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Colorado Crimes of Conspiracy, Attempt, and Solicitation Crimes – The Unfinished or Inchoate Crimes

By Colorado Criminal Defense Attorney – Law You Can Use – H. Michael Steinberg

Introduction – If you are charged with an inchoate – or so called incomplete crime such as the Colorado crime of Conspiracy, or Attempt, or Solicitation. You may be confused as these crimes require another “target” crime – such as Conspiracy to Distribute Cocaine, or Attempt to Commit Murder… but may appear on the charging document as just Conspiracy or Attempt. This article is intended to help you understand these offenses.

The Colorado Incomplete (Inchoate) Crimes

Anticipatory, incipient, incomplete, and preliminary crimes are all other words for inchoate crimes, acts that imply an inclination to commit a crime even though the crime is never completed.

The word “inchoate” means underdeveloped or unripened. Because of the social need to prevent crimes before they occur, the common law long ago established three (3) separate and distinct categories of inchoate crimes — the crimes of attempt, conspiracy, and solicitation. Over the years, there have not been any new categories added with the possible exception of possession (as in possession of burglar tools, bomb materials, gun arsenal, etc.) as an inchoate offense based on the notion of preparation, which has not normally been associated with inchoate crimes.

It’s best to deal with the three inchoate crimes in alphabetical order, and also for the following reason — attempt is considered to stand closest to a completed crime, conspiracy is considered to be further removed, and solicitation is considered the furthest removed.

Colorado Criminal ATTEMPT §18-2-101, C.R.S.

Criminal attempt, in many ways, is all about failure (not being a very good criminal), for example, shooting at somebody and missing, holding up a cash register to only find $5, stealing a CD by taking it out of its case, stuffing it down your pants, and having it break in half before you get out of the store (the law includes strokes of luck in its conception of failure). The law of attempt is also about nipping violence in the bud, so under certain circumstances, even certain words (“threats”, “challenges”) might qualify as attempts.

There’s no such thing as a crime called “attempt.” Colorado allows the prosecutor to pick what the crime is that’s being attempted; that is, most states do not try to define attempted murder, attempted robbery, attempted rape, and so forth.

The elements of attempt include:

(1) specific intent — this means that “purposely” is the only mens rea that qualifies. All inchoate crimes are specific intent crimes, and all specific intent crimes do not allow such states of mind as reckless, negligent, or strict liability.

(2) an overt act toward commission — this is intended to weed out the plotters from the perpetrators, but the standards vary widely by jurisdiction. Acts of preparation do not count.

There are at least four tests used in various places:

physical proximity doctrine — this focuses upon space and time, establishes the “last act” standard which requires looking at the remaining steps probable distance approach — this considers whether the attempt would naturally lead to commission but for some timely interference not related to bad luck

equivocality approach — this looks at whether the attempt can have no other purpose than commission of a crime

substantial steps test — this is a the Colorado Model Penal Code-recommended approach which looks for corroborating evidence in the form of conduct which tends to concur or verify a criminal purpose

(3) failure to consummate the crime — the law looks at the reasons why the crime failed, and in some cases, the reason mitigates the punishment or removes the liability, as in: legal impossibility — a defense that what was attempted is not a crime (raping a mannequin, for example, because rape requires a human victim)

Prosecutors have the burden of proving legal possibility as well as apparent ability factual impossibility — a defense that some extraneous factor or outside force made it impossible to complete the crime; most jurisdictions will not accept this on the presumption that “luck” doesn’t count ( count – same as no defense) renunciation — this is the idea of abandonment, and to be a successful defense, the actor must have given up for moral reasons, not just because of the risk of apprehension

Colorado courts distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the “substantial steps” test borrowed from the Model Penal Code.

The substantial steps test is as follows: “if, acting with the kind of culpability otherwise required for commission of the crime, [the offender] … 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”

In sum, the law looks at attempt as something more than just trying to do something.

Here is What Colorado Juries Are Instructed as the Law:

G2:01 CRIMINAL ATTEMPT §18-2-101, C.R.S.

The elements of the crime of attempt to commit ___________________ are:

(Insert name of crime)

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. [the court should insert here the culpable mental state required for the underlying offense]

4. [engaged in conduct constituting a substantial step toward the commission of _________________ .

Insert name of crime)

A substantial step is any conduct, whether act, omission or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the

offense.]

5. [without the affirmative defense in instruction number _____.]

The Colorado Crime of CONSPIRACY – 18-2-201,-206, C.R.S.

The essence of conspiracy is an agreement. It doesn’t have to be a written one. Usually, it’s inferred from the facts or circumstances. What the agreement has to be about doesn’t even have to be criminal, only “unlawful.” Under some statutes, a conspiracy can involve any act injurious to public health, public morals, free commerce, or any act perverting justice.

Because a conspiracy by itself is almost treated as a substantive crime in itself, this is the only inchoate offense that the law permits a person to be charged with in addition to the target crime (that is, a person can be charged with both murder and conspiracy to commit murder, e.g.). This probably won’t be reduced by plea bargaining.

A conspiracy is difficult to conceptualize in terms of the legal elements of the crime.

Accomplice – or Complicity Liability – Aiding and Abetting

Accomplice law includes terms such as “aid,” “abet,” “assist,” “counsel,” “induce,” or “incite” which may have different meanings depending upon what jurisdiction you’re in. Normally, you can’t be considered as an accomplice simply for being there — you must be constructively present. Accomplice law is also where the notion that you can’t hold a corporation criminally liable comes from, specifically from the doctrine of respondeat superior which establishes the notion of “vicarious liability” where a master is responsible for the illegal conduct of their servant.

The relationship is what creates the liability. It often comes up in business, where a corporation (as an entity, not a person) cannot commit a crime (cannot form criminal intent) but it can be held “criminally liable” if the only punishment sought is a fine or seizure of property. Officers of a corporation can be punished by imprisonment only if the corporation itself has been held “criminally liable” first (a pretrial finding of at least negligence), the officer has been found guilty of malfeasance, misfeasance, or nonfeasance by their corporation, and (unless stated otherwise in statute) the officer causes, requests, commands, or in any way authorizes the illegal act to be committed.

Favorite Tool Of Colorado DA’s

Conspiracy is the favorite tool of prosecutors. There’s a lot of presumptions and procedural rules that favor the prosecution. It’s easy to get a conviction for conspiracy because, basically, all the prosecutor has to do is present all the evidence and let the judge tell the jury what test will be used to determine whether an agreement existed. In most jurisdictions, proof of the agreement is sufficient; no further (overt) act is required.

In jurisdictions like Colorado requiring an overt act, the standard is not as high as the law of attempt, and is basically proven by showing at least one of the conspirators had at least the intent to commit a substantive offense. Conspiracy is still a specific intent crime, so “purposively” must be used, not just knowledge, although there’s a whole string of inconsistent case law that indicates erosion in this area.

The elements of conspiracy include:

(1) mens rea — a specific intent to attain a particular criminal objective on the part of at least one person in the partnership. Purpose can be inferred from circumstances surrounding the combination, such as failure to keep records, clandestine meetings, quantities involved, continuity of the relationship, etc.

(2) actus reus — proof of an agreement is proof of the actus reus for conspiracy. Proof of an unwritten understanding will suffice. Most agreements are of two types, and the judge is obligated to instruct the jury how to determine the types:

chain conspiracy

…. this usually involves the distribution of something, like drugs, where each person in the conspiracy handles the commodity at different points in the process, like with the stages of manufacture, distribution, and sale which form a linear (from left to right) chart when diagrammed.

wheel conspiracy

…this is where a hardcore group of participants (“middlemen”) handle most of the transactions in “front” operations, like a hub, that when diagrammed on paper, look like a wheel, protecting those at the top or on other spokes of the wheel.

Defenses and Other Issues:

Police officers cannot initiate a conspiracy — that would automatically be entrapment. They can, however, give somebody an opportunity to enter into an existing conspiracy where the police agent is a feigned accomplice. This means that already existing conspiracies must be infiltrated. Other than entrapment, the only other defense available to the defendant is complete and total withdrawal. The standard is high. The defendant has to show their complete and total withdrawal that they tried to notify or tip off authorities, felt guilty about their own involvement, and took active steps to thwart the conspiracy.

The defenses of impossibility and abandonment are of little use in conspiracy law as they are considered the same as no defense. However, some jurisdictions will permit abandonment, but the standard is high, the defendant has to show their complete and total withdrawal by notifying the authorities about their own involvement and taking steps to thwart the conspiracy. Conspiracy doesn’t recognize anything sacrosanct about the husband-wife relationship, and a corporation can also be charged as a person with conspiracy if more than one corporation is involved.

Here is What Colorado Juries Are Instructed as the Law:

G2:02 CONSPIRACY 18-2-201,-206, C.R.S.

The elements of the crime of conspiracy are:

1. That the defendant.

2. in the State of Colorado, at or about the date and place charged,

3. with the intent to promote or facilitate the commission

of the crime of (insert principal crime)

4. [agreed with another person or persons that they, or one or more of them, would engage in conduct which constitutes (insert name of principal crime) or an attempt to commit (insert name of principal crime), and]

-or-

[agreed to aid another person or persons in the planning or commission of (insert principal crime), and]

5. the defendant, or a person with whom the defendant conspired, has performed an overt act in pursuance of such conspiracy.

6. [without the affirmative defense in instruction number.

“Overt Act” means any act knowingly committed by one of the conspirators, in an effort to accomplish some object or purpose of the conspiracy. The overt act need not be criminal in nature if committed separately and apart from the conspiracy. It must, however, be an act that tends to accomplish the plan or scheme, and must be knowingly done in furtherance of some object or purpose of the conspiracy charged in the information [indictment].

The Colorado Crime of SOLICITATION – §18-2-301 (1),(5), C.R.S.

Solicitation is best thought of as a substantive crime in itself, remote from being thought of as an attempt at a substantive crime. Solicitation occurs when the solicitation is made. Another way of saying this is that the crime of solicitation is over with the asking. The crime of solicitation is inherently incomplete (inchoate) because the law doesn’t even care if the solicitation was influential or not.

It also doesn’t matter if it’s a crowd or an individual being solicited, and it’s even possible to perpetrate solicitation through an intermediary. What does matter is the thing being solicited — the crime of solicitation should be restricted to certain serious felonies. At common law, these would be crimes that breach the peace or obstruct justice.

Solicitation (specifically the actus reus of it) consists of words; words that create an inducement, defined as advising, commanding, counseling, encouraging, enticing, entreating, importunes, incites, induces, instigates, orders, procures, requests, solicits, or urges another to commit a serious felony with the specific intent that the person solicited commit the crime. This list is sometimes called the list of proper utterances for the crime of solicitation.

The elements of solicitation include:

(1) mens rea — not intent to commit a crime, but specific intent to persuade someone else to commit a crime; also not joking around or making casual comments (“I wish that person would drop dead”) but “purposely” wanting to persuade someone.

(2) actus reus — words that contain some sort of inducement; words that are on the list of proper utterances for the crime of solicitation; uttering the words is the actus reus, and it doesn’t matter if the means of utterance is oral, written, or electronic.

Defenses: Impossibility of any type is the same as no defense. Colorado allows withdrawal or renunciation.

Here is What Colorado Juries Are Instructed as the Law:

G2:03 CRIMINAL SOLICITATION §18-2-301 (1),(5), C.R.S.

The elements of the crime of criminal solicitation are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. with intent to promote or facilitate the commission of _____________ ,

(insert felony)

4. under circumstances strongly corroborative of that intent,

5. [commanded, induced, entreated, or otherwise attempted to persuade another person,]

-or-

[offered his/her services or another’s services to a third party,]

6. to commit _________________ ,

(insert felony)

7. [without the affirmative defense in instruction number]

Call Now:

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277