Criminal
Law
James R. Elkins
College of
Law || West Virginia University
Fall, 2011
West Virginia Conspiracy Law & Cases
|
West Virginia Statute: §61-10-31 provides as follows:
|
<1> Basic Conspiracy Law: How does one go about engaging in a conspiracy under West Virginia law? §61-10-31 does not provide a definition or a clue as to the elements of the offense. Conspiracy generally requires an "agreement" to commit a crime and an "overt act" by one of the conspirators acting pursuant to the agreement to commit the crime. The basic elements necessary for conspiracy absent from the statute are found in West Virginia cases. See e.g., Syllabus pt. 4 in State v. Less: "In order for the State to prove a conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." State v. Less, 170 W. Va. 259, 294 S.E.2d 62 (1981)
<2> Relationship of Conspiracy to the Crime Which the Defendants Have Agreed to Commit: The West Virginia statute adopts a non-merger doctrine; the crime of conspiracy and the underlying substantive crime are separate crimes. "Unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy." Joshua Dressler, Understanding Criminal Law 426 (New York: Lexis Publishing, 3rd ed., 2001).
<3> Proving the Agreement that Serves as the Basis of Conspirarcy: On the proof of an agreement to commit a crime which serves as the basis for a charge of conspiracy: "The agreement may be inferred from the words and actions of the conspirators, or other circumstantial evidence, and the State is not required to show the formalities of an agreement." State v. Less, 170 W. Va. at 265, 294 S.E.2d at 67 (1981)(citations omitted). In 2004, the West Virginia Supreme court confirmed the language in Less and noted that "[t]he agreement to commit an offense is the essential element of the crime of conspiracy--it is the conduct prohibited by the statute." State of West Virginia v. Rodgers (Sup.Ct.App. W.V., 2004) [on-line text]
The court in Rodgers provides the following summary of the facts in the case:
On the evening of November 16, 2000, an individual named Brian Drain and his friend, Danny Mackey, were working on some motor vehicles in a parking lot near Drain's apartment in Parkersburg, West Virginia. At some point, they noticed appellant Rogers and David Dowler walking toward them. Dowler was carrying a tire iron. Although the record does not reveal a motive for the events which then occurred, both Drain and Mackey recognized appellant Rogers, and Mackey recognized Dowler.
After a short confrontation, Dowler struck Mackey with the tire iron, and the two began fighting. In the meantime, Drain rushed to his apartment where his wife and two children were present. He called the police and got his rifle. Soon after, Mackey entered the apartment. According to the State, Mackey then attempted to hold the screen door of the apartment shut while appellant Rogers and Dowler were pulling on it in order to gain entry and continue the assault. Although Drain threatened to shoot them, Rogers and Dowler forced their way past the threshold of the apartment. Mackey, however, pushed them back outside. According to the State, appellant Rogers and Dowler then made a second attempt to pull open the screen door while Mackey again tried to hold it shut. The police arrived and apprehended Dowler at the scene. Appellant Rogers, who ran from the area, was arrested a short distance away.
In January 2002, a Wood County grand jury indicted appellant Rogers for burglary and conspiracy to commit burglary. The burglary charge was based upon the contention of the State that, on the evening in question, Rogers broke and entered the dwelling house of Brian Drain “with intent to commit a crime therein,” i.e., assault. W. Va. Code, 61-3-11 (1993). The conspiracy to commit burglary charge was based upon the contention of the State that appellant Rogers and David Dowler conspired to commit the above offense and that they committed an overt act in furtherance of the conspiracy. W. Va. Code, 61-10-31 (1971).
[Rogers was convicted on both counts.]
In Rodgers, the appellant challenged jury instructions on the “agreement” requirement for a conspiracy. The challenged jury instructions given to the jury provided that:
It is not necessary to show that the parties met and actually agreed to undertake the performance of an unlawful act.
Further, it is not necessary that they had previously arranged a detailed plan for the execution of the act; nor is it necessary that the parties entered into a formal or expressed agreement. Rather, an agreement can be shown by tacit understanding between the co-conspirators to accomplish an unlawful act which may be inferred from the circumstances.
The West Virginia Supreme Court upheld the trial court's jury instructions and the conviction.
Query: Is the first sentence/paragraph of the jury instruction problematic? How should the jury instruction given in Rodgers be restructured?
<3A> In West Virginia v. Stevens (Sup.Ct.App. W.V., 1993) [on-line text] the defendant was charged with alternative counts of either breaking and entering, or entering without breaking under W. Va. Code, 61-3-12 (1923), and one count of conspiracy to commit breaking and entering, or entering without breaking under W. Va. Code, 61-10-31 (1971). The defendant was convicted by jury of breaking and entering and conspiracy to commit a breaking and entering.
The Court's statement of the facts and defendant's arguments in the case are as follows:
In its case, the State presented Raymond Watson as an eyewitness to the crime. On April 10, 1991, at 1:48 a.m., Mr. Watson was walking to his job at the Parkersburg News and Sentinal when he noticed that the front window to Ranal's Grocery and Carry Out was broken. Mr. Watson telephoned the police from a pay phone that was within several feet of the front of the store. While he was talking on the telephone, Mr. Watson watched the defendant and his co-defendant, Larry Wayne Foggin, exit the store through the broken window. The area was well lit and Mr. Watson gave detailed descriptions of both men to the police. Mr. Watson testified that he got a good look at the defendant who was carrying a crowbar out of the store.
The defendant and his co-defendant were stopped by the police twelve minutes later about one and one-half blocks from the store. After being stopped, the defendant and his co-defendant attempted to flee, but were recaptured by the police within several minutes. Mr. Watson positively identified the defendant as the man carrying the crowbar.
Inside the store, the police found a tire iron and two bricks which had been used to break a four-by-five-foot hole in the window. The owner testified that neither the tire iron nor the bricks were in the store prior to the crime. In addition, there were several pry marks on the safe and on the floor where the safe was bolted. Cash drawers were removed from the store's registers and the alarm system was forcefully unplugged from the wall. Despite several items being destroyed, the store owner could not find anything missing.
At the close of the State's case, the defendant made a motion for acquittal . . . in regard to the entering without breaking charge and the conspiracy charge. The trial court granted the defendant's motion with respect to breaking without entering, but denied the defendant's motion as to conspiracy. After the verdict, the defendant timely filed a motion for a new trial . . . alleging that the trial court erred in denying his earlier request to have the conspiracy charge dismissed. The trial court denied the motion.
After the motion for acquittal was denied, the defendant took the stand on his own behalf and denied any involvement in the crime. The defendant stated that on April 9, 1991, he and his co-defendant spent the day and evening together drinking heavily. The defendant contends that the two were out walking that night because they decided to go to the hospital to visit a sick friend. On the way to the hospital, the defendant claimed the two were separated because Mr. Foggin went to meet a woman. The defendant said that he waited for about ten to fifteen minutes in a parking lot near the hospital for Mr. Foggin to return. The two were reunited and were near the hospital when the police stopped them. The defendant also said that he had known Mr. Foggin for twelve years and was aware that Mr. Foggin had a history of breaking and entering.
The defendant contends that the evidence the State presented was insufficient to send the issue of conspiracy to the jury . . . .
Issue: The issue, as stated by the court: "[T]he State presented more than sufficient evidence that the defendant and Mr. Foggin committed the breaking and entering. The only question is whether the State presented substantial evidence that the two men conspired to commit the crime."
Law of Conspiracy in West Virginia: The court then outlines the law of conspiracy as follows:
To convict someone of the crime of conspiracy, the State must demonstrate that the defendant agreed with at least one other person to commit an offense against the State and that one of the conspirators committed an overt act to effectuate the offense. State v. Johnson, 179 W. Va. 619, 371 S.E.2d 340 (1988), we held:
W. Va. Code, 61-10-31(1), is a general conspiracy statute and the agreement to commit any act which is made a felony or misdemeanor by the law of this State is a conspiracy to commit an "offense against the State" as that term is used in the statute. State v. Less, 170 W. Va. 259, 294 S.E.2d 62 (1981).
In order for the State to prove a conspiracy under W. Va. Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy. State v. Less, 170 W. Va. 259, 294 S.E.2d 62 (1981).
We also stated in State v. Less, 170 W. Va. 259, 265, 294 S.E.2d 62, 67 (1981), that an "agreement may be inferred from the words and actions of the conspirators, or other circumstantial evidence, and the State is not required to show the formalities of an agreement." State v. Wisman, 94 W. Va. 224, 118 S.E. 139 (1923).
The defendant challenges the conviction on the grounds that the State failed to prove an "agreement" to commit the crime. The Court held that
viewing the evidence in a light most favorable to the prosecution, we find there was sufficient evidence that the defendant and Mr. Foggin agreed in advance to commit the crime. Clearly, the jury might justifiably conclude beyond a reasonable doubt that the use of the crowbar, tire iron, and bricks required advanced planning and preparation by the defendant and his co-defendant, and, therefore, was not a spontaneous act. It could certainly conclude that these implements were brought to the store and were used to effectuate the forcible entry. The presence of Mr. Foggin inside the store with the defendant would indicate that he had accompanied him to the scene.
<3B> In State of West Virginia v. Green (Sup.Ct.App. W.V., 1992) [on-line text], the Court presented the facts of the case as follows:
This case is before us on appeal by Estil Green from his conviction in the Circuit Court of Calhoun County for conspiracy to commit grand larceny. Although indicted for both conspiracy to commit grand larceny and grand larceny, Mr. Green was convicted by a jury verdict on May 18, 1990, of the conspiracy charge only. He was subsequently sentenced . . . to one-to-five years in the West Virginia Penitentiary.
The conviction arose out of the theft of a Gravely tractor, valued at approximately $4,600, from a residence in Calhoun County in September, 1989. . . .
During the trial, there was conflicting testimony regarding the actual theft of the tractor. Mr. Green and another witness testified that Ralph Ackley had borrowed a truck from Mr. Green in order to visit his children and that, when he returned, he had the tractor in the truck. Mr. Ackley testified that Mr. Green and Billy Barker went out in the truck one evening and returned with the tractor.
It is undisputed that the next day, Mr. Green, Mr. Ackley, and Billy Barker set out to sell the tractor, although there is conflicting evidence regarding who was in charge of the sale negotiations. Ultimately, they sold the tractor to Bobby Buzzard for $500. Mr. Buzzard was given a receipt signed by himself, his wife, Mr. Green, and Mr. Ackley, who signed as Ralph Butler. Mr. Ackley testified that he signed a false name because he was afraid of getting into trouble.
. . . .
[Ackley's wife] testified that she had found a receipt indicating that Mr. Green had traded a car to Billy Barker for the Gravely tractor. She also testified that she asked Mr. Green about the receipt and that he stated he had obtained it to avoid any trouble. She further testified that she had put the receipt in her purse and that Mr. Green found it and burned it.
Counsel for Mr. Green twice moved for judgment of acquittal, first, on the conspiracy charge at the close of the State's evidence, and again on all charges at the close of all the evidence. These motions were based on insufficiency of the evidence. The court limits its argument on the sufficiency of the evidence to the follow conclusory statement:
Viewing the evidence in the light most favorable to the prosecution, the jury was warranted in finding that Mr. Green had participated in a conspiracy to steal the tractor. There is no question that the State had sufficient evidence to show that the tractor was stolen. Mr. Ackley testified that Mr. Green and Billy Barker left one evening and returned the next day with the tractor. From this, the jury could infer an agreement or arrangement to steal the tractor. There was also substantive evidence that Mr. Green had disposed of it. Thus, we find that the evidence was manifestly adequate to support the verdict.
How, and by what logic, could a jury acquit Green of grand larceny, under the facts of this case, and still convict him of conspiracy to commit grand larceny? The inconsistency of the verdicts was not lost on defense counsel and the issue was raised on appeal. The court rejects the defense challenge and finds that:
(1) inconsistent jury verdicts is not generally subject to appellate review on policy reasons (stated in a rather confused fashion, but including, a "general reluctance to inquire into the workings of the jury," a reluctance of such magnitude "that the best course to take is simply to insulate jury verdicts from review on this ground."
(2) However, the court notes "that this rule does not apply in situations where a guilty verdict on one count logically excludes a finding of guilt on the other." How one is to square (1) and (2) is not at all clear.
(3) The court finds in Green that the not guilty verdict on grand larceny "does not logically exclude a guilty verdict" on the conspiracy to commit grand larceny. The only effort by the court to support the logic of the inconsistent verdicts is the statement that: "Based on Mr. Green's testimony that he did not steal the tractor, the jury was warranted in finding that he did not actually steal it and in acquitting him of the grand larceny charge. However . . . there was adequate evidence to convict him of conspiracy." I'm somewhat puzzled by the court's statement. One can, hypothetically construct a scenario in which Green might be acquitted on the charge of grand larceny and still be found to have conspired to commit grand larceny. E.g., he might have reached an agreement with a co-conspirator to have commited the crime, changed his mind, and the grand larceny is carried out by his co-conspirator. A jury might find the defendant did not participate in the crime, but had not sufficiently communicated his desire to withdraw from the conspiracy.
In this case, the overt acts to support the conspiracy were the unauthorized taking of the tractor and its sale. (It might, of course, be possible that Green entered into a tacit agreement with his cohorts to steal the tractor, did not participate in the actual theft, and then rejoined his cohorts as an accessory after the fact in the sale of the stolen tractor. But then, Green would have been charged, one might assume, with knowingly receiving stolen goods, or as an accessory after the fact to the crime of grand larceny. Obviously, this was not the prosecution's theory of the case, nor is it a construction that would make the jury verdicts as rendered logical.)
As an interesting footnote to the Green case is found in in
a footnote of the opinion: "Wanda Ackley, the wife of Ralph Ackley,
was previously married to Mr. Green. She testified at trial to an event
which occurred while she was married to Mr. Green. No issue was raised
about her competency to testify against her former husband."
