3.3-1 Conspiracy -- § 53a-48 (a)
Revised to March 4, 2015
The defendant is charged [in count ___] with conspiracy to commit <insert object of conspiracy>. I have already defined for you the crime and all the elements of <insert object of conspiracy>. The statute defining conspiracy reads in pertinent part as follows:
a person is guilty of conspiracy when, with the intent that conduct constituting a crime be performed, (he/she) agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: 1) there was an agreement between the defendant and one or more persons to engage in conduct constituting the crime of <insert object of conspiracy>, which conspiracy the defendant specifically intended to join; 2) there was an overt act in furtherance of the subject of the agreement by any one of those persons; and 3) the defendant specifically intended to commit the crime of <insert object of conspiracy>.1
The size of the defendant's role does not determine whether (he/she) may be convicted of conspiracy. Rather, what is important is whether the defendant wilfully participated in the activities of the conspiracy with knowledge of its illegal ends. Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.2
Element 1 - Agreement
The first element is that there was an agreement between two or more persons. It is not necessary for the state to prove that there was a formal or express agreement between them.3 It is sufficient to show that the parties intentionally engaged in a mutual plan to do a criminal act.4 Circumstantial evidence is sufficient to prove that there was an agreement because conspiracies, by their very nature, are formed in secret and only rarely can be proved by other than circumstantial evidence.5 It is not necessary to establish that the defendant and the defendant's alleged coconspirators signed papers, shook hands, or uttered the words "we have an agreement" but rather a conspiracy can be inferred from the conduct of the accused.6
The mere knowledge, acquiescence or approval of the object of the agreement without cooperation or agreement to cooperate, however, is not sufficient to make one a party to a conspiracy to commit the criminal act. Mere presence at the scene of the crime, even when coupled with knowledge of the crime, is insufficient to establish guilt of the conspiracy to commit the crime.7
In order to convict a person of conspiracy, the state need not show that such person had direct communication with all other conspirators. It is not necessary that each conspirator be acquainted with all others or even know their names. It is sufficient if (he/she) has come to an understanding with at least one of the others, and has come to such understanding with that person to further a criminal purpose. Additionally, it is not essential that (he/she) know the complete plan of the conspiracy in all of its details. It is enough if (he/she) knows that a conspiracy exists or that (he/she) is creating one and that (he/she) is joining with at least one person in an agreement to commit a crime. Therefore, in order to convict the defendant on the charge contained in the information, the first element that the state must prove beyond a reasonable doubt is that the defendant specifically intended to enter into an agreement, with at least one other person to engage in conduct constituting <insert object of conspiracy>.
Element 2 - Overt act
The second element is that at least one of the alleged coconspirators did an overt act to further the purpose of the conspiracy. It does not matter which one of the alleged coconspirators did the overt act. It need not be the defendant, and it need not be a criminal act. An overt act is any step, action, or conduct that is taken to achieve or further the objective of the conspiracy. An overt act, therefore, is one that is committed or caused to be committed by any member of the conspiracy in an effort to accomplish some objective or purpose of the conspiracy. Remember, a single overt act is sufficient to prove this element of the conspiracy. The overt act cannot, however, be held against the other alleged coconspirators if it was not intended to further the general purposes of the conspiracy, but was secretly intended to further the actor's own personal purpose. The overt act must be a subsequent independent act that follows the formation of the conspiracy.8
Element 3 - Criminal intent
The third element is that the defendant had the intent to commit <insert object of conspiracy>. This means that the defendant must specifically intend that every element of the planned offense be accomplished. As to this count, those elements are <describe the intent of the offense including elements that carry no specific intent requirement..> The defendant may not be found guilty unless the state has proved beyond a reasonable doubt that (he/she) specifically intended to commit <insert object of conspiracy> when (he/she) entered into the agreement.9 <See Intent: Specific, Instruction 2.3-1.>
In summary, the state must prove beyond a reasonable doubt that 1) the defendant had an agreement with one or more other persons to commit <insert object of conspiracy>, 2) at least one of the coconspirators did an overt act in furtherance of the conspiracy, and 3) the defendant specifically intended to enter into the agreement and intended the conduct constituting the crime of <insert the object of the conspiracy>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
conspiracy to commit <insert object of conspiracy>, then you shall find
the defendant guilty. On the other hand, if you unanimously find that the state
has failed to prove beyond a reasonable doubt any of the elements, you shall
then find the defendant not guilty.
1 State v. Henry, 253 Conn. 354, 366-68 (2000); State v. Hooks, 30 Conn. App. 232, 241-42, cert. denied, 225 Conn. 915 (1993); State v. Hernandez, 28 Conn. App. 126, 134-35, cert. denied, 223 Conn. 920 (1992); State v. Dematteo, 186 Conn. 696, 707 (1982); State v. Ortiz, 169 Conn. 642, 645 (1975).
2 State v. Forde, 52 Conn. App. 159, 168, cert. denied, 248 Conn. 918 (1999); State v. Boykin, 27 Conn. App. 558, 565, cert. denied, 223 Conn. 905 (1992).
3 State v. Bond, 49 Conn. App. 183, 195-96, cert. denied, 247 Conn. 915 (1998); State v. Hernandez, supra, 28 Conn. App. 135; State v. Channer, 28 Conn. App. 161, 168-69, cert. denied, 223 Conn. 921 (1992).
4 State v. Lewis, 220 Conn. 602, 607 (1991); State v. Johns, 184 Conn. 369, 378 (1981).
5 State v. Forde, 52 Conn. App. 159, 168 (1999); State v. Channer, supra, 28 Conn. App. 168.
6 State v. Bond, supra, 49 Conn. App. 195-96; State v. Boykin, supra, 27 Conn. App. 564-65.
7 State v, Goodrum, 39 Conn. App. 526, 540 (1995); State v. Lynch, 21 Conn. App. 386, 392, cert. denied, 216 Conn. 806 (1990).
8 State v. Smart, 37 Conn. App. 360, 376-79, cert. denied, 233 Conn. 914 (1995); State v. Boykin, supra, 27 Conn. App. 569-72.
9 It is not necessary to include in the instruction any reference to the intent of any of the coconspirators. State v. Sanchez, 84 Conn. App. 583, 592-93, cert. denied, 271 Conn. 929 (2004) (approving an instruction on intent similar to the model one).
"Conspiracy has long been recognized as an offense separate and distinct from the commission of the substantive offense." State v. Davis, 68 Conn. App. 794, 801-802, cert. denied, 260 Conn. 920 (2002). An exception to this general rule is that "[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." (Internal quotation marks omitted.) State v. Acklin, 171 Conn. 105, 117 (1976) (discussing Wharton's rule).
Completion of the object of the conspiracy is not necessary for the prosecution of the conspiracy. "The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy." State v. Stevens, 178 Conn. 649, 655-56 (1979) (defendant not guilty of larceny, guilty of conspiracy to commit larceny).
"A defendant cannot be guilty of conspiracy if the only other member of the alleged conspiracy lacks any criminal intent." State v. Cavanaugh, 23 Conn. App. 667, 671, cert. denied, 220 Conn. 930 (1991) (because one of the two coconspirators was an undercover agent without the intent to commit a crime, a conspiracy could not exist).
Mental state required
"Conspiracy is a specific intent crime, with the intent divided 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 the offense." (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3-4 (1986); see also State v. Mourning, 104 Conn. App. 262, 286-88 (2007) (curative instruction sufficiently connected the conspiracy instruction to the instruction on the intent to commit murder); State v. Moore, 100 Conn. App. 122, 136-38 (2007) (failure to instruct on the intent of the crime that was the object of the conspiracy was reversible error); State v. DeJesus, 92 Conn. App. 92, 97 (2005), appeal dismissed, 282 Conn. 783 (2007) (in a case concerning two victims, trial court's conspiracy instruction improperly failed to connect conspiracy to commit to murder to the specific victim). "[T]here is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result." Id., 5 (conspiracy to commit arson in the third degree is not a cognizable crime). See also State v. Montgomery, 22 Conn. App. 340, 344-45, cert. denied, 216 Conn. 813 (1989) (conspiracy to commit manslaughter not cognizable; one cannot intend to commit an unintentional killing).
In State v. Pond, 315 Conn. 451 (2015), the Supreme Court clarified its interpretation of the mens rea language of § 53a-48 (a), contrasting it to that of § 53a-8 (a) (accessory) and § 53a -49 (a) (attempt), concluding that “the legislature did not intend that the mens rea requirement for conspiracy would mirror that of the object offense.” Id., 472. This is so because although evidence of the object of the conspiracy (the crime) often provides some or all of the evidence for the criminal agreement, the crime of conspiracy is itself a completed crime, not truly inchoate. Unlike accessorial liability and attempt, no completed crime or completed attempt need be proven.
If coconspirators not
charged or convicted
General Statutes § 53a-48 is a unilateral, rather than a bilateral, conspiracy statute, meaning that a conspirator may be prosecuted for conspiracy despite the non-prosecution or acquittal of the alleged sole coconspirator in a separate trial for conspiracy charges arising out of the same alleged conspiracy. State v. Colon, 257 Conn. 587, 600-601 (2001). However, if tried in a joint trial, conviction of one coconspirator and acquittal of another is an inconsistent verdict and cannot stand, unless there is evidence that more than two people may have been involved in the conspiracy. State v. Abraham, 64 Conn. App. 384, 389-95, cert. denied, 258 Conn. 917 (2001).
"Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . . . For such a violation, only the single penalty prescribed by the statute can be imposed." State v. Howard, 221 Conn. 447, 462 (1992). See also State v. Toth, 29 Conn. App. 843, 858, cert. denied, 225 Conn. 908 (1993) ("Where the evidence establishes only one agreement, there can be only one conspiracy conviction, even though the conspirators planned, as part of the agreement, to engage in conduct violative of more than one criminal statute."); but see State v. Peeler, 267 Conn. 611, 633 (2004) (finding two separate agreements to commit two different crimes); State v. Ellison, 79 Conn. App. 591, 597-600, cert. denied, 267 Conn. 901 (2003) (same).
If multiple conspiracies are charged in separate counts, and the defendant is found guilty of more than one of those counts, the court should merge the conspiracy convictions and impose a single sentence. State v. Howard, supra, 221 Conn. 463.
If multiple conspiracies are charged in a single count, the court must instruct the jury that it must be unanimous as to which of the crimes was the object of the conspiracy. State v. Toth, supra, 29 Conn. App. 860. "The jury must . . . specifically determine the crime or crimes that were the object offenses of the conspiracy, so that the trial court may properly base the defendant's sentence on the most serious of these object offenses." Id.
If also charged with the substantive crime
A defendant may be convicted of conspiracy to commit a crime and the commission of that crime as a principal or accessory. State v. Green, 81 Conn App. 152, 158, cert. denied, 268 Conn. 909 (2004) (defendant convicted of sale of narcotics as an accessory and conspiracy to sell narcotics); State v. Soto, 59 Conn. App. 500, 503-505, cert. denied, 254 Conn. 950 (2000) (not inconsistent for defendant to be convicted of murder as accessory and acquitted of conspiracy).
See Renunciation of Criminal Purpose (Conspiracy), Instruction 3.3-2.
In State v. Montanez, 277
Conn. 735, 751-63 (2006), the Court held that because the commission of a crime
is an essential predicate fact of accessorial liability, if the principal is
acquitted on the grounds of justification, the crime has not legally been
committed. Hence, if a justification defense is available to the principal, the
accessory can also assert it. This principal would likely extend to