What is Conspiracy?

What exactly is “conspiracy?” Basically, ORC § 2923.01 prevents you from purposefully planning or helping someone commit a certain offense or agreeing to act in a way that “facilitates the commission” of certain offenses. The offenses include prostitution, robbery, murder, kidnapping, abduction, arson, burglary, drug trafficking, corrupt activity, and many others. Unlike attempt, where you perform an act that leads to the crime, this is really about planning out the crime in advance. Because conspiracy is a separate offense from the offense intended to be carried out, one can be charged with conspiracy whether or not the offense is successfully carried out. It follows then that you could be convicted for both the conspiracy and the offense (or attempted offense). So, to conspire, you’ve got to (1) plan or aid in the plan of those specific offenses or (2) agree with others to commit the offense. If you agree, then you’re conspiring, even if the others don’t intend to go along with it, which allows an offender to be set up for conspiracy by law enforcement. And you don’t even have to know who you’re conspiring with, so long as you have reason to believe that who you’re conspiring with is conspiring with other people for the offense. Take, for example, Mr. Milo who hired a hitman out on his own brother.  Even though he didn’t directly contact every party involved, he still had reason to believe that his initial phone call to get someone else to set up the hit on his brother was going to facilitate a murder. Thus, he conspired. conspiracy

Intent and Purpose are Required for a Conspiracy Conviction 

As far as intent, you need purpose, or intent to enter the agreement and to achieve whatever crime underlies that agreement. And for the act, the statute states that there must be a “substantial overt act in furtherance of the conspiracy” for a conspiracy conviction. “Substantial” means that it shows that the actor has the purpose to complete the conspiracy. The “overt act” need not be an illegal act itself. For example, in a conspiracy to commit a murder, legally obtaining a weapon could be an overt act. The overt act must also be an open or outward act, without attempt at concealment. In State v. Papp, Tim Papp sent a letter to some inmates trying to get them to carry out a hit on a prosecutor in Lorain County for $100,000.  The letter was “overt” because he sent it without concealment. And it was substantial because he intended to coerce and convince the inmates to carry out the hit by offering the $100,000.

And you can get into issues with multiple crimes and multiple parties. First, even if you conspire to commit multiple crimes with the same people in one agreement, you can only be charged with conspiracy once. Provided that you had one goal in mind to carry out under one agreement, a conspiracy charge is possible. If there are multiple parties involved, the question arises as to whether there are multiple conspiracies or just a single one. We won’t get into the weeds for most violent crimes because those are a bit more straightforward. Provided that you’re entering into an agreement with at least one other person to plan or help someone commit a violent offense, you need to watch out for conspiracy charges.

How is Conspiracy Proved?

How is conspiracy proved? Frequently, the statement of a co-conspirator is introduced as evidence of the agreement element. Generally, such statements might be inadmissible as hearsay, which is defined as an out of court statement offered as evidence of the truth asserted by the statement. For example, the statement that, “Susan told me that the getaway car was Tom’s Ford Mustang” would generally be inadmissible to prove that the getaway car was Tom’s Mustang. However, some statements that seem like “hearsay” are expressly declared as not hearsay by the Rules of Evidence. One type of statement that is not hearsay by rule is “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy”. Consider the statement by John, “Susan told me if I gave her a gun, she and Sam would agree to kill Betty.” This would be hearsay if offered to prove that either Susan or Sam agreed to kill Betty. However, so long as there was proof of the conspiracy, independent of this statement, the statement could be used to prove that Susan, Sam, and John were involved in the conspiracy.

Defenses to Conspiracy

For co-conspirators, these statements are admissible and can be used against any member in the conspiracy. But if the statement was not made during and in furtherance of that conspiracy, then it is inadmissible. However, you cannot be convicted under Ohio law based only on the statements of co-conspirators without other evidence, but these statements could help sway a jury who have access to other pieces of evidence.

Impossibility also is not a defense to conspiracy, just like it wasn’t for attempt.  Abandonment can be a defense, but it requires a bit more action to abandon a conspiracy, and it must occur before any illegal acts are committed. It’s not enough to get cold feet and wait in the car while your co-conspirators proceed to burglarize the house. One way to abandon requires that you inform all other conspirators of your abandonment, or inform law enforcement of the existence of the conspiracy and your participation in the conspiracy. A conspiracy may also be abandoned by all parties to the conspiracy prior to committing any offense that was an object of the conspiracy. Similar to abandonment is the defense of “renunciation” under ORC § 2923.01(I)(1) if you act to “thwart[] the success of the conspiracy” through your “complete and voluntary renunciation.” This defense basically requires that you prevent the offense from taking place, and your decision to do so must be voluntary. In this context “voluntary” really means you had a genuine change of heart not simply an increased fear that you might get caught. For example, your renunciation of a conspiracy to commit a burglary would not be voluntary if it came only after you arrived at the house and heard the snarling growl of a pit bull, or got spooked by the sound of a siren.  

Are you or someone you know facing criminal charges? 

If you are facing criminal charges, you need to speak with an experienced criminal defense attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms.  Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation. 

Tad Brittingham
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Criminal defense attorney Tad Brittingham is dedicated to serving his clients throughout the Cincinnati area