Colorado § 18-2-206 - Penalties for criminal conspiracy - when convictions barred.

§ 18-2-206. Penalties for criminal conspiracy - when convictions barred.

(1) Conspiracy to commit a class 1 felony is a class 2 felony; conspiracy to commit a class 2 felony is a class 3 felony; conspiracy to commit a class 3 felony is a class 4 felony; conspiracy to commit a class 4 felony is a class 5 felony; conspiracy to commit a class 5 or 6 felony is a class 6 felony.

(2) A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy.

(3) If the particular conduct charged to constitute a criminal conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither that conduct nor the offender presents a public danger warranting the grading of the offense under this section, the court may enter judgment and impose sentence for a crime of a lesser class or, in extreme cases, may dismiss the prosecution.

(4) Conspiracy to commit a class 1 misdemeanor or class 2 misdemeanor is a class 2 misdemeanor.

(5) Repealed.

(6) Conspiracy to commit a petty offense is a crime of the same class as the offense itself.

(7) (a) Except as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony; conspiracy to commit a level 2 drug felony is a level 3 drug felony; conspiracy to commit a level 3 drug felony is a level 4 drug felony; and conspiracy to commit a level 4 drug felony is a level 4 drug felony.

(b) Except as otherwise provided by law, conspiracy to commit a level 1 drug misdemeanor is a level 2 drug misdemeanor; and conspiracy to commit a level 2 drug misdemeanor is a level 2 drug misdemeanor.

Source: L. 71: R&RE, p. 416, § 1. C.R.S. 1963: § 40-2-206. L. 75: (1) amended and (4) to (6) added, p. 617, § 4, effective July 21. L. 89, 1st Ex. Sess.: (1) amended, p. 22, § 13, effective July 1. L. 2013: (7) added, (SB 13-250), ch. 333, p. 1942, § 67, effective October 1. L. 2014: (7)(a) amended, (SB 14-163), ch. 391, p. 1975, § 15, effective July 1. L. 2021: (4) amended, (SB 21-271), ch. 462, p. 3172, § 192, effective March 1, 2022; (5)(b) added by revision, (SB 21-271), ch. 462, pp. 3172, 3331, §§ 192, 803.

Editor's note: Subsection (5)(b) provided for the repeal of subsection (5), effective March 1, 2022. (See L. 2021, pp. 3172, 3331.)

ANNOTATION

Annotator's note. Since § 18-2-206 is similar to former § 40-7-35, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Acquittal of crime and conviction of conspiracy inconsistent where evidence same as to both. Where the very same evidence which the jury apparently did not believe was sufficient to prove that the defendant participated in the robbery was the only evidence which could prove him guilty of conspiracy, the conspiracy verdict of guilty cannot stand. Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966); People v. Way, 165 Colo. 161, 437 P.2d 535 (1968); Attwood v. People, 165 Colo. 345, 439 P.2d 40 (1968); Renfrow v. People, 176 Colo. 160, 489 P.2d 582 (1971); People v. Williams, 707 P.2d 1023 (Colo. App. 1985).

The jury may not convict a defendant of conspiracy to commit a crime when under the same evidence they acquitted him of the substantive crime when the only evidence of the conspiracy was the evidence of the robbery itself. Pooley v. People, 164 Colo. 484, 436 P.2d 118 (1968).

The only evidence of conspiracy was that two people were acting in concert for a common cause. Since the jury found that defendant was not guilty of robbery and since the only evidence of conspiracy was that he participated in the robbery, the verdict on the charge of conspiracy cannot stand. Carter v. People, 169 Colo. 531, 458 P.2d 236 (1969).

If only one fund of evidence is utilized to prove both the substantive offense and conspiracy charge, and a jury disbelieves this evidence or has a reasonable doubt that it is sufficient to prove the substantive offense, it logically follows that it is likewise unbelievable or insufficient to support a verdict of guilty to the conspiracy charge. Armijo v. People, 170 Colo. 411, 462 P.2d 500 (1969).

Where one of the defendants asserted that because the jury found him not guilty of possession of a narcotic drug, the guilty verdict of conspiracy to possess was inconsistent and his conviction should be reversed, it was held that since there was no evidence of conspiracy apart from that introduced in support of the substantive crime of possession as to the defendant, and the jury found the evidence was insufficient to establish the defendant's guilt as to the possession charge, it followed that the conviction on the conspiracy count must fall as well. Fagin v. People, 174 Colo. 540, 484 P.2d 1216 (1971).

The jury cannot be permitted to believe testimony for the purposes of the conspiracy and disbelieve the same testimony for purposes of the substantive crime. Hughes v. People, 175 Colo. 351, 487 P.2d 810 (1971).

An acquittal of a substantive offense forecloses conviction on a conspiracy charge if, and only if, the only evidence relied upon to prove the existence of the conspiracy was also the only evidence used to prove the substantive offense. People v. Incerto, 180 Colo. 366, 505 P.2d 1309 (1973); People v. Samora, 188 Colo. 74, 532 P.2d 946 (1975).

Conviction of conspiracy to commit a robbery is totally inconsistent with an acquittal of attempt to commit aggravated robbery. People v. Berry, 191 Colo. 125, 550 P.2d 332 (1976).

Jury may be so instructed. If counsel for the people insist upon submitting to the jury a count of conspiracy as well as a count of robbery where the evidence which would convict upon either charge is exactly the same, the jury should be instructed that it cannot convict on one count and acquit on the other. People v. Way, 165 Colo. 161, 437 P.2d 535 (1968).

Different rule applies where evidence different. The basic reason for the rule in Robles v. People (160 Colo. 297, 417 P.2d 232 (1966)) disappears when the evidence can be segmented or is different as to both offenses. Armijo v. People, 170 Colo. 411, 462 P.2d 500 (1969).

Where there is different evidence relating to the conspiracy and the substantive crime, the jury may return different verdicts as to the two charges. Hughes v. People, 175 Colo. 351, 487 P.2d 810 (1971).

When a defendant is acquitted of a substantive offense, he can still be convicted of conspiracy to commit the offense if in addition to the evidence offered to prove the substantive offense, there exists evidence to prove the conspiracy. Bates v. People, 179 Colo. 81, 498 P.2d 1136 (1972).

Where there is different evidence relating to the conspiracy, separate and independent from that of participation in the substantive offense, the jury may properly return a verdict of guilty to the conspiracy charge and not guilty to the substantive charge. People v. Coca, 185 Colo. 10, 521 P.2d 781 (1974).

Jury verdicts acquitting a defendant of burglary and finding guilt as to a conspiracy to commit burglary are not inconsistent so long as there is independent evidence in the record implicating the defendant in a conspiracy separate and apart from the evidence offered to prove the substantive offense. People v. In Interest of A.G., 43 Colo. App. 514, 605 P.2d 487 (1979).

Where the defendant was seen checking the drop site for money and the police testified he was seen talking to both the man identified as placing the extortion call and the man that attempted to pick of the money, there was sufficient independent proof of conspiracy to sustain the conspiracy, despite the acquittal on the extortion charge. People v. Williams, 707 P.2d 1023 (Colo. App. 1985).

Where sufficient independent evidence exists, including testimony of accomplice, defendant may be convicted of conspiracy even if acquitted on the substantive charge of arson. People v. Harrison, 746 P.2d 66 (Colo. App. 1987); People v. Hood, 878 P.2d 89 (Colo. App. 1994).

Defendant may be convicted of conspiracy to commit attempted murder even though acquitted of attempted murder charge. Evidence of attempted murder is not sole evidence for conspiracy charge, conspiracy charge was supported by additional evidence of an agreement to kill a person. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

Subsection (2) codifies the rule of Robles v. People. People v. Frye, 898 P.2d 559 (Colo. 1995).

Robles rule should be strictly limited to the terms of subsection (2). People v. Frye, 898 P.2d 559 (Colo. 1995).

Subsection (2) not applicable and defendant not acquitted where jury was deadlocked on the first degree arson charge and the prosecution dismissed such charge and the court accepted the unanimous verdict on the conspiracy charge. People v. Espinoza, 989 P.2d 178 (Colo. App. 1999).

The offense classification for conspiring to sell or distribute a controlled substance is controlled by § 18-18-405, despite subsection (7)(a) of this section that classifies conspiracy to commit a level 1 drug felony as a level 2 drug felony with an exception as otherwise provided by law. The sections do not conflict. People v. Bice, 2023 COA 98, 542 P.3d 709.

Vague evidence insufficient to support conspiracy after acquittal of substantive crime. Where the so-called independent evidence from which it might be inferred that the defendant was a participant in a conspiracy was vague and inconclusive, such evidence is totally insufficient to support the defendant's conviction on the conspiracy charge after his acquittal on the substantive charge. People v. Samora, 188 Colo. 74, 532 P.2d 946 (1975).

Jury may not believe evidence for conspiracy and disbelieve for substantive crime. A jury will not be permitted to believe the evidence for the purpose of a conspiracy count and disbelieve the evidence for the purpose of the substantive crime count. People v. Coca, 185 Colo. 10, 521 P.2d 781 (1974).

Court erred in prohibiting defendant, on hearsay grounds, from eliciting evidence of what he and an alleged coconspirator said to one another. Nonhearsay verbal act evidence is admissible on the issue of whether a conspiratorial agreement existed because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. People v. Scearce, 87 P.3d 228 (Colo. App. 2003).

Applied in People v. Albers, 196 Colo. 66, 582 P.2d 667 (1978); People v. Hoffman, 655 P.2d 393 (Colo. 1982); Watkins v. People, 655 P.2d 834 (Colo. 1982).

PART 3

CRIMINAL SOLICITATION