, and Holmes, were read into evidence. However, Keith’s statement indicated that Earl Barts, not he, had killed Mr. Braxton.

*168The assistant chief medical examiner testified that he performed an autopsy on the body of seventy-four-year-old Richard Braxton. Dr. Anthony testified that Braxton had at least six large open cuts on his left forehead which all ran together; both eyes were blackened; there were bruises on his face and chest; defensive wounds were present on his right hand; numerous other small cuts and abrasions were present, and bruises on the body “were so numerous we didn’t actually count or quantitate them.” Dr. Anthony said that the blows to the outside of the scalp broke skull bones, fragments of which had been driven into the brain, and in his opinion, Braxton died as a result of blunt trauma to the head. Dr. Anthony also testified that death was not instantaneous and that Braxton probably lived “for a period of time” after the blows were struck.

Defendant took the stand at trial and denied ever having asked either Penelope Dawkins or Richard Lockamy to rob Mr. Braxton. He said that he had known Richard Braxton all his life, that Braxton was his friend, and that Braxton’s name had been mentioned in conversations with Lockamy and Penelope only because the couple desperately needed money and Lockamy had asked Mann’s sister about the possibility of his doing some painting for Mr. Braxton.

Defendant offered the testimony of several witnesses who testified as to his good character. He also offered the testimony of Hasan Abdus Sabr, one of Lockamy’s former cellmates, to the effect that Lockamy and Penelope, not defendant, had originated the plan to rob Richard Braxton and that Lockamy had told him that Charlie Mann did not know anything about robbing Braxton. Sabr later shared a cell with defendant for a day and a half, but said he had no conversation with Mann about what Lockamy had said.

The jury returned verdicts of guilty of soliciting Richard Lockamy to commit common law robbery of Richard Braxton, not guilty of solicitation of Penelope Dawkins to commit common law robbery, not guilty of conspiracy to commit robbery with a dangerous weapon, and not guilty of feloniously conspiring with Richard Lockamy to commit robbery with a dangerous weapon or common law robbery of Richard Braxton. Defendant was sen*169tenced to imprisonment for seven years for conviction of a Class H felony under N.C.G.S. § 14-3(b).

Defendant appealed to the Court of Appeals, which found no error in defendant’s trial but remanded the case for resentencing of defendant as a misdemeanant. We granted the State of North Carolina’s petition for discretionary review.

I.

[1] It is well established that solicitation of another to commit a felony is a crime in North Carolina. State v. Furr, 292 N.C. 711, 235 S.E. 2d 193, cert. denied, 434 U.S. 924 (1977); State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936). This is true even though the solicitation is of no effect and the crime solicited is never committed. Id. It has been recognized at common law since at least Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269 (1801) (solicitation to commit sodomy). It is an indictable offense under the common law of North Carolina. N.C.G.S. § 4-1 (1981). There is no question that common law robbery is a felony, State v. Smith, 305 N.C. 691, 292 S.E. 2d 264, cert. denied, 459 U.S. 1056 (1982); State v. Black, 286 N.C. 191, 209 S.E. 2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E. 2d 869 (1965); nor is there any doubt that common law robbery itself is an infamous crime, State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956); Arnold v. United States, 94 F. 2d 499, 506 (10th Cir. 1938); Stephens v. Toomey, 51 Cal. 2d 864, 338 P. 2d 182 (1959); Cousins v. State, 230 Md. 2, 185 A. 2d 488 (1962), as is an attempt to commit the felony of common law robbery, State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853; State v. Best, 11 N.C. App. 286, 181 S.E. 2d 138, cert. denied, 279 N.C. 350 (1971). In order to determine whether defendant in this case is to be punished as a misdemeanant or as a felon, we must now decide whether solicitation of another to commit common law robbery is an infamous crime within the meaning of N.C.G.S. § 14-3.1

N.C.G.S. § 14-3, entitled “Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice or with deceit and intent to defraud,” provides, in pertinent part:

(b) If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and *170malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.

N.C.G.S. § 14-3(b) (1981).

N.C.G.S. § 14-3 has remained basically unchanged since 1927. This Court held, in determining that an attempt to commit burglary was punishable under the statute, that if the crime was “infamous,” or is one “done in secrecy and malice,” or is committed “with deceit and intent to defraud,” falling into any one of these categories, it is a felony under N.C.G.S. § 14-3 and punishable as prescribed therein. State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949). Thus, if solicitation to commit the crime 9f common law robbery falls into either of the three categories set out in N.C.G.S. § 14-3, it is punishable under it.

A crime is “infamous” within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duties and a mind fatally bent on mischief, Surles, 230 N.C. at 277, 52 S.E. 2d at 883. Other courts, using a similar test, look to the crime to determine whether it “shows such depravity in the perpetrator ... as to create a violent presumption against his truthfulness under oath.” King v. State, 17 Fla. 183, 185-86 (1879); see Sylvester v. State, 71 Ala. 17 (1881) (citing 1 Bishop on Criminal Law § 974 (1923)); Smith v. State, 129 Ala. 89, 29 So. 699 (1900). As the court stated in Grievance Committee v. Broder, 112 Conn. 269, 275, 152 A. 292, 294 (1930):

In Drazen v. New Haven Taxicab Co., 95 Conn. 500, 506, 508, 111 Atl. 861, we define infamous crimes to be those “whose commission involves an inherent baseness and which are in conflict with those moral attributes upon which the relations of life are based. . . . They are said to be those which involve moral turpitude. ... It [the infamous crime] includes anything done contrary to justice, honest, modesty, or good morals. . . .

We define this term again in Kurtz v. Farrington, 104 Conn. 257, at page 262, 132 Atl. 540: “Generally speaking . . . moral turpitude involves an act of inherent baseness in the private, social, or public duties which one owes to his fellowmen or to society, or to his country, her institutions and her government.”

*171Which offenses are considered infamous are affected by changes in public opinion from one age to another, Mackin v. United States, 117 U.S. 348, 29 L.Ed. 909 (1886); Ex parte Wilson, 114 U.S. 417, 29 L.Ed. 89 (1885); State v. Surles, 230 N.C. 272, 52 S.E. 2d 880, and the totality of circumstances must be examined in each case before a determination can be made that a specific crime is “infamous.” Accord State ex rel. Wier v. Peterson, 369 A. 2d 1076, 1079 (Del. 1976). Further, “[i]n determining whether an offense is ‘infamous,’ state courts exercise independent judgment and are not bound by decisions of federal courts as to nature of crimes against federal government.” United States v. Carrollo, 30 F. Supp. 3, 6 (D. Mo. 1939).

In determining whether the offense for which defendant was convicted in this case is infamous, we must, then, look to the nature of the offense being solicited. Our courts in prior cases have followed this analysis and concluded that solicitation to murder is an infamous crime, State v. Furr, 292 N.C. 711, 235 S.E. 2d 193; see United States v. MacCloskey, 682 F. 2d 468 (4th Cir. 1982), and that solicitation to commit perjury is an infamous offense, State v. Huff, 56 N.C. App. 721, 289 S.E. 2d 604, disc. rev. denied, 306 N.C. 389 (1982). The Court of Appeals has held, at the other end of the spectrum, that solicitation to commit crime against nature is not infamous. State v. Tyner, 50 N.C. App. 206, 272 S.E. 2d 626 (1980), disc. rev. denied, 302 N.C. 633 (1981). Solicitation to commit common law robbery lies somewhere between these opposite poles.

Solicitation involves the asking, enticing, inducing, or counselling of another to commit a crime. State v. Furr, 292 N.C. 711, 235 S.E. 2d 193. The solicitor conceives the criminal idea and furthers its commission via another person by suggesting to, inducing, or manipulating that person. As noted by Wechsler, Jones, and Korn in The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 621-22 (1961), “the solicitor, working his will through one or more agents, manifests an approach to crime more intelligent and masterful than the efforts of his hireling,” and a solicitation, “an attempt to conspire,” may well be more dangerous than an attempt. Indeed, a solicitor may be more dangerous than a conspirator; a conspirator may merely passively agree to a criminal scheme, while the solicitor *172plans, schemes, suggests, encourages, and incites the solicitation. Further, the solicitor is morally more culpable than a conspirator; he keeps himself from being at risk, hiding behind the actor, as occurred in this case.

Common law robbery, the solicitation of which defendant here was convicted, is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Black, 286 N.C. 191, 209 S.E. 2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E. 2d 869 (1965); State v. Stewart, 255 N.C. 571, 122 S.E. 2d 355 (1961). It is a crime against the person, effectuated by violence or intimidation. State v. Rivens, 299 N.C. 385, 261 S.E. 2d 867 (1980); State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966). Where a defendant has counselled, enticed, or induced another to commit as degrading an offense as theft from the person or presence of a victim by force or violence by putting him in fear, he has committed an act of depravity and a crime involving moral turpitude and has demonstrated that he has a mind fatally bent on mischief and a heart devoid of social duties. It is an infamous crime within the meaning of N.C.G.S. § 14-3 and defendant should be subject to punishment as a felon instead of as a misdemeanant.

We therefore hold that solicitation to commit common law robbery is an infamous crime within the meaning of N.C.G.S. § 14-3. Our extensive research of case and statutory law throughout the nation has revealed no result to the contrary.

II.

[2] Defendant next assigns as error certain of the trial court’s actions and statements to the jury during deliberations, alleging that the trial court coerced a verdict in defendant’s case.

Defendant’s trial lasted twenty-one days; the trial transcript totals 3,236 pages. On 21 May 1984, the trial judge gave his charge to the jury and told the jurors:

I instruct you that a verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote. You will have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.

*173Each of you must decide the cases for yourselves, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to re-examine your own views and change your opinion if it is erroneous, but none of you should surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

The jury then retired to the jury room but not to deliberate. After hearing arguments of counsel, the trial judge called the jury back in, gave it further instructions, and sent the jurors to lunch at 12:30 p.m. At 2:00 p.m., court reconvened and the trial judge sent the jury to the jury room at 2:05 to begin deliberations. At 2:30, the jury sent a request for additional instructions as to the elements of each charge and “the steps necessary for conviction of each charge.” The judge so instructed, the jury again retired at 2:55, and defendant renewed his objection to the charge of felonious conspiracy to commit common law robbery. The jury deliberated until 5:02 p.m., and the court recessed for the evening. At 9:35 a.m. on 22 May, the jury resumed deliberations. Court went into recess at 5:31 p.m., at which time the jurors had not reached a verdict as to all charges. On 23 May, the jury continued its deliberations, beginning at 9:35 a.m. At 10:38 a.m., the jury told the trial court it had reached a unanimous verdict on all but the charge of soliciting Richard Lockamy to commit robbery, and the trial judge thereupon instructed the jury:

With respect to that case, your foreman informs me that you have so far been unable to agree upon a verdict. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women and to reconcile your difference if you can, without the surrender of conscientious convictions, but no juror should surrender his or her conscientious conviction as to the weight or effect of the evidence, solely because of the opinion of his fellow juror, or for the mere purpose of returning a verdict.

A verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote. You all have a duty to con-*174suit with one another and to deliberate with a duty to reaching an agreement if it can be done without violence to individual judgment.

Each of you must decide the case for yourselves, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to re-examine your own view and change your opinion if it is erroneous, but none of you should surrender your honest convictions to the weight or effect of the evidence, solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

At this time I’ll let you resume your deliberations and see if you can reach a verdict in that case that the foreman has mentioned to me.

At 11:16, the jury asked the trial judge to again “define the elements needed with respect to solicitation and the definition of intent with respect to that file number.” The trial judge complied with its request. The jury resumed its deliberations at 11:40 a.m. At 12:35 p.m., the jury returned to the courtroom before its lunch recess. At that time, it sent a note to the trial judge saying: “The jury is unable to reach a unanimous verdict with respect to file number 84-CRS-4858 only.” The trial judge thereupon asked, “Without telling me how you are voting in that file number, can you tell me the numerical split for the jury?” The jury foreman replied that the last vote was eight-to-four, and the trial judge sent the jury to lunch. When the jurors returned at 2:00, the trial judge asked them to go back into the jury room “and discuss the evidence in this case once again and deliberate and to see if you can reach a verdict as to this particular case.” The jury went to resume deliberations at 2:03 and returned at 3:00 with a verdict. The jury submitted the ten verdict sheets, and each and every juror raised his or her right hand to confirm agreement with the trial judge’s reiteration of the verdicts in each case. Following this procedure, the defense attorney asked the trial judge to poll the jury on the solicitation of Lockamy to commit robbery charge, and the jury was polled. Each juror affirmed his or her assent to the guilty verdict.

Defendant contends that the trial court coerced the jury by, among other things, requesting that it resume its deliberations at *1752:00 on 23 May without once more instructing the jurors at the time of his request that none of them had to give up their convictions in reaching a verdict. “[T]he actions and statements of the trial court, when viewed within the totality of the circumstances,” defendant alleges, “were such that a reasonable juror could not help but feel required to surrender his individual convictions in order to reach a unanimous verdict.” Defendant argues that the trial court’s inquiring as to the numerical split and sending the jurors back for further deliberations without reinstructing them not to abandon their convictions “might easily have been construed as a refusal, on the court’s part, to accept anything less then [sic] a unanimous verdict.” This, defendant maintains, violated the well-settled prohibition against a trial judge’s coercing a jury into reaching a verdict. State v. Lipfird, 302 N.C. 391, 276 S.E. 2d 161 (1981); State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978); State v. Roberts, 270 N.C. 449, 154 S.E. 2d 536 (1967). We disagree.

When the jury first informed the court it had reached unanimous verdicts on all but one charge but had not reached a verdict in case number 84-CVS-4858, the trial court instructed the jury in accordance with N.C.G.S. § 15A-1235(b). N.C.G.S. § 15A-1235(b) provides:

(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:

(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

*176Defendant concedes that the trial judge’s instructions complied with the statute. Further, the trial court did not coerce a verdict by his inquiry as to the jury’s division. The making of such inquiry lies within the sound discretion of the trial judge. State v. Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980); State v. Jeffries, 57 N.C. App. 416, 291 S.E. 2d 859, cert. denied & appeal dismissed, 306 N.C. 561 (1982); see generally Annot. Dissenting Jurors — Instructions, 97 A.L.R. 3d 96 (1980 & Supp. 1985). We find no abuse of that discretion. Our consideration of all the circumstances in this case surrounding the trial judge’s instructions reveals no reasonable ground to believe that the jury was misled, and we do not perceive a reasonable probability that the trial judge’s actions or statements changed the result of the trial. State v. Alston, 294 N.C. 577, 243 S.E. 2d 354. The trial court’s charge to the jury on the matter of further deliberations was proper under the circumstances and without prejudice to defendant. Accordingly, this assignment of error is overruled.

[3] Last, defendant assigns as error the trial court’s finding as a factor in aggravation that defendant set a course of criminal conduct in motion by his own actions which ultimately resulted in other crimes.

At the close of all the evidence, the trial court dismissed the charges against defendant of murder in the first degree, burglary in the second degree, felonious breaking or entering, and robbery with a dangerous weapon. The jury returned verdicts of not guilty of the solicitation of Penelope Dawkins to commit common law robbery and of conspiracy to commit armed robbery. At defendant’s sentencing hearing on the convictions of soliciting Lockamy to commit common law robbery, the trial judge found as a nonstatutory factor in aggravation of punishment that

[t]he defendant set a course of criminal conduct in motion by his own actions which ultimately resulted in the robbery with a dangerous weapon and death of Richard Braxton and the second degree burglary of his dwelling, the felonious breaking or entering of his storage shed, the felonious larceny of his truck and the taking of a large amount of cash money from his person.

Defendant contends that because all of the offenses for which this factor purports to hold defendant responsible were dismissed or *177resulted in acquittals, the factor is not reasonably related to sentencing under N.C.G.S. § 15A-1340. State v. Medlin, 62 N.C. App. 251, 302 S.E. 2d 483 (1983). He further argues that the finding of the factor was not supported by a preponderance of the evidence and violated the prohibition of N.C.G.S. § 15A-1340.4 (a)(l)(o). This statute proscribes as an aggravating factor the use of convictions for offenses joinable under Chapter 15A of the General Statutes of North Carolina with the crime for which a defendant is being sentenced. State v. Lattimore, 310 N.C. 295, 311 S.E. 2d 876 (1984).

A preponderance of the evidence is sufficient to prove an aggravating factor supporting a sentence in excess of the presumptive term. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983); State v. Robinson, 73 N.C. App. 238, 326 S.E. 2d 86 (1985). Here, both Richard Lockamy and Penelope Dawkins testified that defendant formed the original idea to rob Richard Braxton, that he masterminded the plan, and that he counselled and enticed others to rob Mr. Braxton. Defendant thereby set in motion a course of criminal conduct that resulted in the crimes of murder, burglary in the second degree, felonious breaking or entering, and felonious larceny of a truck. This evidence was properly considered by the trial court during sentencing and was sufficient to establish by a preponderance of the evidence that defendant set this course of criminal conduct into motion by his own actions.

Lattimore is inapposite because that case involved the aggravation of the defendant’s sentence based on a joinable offense for which the defendant had been convicted. Here, the court properly considered evidence in support of an aggravating circumstance which supported crimes of which defendant was charged and tried but which were dismissed. State v. Abee, 308 N.C. 379, 302 S.E. 2d 230 (1983). This assignment of error is overruled.

We find no error in defendant’s trial or sentence. Accordingly, that part of the decision of the Court of Appeals finding no error in the trial of this case is affirmed; the order of remand to the superior court for resentencing of defendant as a misdemeanant is reversed.

Affirmed in part; reversed in part.

*178Justice Billings

concurring.

Because of a long line of cases since this Court’s decision in State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) and the failure of the General Assembly to amend or repeal N.C.G.S. § 14-3, I feel compelled to concur in the Court’s interpretation of the term “infamous crime” as used in N.C.G.S. § 14-3. However, for all of the reasons expressed by Justice Ervin in his dissenting opinion in Surles, I believe that the interpretation given to that term by the majority in Surles was contrary to the meaning of infamous crime at the time of the original enactment of the statute and that the common law definition was intended. At common law, infamous crimes constituted a fairly clearly-identified group of offenses.

As construed, however, the statute allows the Court to determine what general misdemeanors are to be treated as felonies based upon our perception of the degree of depravity involved in the commission of the offense. It seems to me that this makes it impossible for anyone to anticipate the scope of application of the statute. As the result of today’s decision, we know that solicitation to murder is an infamous crime but that solicitation to commit crime against nature may be “at the other end of the spectrum” 317 N.C. 164, 171, 345 S.E. 2d 365, 369, and not infamous. Apparently, anything in between is potentially covered by the statute.

Justice Martin notes in the Court’s opinion that the defendant has not made a challenge to the constitutionality of N.C.G.S. § 14-3, and, appropriately, the Court has not addressed that issue. I write separately not so much to suggest the unconstitutional vagueness of the statute as to suggest to the General Assembly that some legislative limitation on the scope of the statute as construed in Surles would seem appropriate.

*563Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ.

This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.

The principal issue presented by this case is whether a defendant may be convicted both of aiding and abetting the commission of extortion, MCL 767.39; MSA 28.979 and MCL 750.213; MSA 28.410, and conspiracy to commit that same crime, MCL 750.157a; MSA 28.354(1). We hold that, under the facts of this case, the defendant was properly convicted under both the aiding and abetting and conspiracy statutes.

In addition to challenging his dual convictions, defendant raises a number of other issues involving alleged errors that occurred before and during his trial. He challenges as impermissibly suggestive the photographic identification which led to his arrest. Defendant further alleges that the prosecution’s failure to indorse and produce a res gestae witness deprived him of a fair trial. Finally, he claims that the trial court erred in allowing the jury to hear testimony that defendant had been fired from his job for assaulting his supervisor.

We find these issues to be without merit. Accordingly, we affirm defendant’s convictions of extortion under an aiding and abetting theory and conspiracy to commit extortion.

I

Alvin D. Carter was charged with aiding and abetting another to commit both unarmed robbery, MCL 750.530; MSA 28.798, and extortion, MCL 750.213; MSA 28.410, and with conspiracy to commit both offenses, MCL 750.157a; MSA 28.354(1).

*564The charges against the defendant arose out of the taking of $1,365.00 from an employee of the Consumers Power Company customer service office in Jackson around noon on December 19, 1975. The employee, Mrs. Peggie Johnson, was approached by a man, subsequently identified as Edward Kimble, who handed her a note threatening her three sons unless she gave him. money. According to her testimony at defendant’s trial, she complied with the demand because she feared for her own safety and that of her children.

Mrs. Johnson also testified that she had never seen Edward Kimble before the robbery, but that she knew Alvin Carter well and regarded him as a family friend. Further, she indicated that approximately one or two months before the robbery, the defendant stopped in at the Consumers Power Company office and "questioned] us about the lunch hours”.

Kimble and his girlfriend, Diane Potter, were arrested the day after the robbery while shopping at a J. C. Penney store located across the street from the Consumers Power Company office. Potter’s identification of the defendant at a photographic showup approximately three weeks later led to Alvin Carter’s arrest.

Edward Kimble pled guilty to unarmed robbery and received a 5-1/2- to 15-year sentence. Testifying for the prosecution at defendant’s trial, he indicated that he first met Carter, who he knew only as "Hank”, at Jackson Prison, where he was serving a sentence for armed robbery and Carter was employed as a prison guard. According to Kimble, he again came into contact with the defendant in November of 1975 at Leake’s Lounge, a *565Jackson bar they both frequented. Kimble testified further that he and Carter discussed the "Consumers Power job” on the afternoon of December 18, the day before the robbery; that on that same evening Carter came to see him at the Sewell Hotel, where he lived with Diane Potter; that during that visit Carter wrote the threatening note that was to be presented to Peggie Johnson; and that Potter copied the note because Carter was afraid the victim would recognize his handwriting.

Kimble admitted taking the note to the Consumers Power office around noon on December 19, presenting it to Peggie Johnson, and receiving the money in a paper bag. He testified that he then met Carter and gave the money to him at a place called "the roller room”, where Carter had been waiting. Both men returned to Kimble’s room at the Sewell Hotel, Kimble arriving about five minutes after Carter, and Carter divided the money.

Diane Potter, who was not charged with participation in the crime,1 corroborated Kimble’s testimony about the events at the Sewell Hotel on the evening of December 18 and after the robbery on December 19. She added that while Carter was drafting the note he and Kimble were "whispering a conversation back and forth”, and that she heard Carter ask Kimble if the content looked all right to him. After she rewrote the note, she tore up Carter’s copy and flushed it down the toilet. Finally, Potter indicated that she had seen Carter approximately 6 to 12 times before the night of *566December 18, both at the apartment and at Leake’s Lounge.

The defendant denied any involvement in the crime and presented an alibi defense. He denied having ever been in Kimble’s room at the Sewell Hotel or having met Kimble while employed as a prison guard. He further denied even knowing Kimble or Potter, other than casually from seeing them at Leake’s Lounge.

The jury, after deliberating for seven and one-half hours, returned a verdict of guilty on all four counts. On July 14, 1976, defendant was sentenced to 7-1/2 to 15 years with credit for 189 days on the unarmed robbery and conspiracy to commit unarmed robbery convictions and to 7-1/2 to 20 years with credit for 189 days on the extortion and conspiracy to commit extortion convictions, with all four sentences to be served concurrently.

In a published per curiam opinion, the Court of Appeals affirmed defendant’s convictions of extortion and conspiracy to commit extortion, but reversed, as violative of the proscription against double jeopardy, US Const, Am V; Const 1963, art 1, § 15, the convictions of unarmed robbery and conspiracy to commit unarmed robbery. People v Carter, 94 Mich App 501; 290 NW2d 46 (1979). This Court granted defendant’s application for leave to appeal his remaining convictions. 409 Mich 867 (1980). The people do not contest the reversal by the Court of Appeals of defendant’s robbery-related convictions.

II

Defendant attacks his joint convictions of aiding *567and abetting the commission of extortion and conspiracy to perpetrate extortion on three grounds, all of which relate to principles of double jeopardy. He argues, in the alternative, that the charge of conspiracy should merge with, or be absorbed into, the charge of the completed crime, and that his conviction of both crimes is in essence unconstitutional multiple punishment for the same offense under federal and state double jeopardy interpretations.

A

Criminal conspiracy occupies a unique place in our criminal justice system. It is defined as "a partnership in criminal purposes”, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910), a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. While the offense has its origins in the common law, it is now specifically proscribed by statute, which sets forth the penalties for its commission. MCL 750.157a; MSA 28.354(1).2

*568"The gist of the offense of conspiracy lies in the unlawful agreement”. People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). The crime is complete upon formation of the agreement; in Michigan, it is not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime.3 However, a twofold specific intent is required for conviction: intent to combine with others, and intent to accomplish the illegal objective. Perkins, Criminal Law (2d ed), ch 6, § 5, p 629.

In spite of the importance of the element of agreement in conspiracy liability,

"[d]irect proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact. * * *.

"Furthermore, conspiracy may be established, and frequently is established by circumstantial evidence”. (Citations omitted.) People v Atley, p 311.4

*569It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. LaFave & Scott, Criminal Law, § 62, p 494; People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975); People v Chambers, 279 Mich 73; 271 NW 556 (1937). The guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy. More importantly in the context of the instant case, a conviction of conspiracy does not merge with a conviction of the completed offense.5 Thus, a defendant may be convicted and punished for both the conspiracy and the substantive crime. Pinkerton v United States, 328 US 640; 66 S Ct 1180; 90 L Ed 1489 (1946).

The cited justification for the prosecution of conspiracy as a crime independent of, and often in addition to, the prosecution of the object offense is the alleged increased and special danger to society presented by group as opposed to individual activ*570ity.6 The "greater threat” rationale was detailed in Callahan v United States, 364 US 587, 593-594; 81 S Ct 321; 5 L Ed 2d 312 (1961):

"[Collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”7

One of the major exceptions to the general principle that conspiracy and its target offense are separately punishable is known as Wharton’s Rule. This rule, which operates as a substantive limitation upon the scope of the crime of conspiracy, states that an agreement by two persons to commit a substantive crime cannot be prosecuted as a conspiracy where the crime itself necessarily requires the participation and cooperation of two *571persons.8 Thus, where concerted activity and a plurality of agents are essential elements of a substantive offense, Wharton’s Rule bars a prosecution for conspiracy to commit that crime. Defendant asserts that, given the offenses at issue in this case, Wharton’s Rule precludes his conviction of conspiracy to commit extortion.

The classic Wharton’s Rule offenses — adultery, bigamy, dueling, and incest — are those crimes where "the conspiracy to commit them is in such close connection with the objective offense[s] as to be inseparable from them”. In re Vickers, 371 Mich 114, 117; 123 NW2d 253 (1963). Additionally, the crimes are such that "[t]he parties to the agreement are the only persons who participate in [the] commission of the substantive offense, and the immediate, consequences of the crime rest on the parties themselves rather than on society at large”. Iannelli v United States, 420 US 770, 782-783; 95 S Ct 1284; 43 L Ed 2d 616 (1975).9

*572The rationale for the rule is based on two different analyses. The primary justification relates to legislative intent; where cooperative action is a necessary component of the substantive offense, it is presumed that the Legislature took that element into account when setting forth the penalty for the offense. Recent Developments, Criminal Law — Multiple Punishment Under the Organized Crime Control Act — A Need for Re-examination of Wharton’s Rule and Double Jeopardy, 52 Wash L Rev 142 (1976). In addition, because the target offense itself requires concerted action, the combination constituting the conspiracy creates no added danger, "because nothing is involved which will not [also] be present whenever the offense is committed.” Perkins, Criminal Law (2d ed), ch 6, § 5, p 620.

In practice, Wharton’s Rule generally operates as a judicial presumption to proscribe a conspiracy charge in the absence of legislative intent to the contrary. Iannelli v United States, supra, 420 US 782.10 The applicability of the rule depends on the *573nature of the target offense that constitutes the object of the conspiracy. Specifically, the focus is upon the elements of the crime rather than upon the factual circumstances of the particular case. Iannelli, p 780. Thus, the test is satisfied when, by definition, the object crime necessarily requires the participation of two people. If the offense could logically be accomplished by a single individual, Wharton’s Rule does not apply. The fact that in a particular case cooperation between the offenders was a practical necessity, i.e., the crime could not have been committed without concerted action or would have been made much more difficult without it, is not sufficient to invoke the rule. State v Huegin, 110 Wis 189; 85 NW 1046 (1901); LaFave & Scott, supra, pp 492-493; People v Davis, 408 Mich 255, 285, fn 6; 290 NW2d 366 (1980) (Levin, J., concurring). See also 408 Mich 255, 320-321 (Moody, J., dissenting).

Thus, to determine the applicability of Wharton’s Rule, "accurate identification of [the] target offense is essential”. People v Davis, p 280 (Levin, J., concurring). The controversy in the instant case arises because the defendant and the prosecution focus on different aspects of the target crime in their analyses, which leads them to different conclusions regarding the applicability of Wharton’s Rule.

The defendant focuses upon the aiding and abetting aspect of the extortion offense. He argues that aiding and abetting necessarily requires concerted action among a plurality of agents. "The sine qua non of aiding and abetting is that more than one person must be criminally involved”. People v Parks, 57 Mich App 738, 743; 226 NW2d 710 (1975). Therefore, the agreement embodied in the conspiracy has no element of added danger that is *574not already present upon commission of the substantive crime. Further, when aiding and abetting occurs, no additional persons are involved in the conspiracy than are required to commit the object offense. Defendant adds that both the aiding and abetting and conspiracy statutes are directed at the same evil, namely, cooperation between perpetrators of crime. Thus, Wharton’s Rule applies, and his conspiracy conviction should be vacated.

The prosecutor, in contrast, focuses on the criminal act of extortion in his Wharton’s Rule analysis. The elements of extortion are: a malicious threat of violence or criminal accusation, and an intent to extort money. MCL 750.213; MSA 28.410.11 No agreement is required to complete the crime; further, the crime may logically be committed by one person. Therefore, Wharton’s Rule is inapposite in this case.

We agree with the prosecutor. Defendant’s emphasis upon the aiding and abetting aspect of the offense is misplaced under these circumstances. The purpose of the aiding and abetting statute, MCL 767.39; MSA 28.979, is to ensure that any person who participates in a substantive offense is held liable as if he had directly committed the offense.12 People v Palmer, 392 Mich 370; 220 *575NW2d 393 (1974). The statute declares that one who "procures, counsels, aids or abets” in the commission of a crime may be "prosecuted, indicted, tried and on conviction shall be punished” as a principal.13 Aiding and abetting is not in and of itself a substantive offense. It is, rather, a means of connecting a person with a completed criminal act, whether that act be extortion, as in the instant case, or any other action defined as unlawful. It takes on criminal characteristics only because of its link to that illegal action.

Reduced to its bare essentials, the basic charge against a defendant is not aiding and abetting, but rather the substantive crime that results from the aiding and abetting. In assessing the applicability of Wharton’s Rule, the target offense to be evaluated is, therefore, the underlying substantive crime itself, not the means developed to hold a person liable for that crime.

In the instant case, of course, the substantive crime is. extortion. Extortion is not a crime of such a nature as to necessarily require the participation of two persons.14 Therefore, defendant’s prosecu*576tion and conviction for conspiracy to commit extortion does not violate Wharton’s Rule.15

In addition, any presumption in favor of the application of Wharton’s Rule is rebutted by the legislative intent expressed in the aiding and abetting statute. As noted earlier, conspiracy does not merge with the completed substantive crime that is its object. The aiding and abetting statute states that in all respects — prosecution, indictment, trial and punishment — one who aids in the commission of a crime is to be treated exactly as if he had directly committed the offense. To provide that conspiracy would merge with the object crime for an aider and abettor but not for a principal would be to provide for differences in the prosecution, indictment, trial and punishment of accessories as opposed to principals. Under such a rule, upon completion of the crime, a principal could be prosecuted, indicted, tried and punished16 for conspiracy, while an aider and abettor could not, in direct *577contravention of the equal treatment mandated by the statute.17

B

Defendant argues further that his convictions of conspiracy and aiding and abetting with respect to the same substantive crime violate his federal constitutional right not to be placed twice in jeopardy for the same act. See US Const, Am V.18

The guarantee against double jeopardy in the Constitution of the United States has been made applicable to the states through the Fourteenth Amendment. That guarantee incorporates three distinct constitutional protections:

"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

In the instant case, the question is one of multiple punishment. Under such circumstances the Double Jeopardy Clause operates to protect the defendant from receiving double punishment for *578what is in reality a single criminal offense. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).

The problem in multiple punishment cases, as in multiple prosecution cases, is to determine whether the charges at issue constitute the "same offense” for double jeopardy purposes. In Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), the Court articulated the definition of the "same offense”:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

The Blockburger test focuses on the statutory elements of the offenses involved, not on the particular facts introduced at trial to establish their commission. Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975).19

Defendant concedes that under a strict application of the Blockburger test, aiding and abetting and conspiracy would be considered different offenses because aiding and abetting requires a completed crime and aiding and abetting by the defendant in the commission of that crime, People v Mann, 395 Mich 472; 236 NW2d 509 (1975), and conspiracy requires a combination or agreement. *579People v Atley, 392 Mich 298; 220 NW2d 465 (1974).

As an offshoot of the Blockburger rule, the Supreme Court has applied a necessarily lesser-included-offense analysis in determining whether offenses are the same for double jeopardy purposes.20 If one offense is necessarily included in the other, it is the "same offense” and cannot be additionally punished. Reference is made to state law for definitions of the offenses involved and also to ascertain whether they stand in the relation of greater- and lesser-included offenses. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Again, the emphasis is upon the legal elements of the offense, not upon the facts of a particular case.

Under the necessarily lesser-included-offense test, the separate crimes need not contain identical elements to constitute the "same offense”. Brown v Ohio, supra. To be necessarily included in the greater offense, a lesser offense must be such that it is impossible to commit the greater crime without also having committed the lesser. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).21

For the same reasons that aiding and abetting and conspiracy are different crimes under Block-*580burger, they are different crimes for double jeopardy purposes under a necessarily lesser-included-offense analysis. It is true that the two crimes contain certain common elements, i.e., the participation of more than one person and the shared intent to commit the substantive crime. However, aiding and abetting the commission of a crime and conspiracy to commit that crime are legally distinct offenses. The crux of a conspiracy is an agreement to perpetrate the crime. Conviction of conspiracy does not depend on the success or failure of its object. Further, as defined in Michigan, conspiracy does not require any overt act in furtherance of its illegal end. People v Atley, supra.

In contrast, to be convicted as an accessory, one must procure, counsel, aid, or abet the commission of a crime. MCL 767.39; MSA 28.979. Some form of active, overt participation toward the accomplishment of the offense is required, as is a completed crime and a guilty principal. People v Palmer, supra.

It is, therefore, possible to commit either crime without necessarily having committed the other. A person may aid and abet the commission of a crime without at the same time having specifically agreed to commit it. It does not automatically follow that when an offense is committed by multiple defendants the action is taken pursuant to a prior arrangement or agreement. Comment, Conspiracy, 28 La L Rev 534 (1968). Even if, factually, liability as an accessory is based upon an agreement, it does not require proof of such agreement. Iannelli v United States, 777, fn 10. Further, as stated by the United States Supreme Court:

"Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defen*581dant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.” Pereira v United States, 347 US 1, 11; 74 S Ct 358; 98 L Ed 435 (1954).22

Conversely, a conspirator is not necessarily liable as an accessory to the completed crime on the basis of the agreement alone. To be liable as an accessory, a person must advise, assist, counsel, or induce the commission of the crime. Such behavior may require more than mere agreement. The fact that, in many cases, conspirators do assume an active role in the commission of the object crime does not alter the legal distinction between liability as an accessory and as a conspirator.23

Nor is the fact that some of the evidence introduced at trial "may have served double duty”, supporting both the conspiracy and accessory charges, material under federal double jeopardy analysis. Nye & Nissen v United States, 336 US 613, 619; 69 S Ct 766; 93 L Ed 919 (1949). What is *582critical is that the offenses are legally different, as tested by the Blockburger and necessarily included offense rules. Thus, defendant’s dual convictions of conspiracy to commit extortion and of aiding and abetting the commission of extortion are not barred by the double jeopardy provision of the United States Constitution.

C

Michigan, unlike some other states,24 has its own specific constitutional protection against double jeopardy. Const 1963, art 1, § 15. Although the language of the state provision is nearly the same as that of the federal constitution,25 there are certain important differences between the state and federal tests used to establish, a constitutional violation. Significantly, the Michigan rules offer broader double jeopardy protection than do the federal standards.26 Thus, the fact that defendant Carter’s federal double jeopardy challenge must fail does not preclude this Court from considering whether he has been multiply punished for the same offense under the Michigan Constitution. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). Whitton v State, 479 P2d 302 (Alas, 1970).

As do their federal counterparts, Michigan courts engage in a greater- and lesser-included-offense analysis to evaluate double jeopardy challenges. However, in Michigan the emphasis is not on the theoretical elements of the crimes involved, but rather upon the proof of facts adduced at trial:

*583"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is.” People v Jankowski, supra, 408 Mich 91.

Of course, in focusing upon the facts, a court must nevertheless still take account of the elements of the offense. People v Wilder, 411 Mich 328, 348-349, fn 10; 308 NW2d 112 (1981).

In addition, Michigan has an expansive definition of necessarily included offenses for double jeopardy and other27 purposes:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. * * * This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.” (Citation omitted.) People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

The fact that a lesser offense contains an element not also contained in the greater does not necessarily preclude the lesser from being included within the greater. The major factor is notice to the defendant; if the relation between the lesser *584offense and that originally charged is close enough to fairly inform the defendant that he will be required to defend against it, the lesser offense may be included within the greater. Further, cognate offenses include common statutory purposes as well as common elements; and, the shared elements must be related to those purposes, i.e., "coincide in the harm to the societal interest to be protected”. Ora Jones, p 390.

Thus, in contrast to the test used in the federal system, the Michigan test for double jeopardy focuses on the facts of the particular case and proscribes multiple convictions of cognate as well as necessarily included offenses.

The Michigan analysis has been applied by this Court to preclude dual convictions of possession and delivery of the same heroin, where the possession was necessarily incident to delivery. People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

Reaching the same conclusion with respect to the sale and possession of the identical heroin in People v Stewart (On Rehearing), 400 Mich 540, 548-549; 256 NW2d 31 (1977), we explained:

"Possession and sale of narcotics are separate crimes which may be separately charged. * * * In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

"Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.

*585"Defendant Stewart may not be 'doubly punished’ by convicting him of possession, which in this case was a 'necessary’ prerequisite or the sine qua non for the very sale for which he was also convicted.”28 (Citation omitted.)

This Court has also held that multiple convictions of armed robbery, larceny in a building, and larceny over $100, all arising from the same taking, violate double jeopardy. People v Jankowski, supra.29 Finally, in People v Wilder, supra, 411 Mich 342, we held that conviction and sentence for both first-degree felony murder and the underlying felony also contravened the state constitutional provision, because in that case "the evidence needed to prove first-degree felony murder require^] proof of the underlying lesser included felony”.

In the instant case, defendant Carter contends *586that his dual convictions violate double jeopardy in that the two crimes are cognate-included offenses. Further, he argues, the facts introduced at trial to demonstrate aiding and abetting necessarily proved the crime of conspiracy and vice versa, i.e., the facts used to show conspiracy required the jury to find aiding and abetting.

We disagree. Initially we note that aiding and abetting the commission of extortion and conspiracy to commit extortion do not satisfy the definition of cognate offenses set forth in Ora Jones, supra. Although both crimes involve concerted activity, the offenses are not of the same class or category. Nor do they appear to reflect a common statutory purpose. The conspiracy statute punishes the planning of the offense and focuses upon the alleged "special dangers” resulting from group action. On the other hand, the aiding and abetting statute punishes the actual commission of the crime.

In addition, on the facts of this case, neither crime was necessarily included within the other. Neither was a " 'necessary' prerequisite or the sine qua non” of the other. Stewart, p 549. And, proof of either crime did not necessarily require a finding of the other.

In applying the Michigan "factual” double jeopardy test, it is critical to recognize the distinction between what a jury could or did conclude from the evidence and what a jury necessarily found. Thus, in the instant case, when the jury found the defendant guilty of aiding and abetting Kimble in the commission of extortion, it did not thereby find sufficient facts to find him guilty of conspiracy. To convict Carter on the aiding and abetting charge, the jury was required to find that he actively participated in the joint venture and that he *587shared Kimble’s intent to commit the crime. Carter’s participation in the crime was demonstrated at trial by testimony that he had composed the threatening letter in Kimble’s room at the Sewell Hotel, met Kimble after the robbery, and divided the money. However, these facts do not necessarily presuppose or establish an agreement to commit the extortion, the indispensable element of conspiracy. Establishing the agreement required a completely separate inference, or a separate factual finding. Further, unlike the situation in Martin and Stewart, where the delivery and sale could not have taken place without the possession, in the instant case, the aiding and abetting could have occurred without the conspiracy.

By the same token, the jury was not required to find defendant guilty of aiding and abetting the extortion based on proof that he conspired with Kimble to commit it. Certainly the aiding and abetting was not a "necessary prerequisite or the sine qua non” of the conspiracy. In addition, proof of the conspiracy in this case was not sufficient to establish aiding and abetting. Even if the jury used the same facts as a starting point for finding defendant guilty of both charges, an additional fact is required to support a conviction of aiding and abetting, i.e., evidence of the completed crime. In that sense, the instant case differs significantly from other cases in which this Court has found double jeopardy violations. In Martin and Stewart, once the delivery and sale were found, the possession was established without further proof. On the facts in Jankowski, when the jury found that the defendant had committed the taking which constituted an element of the armed robbery, the jury necessarily found, without additional evidence, the facts sufficient to convict on the larceny charges. *588In Wilder, proof of first-degree felony murder necessarily established the underlying felony of armed robbery.

Finally, the factual pattern in the instant case may have allowed the jury to convict defendant of both crimes on the basis of completely different facts. Edward Kimble testified that he met with defendant Carter on two different occasions on December 18, the day before the robbery. According to Kimble, he and Carter discussed the "Consumers Power job” on the afternoon of December 18.30 That evening, they met again to compose the extortion note. The jury could have believed Kimble’s entire testimony, and concluded that the agreement was consummated in the first meeting, making the crime of conspiracy complete. It could then have found the more active participation required for liability as an accessory in the events of the evening meeting at the Sewell Hotel.

In sum, it was both factually and logically possible for defendant to be guilty of either crime in the case — aiding and abetting the commission of extortion and conspiracy to commit extortion— without at the same time being guilty of the other. Cf. Jankowski. These crimes are factually and theoretically independent; they are neither inseparably intertwined, cf. Stewart, nor merely alter*589native routes for creating liability for the substantive crime.31 Neither crime necessarily supplies an indispensable element of the other. Cf. Wilder.

"[Conspiracy may be an evil in itself, [independent] of any other evil it seeks to accomplish.” Dennis v United States, 341 US 494, 573; 71 S Ct 857; 95 L Ed 1137 (1951) (Jackson, J., concurring). In the instant case, this statement describes the facts as well as the law.32 Thus, defendant’s "factual” double jeopardy challenge to his dual convictions must be rejected.33

Ill

In a further challenge to his conviction, defendant contends that the trial court erred in refusing to grant a new trial, despite the prosecutor’s failure to indorse and produce a res gestae witness.

Edward Kimble was arrested as a result of information supplied to the police by Lawrence *590Morris, the manager of the J. C. Penney store located across the street from the Consumers Power office. According to Morris’s affidavit filed in support of defendant’s motion for a new trial, and also his testimony at the evidentiary hearing34 to consider that motion, on two different occasions prior to December 19, 1975, he noticed a black male standing in the lobby between the inside and outside doors of his store, staring at the Consumers Power building. On each occasion, the man stayed for 10 or 15 mintues before leaving.

Morris stated further that on the morning of December 19, he again saw the same black male come into the lobby and watch the building across the street for approximately 15 minutes. Morris testified that he went out to lunch at 11 a.m. on that day, and did not return to his store until after the robbery had occurred. When the same black male, subsequently identified as Edward Kimble, appeared in the store the day after the robbery, Morris called the police, who made the arrest.

In his affidavit, Morris explained that he had noticed this particular black male because he was afraid that the man might be planning to rob the J. C. Penney store. On all three occasions, the man appeared to be alone.

Before trial, defense counsel filed a general demand for exculpatory evidence. He subsequently filed several specific motions for discovery, and received the particular evidence requested.35

*591Larry Morris was not called to testify at trial. Defense counsel first learned of his existence when he reviewed the presentence report following defendant’s trial and conviction.

In denying defendant’s motion for a new trial, the trial judge ruled that Morris was not a res gestae witness, and that further, in view of the "very persuasive” evidence of defendant’s guilt, the failure of the jury to hear his testimony did not affect the outcome at trial.

The people have an affirmative duty to indorse and produce at trial all res gestae witnesses. MCL 767.40; MSA 28.980. While no precise definition of the term has been developed, a res gestae witness has been loosely described as "an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”. People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976).

The defendant argues that Morris’s testimony would "aid in developing a full disclosure of the facts” by contradicting Edward Kimble’s testimony in two important respects. First, Kimble indicated, in essence, that the conspiracy began on the afternoon of December 18, when he and Carter discussed the Consumers Power job. However, Morris’s statements reveal that some time before that date, Kimble was seen staring at the Consumers Power building from across the street. Second, Kimble testified that "one day” he and Carter surveyed the proposed scene of the crime from the sidewalk. Morris’s testimony would indicate that, on the contrary, Kimble engaged in such activities *592not with Carter, but by himself. Thus, defendant concludes, Morris is a witness who can attest to a crucial fact, i.e., the fact that Carter was not present during the surveillance.

We disagree. Morris’s statements do not necessarily contradict the prosecutor’s case. The fact that Morris saw only Kimble does not require the conclusion that Kimble was surveying the robbery scene alone. Carter could have easily been present, outside Morris’s range of vision. Further, the fact Kimble may have been seen near the Consumers Power office before December 18 is not relevant to any involvement of Carter in the conspiracy.

More importantly, even in terms of the "continuum of the criminal transaction”, Morris is simply too far removed from the criminal event to be denominated a res gestae witness. Morris was not an eyewitness to the crime; moreover, he never even saw the defendant until approximately two years after the crime. In those cases in which individuals were found to be res gestae witnesses in spite of the fact that they did not observe the actual commission of the crime, the connection between what was observed and the criminal event was much closer than in the instant case. In People v Hadley, supra, the witness observed the defendant, a suspicious-looking person, in a parking lot just a few minutes before the defendant broke into an automobile. The witness’s phone call led directly to the defendant’s arrest, and the court found that he qualified as a res gestae witness.

Defendant challenges the prosecutor’s failure to indorse and produce Larry Morris from another perspective. He argues that the people’s nondisclo*593sure of the existence and identity of the witness in the face of a general request for exculpatory material constituted a denial of a fair trial.

Because the government’s ability to investigate and uncover information is superior to the defendant’s, the adversary process has been somewhat modified in the criminal trial context. Focusing upon the unfairness of this disparity and also upon the affirmative duty of the prosecution to ensure that a trial is directed toward fair ascertainment of the truth,36 the United States Supreme Court has held that a defendant has a due process right of access to certain information possessed by the prosecution. The prosecution may not suppress evidence requested by the defendant where the evidence is favorable to the accused and material to his guilt or punishment. Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

In United States v Agurs, 427 US 97, 103-104; 96 S Ct 2392; 49 L Ed 2d 342 (1976), the Court further detailed the standard for prosecutorial disclosure. It identified three different situations in which a defendant’s due process right to discovery may be implicated. In the first situation, where the prosecutor knowingly uses perjured testimony, the failure to reveal the perjury mandates reversal of a conviction ”if there is any reasonable likelihood *594that the false testimony could have affected the judgment of the jury”. In the second type of situation, illustrated by Brady, supra, where a specific request for a piece of evidence is made, the test for reversal is whether "the suppressed evidence might have affected the outcome of the trial”. (Footnote omitted.)

Quite often, however, as in the instant case, a third type of situation occurs: the defendant has no knowledge of exculpatory material possessed by the prosecutor, and, therefore, cannot make a specific request. In these circumstances, where defendant can only make a general request for exculpatory information, or, in fact makes no request at all,37 the standard for what is in effect a voluntary disclosure is more difficult to meet:

"[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Agurs, p 108.

The specific test for determining when a prosecutor must reveal exculpatory evidence in this *595situation is governed by the standard of materiality enunciated in Agurs:

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” (Footnotes omitted.) Agurs, pp 112-113.

Applying the Agurs test, the trial judge held that, given the overwhelming evidence of defendant’s guilt, Larry Morris’s testimony was not sufficient to create a reasonable doubt regarding that guilt.

We agree. The evidence implicating defendant in the crime was direct and persuasive. The testimony of the victim, describing her friendship with Carter and his knowledge of facts about her family reflected in the extortion note, i.e., that she had three sons, helped connect him with the crime in a manner which corroborated the testimony of Kimble and Potter. Further, for the reasons noted above, the evidence contained in Morris’s statements would not necessarily have contradicted the other evidence presented against the defendant. The omitted evidence, Morris’s testimony, would not have served "to create a reasonable doubt that did not otherwise exist”. The prosecution, therefore, was under no duty to disclose his identity.

*596IV

Defendant was arrested approximately three weeks after the robbery, when he was identified by Diane Potter from a photograph. Defendant challenges the photographic identification procedure as impermissibly suggestive and argues further that there was no independent basis for her identification of defendant at trial.

A Wade38 hearing was held to consider this issue prior to trial. At the hearing, Detective Michael Rand, the investigating officer, testified that he showed Potter a total of approximately 200 photographs on three or four different occasions. At the first showup, held the day after the robbery, she selected the photograph of a person who had been in prison at the time of the crime. At the last photographic lineup, held nearly three weeks later, Potter picked out defendant’s picture. Officer Rand testified that the witness stopped at Carter’s picture, which was the third one in the pack, and did not look at the remaining photographs. This testimony was contradicted by Potter, who stated that she went through the entire pack twice before identifying defendant.

Diane Potter testified that she had given the police an independent description of defendant before viewing the photographs. He was depicted as clean-shaven, about six feet tall with a sturdy build, hair in tight circles, "buggy eyes”, and flared nostrils. Although she remembered him as clean-shaven both in person and in his photograph, in fact defendant, both in person and as pictured, had a mustache and a goatee.

*597Potter testified, somewhat equivocally, that just before the final showup, Officer Rand mentioned that he had a particular suspect in mind, and that she should look over the photographs very closely. After she picked out defendant’s picture, he confirmed that she had selected the right person. Detective Rand, on the other hand, stated that he could not recall making any such comment to Potter at the showup in question.

The trial judge concluded that Potter, having testified that she had seen Carter several times at Leake’s Lounge and the Sewell Hotel, had an independent basis for her identification of Carter. He also held that the photographic identification procedure was "fair under the circumstances”.

Defendant challenges both conclusions. He argues that Detective Rand’s statements to Potter revealing that he had focused on a particular suspect and that she had selected the proper photograph rendered the procedure impermissibly suggestive and tainted her identification at trial.

It is true that comments such as those allegedly made by Detective Rand may lead to error in a photographic identification procedure:

"The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.” (Footnotes omitted.) Simmons v United States, 390 US 377, 383; 88 S Ct 967; 19 L Ed 2d 1247 (1968).

This Court has also recognized the impropriety of this behavior:

*598"Improper suggestion commonly comes about because of three things. First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person. Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness’s problems of sensation, retention, etc., and the similarity in appearance of people.” People v Anderson, 389 Mich 155, 178; 205 NW2d 461 (1973). (Emphasis added.)

The great danger of an improper procedure is that an initial misidentification may unduly influence any subsequent identification. Thus, a courtroom identification may be made on the basis of the initial photographic showup or corporeal lineup rather than from an independent recollection of the crime. United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967); People v Anderson, supra.

To guard against this possibility, if a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established. In People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977), this Court set forth the criteria to be used to determine whether such an independent basis exists:

"1. Prior relationship with or knowledge of the defendant.

"2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.

"3. Length of time between the offense and the disputed identification. * * *.

*599"4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.

"5. Any previous proper identification or failure to identify the defendant.

"6. Any identification prior to lineup or showup of another person as defendant.

"7. [T]he nature of the alleged offense and the physical and psychological state of the victim.

"8. Any idiosyncratic or special features of defendant.”39

We agree with the trial judge that the photographic identification procedure used in this case was not impermissibly suggestive. First, it is less than clear that the allegedly improper remarks even took place. Not only was Diane Potter’s testimony contradicted by Officer Rand’s, but also it was somewhat inconsistent in itself. At one point in the pretrial hearing, she stated that she was not positive that the officer had said anything before showing her the photographs. Second, even if Officer Rand did indicate that he had a suspect in mind, he in no way indicated who that suspect was until after Potter unequivocally identified the defendant. Finally, any inconsistencies in Potter’s testimony and identification relate more directly to her credibility as a witness than to the alleged suggestiveness of the procedure.

In addition, application of the relevant Kachar criteria reveals that there was a sufficient independent basis for Diane Potter’s identification of Alvin Carter. She had a prior knowledge of the defendant, having seen him on at least six occasions *600prior to the crime. The quality of the circumstances in which she observed him is also more likely to give rise to reliable identification than the emotional circumstances in which a victim views a suspect while the crime is taking place.

Further, although Potter erroneously described defendant as clean-shaven, she did accurately focus on a number of defendant’s idiosyncratic features, such as his "buggy” eyes and flared nostrils. And, in spite of her initial selection of the wrong photograph, when confronted with defendant’s picture, Potter’s identification was clear and unequivocal.

Under the totality of the circumstances, therefore, we hold that Potter’s in-court identification was supported by . a more than adequate independent basis. The trial judge properly allowed this evidence at trial.

V

At trial, Kimble testified that he had first met defendant in prison, where Carter was a guard and Kimble a prisoner. Defendant then called witnesses to establish that defendant and Kimble were assigned to different units of the prison and would have had no contact with each other. One of the witnesses testified from personnel records that Carter had been employed in the trusty division until he was dismissed. On cross-examination, the prosecutor inquired as to the reason for the dismissal. Over defense counsel’s objection, the witness was permitted to respond that defendant had been fired for assaulting his supervisor. The trial court allowed the testimony on the theory that the defense had opened the door by bringing in the employment records.

*601At the conclusion of the witness’s testimony, the trial court, sua sponte, gave a cautionary instruction:

"Jurors, I want to make a cautionary instruction at this time. I’ve allowed the prosecutor to go into the records because the defendant produced them himself, and I thought it was only fair that he do so; however, I want to caution you at this time that you’re not to consider anything concerning what was testified to in reference to any suspension or dismissal in determining whether he is guilty or innocent of this charge. It would be error for you to do so. So, don’t consider anything about that in reference as to whether he Committed the offenses that he’s on trial here for.”

After this instruction was given, there was no further objection.

Defendant argues that the trial court erred in allowing the testimony. Evidence that a defendant has committed another crime or offense is generally inadmissible on the issue of his guilt of the charged offense. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). The purpose of the rule is to guard against convicting an accused on the theory that he is a "bad man”. The probative value of such evidence is often outweighed by its prejudicial effect. DerMartzex, supra.

Under the facts of this case, we find that any error that may have occurred was cured by the cautionary instruction. See People v Richardson, 239 Mich 695; 214 NW 965 (1927); People v Page, 198 Mich 524; 165 NW 755 (1917). The instruction immediately followed the objectionable testimony, and the only further reference to defendant’s discharge by either party was defendant’s testimony that he had been reinstated with back pay after an investigation of the incident. Thus, we find this issue to be without merit.

*602VI

Accordingly, we affirm defendant’s conviction of aiding and abetting the commission of extortion and conspiracy to commit extortion.

The Court of Appeals is affirmed.

Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ., concurred.

Kavanagh, J.

(for reversal of conspiracy conviction). I would affirm defendant’s conviction of extortion, but would set aside his conviction of conspiracy to perpetrate extortion.

Nothing was added to the extortion by the "conspiracy” to effect it. When the extortion was carried out the charged conspiracy merged into the completed act.

Levin, J., concurred with Kavanagh, J.

Riley, J., took no part in the decision of this case.

Opinion

BAXTER, J.

Defendants Jamal K. Swain and David Chatman were each convicted of conspiracy to commit murder and other crimes, stemming from the drive-by shooting death of a 15-year-old boy. As we shall explain, we hold that intent to kill is a required element of the crime of conspiracy to commit murder. In light of the jury instructions given, and general verdicts returned, we cannot determine beyond a reasonable doubt whether the jury found that the defendants conspired with an intent to kill. That conclusion requires us to reverse defendants’ conspiracy convictions.

Facts and Procedural Background

The question before us is one of law; the facts found by the Court of Appeal, summarized below, are not disputed.

*597Prosecution evidence established that a brown van passed through the Hunter’s Point neighborhood of San Francisco about 2 a.m. on January 13, 1991. It slowed down near the spot where the young victim, who was of Samoan descent, and his friends were listening to music on the street.

A young Black male who appeared to have no hair was driving the van. Suddenly several shots were fired from the front of the van. Defendant Chatman and another young man also fired guns from the rear of the van. One of the intended victims had yelled out “drive-by” as a warning of the impending shooting, so most of the people on the street ducked down. The 15-year-old victim, Hagbom Saileele, who was holding the radio from which music was playing, was shot twice from behind. He later died in surgery.

Afterward, defendant Swain was in jail and boasted to jailmates about what good aim he had with a gun: “He was talking about what a good shot he was. [ID ... [H He was saying he had shot that Samoan kid when they were in the van going about 30 miles an hour up a hill.” The area where the shooting occurred is hilly; the van would have had to have been traveling uphill as it passed by the scene of the shooting.

Evidence also established that defendant Swain had used his jailhouse visiting privileges to threaten and intimidate witnesses into changing their stories, so that he would not be identified as involved in the crime.

The abandoned brown van was recovered by police; in the van and nearby were found surgical gloves, expended cartridges, a hooded ski mask, and two handguns—a .380-caliber semiautomatic and a .25-caliber automatic. Defendant Swain’s fingerprint was on the inside of the driver’s side window. The forensic evidence established that whoever had used the .380-caliber semiautomatic handgun, from which the fatal shots were fired, had been sitting in the driver’s side front seat of the van.

The .380-caliber gun was traced, through a series of owners and transactions involving narcotics, to defendant Chatman. Chatman was interrogated by police; he denied any knowledge of the van and claimed he had not purchased the gun. When this story proved false, Chatman admitted he had bought the gun, but claimed it had been stolen from him. Still later, he claimed he had sold it to someone else.

A warrant was obtained for Chatman’s arrest. After waiving his rights, Chatman told police he and two other people, not including Swain, had driven the van to the crime scene in order to get revenge for a car theft by a rival gang. Chatman insisted, to the police and at trial, that Swain had not *598been in the van. He could not, however, explain Swain’s fingerprint inside the van.

The owner of the van testified Swain had never been inside his van prior to the incident, but that Swain had intimidated him into telling police he (Swain) had previously been inside the vehicle, since otherwise “he was going to have something done to him.”

At trial, Chatman admitted he had been in the van, which was driven to Hunter’s Point to retaliate for a car theft attributed to a neighborhood youth who was not the victim of the shooting. The original plan was allegedly to steal the car of the thief. Chatman admitted he had fired shots, but claimed he fired wildly and only in self-defense. In support of this self-defense theory, he testified he heard an initial shot and thought it was fired by someone outside the van shooting at him, so he returned the fire. As noted, Chatman claimed Swain was not in the van.

Swain testified he was not in the van during the shooting and did not do any shooting. He claimed he had entered the van earlier in the evening, but had left because “the smell of marijuana bothered him.” He claimed he took BART (Bay Area Rapid Transit) to Berkeley, where he spent the evening at a relative’s home. He denied boasting about shooting the victim and denied having threatened any witnesses.

The jury first returned a verdict finding defendant Chatman guilty of second degree murder and conspiracy. As instructed, the jury also made a finding that the target offense of the conspiracy was murder in the second degree. Several days later, the jury returned verdicts against defendant Swain, finding him not guilty of murder or its lesser included offenses, but guilty of conspiracy and of attempting to dissuade a witness from testifying by threats. Once again, the jury made a finding under the conspiracy count that the target offense of the conspiracy was murder in the second degree.

At the sentencing hearing, the parties disputed the proper sentence for the crime of conspiracy to commit murder, where the target offense is found by the jury to be murder in the second degree. The trial court ultimately ruled that the proper sentence was an indeterminate term of 15 years to life, that prescribed for murder in the second degree, not 25 years to life, that prescribed for murder in the first degree, as the People had argued.

Chatman was sentenced to 15 years to life for second degree murder, with a consecutive 4-year enhancement for personal firearm use. A sentence of 15 years to life for the conspiracy count was imposed but stayed pursuant to Penal Code section 654.

*599Swain was sentenced to 15 years to life for conspiracy, and an additional 3 years for the conviction of attempting to dissuade a witness from testifying by threats.

Both defendants appealed on several grounds, including the question of whether intent to kill is a required element of the crime of conspiracy to commit murder. More particularly, where, as here, the target offense is determined to be murder in the second degree, does conviction of conspiracy to commit murder necessarily require proof of express malice—the functional equivalent of intent to kill—or can one conspire to commit implied malice murder? The People also appealed, contending the trial court improperly sentenced defendants to indeterminate terms of 15 years to life on the conspiracy counts because, assertedly under Penal Code section 182, every “conspiracy to commit murder” must be punished as a first degree murder, with a sentence of 25 years to life. The Court of Appeal affirmed the convictions and judgments imposing sentence in their entirety.

Defendants and the People each petitioned for review. We granted the petitions, limiting review to two issues: (1) is intent to kill a required element of conspiracy to commit murder, and (2) what is the punishment for conspiracy to commit murder, given the prescripts of Penal Code section 182?

Discussion

I

Defendants contend the jury should have been instructed that proof of intent to kill is required to support a conviction of conspiracy to commit murder, whether the target offense of the conspiracy—murder—is determined to be in the first or second degree. More particularly, defendants assert it was error to instruct the jury on the principles of implied malice second degree murder in connection with the determination of whether they could be found guilty of conspiracy to commit murder, since implied malice does not require a finding of intent to kill. As we shall explain, we agree.

We commence our analysis with a brief review of the elements of the crime of conspiracy, and of murder, the target offense of the conspiracy here in issue.

Conspiracy is an inchoate crime. (See United States v. Feola (1975) 420 U.S. 671, 694 [43 L.Ed.2d 541, 558, 95 S.Ct. 1255].) It does not require the commission of the substantive offense that is the object of the conspiracy. (People v. Manson (1977) 71 Cal.App.3d 1, 47 [139 Cal.Rptr. 275].) *600“As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,” and “thus reaches further back into preparatory conduct than attempt. . . .” (Model Pen. Code & Commentaries (1985) com. 1 to § 5.03, pp. 387-388.)

The crime of conspiracy is defined in the Penal Code as “two or more persons conspiring]” “[t]o commit any crime,” together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance thereof. (Pen. Code, §§ 182, subd. (a)(1), 184.) “Conspiracy is a ‘specific intent’ crime. . . . The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.” (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300] (Horn), citations omitted, italics added.) In some instances, the object of the conspiracy “is defined in terms of proscribed conduct.” (Model Pen. Code & Commentaries, supra, com. 2(c) to § 5.03, p. 402.) In other instances, it “is defined in terms of ... a proscribed result under specified attendant circumstances.” (Ibid.)1

Another provision of the Penal Code, section 182, the current version of which was enacted in 1955, prescribes the punishment for the crime of conspiracy. “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”

Turning next to the elements of the target offense of the conspiracy here in issue, Penal Code section 187 defines the crime of murder as the “unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice aforethought “may be express or implied.” (Pen. Code, § 188.) “It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.)

*601This court has observed that proof of unlawful “intent to kill” is the functional equivalent of express malice. (See People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588] [“Pursuant to the language of [Penal Code] section 188, when an intentional killing is shown, malice aforethought is established.”].)2

Penal Code section 189 distinguishes between murders in the first degree and murders in the second degree. “All murder which is perpetrated by means of a destructive device or explosive . . . , poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, [certain enumerated felonies], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.” (Italics added.)3

California law, in turn, recognizes three theories of second degree murder.

The first is unpremeditated murder with express malice. (See CALJIC No. 8.30 [“Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.”].)

The second, of particular concern here, is implied malice murder. (See CALJIC No. 8.31 [“Murder of the second degree is [also] the unlawful killing of a human being when: [*][] 1. The killing resulted from an intentional act, [H 2. The natural consequences of the act are dangerous to human life, and [00 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [00 When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.”].)

The third theory is second degree felony murder. (See CALJIC No. 8.32 [“The unlawful killing of a human being, whether intentional, unintentional *602or accidental, which occurs [during] [as the direct causal result of] the commission or attempted commission of [certain crimes] is murder of the second degree when the perpetrator had the specific intent to commit such crime.”] [Third bracket added].)

As noted, the jury in this case was instructed on the elements of murder, including principles of implied malice second degree murder. Under the instructions given, the jury could have based its verdicts finding defendants guilty of conspiracy to commit murder in the second degree on a theory of implied malice murder. The Court of Appeal below concluded it could find no authority supportive of the proposition that the crime of conspiracy to commit murder in the second degree must be accompanied by an intent to kill (i.e., express malice). Instead, the court relied on the holding in People v. Alexander (1983) 140 Cal.App.3d 647 [189 Cal.Rptr. 906] (Alexander), which case suggested that implied malice is “the most logical route" to establishing the crime of “conspiracy to commit murder in the second degree.” (Id. at p. 665.) Alexander, in turn, purported to place principal reliance on this court’s opinion in Horn, supra, 12 Cal.3d 290, interpreting Horn as holding that conspiracy to commit murder in the second degree can be based on a theory of implied malice murder.

As will be explained, Horn, supra, 12 Cal.3d 290, did not so hold. Nor do we find the rationale of Alexander, supra, 140 Cal.App.3d 647, otherwise sound in reasoning or result to the extent it concluded conspiracy to murder can be grounded on implied malice murder. Before turning to those cases, some preliminary observations will shed light on the logical answer to the question at hand.

We have noted that conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy. Since murder committed with intent to kill is the functional equivalent of express malice murder, conceptually speaking, no conflict arises between the specific intent element of conspiracy and the specific intent requirement for such category of murders. Simply put, where the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, they are guilty of conspiracy to commit express malice murder. The conceptual difficulty arises when the target offense of murder is founded on a theory of implied malice, which requires no intent to kill.

Implied malice murder, in contrast to express malice, requires instead an intent to do some act, the natural consequences of which are dangerous to human life. “When the killing is the direct result of such an act,” the requisite *603mental state for murder—malice aforethought—is implied. (CALJIC No. 8.31, italics added.) In such circumstances, “. . . it is not necessary to establish that the defendant intended that his act would result in the death of a human being.” (Ibid.) Hence, under an implied malice theory of second degree murder, the requisite mental state for murder—malice aforethought —is by definition “implied,” as a matter of law, from the specific intent to do some act dangerous to human life together with the circumstance that a killing has resulted from the doing of such act.

Stated otherwise, all murders require, at the core of the corpus delicti of the offense, a “killing.” (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]; People v. Ives (1941) 17 Cal.2d 459, 463 [110 P.2d 408]; 1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 136, p. 152; 1 Wharton’s Criminal Law (15th ed. 1993) §28, p. 172.) “Murder is the unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) But only in the case of implied malice murder is the requisite mental state—malice aforethought—implied from the specific intent to do some act other than an intentional killing and the resulting circumstance: a killing that has in fact occurred as “the direct result of such an act.” (CALJIC No. 8.31.)

The element of malice aforethought in implied malice murder cases is therefore derived or “implied,” in part through hindsight so to speak, from (i) proof of the specific intent to do some act dangerous to human life and (ii) the circumstance that a killing has resulted therefrom. It is precisely due to this nature of implied malice murder that it would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied. Such a construction would be at odds with the very nature of the crime of conspiracy—an “inchoate” crime that “fixes the point of legal intervention at [the time of] agreement to commit a crime,” and indeed “reaches further back into preparatory conduct than [the crime of] attempt” (Model Pen. Code & Commentaries, supra, com. 1 to § 5.03, pp. 387-388)—precisely because commission of the crime could never be established, or be deemed complete, unless and until a killing actually occurred.

By analogy, we have reached similar conclusions respecting the nature of proof of the element of malice required to establish the inchoate crimes of assault with intent to commit murder and attempted murder.

In People v. Murtishaw (1981) 29 Cal.3d 733 [175 Cal.Rptr. 738, 631 P.2d 446] (Murtishaw), the defendant was convicted of three counts of first degree murder and one count of assault with intent to commit murder, in violation *604of former Penal Code section 217. (29 Cal.3d at p. 762.)4 The jury was instructed that the crime required proof of specific intent to commit murder, but was further instructed that murder can be based on express malice, implied malice, or felony murder. However, the jury was also instructed that for intent to commit murder, the necessary specific intent “is to unlawfully kill.” (Id. at p. 763.) This court found such instructions, taken as a whole, were contradictory in that they defined the requisite mental element of the offense in two different ways—intent to kill and intent to murder—and by implication defined the latter to include theories of murder not requiring intent to kill, i.e., implied malice murder and felony murder. (Ibid.; accord, People v. Coleman (1989) 48 Cal.3d 112, 137-138 [255 Cal.Rptr. 813, 768 P.2d 32]; People v. Johnson (1981) 30 Cal.3d 444, 447-449 [179 Cal.Rptr. 209, 637 P.2d 676].)

We went on in Murtishaw, supra, 29 Cal.3d 733, to observe that “[established California authority . . . demonstrates that the concept of implied malice, insofar as it permits a conviction without proof of intent to kill, is . . . inapplicable to the assault [with intent to commit murder] charge.” (Id. at p. 764.) We then explained: “In People v. Mize (1889) 80 Cal. 41 [22 P. 80], the court instructed the jury that defendant would be guilty of assault with intent to commit murder if his acts were such that he could have been convicted of murder had the victim died. The court held the instruction erroneous: ‘ “To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.” [Citation.] “The wrongdoer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.” ’ (80 Cal. at p. 43.) (Accord, People v. Miller (1935) 2 Cal.2d 527, 532-533 [42 P.2d 308, 98 A.L.R. 913].)” (Murtishaw, supra, 29 Cal.3d at p. 764.) We further noted that “. . . once a defendant intends to kill, any malice he may harbor is necessarily express malice. Implied malice . . . cannot coexist with a specific intent to kill. To instruct on implied malice in that setting, therefore, may confuse the jury by suggesting that they can convict without finding a specific intent to kill.” (Id. at pp. 764-765, fn. omitted.)

Similarly, in People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534] (Collie), we applied the above noted reasoning of Murtishaw, supra, 29 Cal.3d 733, to the crime of attempted murder. To constitute an attempt, there must be (i) proof of specific intent to commit the target crime and (ii) a direct, ineffectual act done towards its commission. (1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 143, p. *605160.) Concluding in Collie that the trial court erred in instructing the jury it could convict the defendant of attempted murder on the basis of implied malice and without a finding of intent to kill, we explained: “ ‘Specific intent to kill is a necessary element of attempted murder. It must be proved, and it cannot be inferred merely from the commission of another dangerous crime.’ [Citation.]” (Collie, supra, 30 Cal.3d at p. 62; accord, People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [5 Cal.Rptr.2d 495, 825 P.2d 388]; People v. Lee (1987) 43 Cal.3d 666, 670 [238 Cal.Rptr. 406, 738 P.2d 752]; People v. Ratliff (1986) 41 Cal.3d 675, 695-696 [224 Cal.Rptr. 705, 715 P.2d 665].)

Finally, in People v. Bottger (1983) 142 Cal.App.3d 974 [191 Cal.Rptr. 408], the court applied reasoning similar to that employed by this court in Murtishaw, supra, 29 Cal.3d 733, and Collie, supra, 30 Cal.3d 43, to yet a third inchoate crime related to murder—solicitation to commit murder. Solicitation is complete upon the making of the request or proposal, even when the person solicited immediately rejects it. (1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 124, p. 143.) Unlike conspiracy, proof of solicitation requires neither agreement nor commission of an overt act. (Ibid.) Unlike attempt, it requires no direct, unequivocal act toward the commission of the target offense. (Id., § 143, p. 160.) The Bottger court held that, as with assault with intent to commit murder and attempted murder, solicitation for murder requires intent to kill and cannot be based on a theory of implied malice. (People v. Bottger, supra, 142 Cal.App.3d at pp. 980-982; see also People v. Phillips (1985) 41 Cal.3d 29, 77 [222 Cal.Rptr. 127, 711 P.2d 423] [citing Bottger with approval for the proposition that solicitation for murder requires specific intent to kill].)

As noted, the opinion in Alexander, supra, 140 Cal.App.3d 647, on which the Court of Appeal relied in the present case, concluded conspiracy to commit murder can be based on a theory of implied malice murder. (Id. at p. 665.) The Alexander court took note of the holdings in Murtishaw, supra, 29 Cal.3d 733, and Collie, supra, 30 Cal.3d 43, but found them inapposite in the context of establishing malice for conspiracy to commit murder, apparently believing that to do so would run afoul of this court’s holding in Horn, supra, 12 Cal.3d 290. (Alexander, supra, 140 Cal.3d at pp. 665-666.) In this regard the Alexander court erred. We turn, next, to our decision in Horn.

The defendants in Horn, supra, 12 Cal.3d 290, were convicted of conspiracy to commit murder in the first degree, arson, and the unlawful manufacture of a firebomb. At trial the defendants presented evidence suggesting that at the time of the conspiracy they were so intoxicated they lacked the capacity to harbor malice aforethought, thus making their unlawful agreement, at most, a conspiracy to commit voluntary manslaughter. (Id. at p. *606293.) The trial court, however, refused to instruct the jury that diminished capacity arising from voluntary intoxication could reduce a homicide to manslaughter, thus leaving the jury with an all-or-nothing choice on the conspiracy to commit murder count. The Horn court concluded such refusal to instruct on conspiracy to commit manslaughter required reversal of the conspiracy to commit murder counts.

The court in Horn recognized that earlier, in People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (Kynette), we had stated that . . ‘a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the “willful, deliberate and premeditated” intention to kill a human being.’ ” (Horn, supra, 12 Cal.3d at p. 298, quoting Kynette, supra, 15 Cal.2d at p. 745.) This was so because, at the time Kynette was decided, premeditation meant merely “advance planning of the crime.” (Horn, supra, 12 Cal.3d at p. 298.)

As of the time Horn, supra, 12 Cal.3d 290, was decided, however, later cases had redefined premeditation as “requir[ing] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act.’ [Citations.]” (Id. at p. 298.) Furthermore, although a conviction of murder or conspiracy to commit murder in any degree requires proof of malice aforethought, cases postdating Kynette, supra, 15 Cal.2d 731, had held that malice could be rebutted by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication, i.e., recognition of the “diminished capacity defense.” (See People v. Graham (1969) 71 Cal.2d 303, 315 [78 Cal.Rptr. 217, 455 P.2d 153]; People v. Gorshen (1959) 51 Cal.2d 716, 727 [336 P.2d 492]; Horn, supra, 12 Cal.3d at p. 299.)

The Horn court looked to these changes in the law postdating Kynette, supra, 15 Cal.2d 731, considered the evidence of Horn’s diminished capacity caused by intoxication, noted the absence of any basis on which to conclude that the jury, as instructed, had rejected such evidence in convicting Horn and his codefendant of conspiracy to commit murder, and concluded it was therefore reversible error to fail to instruct on the lesser offense of conspiracy to commit manslaughter. (Horn, supra, 12 Cal.3d at pp. 300-301.)

More pertinent to our present analysis, nothing in the court’s decision in Horn suggests that conspiracy to commit murder can be committed without intent to kill (express malice). Indeed, looking to the precise facts of that case, because the conspiracy to murder in Horn involved a firebomb and because, under Penal Code section 189 as then worded, “[a]ll murder which *607is perpetrated by means of a bomb ... is murder in the first degree,” verdicts of conspiracy to commit murder in the second degree in Horn would have been contrary to law, and the Horn court so recognized. (Horn, supra, 12 Cal.3d at pp. 299-300.) In short, neither the facts of Horn, its rationale, nor its holding mandates the view that conspiracy to commit murder can be based on a theory of implied malice.

We conclude that a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice.

II

The question remains whether the instructions on implied malice in this case were prejudicial, requiring reversal of defendants’ convictions of conspiracy to commit murder designated by the jury as murder in the second degree. We conclude the convictions must be reversed.

The jury was instructed on theories of both express and implied malice. They returned general verdicts, which do not inform us on what theory they found the requisite element of malice necessary to convict on the charges of conspiracy to commit murder. Under the implied malice instructions, the jury could have found malice without finding intent to kill. (Pen. Code, § 188.) The prosecutor repeatedly referred to implied malice in the closing arguments, stating at one point that “. . . this could very easily be an implied malice case.”

On this record, under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; see People v. Harris (1994) 9 Cal.4th 407, 424-425 [37 Cal.Rptr.2d 200, 886 P.2d 1193], and cases cited), reversal is required, for it cannot be determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions on the conspiracy counts. Nor is there anything else discoverable from the verdicts that would enable us to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill. (People v. Harris, supra, 9 Cal.4th at p. 419.) Defendant Chatman was convicted of second degree murder, which conviction itself could have been based on a theory of implied malice; defendant Swain was found not guilty of murder and its lesser offenses.

That portion of the Court of Appeal’s judgment affirming defendants’ convictions of conspiracy to commit murder must therefore be reversed.

*608III

We are mindful that conceptually difficult questions remain regarding whether there exists a viable offense of conspiracy to commit express malice “second degree” murder, and if there be such an offense, what is the applicable punishment. The question also remains whether defendants in this case may be retried for conspiracy to commit murder in the first degree given the jury’s determination that they conspired to commit murder and its further designation of that murder as having been in the second degree.

Confusion has arisen in the wake of several key changes to the law of murder and, in particular, to the definition of premeditation, all of which postdated Horn, supra, 12 Cal.3d 290, and which have called into question the continued validity of certain aspects of that opinion’s holding.

First, the characterization of premeditation upon which Horn, supra, 12 Cal.3d 290, relied, namely, a showing that the defendant was able to “ ‘maturely and meaningfully reflect upon the gravity of his contemplated act’ ” (Horn, supra, 12 Cal.3d at p. 298, italics added, quoting People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959]), has itself passed into history. Seven years after Horn was decided, the Legislature amended Penal Code section 189 to provide that “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act" (Stats. 1981, ch. 404, § 7, p. 1593, italics added.)

Second, since Horn, supra, 12 Cal.3d 290, was decided, the Legislature has abolished the defense of diminished capacity. (See Stats. 1981, ch. 404, § 4, p. 1592 [enacting Pen. Code, § 28].) As one court has observed: “Horn, decided in 1974, was premised largely on the continued existence of the diminished capacity defense. In light of the subsequent legislative abrogation of that defense, we question the continued validity of Horn and Alexander [supra, 140 Cal.App.3d 647].” (People v. Miller (1992) 6 Cal.App.4th 873, 878, fn. 2 [8 Cal.Rptr.2d 193].)

It can be argued that the current statutory definition of premeditation is once again akin to the definition of premeditation in effect when this court decided Kynette, supra, 15 Cal.2d 731, namely, mere “advanced planning of the crime.” Thus, the rationale of Horn, supra, 12 Cal.3d 290, would no longer afford any principled basis on which to distinguish between the mental state required for conspiracy to commit murder; the specific intent to agree and conspire with intent to kill—and the mental state of premeditated first degree murder. Stated differently, conspiring to murder with the requisite intent to kill is arguably functionally indistinguishable from the mental *609state of premeditating the target offense of murder. If that be the case, then logically, all conspiracy to commit murder is necessarily “conspiracy to commit first degree murder,” or perhaps more accurately stated, conspiracy to commit murder punishable as first degree murder under the provisions of Penal Code section 182.

The arguably ambiguous provisions of Penal Code section 182, which, by their express terms, purport only to prescribe the proper punishment for conspiracy convictions, but which were construed in Horn, supra, 12 Cal.3d 290, 298, footnote 5, as creating or authorizing conviction of the offense of “conspiracy to commit second degree murder,” have further compounded the confusion. The controversial footnote in Horn states: “Kynette’s assertion that a conspiracy to commit murder is always a conspiracy to commit first degree murder is inconsistent with the present language of Penal Code section 182. When Kynette was decided, section 182 provided simply that conspirators to commit a felony ‘shall be punishable in the same manner and to the same extent as provided for the punishment of the commission of the said felony.’ The current section 182, enacted in 1955, is much more specific: ‘If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.’ [*j0 As this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree. Only if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder. Since the Legislature has authorized a verdict of conspiracy to commit second degree murder, it clearly does not believe that crime to be a logical impossibility.” (Horn, supra, 12 Cal.3d at p. 298, fn. 5, first italics added; second italics in original.)

The point made in the Horn footnote might be refuted by concluding that the portion of Penal Code section 182 quoted in italics above was added by the Legislature for the very purpose of effectuating this court’s holding in Kynette, supra, 15 Cal.2d 731, that is to say, by expressly providing that all conspiracy to commit murder is conspiracy to commit murder in the first degree, and that hence all such conspiracies should be punished as first degree murders, with no consequent requirement that the jury further determine the degree of the target offense of murder. The Horn court’s contrary interpretation—that “[o]nly if the trier of fact fails to determine the degree is *610a conspiracy to commit murder punished as one to commit first degree murder . . (Horn, supra, 12 Cal.3d at p. 298, fn. 5)—does seem at odds with the general proposition, embodied in Penal Code section 182, that a defendant should receive the benefit of a jury’s failure to designate the degree of the target offense of the conspiracy.

On the other hand, the relevant language of Penal Code section 182 quoted above, as suggested by the court in Horn, supra, 12 Cal.3d at page 298, footnote. 5, can literally be read as contemplating verdicts of “conspiracy to commit second degree murder.” Nor would such a verdict necessarily be inconsistent with the holding we reach today, for one can be found guilty of unpremeditated murder with express malice in the second degree. (See CALJIC No. 8.30.)

The plain fact remains, however, that the analysis suggested in footnote 5 in Horn, supra, 12 Cal.3d at page 298, was dictum. As already explained, under the particular facts of that case, had the jury returned verdicts convicting Horn and his codefendant of “conspiracy to commit second degree murder,” such verdicts would have been contrary to law as the defendants’ plan to use a “bomb” elevated the target offense to murder in the first degree as a matter of law. Furthermore, the provisions of Penal Code section 182 are expressly addressed to the proper punishment for conspiracy, including conspiracy to commit murder. Punishment was simply not at issue in Horn, supra, 12 Cal.3d 290. “ ‘It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’ ”” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [257 Cal.Rptr. 708, 111 P.2d 406], quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369 [21 P.2d 643]; accord, Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 1003-1004 [275 Cal.Rptr. 201, 800 P.2d 557].)

Perhaps the lesson bears repeating here. We have determined that defendants’ convictions for conspiracy to commit murder in the second degree must be reversed. The issue of proper punishment for those convictions is therefore no longer in controversy before us and is moot. Moreover, in light of our determination that reversal of the conspiracy convictions is compelled, the question of former jeopardy, or any other question regarding further proceedings, is premature unless and until the People elect to pursue such further proceedings and, in particular, seek to retry defendants on the theory of conspiracy to commit first degree murder. (See People v. McDonald (1984) 37 Cal.3d 351, 383-384, fn. 31 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) We therefore leave the determination of those questions for another day.

*611Conclusion

To the extent the judgment of the Court of Appeal affirmed defendants’ convictions of conspiracy to commit murder, it is reversed. In all other respects the judgment of the Court of Appeal is affirmed.

Lucas, C. J., George, J., and Werdegar, J., concurred.

MOSK, J.

I concur in the judgment.

In this cause, we are presented with important questions concerning the crime of conspiracy to commit murder and the punishment prescribed therefor. I offer the following answers.1

I. The Legal Framework

Let us begin by setting out the legal framework.

The first step concerns the crime of conspiracy. Penal Code section 182 expressly defines the crime of conspiracy to include the situation wherein “two or more persons conspire” “[t]o commit any crime.” (Id., subd. (a)(1).) Penal Code section 184 impliedly defines a conspiracy to commit a crime as an agreement “to effect [its] object.” It also requires that an overt act, “beside such agreement, be done within this state . . . .” (Ibid.) For some crimes, the object “is defined in terms of proscribed conduct. . . .” (Model Pen. Code & Commentaries (1985) com. 2(c) to § 5.03, p. 402.) For others, it “is defined in terms of . . . a proscribed result under specified attendant circumstances . . . .” (Ibid.)

The second step relates to the crime of murder. Penal Code section 187 defines the crime of murder as the “unlawful killing of a human being, or a *612fetus, with malice aforethought.” (Id., subd. (a).) Penal Code section 188, in turn, provides that malice aforethought “may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”2 Penal Code section 189 declares that all murder that is (1) “perpetrated ... by any . . . kind of willful, deliberate, and premeditated killing,” (2) “committed in the perpetration of, or attempt to perpetrate,” certain enumerated felonies, or (3) “perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death,” is “murder of the first degree. All other kinds of murders are of the second degree.”3

The third step proceeds from the first and second, and involves the crime of conspiracy to commit murder. Read together, Penal Code sections 182, 184, 187, 188, and 189 define the crime of conspiracy to commit murder— the object of which “is defined in terms of ... a proscribed result under specified attendant circumstances” (Model Pen. Code & Commentaries, supra, com. 2(c) to § 5.03, p. 402)—as the agreement by two or more persons, accompanied by an overt act, to effect a killing that is unlawful under the circumstances as they are believed to be and that is reflective of malice aforethought (see id., com. 2 to § 5.03, p. 394 [stating that “the actor’s liability is measured from the situation as he views it”]). So defined, the crime of conspiracy to commit murder requires two kinds of “intent” strictly so called. One is intent to join together in a common endeavor; else, *613there is no conspiracy to commit murder. The other is intent to kill unlawfully: else, there is no conspiracy to commit murder.4 The offense does not require, as a factual matter, a premeditated and deliberate intent to kill unlawfully. But an intent of such character is present in the context of a conspiracy, practically by definition, because it does not arise of a sudden within a single person but is necessarily formed and then shared by at least two persons. (Cf. People v. Ruiz (1988) 44 Cal.3d 589, 614 [244 Cal.Rptr. 200, 749 P.2d 854] [concluding that murder by lying in wait is, by definition, a kind of “willful, deliberate, and premeditated killing” within the meaning of Penal Code section 189, and does not require as a factual matter a premeditated and deliberate intent to kill unlawfully or even a simple intent to kill unlawfully].)

II. Kynette and Horn

Absent from the legal framework set out above are the two decisions that generate the conflict that we must here resolve concerning the crime of conspiracy to commit murder and the punishment prescribed therefor: People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (hereafter sometimes Kynette), overruled on another point in People v. Snyder (1958) 50 Cal.2d 190, 197 [324 P.2d 1], and People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300] (hereafter sometimes Horn).

In Kynette, we expressly held that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being.” (People v. Kynette, supra, 15 Cal.2d at p. 745.) Inasmuch as it encompasses malice aforethought, in fact express malice aforethought, such an “intention” distinguishes murder from other homicide. Also, by its very terms, it differentiates murder of the first degree in one of its forms from murder of the second degree.

In Kynette, we thereby impliedly held that the crime of conspiracy to commit murder is properly conspiracy to commit murder simpliciter. Under its reasoning, it is erroneous to speak of a “crime” of “conspiracy to commit *614murder of the second degree”', “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree” (People v. Kynette, supra, 15 Cal.2d at p. 745). Similarly, it is unnecessary to label the crime “conspiracy to commit murder of the first degree”', there is no crime of “conspiracy to commit murder of the second—or any other—degree” from which it may be distinguished.

In Horn, however, this court—over my dissent—disapproved Kynette on these points. The Horn court recognized a “crime” of “conspiracy to commit murder of the second degree” in addition to one of “conspiracy to commit murder of the first degree.”

In the course of its analysis, the Horn court proceeded to reject, on its own terms, Kynette’s holding that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree” because the “agreement to murder necessarily involves” both malice aforethought and a premeditated and deliberate intent to kill unlawfully. (People v. Kynette, supra, 15 Cal.2d at p. 745.)

One of the Horn court’s reasons was, substantially, that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully because the latter then “require[d] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act.’ ” (People v. Horn, supra, 12 Cal.3d at p. 298.) In People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], from which Horn’s quotation is taken, we had held that the “true test” of a premeditated and deliberate intent to kill unlawfully was such.

The other of the Horn court’s reasons was to the effect that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully or even malice aforethought because the threshold of proof therefor had been raised, in practice, by imposition on the prosecution of the burden to rebut any defense of diminished capacity. In People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53], disapproved on another point in People v. Wetmore (1978) 22 Cal.3d 318, 327, footnote, 7 [149 Cal.Rptr. 265, 583 P.2d 1308], and People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d 492], also disapproved on another point in People v. Wetmore, supra, 22 Cal.3d at pages 324, footnote 5, and 327, footnote 7, and their progeny, we had established that defense, which was available to negate all mental states other than so-called “general criminal intent” (see generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, §§ 208-209, pp. 237-240), including premeditated and deliberate intent to kill unlawfully (see, e.g., People v. Wolff, supra, 61 Cal.2d at pp. 818-822) and malice aforethought (see, e.g., People v. Conley (1966) 64 Cal.2d 310, 318 [49 Cal.Rptr. *615815, 411 P.2d 911]). “[A] conviction of murder in any degree,” says Horn, “requires proof of malice aforethought; since People v. Gorshen (1959) 51 Cal.2d 716, 727 [336 P.2d 492], malice can be rebutted ‘by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.’ ” (People v. Horn, supra, 12 Cal.3d at pp. 298-299, quoting People v. Graham (1969) 71 Cal.2d 303, 315 [78 Cal.Rptr. 217, 455 P.2d 153].) “Since evidence of diminished mental capacity can show that a homicide was committed without premeditation or malice aforethought, reducing that homicide to second degree murder or manslaughter, such evidence may also serve to classify a conspiracy to commit a homicide as one to commit second degree murder or manslaughter.” (People v. Horn, supra, 12 Cal.3d at p. 295.)

In a footnote, the Horn court added: “Kynette’s assertion that a conspiracy to commit murder is always a conspiracy to commit first degree murder is inconsistent with the present language of Penal Code section 182. When Kynette was decided, section 182 provided simply that conspirators to commit a felony ‘shall be punishable in the same manner and to the same extent as provided for the punishment of the commission of the said felony.’ The current section 182, enacted in 1955, is much more specific: ‘If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.’ [<fl] As this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree. Only if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder. Since the Legislature has authorized a verdict of conspiracy to commit second degree murder, it clearly does not believe that crime to be a logical impossibility.” (People v. Horn, supra, 12 Cal.3d at p. 298, fn. 5, italics in original.)

What are we to do with Kynette and Horn?

On its very face, Kynette is persuasive. Its words, which are quoted above, need merely be reread to prove the point.

The same cannot be said of Horn,

Judged within the legal framework set out above, Horn has been wanting from the day it was decided.

*616But let me not press the point. For argument’s sake only, I shall assume that, when it was handed down, Horn was good law. It is no longer.

To the extent that the Horn court believed that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully because the latter then “require[d] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act . . .’” (People v. Horn, supra, 12 Cal.3d at p. 298), it has been passed by. It is true that, prior to Horn, we had held in People v. Wolff, supra, 61 Cal.2d at page 821, that the “true test” of a premeditated and deliberate intent to kill unlawfully was such. But it is also true that, after Horn, the Legislature overruled us on that very point. Specifically, it amended Penal Code section 189 through the addition of the following sentence (Stats. 1981, ch. 404, § 7, p. 1593), which remains in the provision today: “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove that the defendant maturely and meaningfully reflected upon the gravity of his or her act.”

Furthermore, to the extent that the Horn court believed that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully or even malice aforethought because the threshold of proof therefor had been raised, in practice, by imposition on the prosecution of the burden to rebut any defense of diminished capacity, it has been passed by on this matter as well. At the same time that it amended Penal Code section 189 as indicated above, the Legislature added section 28, subdivision (b), to the same code (Stats. 1981, ch. 404, § 4, p. 1592), which expressly abolished the defense: “As a matter of public policy there shall be no defense of diminished capacity . ...” A year later, the people added section 25, subdivision (a), to the code (Prop. 8, Primary Elec. (June 8, 1982) § 4), which abolished the defense even more expressly: “The defense of diminished capacity is hereby abolished. ...”

What remains of Horn is its footnote quoting Penal Code section 182, which in pertinent part is virtually the same now as then: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.” (Id., subd. (a).)

When we construe Penal Code 182, as we must, in its full context (see Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 673 [47 Cal.Rptr.2d *617108, 905 P.2d 1248] (conc. opn. of Mosk, J.)), we find therein the Legislature’s acquiescence in Kynette—express as to the punishment prescribed for the crime of conspiracy to commit murder, implied as to the crime itself. We read the provision to contain the words in italics: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit, except in the case of murder. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”

Were we to construe Penal Code section 182 otherwise, we would bring difficulties on ourselves—difficulties that we could and should avoid. As a doctrinal matter, we would be compelled to deviate from the general rule— stated in Penal Code section 182 itself and also in Penal Code sections 1157 and 1192—that gives the benefit of the trier of fact’s nondetermination of the degree of a felony to the defendant. Moreover, as an historical matter, we would be forced to embrace two dubious conclusions. One would be that the Legislature impliedly acknowledged that the “crime” of “conspiracy to commit murder of the second degree” existed about 15 years after we had all but expressly declared in Kynette that it did not. The other would be that the Legislature intended to expose to the death penalty any person convicted of the “crime” of “conspiracy to commit murder of the second degree” who had had the misfortune to be tried by a jury or court that was unable to determine the degree of the “conspired” murder, or that did in fact determine the degree to be the second but failed to so specify. That is because, pursuant to Penal Code section 190 as it then stood (Stats. 1927, ch. 889, § 1, p. 1952), the punishment for the crime of murder of the first degree included death.5

Therefore, to the question, “What are we to do with Kynette and Horn?,” my answer is, “We should overrule Horn and approve Kynette.” Of course, we need not do so as a formal matter. Kynette approves itself. As stated, it is persuasive on its very face. In addition, Horn has been overruled for all practical purposes through the legislative abrogation of its premises. It is now a citation without substance. It falls of its own weight.

III. The Present Proceeding

Let us now turn to the present proceeding.

*618The Grand Jury of the City and County of San Francisco handed up to the superior court an indictment against Jamal K. Swain and David Chatman. In count 1, it charged both Swain and Chatman with the crime of murder; it alleged, inter alia, that the offense was “wilful, deliberate, and premeditated,” and also, for enhancement of sentence, that both men were armed with (Pen. Code, § 12022, subd. (a)(1)), and personally used (id,., § 12022.5, subd. (a)), a firearm in its commission. In count 2, it charged both Swain and Chatman with the crime of conspiracy to commit murder. In count 3, it charged Swain alone with the crime of the felonious intimidation of a witness. (Id., § 136.1, subd. (c)(1).) In count 4, it charged Swain alone with the same crime as to another witness. Swain and Chatman each pleaded not guilty to the charges and denied the allegations. On Swain’s motion, the superior court severed count four for a separate trial. It subsequently ordered dismissal thereof. Apparently, it also ordered dismissal of the arming allegations.

Trial on counts 1, 2, and 3 was by jury. As to count 1, the jury found Swain not guilty of the crime of murder and not guilty of the lesser included offenses of voluntary and involuntary manslaughter; by contrast, it found Chatman guilty of the crime of murder of the second degree, and found true the allegation of personal use of a firearm. As to count 2, it found Swain guilty of the “crime” of “conspiracy to commit murder of the second degree”; it made the same finding as to Chatman. As to count 3, it found Swain guilty of the crime of the felonious intimidation of a witness.

The superior court rendered separate judgments against Swain and Chat-man. It imposed on Swain a term of imprisonment for 15 years to life for the “crime” of “conspiracy to commit murder of the second degree”; it also imposed 3 years for the crime of the felonious intimidation of a witness, to be served consecutively; finally, it imposed a restitutionary fine in the amount of $200 (Gov. Code, § 13967). It imposed on Chatman a term of imprisonment for 15 years to life for the crime of murder of the second degree with 4 additional years for personal use of a firearm in its commission; it also imposed 15 years to life for the “crime” of “conspiracy to commit murder of the second degree," but stayed execution thereof (Pen. Code, § 654); finally, it imposed a restitutionary fine in the amount of $200.

The Court of Appeal, First Appellate District, Division Five, affirmed the judgments against Swain and Chatman in their entirety.

On separate petitions by the People, Swain, and Chatman, we granted review. As will appear, the judgment of the Court of Appeal must be reversed to the extent that it affirms the superior court’s judgments against *619Swain and Chatman convicting them of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree.”

The first question, which is general, is whether there is a crime of conspiracy to commit murder simpliciter or instead a “crime” of “conspiracy to commit murder of the first degree” and/or a “crime” of “conspiracy to commit murder of the second degree." For the reasons stated above, the answer is that only the former offense exists.

The second question, which is also general, is whether the crime of conspiracy to commit murder requires an intent to kill unlawfully. For the reasons stated above, the answer is that it does.

The third question, which is general as well, is what is the punishment for the crime of conspiracy to commit murder. For the reasons stated above, the answer is that it is the punishment for the crime of murder of the first degree—which, pursuant to Penal Code section 190, subdivision (a), is now imprisonment for a term of 25 years to life.6

The fourth question, which is specific to this cause, is whether the judgments convicting Swain and Chatman of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree” must be reversed. The answer is that reversal is indeed required. Because each judgment involves a “crime” that does not exist, it is unsupported as a matter of law and hence cannot stand. (See In re James M. (1973) 9 Cal.3d 517, 519-522 [108 Cal.Rptr. 89, 510 P.2d 33].) In a given case, it may be possible to determine that a judgment effectively convicts a defendant of, and sentences him for, the crime of conspiracy to commit murder simpliciter, albeit under the label of “conspiracy to commit murder of the second degree.” In a case of that sort, the judgment may be affirmed because the label may be disregarded. This is not such a case. It appears that we could determine that the judgments against Swain and Chatman effectively convicted them of, and sentenced them for, the crime of conspiracy to commit murder only if we could conclude that such judgments rested on an at least implied finding by the jury that intent to kill unlawfully was present. On my review of the record, we cannot so conclude.

The fifth question, which is also specific to this cause, is whether either Swain or Chatman or both may be retried for the crime of conspiracy to *620commit murder without offense to the double jeopardy clause of the Fifth Amendment to the United States Constitution as made applicable to the states through the due process clause of the Fourteenth Amendment. The answer is that both men may in fact be retried. To be sure, the Fifth Amendment’s double jeopardy clause “protects against a second prosecution for the same offense” both “after acquittal” and “after conviction.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [23 L.Ed.2d 656, 664-665, 89 S.Ct. 2072].) But neither man was expressly convicted of the crime of conspiracy to commit murder simpliciter; neither was expressly acquitted thereof. Furthermore, as explained in the preceding paragraph, we cannot conclude that either man was impliedly convicted of the crime under the label of “conspiracy to commit murder of the second degree”; neither, I believe, can we conclude that either was impliedly acquitted thereunder.

The sixth and final question, which is specific to this cause as well, is what is the punishment that may be imposed on Swain or Chatman in the event that he is convicted of the crime of conspiracy to commit murder on retrial. The answer is that it is the punishment for the “crime” of “conspiracy to commit murder of the second degree”—which, pursuant to Horn, is imprisonment for a term of 15 years to life. That is because a retroactive application of the law as herein declared would “make[] more burdensome the punishment for a crime, after its commission” (Beazell v. Ohio (1925) 269 U.S. 167, 169 [70 L.Ed. 216, 217, 46 S.Ct. 68]; accord, Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 38-39, 110 S.Ct. 2715]), and would thereby violate the due process clause of the Fourteenth Amendment (see Bouie v. City of Columbia (1964) 378 U.S. 347, 352-354 [12 L.Ed.2d 894, 899-900, 84 S.Ct. 1697]; see also In re Baert (1988) 205 Cal.App.3d 514, 518 [252 Cal.Rptr. 418] (per Arabian, J.)).7

IV. Conclusion

For the foregoing reasons, I join the majority in concluding that the judgment of the Court of Appeal should be reversed to the extent that it affirms the superior court’s judgments against Swain and Chatman convicting them of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree.”

Arabian, J., concurred.

*621KENNARD, J.

I concur in the majority’s holding, set forth in parts I and II of the majority opinion, that an unlawful intent to kill (what our law terms “express malice”) is an element of conspiracy to commit murder. The majority, however, does not reach the issue of whether conspiracy to commit murder is divided into degrees with differing punishments. Left unanswered, therefore, is this question: Is there conspiracy to commit first degree murder and conspiracy to commit second degree express-malice murder, or only conspiracy to commit murder? Unlike the majority, I would decide this issue, as it is likely to arise on remand and is of widespread significance to the law governing murder conspiracies, thus necessitating guidance to the bench and bar.

In deciding it, I would adhere to this court’s view in People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300] that conspiracy to commit first degree murder and conspiracy to commit second degree murder are separate crimes distinguished by whether the intent to kill reflected in the conspirators’ agreement is deliberate and premeditated or not. I would further conclude that under the Penal Code, each type of conspiracy to murder is subject to the punishment prescribed for the corresponding degree of murder.

I

As relevant here, defendants David Chatman and Jamal K. Swain were charged with murder and with conspiracy to commit murder. The trial court instructed the jury that murder required malice, that malice could be express or implied, and that conspiracy to commit murder required the specific intent to commit first or second degree murder. The instructions thus permitted the jury to find defendants guilty of conspiracy to commit second degree murder on an implied malice theory, that is, without finding they had the intent to kill. The jury convicted Chatman of second degree murder and conspiracy to commit second degree murder; it convicted Swain of conspiracy to commit second degree murder but acquitted him of murder. On the conspiracy conviction, the trial court sentenced each defendant to prison for 15 years to life, the punishment for second degree murder. Defendants appealed, contending that conspiracy to murder requires intent to kill as one of its elements; the People also appealed, contending that all conspiracies to murder were subject to a prison sentence of 25 years to life, the punishment for first degree murder. The Court of Appeal affirmed the judgments in their entirety.

II

I agree with the majority that conspiracy to murder requires proof of an unlawful intent to kill. I would, however, also decide the further question of *622whether there are separate crimes of conspiracy to commit first degree murder and of conspiracy to commit second degree express-malice murder, or whether conspiracy to commit murder is a unitary crime requiring only intent to kill. As I noted at the outset, the issue is a significant one affecting the jury instructions to be given in every murder conspiracy case and will inevitably arise if defendants are retried. As Justice Mosk notes in his concurring opinion, this court has in the past addressed issues likely to arise on remand of a case, and should do so here as well.

Penal Code section 182 (hereafter section 182) makes it unlawful for “(a) . . . two or more persons [to] conspire: [^Q (1) [t]o commit any crime” and establishes the punishment for conspiracies, including murder conspiracies. For crimes divided according to degree, section 182 provides for the following punishment: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree." I shall refer to this as the punishment language of section 182.

The crime of murder is divided into degrees. At the time the murder at issue in this case occurred, Penal Code section 189 defined first degree murder as (1) “any . . . kind of willful, deliberate, and premeditated killing” (including killings accomplished by any of a variety of statutorily designated methods, the use of which in effect establishes deliberation and premeditation as a matter of law) or (2) murders “committed in the perpetration of, or attempt to perpetrate,” certain designated felonies (commonly referred to as felony murder). “All other kinds of murders are of the second degree." (Pen. Code, § 189.) First and second degree murder have different punishments. (Pen. Code, § 190.) Because murder is a crime “for which different punishments are prescribed for different degrees” (§ 182), the punishment language of section 182 on its face divides murder conspiracies into degrees, just as it does other crimes for which different punishments are prescribed for different degrees.

To understand the debate over whether the current version of section 182 divides conspiracy to murder into degrees, however, it is necessary to begin with People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (hereafter Kynette), which was decided when a different version of section 182 was in effect. At that time, section 182 provided that a conspiracy was “punishable in the same manner and to the same extent as in this code provided for the *623punishment of the commission of the said felony.” (Former § 182, as amended by Stats. 1919, ch. 125, § 1, p. 170; Kynette, supra, 15 Cal.2d at p. 744.) The defendant in Kynette argued that the trial court improperly excluded jurors with reservations against the death penalty because, he contended, the death penalty (a possible penalty for first degree murder) was not a possible punishment for conspiracy to commit murder. (Id. at p. 744.) Thus, the issue was whether the penalty for first degree murder was a possible penalty for a conspiracy to commit murder.

In Kynette, this court held that the death penalty was a possible punishment for conspiracy to commit murder. (Kynette, supra, 15 Cal.2d at p. 745.) It reasoned that all conspiracies to commit murder were necessarily conspiracies to commit first degree murder. (Ibid.)

In 1955, 15 years after Kynette, supra, 15 Cal.2d 731, the Legislature changed the punishment language of section 182 to provide as follows: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.” (§ 182, as amended by Stats. 1955, ch. 660, § 1, p. 1155.) The punishment language of section 182 remains substantially the same today.

Almost 20 years after the Legislature altered section 182, this court addressed the effect of those changes on conspiracy to commit murder in People v. Horn, supra, 12 Cal.3d 290 (hereafter Horn). In that case, the court concluded that conspiracies to kill could take the form of conspiracies to commit first degree murder, conspiracies to commit second degree murder, and conspiracies to commit manslaughter. (Id. at pp. 298-300 & fn. 5.) In doing so, the court relied on three reasons: the existence of the diminished capacity defense; the then-existing requirement that for premeditation to exist the defendant must have “maturely and meaningfully reflect[ed] [on] the gravity of his contemplated act” (People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], italics omitted); and the post -Kynette changes to the punishment for murder conspiracies set forth in section 182. (Horn, supra, 12 Cal.3d at pp. 298-300 & fn. 5.) The court disapproved Kynette to the extent it was inconsistent. (Horn, supra, 12 Cal.3d at p. 301, fn. 8.)

As the majority notes, the first two reasons set forth in the Horn decision (supra, 12 Cal.3d 290) supporting the division of murder conspiracies into *624degrees—the existence of the diminished capacity defense and the “mature and meaningful reflection requirement”—are no longer the law. (Maj. opn., ante, at p. 608.) There remains, however, the punishment language of section 182.

The natural reading of the punishment language of section 182 makes conspiracies to murder punishable by degree, just as conspiracies to commit other crimes are punishable by degree. The first sentence of the punishment language of section 182 (“If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit.”) requires the trier of fact to ascertain the degree of the crime that is the object of the conspiracy, and thereby impliedly makes the punishment for the conspiracy the punishment for that degree of the crime. The second sentence of the punishment language of section 182 (“If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”) states that when the degree is not determined, the punishment is to be for the lesser degree except in the case of murder, which is punished in the first degree. By its terms, the murder conspiracy exception just referred to is limited to cases in which the jury has not determined the degree; it is not an exception removing murder conspiracies entirely from classification and punishment by degree. Thus, Horn correctly concluded that, “[a]s this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree.” (Horn, supra, 12 Cal.3d at p. 298, fn. 5.) Nor is there any evidence of a contrary legislative intent underlying the enactment of section 182.

When this analysis of section 182 is coupled with our holding today that conspiracy to murder requires an unlawful intent to kill, the result is that a conspiracy to murder may be either a conspiracy to commit first degree murder or a conspiracy to commit second degree express-malice murder. The degree of the murder conspiracy depends on whether the conspirators’ agreement evidences a willful, deliberate, premeditated intent to kill of the type that distinguishes first degree murder or instead reflects only a bare intent to kill lacking in premeditation and deliberation.1 Reading section 182 as dividing conspiracy to murder into degrees, the punishment for each *625degree of conspiracy to commit murder is that for the underlying degree of murder. If the trier of fact fails to determine the degree, the conspiracy is subject to the punishment for first degree murder.

The reason for this structure of conspiracy to murder is readily apparent. If conspiracy to murder were a unitary crime that required only intent to kill, which is the mental state of second degree murder, but was punished as first degree murder, then conspiracies that involve agreements to commit only the elements of second degree murder (e.g., that lack premeditation and deliberation) would be punished more severely than the completed crime of second degree murder.

There is an additional reason for adhering to Horn’s conclusion that conspiracy to commit murder is divided by degrees. Horn has been the law for 21 years. During that time, the Legislature has not amended section 182 to change the understanding of murder conspiracy set forth in Horn. Therefore, the prudent and preferable course is to retain Horn’s structure of conspiracy to murder as a crime divided into degrees with different punishments for each degree. If the Legislature wishes to alter this structure of conspiracy to murder, it can do so. That significant policy decision, however, should be left to the Legislature.

Finally, I note that as a factual matter the crime of conspiracy to commit second degree express-malice murder applies only to a narrow range of cases—those in which conspirators formed an agreement to kill but made that agreement without deliberation and premeditation. It seems doubtful that any agreement persisting beyond more than the briefest duration would lack deliberation and premeditation, for inevitably the passage of time alone would cause the agreement to become deliberate and premeditated.

III

Justice Mosk, however, comes to a different conclusion than I have reached. He concludes that conspiracy to murder is a unitary crime that requires only intent to kill but is subject to the punishment for first degree murder. He therefore rejects this court’s view (Horn, supra, 12 Cal.3d 290) *626that the punishment language of section 182 recognizes the crime of conspiracy to commit second degree murder.

Although Justice Mosk relies on Kynette, supra, 15 Cal.2d 731, in reaching this conclusion, in my view Kynette does not really support his position. As the majority notes, proof of conspiracy requires proof that the conspirators intended to commit the elements of the offense that is the object of the conspiracy. (Maj. opn., ante, at p. 600.) In Kynette, this court stated that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being.” (Kynette, supra, 15 Cal.2d at p. 745.) Kynette thus expresses the view that conspiracy to commit murder, as an agreement to commit the elements of first degree murder, requires proof that the conspirators’ intent to kill was deliberate and premeditated, but assumes that the agreement to murder itself will provide proof of deliberation and premeditation.

According to Justice Mosk, however, conspiracy to murder requires no mental state other than intent to kill. He states that “[t]he offense does not require, as a factual matter, a premeditated and deliberate intent to kill.” (Conc. opn. of Mosk, J., ante, at p. 613, italics in original.) In effect, Justice Mosk treats all conspiracies to commit murder as conspiracies to commit second degree express-malice murder—that is, the only mental state required, or relevant, to conspiracy to commit murder, in addition to intent to agree, is intent to kill, which is the mental state of second degree express-malice murder.2

For this reason, under Justice Mosk’s approach, every murder conspiracy would be punished as first degree murder even though the jury would have found only the mental state of second degree murder—intent to kill. Thus, conspiracy agreements to commit only the elements of second degree express-malice murder (e.g., agreements that lack premeditation and deliberation) and conspiracy agreements that reflect the premeditation and deliberation that distinguishes first degree murder would both be subject to the punishment established for first degree murder. As I have noted, this would produce the unjust and illogical result that second degree express-malice murder conspiracies would be punished more severely than the completed crime of second degree murder.

Furthermore, Justice Mosk’s position is contrary to the ordinary meaning of section 182. In justification, he suggests that to follow section 182’s plain *627language, under which murder conspiracies are subject to the punishment for first degree murder if the trier of fact fails to determine the degree of the murder that is the conspiracy’s object, would violate the general rule that when the trier of fact fails to determine the degree of the felony that is the object of a conspiracy, or the degree of a substantive felony, the defendant is only subject to the punishment prescribed for the lesser degree. (See Pen. Code, §§ 182, 1157, 1192.) There is, however, a logical reason why, when the trier of fact fails to determine the degree of the crime, murder conspiracies are punished in the first degree while conspiracies to commit all other crimes are punished in the lesser degree. Deliberate and premeditated murders are murders of the first degree. As Kynette recognized, in the typical murder conspiracy the conspirators will act with premeditation and deliberation in forming an agreement to commit the crime. (Kynette, supra, 15 Cal.2d at p. 745.) Punishing murder conspiracies of unspecified degree as first degree murder conspiracies simply accords with the statistical reality that the vast majority of murder conspiracies will involve premeditation and deliberation.

The deliberate and premeditated nature of most conspiracies, however, does not similarly increase the likelihood that conspiracies to commit crimes other than murder will be first degree conspiracies. Unlike murder, other crimes of degree do not become first degree by being premeditated and deliberate; as to those crimes, the degree of the crime typically turns on the nature of the defendant’s acts rather than the defendant’s mental state. For example, the degree of a robbery can vary depending on the location where the robbery occurs. (Pen. Code, § 212.5.) Thus, the fact that conspiracies to commit crimes other than murder may also reflect a premeditated and deliberate intent to commit the underlying crime does not support a similar “presumption” that the crime, if committed, would be in the first degree.

Justice Mosk also asserts that following the plain meaning of section 182 and recognizing the existence of both first and second degree murder conspiracies would mean that the Legislature, in enacting section 182 in 1955, intended to subject to the possibility of the death penalty anyone convicted of conspiracy to murder merely because the jury failed to specify the degree of the crime. His reading of section 182, however, under which all conspiracies to commit murder are punished the same as first degree murders and his view that conspiracy to commit murder is a unitary crime requiring only intent to kill leads to an even more extreme result, namely, that the Legislature intended to subject all murder conspirators to the death penalty even if they lacked the intent to commit the elements of first degree murder (e.g., premeditation and deliberation).

Finally, Justice Mosk notes that reading section 182 as dividing conspiracy to murder into degrees would mean that the Legislature implicitly *628rejected Kynette, supra, 15 Cal.2d 731, in adopting section 182. In my view, however, there is nothing so unreasonable about this conclusion that would justify this court, in order to avoid it, to depart from the ordinary meaning of the language used in that statute.

In my view, the post-Kynette, supra, 15 Cal.2d 731, punishment language of section 182, the decision in Horn, supra, 12 Cal.3d 290, and the Legislature’s acceptance of Horn foreclose the result that Justice Mosk proposes. Instead, I would continue to adhere to Horn's recognition that, under section 182, conspiracy to commit first degree murder (subject to the punishment prescribed for first degree murder) and conspiracy to commit second degree murder (subject to the punishment prescribed for second degree murder) are both possible crimes.

IV

I now turn to the question of the degree or degrees of conspiracy to murder for which these defendants may be retried, and what punishment they may receive if convicted. The scope of retrial and resentencing turns on the effect, if any, of two constitutional limitations: the prohibition against double jeopardy (Montana v. Hall (1987) 481 U.S. 400, 402 [95 L.Ed.2d 354, 358-359, 107 S.Ct. 1825]; People v. Santamaría (1994) 8 Cal.4th 903, 910-911 [35 Cal.Rptr.2d 624, 884 P.2d 81]) and the due process bar against retroactive increases in punishment (see People v. Escobar (1992) 3 Cal.4th 740, 752 [12 Cal.Rptr.2d 586, 837 P.2d 1100]; Bouie v. City of Columbia (1964) 378 U.S. 347, 352-354 [12 L.Ed.2d 894, 899-900, 84 S.Ct. 1697]).

In convicting defendants of conspiracy, the jury completed two verdict forms with respect to each defendant. First, it completed a form entitled “Verdict” and reading, “We, the jury in the above-entitled cause, find the defendant [name]_of the crime of felony, to wit: violation of Section 182.1 of the California Penal Code (Conspiracy)” by filling in the blank with the word “Guilty.” Second, it completed a form entitled “Finding on Object of Conspiracy” and reading, “We, the jury in the above-entitled cause, having found the defendant, [name] Guilty of conspiracy, find that defendant conspired to commit the crimes opposite the designation of which there has been placed an ‘X’.” There then follows a list of five crimes: first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and auto theft. The jury put an “X” next to second degree murder. Swain was also found not guilty of murder, voluntary manslaughter, and involuntary manslaughter (but guilty of intimidating a witness); Chat-man was also found guilty of second degree murder.

*629Defendant Swain, arguing that the only murder conspiracy crime existing now is conspiracy to commit first degree murder, contends that he cannot be retried because he was impliedly acquitted of conspiracy to commit first degree murder when the jury checked off only second degree murder as the object of the conspiracy. As I conclude that conspiracy to commit second degree express-malice murder is a possible crime, I reject this contention. Defendant Chatman, arguing that both first and second degree murder conspiracies are possible, apparently concedes that he can be retried for conspiracy to commit second degree murder but not conspiracy to commit first degree murder. The Attorney General, taking the position that the only crime at issue is conspiracy in the abstract, contends that the defendants were convicted of the only crime they were charged with (“conspiracy”) and were acquitted of nothing. The Attorney General contends that if their convictions are reversed, there are no limits on the crimes defendants can be charged with on retrial.

The Attorney General’s position lacks merit. It would for example, permit retrial not only of the full range of murder conspiracies that exist under the law (whether that is ultimately determined to be first and second degree murder, first degree murder, or simply “murder”) but also conspiracy to commit auto theft, one of the other options given to, but not chosen by, the jury that convicted defendants. Moreover, in Horn, supra, 12 Cal.3d at page 298, we rejected the view that conspiracy is a crime that exists in the abstract without reference to the crime that is the object of the conspiracy.

Rather, in accordance with my view that we should adhere to Horn’s, supra, 12 Cal.3d 290, division of conspiracy to murder into conspiracy to commit first degree murder and conspiracy to commit second degree express-malice murder, these defendants may be retried for conspiracy to commit second degree murder, the crime for which these defendants were convicted. Doing so will not violate the double jeopardy clause, for these defendants were convicted, not acquitted, of conspiracy to commit second degree murder, the crime for which they would be retried. (Montana v. Hall, supra, 481 U.S. at p. 402 [95 L.Ed.2d at pp. 358-359]; People v. Santamaria, supra, 8 Cal.4th at pp. 910-911.) If they are again convicted, there is no legal obstacle to the trial court again sentencing defendants to the punishment for second degree murder that they received before, as there would be no retroactive increase in the punishment to which they were previously subject. The protection against double jeopardy does preclude retrying these defendants for conspiracy to commit first degree murder, a crime of which *630they were impliedly acquitted. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 71, 74-76 [2 Cal.Rptr.2d 389, 820 P.2d 613]; Stone v. Superior Court (1982) 31 Cal.3d 503, 511 & fn. 5 [183 Cal.Rptr. 647, 646 P.2d 809].)

Per Curiam.

Defendant was convicted, following a jury trial, of conspiracy to possess over 650 grams of cocaine. MCL 750.157a(a); MSA 28.354(1) (a) and MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a) (i). He was sentenced to life in prison without parole. He now appeals, and we reverse.

Defendant’s conviction arises out of a complicated drug deal. Briefly, defendant was to purchase approximately one kilogram of cocaine from Rene Vina. However, before the purchase was completed, one of Vina’s employees, Richard Kellogg, began cooperating with the police. Apparently, *553Vina intended to make two sales on this particular occasion: one to defendant and one to a purchaser to be arranged by Kellogg. Unfortunately for Vina, Kellogg set up the sale with an undercover police officer.

Defendant was arrested, however, before the sale was completed. A search of Vina’s motel room revealed a package intended for delivery to defendant. That package contained over one kilogram of baking soda and a rock of cocaine weighing 26.01 grams. The rock was taped to the inside of the box and the box had a V-style slit in it exposing the rock. Apparently, the purpose of the slit was to allow inspection of the contents by the purchaser (defendant) and was placed so that defendant would test the rock of cocaine and not the baking soda. One of the police officers involved expressed the opinion that Vina was endeavoring to "burn” defendant by delivering a smaller quantity of drugs than for which he had contracted.

Thus, although defendant never possessed the drugs in question, the prosecutor theorized that defendant had reached an agreement with Vina to possess the drugs. Accordingly, the prosecutor charged defendant with conspiracy.

Defendant’s first argument is dispositive. Defendant argues that there was insufficient evidence to establish the conspiracy. We agree. We review an argument regarding the sufficiency of evidence by viewing the evidence in the light most favorable to the prosecutor and determining whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).

A conspiracy is an agreement, expressed or implied, between two or more persons to commit an unlawful or criminal act. People v Bettistea, 173 *554Mich App 106, 117; 434 NW2d 138 (1988). See also People v Atley, 392 Mich 298, 310-311; 220 NW2d 465 (1974); CJI2d 10.1; Dressier, Understanding Criminal Law, § 29.01[A], p 373. Thus, to establish that defendant and Vina conspired in the case at bar, the prosecutor had to show, inter alia, that defendant and Vina had agreed that defendant would commit the crime of possession of more than 650 grams of cocaine. That is, the prosecutor had to establish that both defendant and Vina intended defendant to possess the requisite amount of cocaine.

Proof of the agreement may be established by circumstantial evidence. Atley, supra at 311. In this case, the prosecutor points to the package prepared for delivery to defendant. This is the package that contained over a kilogram of baking soda and the twenty-six-gram rock of cocaine. We would agree that if that package can be considered as constituting a mixture containing cocaine and weighing over 650 grams, combined with other evidence produced at trial that we need not review here, then defendant is guilty of the crime charged. We, however, reject the prosecutor’s argument that this constitutes such a mixture.

The possession of cocaine, as well as other offenses, is punished with regard to the amount of the substance involved — the greater the amount involved, the greater the penalty. MCL 333.7403(2)(a) (i); MSA 14.15(7403)(2)(a)(i) sets forth the penalty for possessing "650 grams or more of any mixture containing” cocaine. (Emphasis added.) Thus, the amount of cocaine within the mixture is irrelevant; rather, it is the weight of the entire mixture that establishes the penalty, without regárd to purity. People v Kidd, 121 Mich App 92; 328 NW2d 394 (1982). Thus, a person delivering a mixture containing 649 grams of baking soda and *555one gram of cocaine is punished more seriously than an individual who delivers 649 grams of pure cocaine.

As stated above, we agree that if the package prepared for delivery to defendant can be considered to be a mixture containing cocaine that weighs over 650 grams, then that evidence, along with the other evidence produced at trial, establishes that defendant and Vina conspired to commit the offense of possession of over 650 grams of cocaine. Unlike the prosecutor, however, we do not believe that the package contained a mixture weighing over 650 grams that contained cocaine. Rather, as will be discussed below, the package contained a mixture containing cocaine that weighed twenty-six grams (the rock of cocaine); it also contained over a kilogram of baking soda.

Where a word is undefined by statute, it is to be construed according to its common and approved usage. People v Troncoso, 187 Mich App 567, 573; 468 NW2d 287 (1991). In doing so, resorting to the dictionary definition is appropriate. Id. The Random House College Dictionary: Revised Edition, p 856, defines "mixture” as follows:

1. a product of mixing. 2. any combination of contrasting elements, qualities, etc. 3. Chem., Physics, an aggregate of two or more substances that are not chemically united and that exist in no fixed proportion to each other. Cf. compound (def. 8). . . . 5. the act of mixing. 6. the state of being mixed. . . . — Syn. 1. blend, combination; compound. 2. miscellany, medley, melange.

Random House, p 856, defines "mix,” in part, as follows:

1. to put (various materials, objects, etc.) to*556gether in a homogeneous or reasonably uniform mass. [Emphasis added.]

Random House, p 143, defines "blend,” in part, as follows:

1. to mix smoothly and inseparably together . . . 3. to mix or intermingle smoothly and inseparably. 4. to fit or relate harmoniously ... 5. to have no perceptible separation ....

In light of these definitions, we conclude, contrary to the prosecutor’s suggestion, that the "mixture” containing cocaine must be reasonably homogeneous or uniform. That is, the cocaine and the filler (in this case, baking soda) must be "mixed” together to form a "mixture” that is reasonably uniform. A sample from anywhere in the mixture should reasonably approximate in purity a sample taken elsewhere in the mixture.1 It should be reasonably difficult to separate the cocaine from the filler material because of the mixing or blending of the two substances.

In the case at bar, the evidence does not support the conclusion that the cocaine was mixed with the baking soda. Indeed, when the baking soda was poured out of the box, the rock of cocaine remained, having been taped to the box. Clearly, the cocaine and the baking soda were easily separated. Further, the concentration of cocaine was not at all reasonably uniform or homogeneous. A sample taken from the baking soda would have yielded a mixture containing zero percent cocaine and one *557hundred percent baking soda.2 A sample taken from the rock of cocaine would yield a mixture containing 67.9 percent cocaine and 32.1 percent filler. Further, the two substances have somewhat differing physical properties. The rock of cocaine is a large, solid object; the baking soda is a powdery solid. Simply put, the package contained two separate items, baking soda and a rock of cocaine, rather that a single mixture containing cocaine.

Furthermore, our view of the definition of "mixture” and its application to this case is consistent with the reasoning behind basing punishment on the weight of the mixture and not the amount of actual cocaine. In People v Lemble, 103 Mich App 220, 223; 303 NW2d 191 (1981), we noted that the "greater the quantity of the mixture, regardless of the degree of purity, the greater the potential harm to society.” Thus, basing punishment on weight without regard to purity serves to advance the legislative purpose of deterring drug distribution. Id. In this case, assuming that the police had not intervened, defendant presumably would not have merely divided the package into smaller quantities for further delivery because most such packages would only contain baking soda.3 Thus, the same danger is riot presented by the package in this case as when there is a mixture that can be divided into smaller packages for sale.

For the above reasons, we conclude that the *558package did not contain a mixture of cocaine weighing over 650 grams. Therefore, the package does not establish an agreement by Vina and defendant for defendant to possess over 650 grams of cocaine. A conspiracy could also, however, be established if it can be shown that Vina did agree to deliver over 650 grams of cocaine to defendant and only thereafter decided to "burn” defendant by delivering less. However, a conspiracy requires that "two or more persons intend to agree and intend that the object of their agreement be achieved.” Dressier, supra, § 29.05[A], p 384 (emphasis in original). Professor Dressier further explains this concept:

Justice Cardozo said that "[i]t is impossible . . . for a man to conspire with himself.” This comment follows from the fact that a conspiracy is an agreement and an agreement is a group act. Unless at least two people form an agreement no one does. The result is that at common law the prosecutor must prove that at least two persons possessed the requisite mens rea of a conspiracy.

The plurality rule also prevents the conviction of a party to a two-person agreement if it is demonstrated that one person lacked the specific intent of conspiracy. If one party to the alleged conspiracy feigned the intent to commit or to participate in the offense (e.g., she was a police officer) or was insane and lacked the requisite intent, the remaining party cannot be convicted. [Id., § 29.06[A], p 389, quoting Morrison v California, 291 US 82, 92; 54 S Ct 281; 78 L Ed 664 (1934) (emphasis added).]

Thus, if Vina had originally intended, at the time of making the agreement with defendant, to deliver over 650 grams of cocaine, then there was *559a conspiracy even if Vina later abandoned that plan in favor of defrauding defendant. However, if Vina always intended to defraud defendant and merely told defendant he would deliver a kilogram of cocaine, knowing he had no such intention and was going to defraud defendant, then Vina merely feigned his intent to participate in the crime of possession of over 650 grams of cocaine. In such case, there was no conspiracy to possess over 650 grams of cocaine because Vina knew at the time of making the agreement with defendant that he would not be participating in such an offense.

However, we have found no evidence, nor has the prosecutor pointed us to such evidence, from which the trier of fact could conclude that Vina decided to defraud defendant only after entering into the conspiracy. As far as the record establishes, Vina may well have intended all along to defraud defendant and, therefore, there never was a conspiracy.

Although it may be that defendant is guilty of attempted possession of over 650 grams of cocaine, there was insufficient evidence to establish defendant’s guilt of the crime of conspiracy. Our resolution of this issue renders it unnecessary to consider defendant’s remaining issues.

Defendant’s conviction is vacated and defendant is ordered discharged from custody.

A District Court jury found the defendant guilty of conspiring to destroy property and the malicious destruction of property having a value of less than $250.1 Although the judge imposed a suspended sentence of one year on the substantive offense, he placed the defendant on probation on the conspiracy conviction. As a special condition of that probation, the judge ordered the defendant to pay restitution in the amount of $5,000. On appeal, the defendant confines himself to the conspiracy conviction and argues that the judge erred in denying his motion for a required finding of not guilty and in requiring him to make restitution in an amount that exceeded the jury’s finding on the substantive offense. Concluding that the Commonwealth failed to prove an essential element of the crime of conspiracy, an agreement, we reverse the judgment.

1. The Commonwealth’s evidence. Throughout the night of June 23, 1997, the defendant and his friends, Richard Williams, Greg Barraloni (Williams’s roommate), and Corey Mulansen, patronized various bars in the Fitchburg-Worcester area. As they were driving through Phillipston, they passed The Cycle Design, a motorcycle shop from which Barraloni had been ejected about two to three months earlier because of a dispute with “Doug,” the owner. Upon seeing the shop, Barraloni cried out, “Let’s get back at Doug,” and ordered Williams, who was driving, to stop the car. Williams pulled over, and Barraloni got out of the car, saying words to the effect of “let’s smash some windows.” After Barraloni got out of the car, Williams started to drive away with the defendant and Mulansen, who had passed out from alcohol consumption. Williams drove about one hundred yards up the road, pulled over, and parked his car. He and the defendant then walked back to the shop. There they saw that the windows in the building had been smashed with rocks. While attempting to convince Barraloni to leave, Williams and the defendant threw rocks at the shop. Within minutes, the police arrived, and everyone fled. When the defendant was later arrested, he stated that he had thrown one or two rocks at, but not into, the building.

2. Discussion. “The elements of conspiracy are ‘a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose .... [T]he unlawful agreement constitutes the gist of the offence ....’” Commonwealth v. Benson, 389 Mass. 473, 479, cert. denied, 464 U.S. 915 (1983), quoting from Commonwealth v. Dyer, 243 Mass. 472, *902483 (1922), cert. denied, 262 U.S. 751 (1923). See also Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987) (“[t]he essence of the crime of conspiracy is the agreement of the conspirators”).

Joseph M. Kenneally for the defendant.

Sandra L. Hautanen, Assistant District Attorney, for the Commonwealth.

It is the Commonwealth’s argument that the jury reasonably could infer an agreement from the evidence showing that the defendant heard Barraloni’s statement, “Let’s get back at Doug,” that he returned to the shop after Williams parked the car, that he threw rocks at the building, and that he fled upon the arrival of the police. See Commonwealth v. Stasiun, 349 Mass. 38, 50 (1965) (“conspiracy may be, and usually is, proved by circumstantial evidence”); Commonwealth v. Camerano, 42 Mass. App. Ct. 363, 366 (1997) (“[djirect evidence of a conspiracy ... is rarely available and, typically, the government must rely on circumstantial evidence”). The defendant, on the other hand, argues that, even if that evidence, taken in the light most favorable to the Commonwealth, was sufficient to show his participation in a joint venture, it failed to establish that he had conspired maliciously to destroy property. See Commonwealth v. Cook, 10 Mass. App. Ct. 668, 673 (1980) (“ [accomplice and conspiratorial liability are not synonymous, and one can be an accomplice aiding in the commission of a substantive offense without necessarily conspiring to commit it”); Commonwealth v. DeCillis, 41 Mass. App. Ct. 312, 314 (1996) (the “agreement that must be shown to prove a conspiracy is a meeting of the minds of the conspirators separate and distinct from and prior to the common intent that is implicit in the commission of the substantive crime”).

The circumstances of the commission of the substantive offense were not such that the jury reasonably could infer the existence of an agreement. Instead, they evince spontaneity rather than “planning and pursuit of a prearranged systematic course of action.” Commonwealth v. Cook, 10 Mass. App. Ct. at 677 n.8. Nor can an agreement reasonably be inferred from the fact that the defendant walked back to the shop and joined Barraloni. That conduct does no more than “fit[] the classic paradigm of an accomplice adding encouragement to a crime in progress.” Id. at 672. See also Commonwealth v. DeCillis, 41 Mass. App. Ct. at 314-315, quoting with approval Dickerson v. United States, 18 F.2d 887, 893 (8th Cir. 1927). Although the defendant’s flight from the scene bespeaks a consciousness of guilt as a participant in the rock throwing, it adds nothing to the Commonwealth’s case on the conspiracy complaint. In short, the Commonwealth asks that we conclude that an agreement could be inferred from the evidence of the defendant’s participation in the commission of the substantive offense. On the circumstances presented, such a conclusion “would confuse certain settled aspects of the law of conspiracy and would tend unnecessarily to expand its already elastic and pervasive definition by ‘blur[ring] the demarcation line between a conspiracy to commit an offense and the substantive offense which is the object of the conspiracy.’ Ramirez v. State, 371 So. 2d 1063, 1066 (Fla. Dist. Ct. App. 1979).” Commonwealth v. Cook, 10 Mass. App. Ct. at 676-677.

The judgment on the third count of the complaint is reversed, the verdict is set aside, and judgment is to be entered for the defendant on that count.

So ordered.

PER CURIAM:

Appellant Charles Azim appeals nunc pro tunc from judgments of sentence imposed for criminal conspiracy and robbery. He seeks dismissal of all the charges brought against him. In the alternative, he requests a new trial on *312a lesser charge of robbery and a vacating of the conspiracy sentence, for resentencing following the outcome of the new robbery trial.

Appellant was arrested, along with Mylice James and Thomas Robinson, on September 18, 1977 for simple assault, robbery, and conspiracy. The victim of the robbery was Jerry Tennenbaum, a Temple University student. Appellant drove a car in which the other two men were passengers. Appellant stopped the car, Robinson called Tennenbaum over to the curb, the two passengers got out of the car, inflicted bodily injury on Tennenbaum, took his wallet which had fallen to the ground, and immediately left the scene in the same car driven by appellant. Robinson and appellant were tried to a jury and convicted as co-defendants in April 1978. After denial of post-trial motions, appellant was sentenced to five to ten years for robbery and five to ten years for conspiracy, the sentences to run concurrently. He received a suspended sentence for assault.

Appellant’s trial counsel did not file a timely appeal on his behalf and on January 25, 1979 he filed a pro se Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. claiming ineffective assistance of counsel on the grounds, inter alia, of failure to file an appeal of the conviction. New counsel was appointed, and on October 9, 1980, appellant was granted the right to appeal, nunc pro tunc. The PCHA Petition raised other issues relating to ineffectiveness of counsel which were denied at the PCHA hearing. The direct appeal and the appeal under PCHA are here consolidated.

Appellant’s co-defendant Robinson also appealed from the judgment of sentence. In January 1980 this Court vacated judgment of sentence and remanded for a new trial on the charges of simple assault and robbery; affirmed judgment of sentence on the charge of conspiracy, and remanded for resentencing on conspiracy. Commonwealth v. Robinson, *313284 Pa.Super. 152, 425 A.2d 748 (1980). On July 29, 1981, the trial judge ordered similar relief for appellant.1

In this appeal, appellant presents two issues: (1) that he was convicted upon insufficient evidence; and (2) that his trial counsel was ineffective in the course of the trial.2 The claim of insufficiency of the evidence relates to the charge of criminal conspiracy. He argues that because his conspiracy conviction was not supported by sufficient evidence against him, the charges of assault and robbery must also fail.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) holds that an essential of due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof, which is defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. In Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982) (also reviewing the sufficiency of the evidence in a conspiracy charge) our Court maintained that the test to be applied in appraising the sufficiency of the evidence is a two-step inquiry:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 386 A.2d 117 (1978); Com*314monwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979). Criminal conspiracy is defined as:

(a) Definition of conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903 (1973).

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, supra. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra. Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958) (Volk, at 1184-5).

At trial, the prosecution presented evidence that established that appellant was the driver of the car in which James and Robinson (the men who demanded money from Tennenbaum and beat and choked him) rode. Robinson was seated on the front seat, next to appellant. Robinson rolled *315down the car window, twice beckoned to the victim to come close to the car, and when Tennenbaum refused, the two passengers got out, assaulted Tennenbaum, and took his wallet. Appellant sat at the wheel, with the engine running and lights on, and the car doors open, while the acts were committed in the vicinity of the car. He then drove James and Robinson from the scene (Suppression Hearing T. 77-88; N.T. 4-8).

Among those circumstances relevant to proving conspiracy are association with alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and, at times, participation in the object of the conspiracy. Commonwealth v. Anderson, supra. Conspiracy to commit burglary has been found where the defendant drove codefendants to the scene of a crime and then later picked them up. Commonwealth v. Wright, 235 Pa.Super. 601, 344 A.2d 512 (1975). “Thus, the driver of a ‘get away’ car can be found guilty as an accomplice if it is reasonable to infer that he was aware of the actual perpetrator’s intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime” (Wright, at 515). Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975) upheld the conviction for conspiracy of the driver of a get away car. We find no merit in appellant’s claim that he was merely a hired driver, with no knowledge of his passengers’ criminal activity.

We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant conspired with James and Robinson to commit assault and robbery. Applying the test mandated by Volk, supra, we decline to dismiss appellant’s conviction for criminal conspiracy on the basis of insufficiency of the evidence.

Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-conspirators, even if he is not present at the time the acts are committed. Commonwealth v. Roux, 465 Pa. 482, *316350 A.2d 867 (1976), Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). In the instant case, co-conspirator Robinson’s direct appeal resulted in the grant of a new trial on the assault and robbery charges, and we agree with the trial court that it is appropriate for appellant to be afforded the same relief. We therefore find it unnecessary to reach appellant’s additional charges on his trial counsel’s ineffectiveness.

Judgment of sentence is vacated. The case is remanded for a new trial on the charges of assault and robbery, and for resentencing on the conviction for conspiracy, following the outcome of the new trial. Jurisdiction is relinquished.

SPAETH, J., concurs in the result.