| A person commits the offense of conspiracy if he or she, with the intent to commit an underlying felony, agrees with one or more persons to engage in conduct that would constitute the underlying felony and performs an overt act in furtherance of the agreement. The person must know that the underlying felony will be committed. The person must also agree in advance to aid the commission of the underlying felony. The overt act does not need to be a criminal act in itself.
The fact that one or more of the co-conspirators is not criminally responsible, has not been prosecuted, or has been acquitted of the underlying felony is not a defense to the offense of conspiracy. Also, the fact that a defendant was legally incapable of committing the underlying felony or that the underlying felony was committed is not a defense to conspiracy. However, the fact that only one other person was involved in the conspiracy, which person was acting with law enforcement officers, is a valid defense. Also, when only two persons are accused of the offense and one person is acquitted, there is a valid defense to the offense of conspiracy.
It is an affirmative defense to the offense of conspiracy that a defendant made a voluntary and a complete renunciation of the conspiracy or withdrew from the conspiracy. The renunciation or the withdrawal must take place prior to the commission of the underlying felony. The defendant must also take further affirmative action to prevent the commission of the underlying felony. Renunciation is not voluntary if it is motivated by circumstances that increase the probability of being detected or that make the underlying felony more difficult to commit. Renunciation is also not voluntary if it is merely a decision to postpone the commission of the underlying felony. Evidence of renunciation is most often used at the penalty stage of a trial in order to reduce a defendant's punishment for the conspiracy.
Proof of a conspiracy is normally established by circumstantial evidence. An agreement that constitutes the conspiracy may be inferred from the acts of the persons who are accused of conspiracy. But, proof of the agreement cannot be based solely on a confession. The prosecution must prove that the agreement was independent from the confession. Also, a person cannot be convicted of conspiracy through the uncorroborated testimony of his or her co-conspirator. The prosecution must present independent evidence that connects the person with the conspiracy.
A conspiracy is complete when the acts that were contemplated by the conspirators are accomplished. If the co-conspirators commit a felony, other than the intended felony, while attempting to carry out a conspiracy, all the conspirators can be convicted of the felony that was committed, even though they did not intend to commit the felony. They can be convicted of the felony if it was in furtherance of the conspiracy and if they should have anticipated that the felony could have resulted from carrying out the conspiracy.
The offense of conspiracy is normally punished one category lower than the most serious felony that is the object of the conspiracy.
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