State v. Pond ( 2015 )

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STATE OF CONNECTICUT v. TERRELL
WILLIAMS POND
(SC 19074)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued February 10, 2014—officially released February 10, 2015
Leonard C. Boyle, deputy chief state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and John C. Lion, senior assistant state’s
attorney, for the appellant (state).
Kevin Munn, certified legal intern, with whom were
Timothy H. Everett, assigned counsel, and, on the brief,
Bryce Petruccelli, certified legal intern, for the appel-
lee (defendant).
Opinion
PALMER, J. General Statutes § 53a-48 (a), Connecti-
cut’s criminal conspiracy statute, provides that ‘‘[a] per-
son is guilty of conspiracy when, with intent that
conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the
performance of such conduct, and any one of them
commits an overt act in pursuance of such conspiracy.’’1
The dispositive issue presented by this certified appeal
is whether, to be convicted of conspiracy, a defendant
must specifically intend that every element of the
planned offense be accomplished, even an element that
itself carries no specific intent requirement. Because
we are not persuaded that the legislature intended to
punish offenders for conspiring to commit crimes that
they never agreed or intended to commit, we conclude
that § 53a-48 (a) does impose such a requirement.
The charges in this case arose from an incident in
which the defendant, Terrell Williams Pond, and his
friend, Montel Harris, allegedly approached the victim,
Stanislaw Grzadko, on a public street, and Harris dis-
played a carbon dioxide (CO2) pistol (air pistol) while
demanding that Grzadko surrender the contents of his
pockets. A jury found the defendant not guilty of
attempt to commit robbery in the second degree but
found him guilty of conspiracy to commit robbery in
the second degree in violation of General Statutes (Rev.
to 2007) § 53a-135 (a) (2)2 and § 53a-48 (a). The trial
court rendered judgment in accordance with the jury’s
verdict,3 and the defendant appealed to the Appellate
Court, claiming, among other things, that the trial court
improperly had failed to instruct the jury that, to find
the defendant guilty of the conspiracy charge, it must
find that he had specifically intended that the planned
robbery would involve the display or threatened use
of what Harris represented to be a deadly weapon or
dangerous instrument.4 The Appellate Court agreed
with the defendant, reversed the judgment of the trial
court, and remanded the case for a new trial. State v.
Pond, 138 Conn. App. 228, 238–39, 50 A.3d 950 (2012).
We granted the state’s petition for certification to
appeal, limited to the following question: ‘‘Did the
Appellate Court properly determine that in order to
[establish that] a defendant [is guilty] of conspiracy to
commit robbery in the second degree in violation of
. . . §§ 53a-48 (a) and 53a-135 (a) (2), the state must
prove that the defendant conspirator had the specific
intent that there would be a display or threat of the use
of what was represented to be a deadly weapon or
dangerous instrument, even if that specific intent is not
required for proof of [that element of] the underlying
crime of robbery in the second degree?’’ State v. Pond,
307 Conn. 933, 56 A.3d 714 (2012).5 We answer the
certified question in the affirmative and, accordingly,
affirm the judgment of the Appellate Court.
The opinion of the Appellate Court, as supplemented
by the record, sets forth the following facts that the
jury reasonably could have found. ‘‘On October 27, 2008,
[Grzadko] . . . ate dinner and then went for his eve-
ning walk. . . . [W]hile he was walking on the Dixwell
Avenue sidewalk [in the town of Hamden], he was
approached from behind by the defendant and . . .
Harris, both of whom were riding bicycles on the side-
walk. Harris approached [Grzadko] on his left, the
defendant approached on his right . . . . Harris asked
[Grzadko] where he was going and then demanded that
he stop, repeating the order ‘two [or] three times . . . .’
When [Grzadko] continued to walk, the defendant
pushed his bicycle in front of [him], forcing him to stop.
With [Grzadko] now unable to move forward, Harris
raised his jacket and lifted the handle of what appeared
to be a gun, [which] later [was] determined to be [an
air] pistol, from his waistband, asking [Grzadko], ‘do
you know what it is?’ When [Grzadko] responded, ‘yes,
yes, I know,’ and as the defendant continued to block
[Grzadko] from moving, Harris ordered [Grzadko] to
remove everything from his pockets. Rather than turn
his belongings over to the two young men, [Grzadko]
turned to the side and ran into traffic on Dixwell Avenue
in order to escape. The defendant and Harris rode off
on their bicycles. Shortly thereafter, [Grzadko] called
the Hamden police and reported the incident. Later that
evening, the Hamden police detained the defendant and
Harris, and [Grzadko] later identified them as the two
young men who had accosted him.’’ State v. Pond, supra,
138 Conn. App. 231–32.
The defendant was charged with attempt to commit
robbery in the second degree and conspiracy to commit
robbery in the second degree. The case was tried to a
jury, and the defendant testified in his own defense. In
addition to denying that he was one of the perpetrators
of the alleged holdup, the defendant specifically denied
that he was aware that Harris was carrying an air pistol
on the evening in question. The only evidence that the
state proffered with regard to the alleged conspiracy
was Grzadko’s testimony describing the few minutes
during which the attempted robbery occurred. Never-
theless, the jury returned a verdict of guilty on the
conspiracy count and not guilty on the attempt count.
The opinion of the Appellate Court sets forth the
following additional facts concerning the trial court’s
jury instructions. ‘‘After reading the conspiracy statute
to the jury, giving general instructions on what was and
was not required to prove an agreement and instructing
on the necessity of an overt act, the court stated: ‘The
third element is that the defendant had the intent to
commit robbery in the second degree. The intent for
that crime is that at the time of the agreement he
intended to commit larceny. The defendant may not
be found guilty unless the state has proved beyond a
reasonable doubt that he specifically intended to com-
mit a larceny when he entered into the agreement. In
summary, the state must prove beyond a reasonable
doubt that the defendant had an agreement with one
or more other persons to commit robbery in the second
degree, at least one of the coconspirators did an overt
act in furtherance of the conspiracy, and the defendant
specifically intended to deprive the owner of his prop-
erty.’ ’’6 Id., 237–38.
On appeal to the Appellate Court, the defendant
claimed, among other things, that the trial court improp-
erly had failed to instruct the jury that, to be guilty of
conspiracy to commit robbery in the second degree
under §§ 53a-135 (a) (2) and 53a-48 (a), the defendant
must have specifically intended that his coconspirator
would display or threaten the use of what the coconspir-
ator would represent to be a deadly weapon or danger-
ous instrument.7 Id., 231, 236. In addressing the
defendant’s claim, the Appellate Court relied on this
court’s decision in State v. Padua, 273 Conn. 138, 869
A.2d 192 (2005), for its conclusion that § 53a-48 (a)
‘‘requires specific intent to bring about all of the ele-
ments of the conspired offense, even those that do not
by themselves carry a specific intent [requirement].’’
(Emphasis in original.) State v. Pond, supra, 138 Conn.
App. 234. The Appellate Court interpreted Padua to
mean that, ‘‘in order to prove [that] the defendant [is]
guilty of conspiracy to commit robbery in the second
degree in violation of [§§] 53a-135 (a) (2) [and 53a-48
(a)], the state needed to prove that he and his coconspir-
ator specifically had an agreement to display a deadly
weapon or dangerous instrument and that the defendant
had the specific intent that such a weapon or instrument
would be displayed.’’ Id. Concluding that the trial court’s
failure to instruct the jury in accordance with this princi-
ple as to an essential element of the charged crime was
not harmless; id., 239; the Appellate Court reversed the
judgment of the trial court and remanded the case for
a new trial. Id.
Judge Borden issued a separate concurrence in which
he agreed with the Appellate Court majority that that
court was bound by Padua to conclude that the trial
court’s instructions to the jury were deficient. Id. (Bor-
den, J., concurring). Judge Borden also opined, how-
ever, that imposing a higher mens rea requirement for
conspiracy than that required to commit the underlying
or object offense created an unwarranted anomaly in
the Penal Code, and he therefore invited this court to
reconsider the interpretation of § 53a-48 (a) that we
adopted in Padua. See id., 239, 251 (Borden, J., con-
curring).
On appeal to this court following our granting of
certification, the state contends that the language in
Padua on which both the Appellate Court majority and
Judge Borden relied was dictum and does not control
the present case. In the alternative, the state urges us
to accept Judge Borden’s invitation to reexamine the
interpretation of § 53a-48 (a) that we adopted in Padua
and to hold that one need not specifically intend every
element of robbery in the second degree in order to be
guilty of conspiracy to commit that offense. For the
reasons set forth hereinafter, we agree with the Appel-
late Court that Padua controls the outcome of this case
and that an essential element of conspiracy to commit
robbery in the second degree in violation of §§ 53a-135
(a) (2) and 53a-48 (a) is that the defendant have the
specific intent, as part of the unlawful agreement, that,
during the plotted robbery or the immediate flight there-
from, a coconspirator will display or threaten the use
of an object that the coconspirator represents to be a
deadly weapon or dangerous instrument.
I
We first consider whether the Appellate Court prop-
erly concluded that our decision in Padua controls the
outcome of the present case. We agree that it does.
In Padua, the defendants were all members of an
extended family that, for months, had been conducting
a lucrative drug trafficking operation out of their apart-
ment in a public housing project; see State v. Padua,
supra, 273 Conn. 143–44, 158; an operation that this
court characterized as ‘‘part of the daily life of the
household.’’ Id., 158. The defendants were convicted
of, among other things, conspiracy to sell marijuana
within 1500 feet of a public housing project. Id., 142.
At the time, it was settled law that the accused need
not know that the place of sale is within a protected
zone to be guilty of the underlying drug crime. See State
v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (state
need not prove that defendant knew that location of
narcotics sale was within 1000 feet of school to secure
conviction under General Statutes [Rev. to 1991] § 21a-
278a [b]).
On appeal, the Appellate Court reversed the conspir-
acy convictions, concluding that the trial court improp-
erly had instructed the jury that an essential element
of the charged crime was that the conspiracy must
have been formed within 1500 feet of a public housing
project, rather than that the object of the conspiracy
must have been to sell drugs from such a location. State
v. Padua, supra, 273 Conn. 145, 165. On appeal to this
court, the state conceded that the instruction was incor-
rect but argued that the impropriety was harmless
beyond a reasonable doubt because abundant evidence
in the record, together with the conviction of the defen-
dants on related drug charges, left no doubt that the
defendants had in fact knowingly conspired to sell mari-
juana from their public housing project apartment. Id.,165–66. We agreed and reversed the judgment of the
Appellate Court. Id., 166, 171, 187.
In construing § 53a-48, we explained that ‘‘[c]onspir-
acy is a specific intent crime, with the intent divided
into two elements: [1] the intent to agree or conspire
and [2] the intent to commit the offense which is the
object of the conspiracy. . . . Thus, [p]roof of a con-
spiracy to commit a specific offense requires proof
that the conspirators intended to bring about the ele-
ments of the conspired offense. . . . In [Padua], the
charged object of the conspiracy was to sell marijuana
within 1500 feet of a public housing project. The essen-
tial elements of the crime of conspiracy to sell mari-
juana within 1500 feet of a public housing project are (1)
intent to agree or conspire, (2) intent to sell marijuana
within 1500 feet of a public housing project, and (3)
an overt act committed in pursuance of this conspiracy.
. . . Thus, it was the state’s burden to establish that
the defendants conspired or agreed to sell marijuana
at a specific location within 1500 feet of a public
housing project . . . .’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 167–68.
In Padua, we repeatedly observed that, to be guilty
of the charged conspiracy, the defendants must have
agreed not just to sell marijuana, but to sell it within
1500 feet of a public housing project, as well. See id.,
179–80, 182, 183.
The defendant in the present case, taking the cited
language at face value, maintains that Padua stands for
the proposition that, to be guilty of conspiracy, one
must specifically intend to commit every element of the
underlying substantive, or object, offense, even when an
element of that offense itself carries no specific intent
requirement. The defendant asserts that this interpreta-
tion of Padua is consistent both with State v. Williams,
182 Conn. 262, 266, 438 A.2d 80 (1980), in which we
held that a jury need not find a defendant guilty of
the crimes of robbery and conspiracy to commit that
robbery in the same degree, and with our statement in
State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986), that,
‘‘[t]o sustain a conviction for conspiracy to commit a
particular offense, the [state] must show not only that
the conspirators intended to agree but also that they
intended to commit the elements of the offense.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 4.
The state reads Padua differently. In Padua, the state
posits, we merely required that the defendants have
agreed to sell drugs from a geographic location that
happened to be situated within 1500 feet of a public
housing project. To be convicted of conspiracy, the
defendants did not have to know that the chosen loca-
tion was close to a public housing project, nor did they
have to specifically intend to ‘‘violate the protected
zone . . . .’’ In the present case, by extension, the state
contends that it was not required to prove that the
defendant specifically intended or agreed to the ‘‘aggra-
vating circumstance,’’ namely, that a purported weapon
would be displayed; rather, the state was required to
prove only that the defendant agreed to the robbery
itself.
The state’s argument relies on the well established,
if somewhat arcane, distinction between three types
or categories of essential elements that define each
criminal offense: conduct, results, and attendant cir-
cumstances. See, e.g., State v. Beverly, 224 Conn. 372,
378 n.7, 618 A.2d 1335 (1993); P. Robinson & J. Grall,
‘‘Element Analysis in Defining Criminal Liability: The
Model Penal Code and Beyond,’’ 35 Stan. L. Rev. 681,
693 (1983). Under this rubric, conduct elements encom-
pass all of the various criminal behaviors, such as the
forming of an agreement to commit a crime or the
brandishing of a weapon. Results elements, by contrast,
focus on the outcomes of criminal conduct, such as
the death of a victim, or the subjecting of a victim to
substantial risk of bodily injury. With respect to both
conduct and results elements, attaching a mens rea
requirement to the criminal element is typically a rela-
tively straightforward matter.
Assignment of a mens rea requirement to an attendant
circumstances element of a criminal offense, by con-
trast, can be more troublesome. Attendant circum-
stances encompass elements such as the time or loca-
tion of a crime, characteristics of the perpetrator or
victim (e.g., the victim’s age or the perpetrator’s status
as a convicted felon), or circumstantial features of the
weapon used (e.g., whether a firearm is registered or
operational). The problem is that a person may intend
or agree to commit an offense that satisfies the circum-
stantial element of a crime without recognizing that it
does so. For instance, one may agree to commit a bur-
glary at 7 p.m. on a particular day without knowing
what time the sun will set that day and, thus, that the
burglary will take place at night.8 Similarly, one may
scheme to have sexual relations with a particular
woman without knowing that she has not yet reached
the age of consent, or to sell drugs at a particular loca-
tion without knowing its proximity to the nearest school
or public housing project. When the legislature assigns
a mens rea requirement to a circumstantial element of a
criminal offense, then, there is a potential for ambiguity
that, for the most part, does not apply to conduct and
results elements. Specifically, the intent requirement
may apply merely to the referential aspect of the ele-
ment (e.g., the intended time, location, or victim of the
crime), or it also may encompass the descriptive aspect
of the attendant circumstance (e.g., the fact that the
intended time, place or victim will, in fact, satisfy the
circumstantial element of the crime).9
Returning to the certified question, we note that the
state reads Padua to mean that, to conspire to commit
an offense that includes an attendant circumstances
element, an individual need only have the requisite
mens rea with respect to the referential aspects of the
attendant circumstance. In the state’s view, for exam-
ple, criminal liability for conspiracy would lie in the
previously described scenarios even if the accused did
not specifically intend to carry out a night-time bur-
glary, to seduce a minor, or to sell drugs in a prohib-
ited location.
For purposes of this opinion, we assume without
deciding that our decision in Padua does in fact carve
out an exception, with respect to the descriptive aspect
of attendant circumstance offense elements, to the gen-
eral rule that a defendant may be found guilty of conspir-
acy under § 53a-48 (a) only when he specifically intends
that every element of the object crime be committed.10
We nevertheless conclude that the jury was improperly
instructed in the present case, because, under the con-
duct-results-attendant circumstances rubric, the dis-
play element of § 53a-135 (a) (2) would describe a type
of criminal conduct rather than an attendant circum-
stance.
The display or threatened use of a weapon is quintes-
sential criminal conduct. See, e.g., People v. Torres, 848
P.2d 911, 915 (Colo. 1993) (display of weapon deemed
actus reus of crime of disorderly conduct with deadly
weapon). Nor is the display or threatened use of a
weapon subject to the type of reference/description
ambiguity on which the state’s interpretation of Padua
hinges. Either a conspirator intends that his associates
will display a purported weapon during the planned
robbery, or he does not. There is no middle ground.
To support its contention that the display of a pur-
ported weapon represents an attendant circumstance
rather than a conduct element of the crime of robbery
in the second degree, the state relies on various deci-
sions of this court in which we have stated that being
armed with a deadly weapon is an aggravating circum-
stance of the crime of robbery. See, e.g., State v. Gonza-
lez, 300 Conn. 490, 505, 15 A.3d 1049 (2011). The state’s
argument is unavailing, however, because it conflates
two distinct and unrelated meanings of the term ‘‘cir-
cumstance.’’ In the cases to which the state directs our
attention, we used the term ‘‘aggravating circumstance’’
in a general sense to refer to any feature or characteris-
tic of a crime the presence of which elevates the degree
of the crime and thus the penalty to which the offender
is subject. We also have characterized as aggravating
circumstances many activities and behaviors that
unequivocally fall under the rubric of conduct and that
would not qualify as attendant circumstances. See, e.g.,
State v. Rizzo, 303 Conn. 71, 152, 31 A.3d 1094 (2011)
(killing in especially cruel, heinous or depraved man-
ner), cert. denied, U.S. , 133 S. Ct. 133, 184 L.
Ed. 2d 64 (2012); see also Statewide Grievance Com-
mittee v. Spirer, 247 Conn. 762, 783 n.14, 725 A.2d
948 (1999) (pattern of misconduct, submission of false
evidence, and obstruction of disciplinary proceedings).
More directly on point are our cases construing Gen-
eral Statutes § 53a-49 (a), which provides in relevant
part: ‘‘A person is guilty of an attempt to commit a
crime if, acting with the kind of mental state required
for commission of the crime, he: (1) Intentionally
engages in conduct which would constitute the crime
if attendant circumstances were as he believes them
to be . . . .’’ (Emphasis added.) In State v. Cox, 293
Conn. 234, 977 A.2d 614 (2009), we explained that the
attendant circumstance provision of that statute refers
to a ‘‘situation [in which] one engages in conduct which
would constitute the offense if matters were as he per-
ceived them . . . [but] some mistake in fact prevents
[the conduct] from being a crime even though the actor
intends to commit one.’’ Id., 241. We provided as exam-
ples a criminal defendant who seeks to bribe a juror
but mistakenly approaches a nonjuror; id., 242; or an
individual who tries to shoot a police officer, unaware
that his gun is broken. Id., 246. By contrast, the conduct
at issue in the present case—the display of a purported
weapon—cannot be the subject of that sort of mistake
and thus would not qualify as an attendant circum-
stance. See id. (concluding that defendant’s display of
what he later claimed to be BB gun was not attendant
circumstance for purposes of attempt statute).
Accordingly, even if we assume without deciding that
the state is correct that Padua carved out a limited
exception to the general rule that, to violate § 53a-48
(a), a coconspirator must intend that every element of
the object offense be committed, the present case falls
outside the ambit of that attendant circumstances
exception. We therefore conclude that the Appellate
Court properly determined that, under Padua, the trial
court should have instructed the jury that, to find the
defendant guilty of conspiracy to commit robbery in
the second degree in violation of §§ 53a-135 (a) (2) and
53a-48 (a), it had to find that the defendant specifically
intended that the robbery would involve the display or
threatened use of what Harris represented to be a
deadly weapon or dangerous instrument.
II
Although we conclude that the Appellate Court prop-
erly determined that Padua governs the present case,
we recognize that, in Padua, we did not explain the
basis for our conclusion that the legislature, in enacting
§ 53a-48, imposed a specific intent requirement with
respect to conspiracy that may be stricter than that
governing the object offense. Accordingly, we accept
the invitations of the state and Judge Borden in his
concurrence in the Appellate Court; see State v. Pond,
supra, 138 Conn. App. 239, 251 (Borden, J., concurring);
to revisit the issue, and we take this opportunity to
explain in greater detail the basis for our conclusion.
Well settled principles of statutory interpretation gov-
ern our analysis of § 53a-48. ‘‘Because statutory inter-
pretation is a question of law, our review is de novo.
. . . When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language . . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to [the broader statutory scheme]. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) McCoy v.
Commissioner of Public Safety, 300 Conn. 144, 150–51,
12 A.3d 948 (2011).
A
A person is guilty of conspiracy under § 53a-48 (a)
‘‘when, with intent that conduct constituting a crime
be performed, he agrees with one or more persons to
engage in or cause the performance of such conduct,
and any one of them commits an overt act in pursuance
of such conspiracy.’’ To establish a violation of § 53a-
48 (a), the state must prove that three essential elements
are satisfied: (1) the accused intended that conduct
constituting a crime would be performed; (2) the
accused formed an agreement with one or more persons
to engage in such conduct; and (3) any one of the cocon-
spirators performed some overt act in furtherance of
the conspiracy. E.g., State v. Millan, 290 Conn. 816, 825,
966 A.2d 699 (2009). Conspiracy, then, is a ‘‘specific
intent crime, with the intent divided into two elements:
[1] the intent to agree or conspire and [2] the intent to
commit the offense which is the object of the conspir-
acy.’’ (Internal quotation marks omitted.) State v. Bec-
cia, supra, 199 Conn. 3–4. In accordance with General
Statutes § 53a-51, the penalty for conspiracy is the same
as the penalty for the object offense, except that con-
spiracy to commit a class A felony is a class B felony.
Standing alone, the intent provision of § 53a-48 (a),
that is, ‘‘with intent that conduct constituting a crime
be performed,’’ is subject to multiple interpretations.
As the defendant contends, the statute reasonably can
be read to require that the accused specifically intend
that each part of each element of a particular crime,
the crime that forms the object of the conspiracy, be
performed. However, the statutory language also could
simply mean that (1) the accused must enter into the
conspiracy with a criminal intent, or (2) whatever con-
duct the accused agrees and intends to perform must,
in fact, be illegal. In other words, as the state suggests,
the accused must intend to commit the general class
or type of crime that constitutes the object of the con-
spiracy but need not intend to commit conduct consti-
tuting particular aggravating factors that determine the
degree of the crime or otherwise impact the sentence
imposed. Because the statutory language is subject to
multiple, plausible interpretations, and it does not
expressly address or resolve the certified question,
§ 53a-48 (a) is facially ambiguous. Cf. L. Alexander &
K. Kessler, ‘‘Mens Rea and Inchoate Crimes,’’ 87 J. Crim.
L. & Criminology 1138, 1157 (1997) (recognizing ambi-
guity of similar conspiracy statutes).
The defendant maintains, however, that any ambigu-
ity in the intent provision of the conspiracy statute is
resolved by (1) the agreement provision of that statute,
and (2) other sections of the Penal Code governing
inchoate offenses. The defendant first observes that
§ 53a-48 (a) provides that, to conspire to commit a par-
ticular crime, a person must ‘‘[agree] with one or more
persons to engage in or cause the performance of . . .
conduct [constituting the crime] . . . .’’ (Emphasis
added.) The defendant contends that the italicized lan-
guage clearly indicates that the intent proscribed by
the conspiracy statute must be the specific intent to
commit the precise crime that constitutes the object of
the conspiracy.
The state counters that nothing in the express lan-
guage of § 53a-48 (a) dictates that, if two individuals
agree and intend to commit conduct constituting simple
robbery, for example, they may not be subject to a
heightened penalty if the planned crime ultimately
involves conduct constituting an aggravating factor
such as the display of a weapon. Put differently, the
state’s contention is that the reference in § 53a-48 (a)
to criminal conduct that constitutes the object of a
conspiracy is itself subject to multiple interpretations;
it may be construed broadly, in reference to a type of
crime, such as robbery, or narrowly, in reference to a
specific grade or degree of that crime.
The defendant also argues, however, that any ambigu-
ities in the text of § 53a-48 (a) may be resolved by
comparing the statutory language with that of General
Statutes § 53a-8 (a), which governs accomplice liability,
and § 53a-49 (a), which governs criminal attempt. The
defendant contends, and we agree, that, if the legisla-
ture had intended to impose the same kind of strict
liability for conspiracy as it did for accomplice liability
and criminal attempt, it would have used the same statu-
tory language to characterize the respective mens rea
requirements. It did not. Compare General Statutes
§ 53a-48 (a) with General Statutes §§ 53a-8 (a) and 53a-
49 (a).
The legislature adopted the relevant language of the
three sections of the Penal Code at the same time, in
the same public act. See Public Acts 1969, No. 828, §§ 8,
48 and 50. Section 53a-8 (a) defines the state of mind
required to be an accessory to a crime as ‘‘the mental
state required for commission of an offense . . . .’’ Sec-
tion 53a-49 (a) likewise provides that, to attempt to
commit a crime, one must act ‘‘with the kind of mental
state required for commission of the crime . . . .’’ In
both cases, the legislature expressly provided and
clearly intended that the mens rea requirement for aid-
ing in the commission of or attempting to commit a
crime shall be no different from the mens rea require-
ment for the commission of a crime by a principal.
By contrast, § 53a-48 (a) provides that the mens rea
requirement for conspiracy is the ‘‘intent that conduct
constituting a crime be performed . . . .’’ It is well
established that, when construing statutes, we presume
that the legislature has created a harmonious and con-
sistent body of law. E.g., Renaissance Management
Co. v. Connecticut Housing Financial Authority, 281
Conn. 227, 238, 915 A.2d 290 (2007). Furthermore, when
‘‘a statute, with reference to one subject contains a
given provision, the omission of such provision from
a similar statute concerning a related subject . . . is
significant to show that a different intention existed.’’
(Internal quotation marks omitted.) Hatt v. Burlington
Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). In
the present case, the legislature, in defining the requisite
intent for conspiracy in § 53a-48 (a), declined to use
the language from §§ 53a-8 (a) and 53a-49 (a) providing
that the intent necessary to violate those statutes is
identical to the ‘‘mental state required for commission
of’’ the underlying offense. We presume that this choice
of statutory language was purposeful and, therefore,
that the legislature did not intend that the mens rea
requirement for conspiracy would mirror that of the
object offense. Accordingly, we agree with the defen-
dant that the decidedly most reasonable interpretation
of § 53a-48 (a) is that, to conspire to commit robbery
in the second degree in violation of §§ 53a-135 (a) (2)
and 53a-48, a defendant must specifically intend that
the planned robbery will involve the display or threat-
ened use of a purported weapon.
B
The state nevertheless maintains that, if the legisla-
ture had intended to require that the state prove a
greater mens rea for conspiracy to commit robberies
than for the robberies themselves, it would have done
so expressly, and that its failure to do so is the clearest
indication of the intent of § 53a-48 (a). The state also
contends that construing the statute as we did in Padua
leads to absurd results. In light of these claims, we look
to extratextual sources to confirm that our interpreta-
tion of the statutory language does not depart from
the intent of the legislature. These sources include the
legislative policy the statute was designed to imple-
ment, the legislative history and circumstances sur-
rounding the enactment of the statute, the relationship
of the statute to other legislation and common-law prin-
ciples governing the same general subject matter. E.g.,
Thomas v. Dept. of Developmental Services, 297 Conn.
391, 399, 999 A.2d 682 (2010).
In this case, neither party has brought to our atten-
tion, and our own review has not identified, anything
in the legislative history of § 53a-48 (a) that would
resolve the textual ambiguity or clarify the legislature’s
intent.11 Rather, the parties have focused their attention
on two issues: (1) whether the legislature, in enacting
§ 53a-48 (a), could reasonably have intended to impose
a stricter mens rea requirement for conspiracy than
that required to commit the crime that constitutes the
object of that conspiracy; and (2) whether construing
§ 53a-48 (a) in such a manner would be consistent with
the provisions of the Penal Code governing accessorial
liability. We answer both questions in the affirmative.
1
The state first maintains that the legislature could
have had no plausible rationale for requiring that a
person intend that a purported weapon be displayed in
order to subject him to criminal liability for conspiracy
to commit robbery in the second degree, when the law
imposes no such specific intent requirement for the
robbery itself. Interpreting the statute in such a manner,
the state contends, would lead to the absurd result of
requiring that the state prove a more specific mens rea
to obtain a conviction for conspiracy than that required
for obtaining a conviction for the commission of the
plotted offense or serving as an accessory thereto. The
defendant responds that, because the crime of conspir-
acy is defined and its punishment is determined with
respect to the specific object offense at which the illegal
agreement is directed, it would make no sense to sub-
ject a person to conviction for conspiring to commit
crimes that he neither planned nor agreed to commit.
We agree with the defendant.
To understand why the intent provision of § 53a-48
(a) must be interpreted as the defendant contends, it
is important to recognize the extent to which conspiracy
differs fundamentally from the substantive crimes that
may constitute its object. Broadly speaking, the law
proscribes two stages of the criminal process: (1) the
actual—or attempted—commission of a crime; and (2)
prior conduct aimed at planning, preparing for, or solic-
iting participation in such a crime. There are a number
of well established differences in how the law treats
these two stages of the criminal endeavor, reflecting
the different evils at which the respective prohibitions
are directed.
Substantive crimes such as robbery are prohibited,
first and foremost, because of the direct harms that
they inflict on the victims, whose rights to be free in
their persons and property are thereby impaired. For
example, the commentary to the Penal Code indicates
that ‘‘[t]he basic rationale [for the criminalization of
robbery] is protection against the terror of the forcible
taking.’’ Commission to Revise the Criminal Statutes,
Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-133
(West 2012) comment, p. 209. Because of these tangible
and apparent harms, as well as the ever present risk that
an attempted or completed crime will lead to further,
unanticipated injuries to the intended victims, bystand-
ers, or public safety officers, most substantive crimes
such as robbery have been recognized in one form or
another since the earliest days of human civilization.
See, e.g., Code of Hammurabi § 22 (‘‘[i]f a man has
committed highway robbery and has been caught, that
man shall be put to death’’), reprinted in C. Kent, Israel’s
Laws and Legal Precedents (1907) p. 297.
Anticipatory crimes such as conspiracy are different.
As we explained in State v. Johnson, 162 Conn. 215,
292 A.2d 903 (1972), ‘‘[t]he commission of a substantive
offense and a conspiracy to commit it are separate and
distinct crimes. . . . [This reflects the fact that] [t]he
crime of conspiracy . . . has characteristics and ingre-
dients which separate it from all other crimes.’’ (Cita-
tions omitted.) Id., 219. Unlike substantive crimes such
as robbery, for example, conspiracy has no direct vic-
tims. Rather, ‘‘[t]he gravamen of the crime of conspiracy
is the unlawful combination . . . . The prohibition of
conspiracy is directed not at the unlawful object . . .
but at the process of agreeing to pursue that object.’’
(Citations omitted; internal quotation marks omitted.)
State v. Beccia, supra, 199 Conn. 3. Because conspiracy
consists primarily of a meeting of minds and a criminal
intent, ‘‘[i]t is always predominantly mental in composi-
tion . . . .’’ (Internal quotation marks omitted.) Kru-
lewitch v. United States, 336 U.S. 440, 447–48, 69 S. Ct.
716, 93 L. Ed. 790 (1949) (Jackson, J., concurring). A
defendant can be convicted of conspiracy, therefore,
even if the criminal plot never comes to fruition. See,
e.g., State v. Flores, 301 Conn. 77, 96–97, 17 A.3d
1025 (2011).
Unlike the substantive offenses that constitute its
objects, the crime of conspiracy itself is of relatively
modern origins. The notion that one may be punished
merely for agreeing to engage in criminal conduct was
unknown to the early common law. 2 W. LaFave, Sub-
stantive Criminal Law (2d Ed. 2003) § 12.1 (a), p. 254.
Until the late seventeenth century, the only recognized
form of criminal conspiracy was an agreement to make
false accusations or otherwise to misuse the judicial
process. See id. And it was not until the nineteenth
century that courts in the United States began to view
conspiracies as distinct evils. S. Morrison, ‘‘The System
of Modern Criminal Conspiracy,’’ 63 Cath. U. L. Rev.
371, 380 (2014). In part, this reflects the law’s traditional
hesitance to criminalize ideation and communication
in the absence of actual criminal conduct. See S. Kadish
et al., Criminal Law and Its Processes: Cases and Materi-
als (8th Ed. 2007) p. 191.
That criminal conspiracies ultimately came to be seen
as crimes in their own right reflects the fact that joint
criminal plots pose risks to society that, if not unique,
are undoubtedly greater than those posed by lone-wolf,
would-be felons. Conspiracies may bolster the resolve
of their members; they may benefit from the division
of labor in the execution of criminal schemes; and they
may lead to the commission of additional crimes beyond
those initially envisioned. Cf. Krulewitch v. United
States, supra, 336 U.S. 448–49 (Jackson, J., concurring);
State v. Rodriguez, 107 Conn. App. 685, 707, 946 A.2d
294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008).
The predominantly ideational nature of a criminal con-
spiracy, however, together with the distinct harms that
the conspiracy laws seek to avert, provides several
answers to the question why the legislature would have
imposed a higher mens rea requirement for conspiracies
than for the underlying substantive offenses.
First, it stands to reason that the legislature would
have imposed a higher intent requirement for conspir-
acy than for some substantive crimes because conspir-
acy, by its very nature, is ‘‘predominantly mental in
composition . . . .’’ (Internal quotation marks omit-
ted.) Krulewitch v. United States, supra, 336 U.S.
447–48 (Jackson, J., concurring); see also State v. Johns,
184 Conn. 369, 379, 439 A.2d 1049 (1981) (‘‘[t]he essence
of the conspiracy charge is the illegal agreement’’). In
contrast to most substantive crimes, which are defined
principally by their actus rei, or guilty acts, the actual
conduct required to establish a conspiracy is relatively
minimal. See, e.g., S. Morrison, supra, 63 Cath. U. L.
Rev. 408. Although it is true that § 53a-48 (a) requires
that one of the coconspirators have performed an overt
act in furtherance of the conspiracy, such overt act may
be de minimus, it may itself be a legal and innocuous
activity, and it need not be personally performed by
the accused. See, e.g., State v. Fuller, 58 Conn. App.
567, 580, 754 A.2d 207, cert. denied, 254 Conn. 918, 759
A.2d 1026 (2000); State v. Trumbull, 1 Conn. Cir. Ct.
454, 467, 187 A.2d 445 (App. Div.), cert. denied, 150
Conn. 711, 204 A.2d 935 (1962); S. Morrison, supra, 408.
Moreover, the agreement itself need not be overt or
formal, and may be established purely by inference. See
State v. Millan, supra, 290 Conn. 825–26. Accordingly,
just as the legislature has imposed more stringent actus
reus requirements for substantive offenses that are
defined principally with respect to their conduct ele-
ments, so may it reasonably demand a greater showing
of wrongful intent for an anticipatory, inchoate crime
such as conspiracy, which predominantly criminalizes
the wrongful scheme. ‘‘[T]he law makes up, as it were,
for the deficiency in the actus reus of the crime by
insisting on a greater degree of mens rea.’’ (Footnote
omitted.) J. Stannard, ‘‘Making Up for the Missing Ele-
ment—A Sideways Look at Attempts,’’ 7 Legal Stud.
194, 194 (1987).
Second, on the most basic level, it makes sense to
impose a specific intent requirement for conspiracy to
commit robbery in the second degree, but not for rob-
bery in the second degree, because one crime actually
involves the display or threatened use of a purported
weapon and the other does not. The substantive crime
of robbery in the second degree, as defined in § 53a-
135 (a) (2), requires that, in the course of a robbery or
immediate flight therefrom, the defendant or another
perpetrator display or threaten the use of what is repre-
sented to be a deadly weapon or a dangerous instru-
ment. An accomplice to an actual or attempted robbery
may be held criminally liable for his associate’s display
or threatened use of a purported weapon and thus con-
victed of the more serious crime of robbery in the sec-
ond degree, even if he did not intend or even know that
such a display would occur. See State v. Gonzalez,
supra, 300 Conn. 506. In defining the various degrees
of the crime of robbery, the legislature has made a
reasonable determination that, if an individual willingly
participates in a robbery or attempted robbery, during
which one of the perpetrators actually threatens the use
of deadly force, that individual should be held criminally
liable for the increased risk that injury or death will
result, even if he did not specifically intend for the
threat to be made.
It makes little sense, however, to say that, if an indi-
vidual plans and agrees to participate in a simple,
unarmed robbery, he then may be held criminally liable
for planning or agreeing to an armed robbery, or one
in which a purported weapon is displayed or its use
threatened, when he had no such intention and agreed
to no such plan. Such an interpretation of § 53a-48 (a)
would lead to results that are both absurd and unwel-
come. For one thing, the state’s interpretation would
obliterate the distinction between conspiracy to commit
robbery in the first, second, and third degrees. As we
previously noted, conspiracy neither requires nor
entails the commission or attempted commission of the
object offense. See State v. Flores, supra, 301 Conn.
96–97. The crime has only three essential elements: an
agreement to engage in unlawful conduct, the intent to
commit a crime, and some minimal overt act evidencing
that the illicit plan amounts to more than mere phan-
tasy. See, e.g., State v. Millan, supra, 290 Conn. 825.
All that distinguishes conspiracy to commit robbery in
the first, second, and third degrees, then, is the object
offense, that is, whether the conspirators’ intent was
to commit a crime involving the use of an actual or
purported weapon. The actual use or display of a
weapon or purported weapon is not an element of those
crimes. See State v. Johns, supra, 184 Conn. 379; see
also State v. Beccia, supra, 199 Conn. 3 (‘‘[t]he gravamen
of the crime of conspiracy is the unlawful combination
and an act done in pursuance thereof, not the accom-
plishment of the objective of the conspiracy’’ [internal
quotation marks omitted]). If, as the state proposes,
one could be found guilty of conspiracy to commit
robbery in the second degree merely by virtue of agree-
ing and planning to commit simple, third degree rob-
bery, then the elements of those two crimes would
be identical, and there would be no legal distinction
between them.
Pragmatically, the state’s interpretation of § 53a-48
(a) could lead to unintended and undesirable conse-
quences. Under the state’s reading of the statute, an
individual who plans a simple, unarmed robbery never-
theless can be convicted of the more serious crime of
conspiracy to commit robbery in the first or second
degree if weapons are ultimately used without his
knowledge or consent. In other words, even if, during
the planning stages of a robbery, the accused vigorously
and at that time successfully beseeches his coconspira-
tors not to display or use actual or purported weapons
during the contemplated crime, he nevertheless may
be convicted and sentenced just as if he had champi-
oned their display or use if his coconspirators ultimately
engaged in such conduct. The reason the law punishes
conspiracies to commit armed robberies more severely
is to discourage would-be felons from planning this
more dangerous class of crime. The state’s proposed
interpretation of the statute would eliminate any
such disincentive.
Third, we presume that the most straightforward
reading of the statutory language is the correct one and
that the accused must have specifically intended every
element of the planned crime, because a contrary inter-
pretation of § 53a-48 (a) would create the potential for
abuse. When the state prosecutes a conspiracy, particu-
larly one that never has ripened into an actual crime,
it seeks to punish behavior—thought, speech, and col-
laboration—that would be legal if not for its illicit
design. It is only the fact that the agreement is directed
at a criminal object that renders it criminal. Moreover,
the legislature has determined that conspirators shall
be subject to punishment only in proportion to the
seriousness of the offense planned. See General Stat-
utes § 53a-51 (conspiracy is crime of same grade and
degree as most serious offense that is object of conspir-
acy). We see no reason, then, why the state should not
be made to demonstrate that an individual accused of
conspiring to commit a class C felony, and facing a
possible sentence reflective of that more serious crime,
actually agreed and intended to carry out such a crime.
To require less would permit the state to prosecute
a person who conspires with a would-be pickpocket,
shoplifter or library book bandit for conspiracy to com-
mit an armed felony without proving that that person
either intended to or did in fact engage in such a crime.
Of course, the state is not arguing that an individual
who has conspired to commit a simple, unarmed rob-
bery can, on that basis alone, be convicted of robbery
in the first or second degree. Rather, we understand
the state’s position to be that, when an individual agrees
to the commission of a simple robbery, and when the
coconspirators then follow through and attempt to put
the conceived plan into effect, that individual becomes
strictly liable for any unanticipated escalation of the
robbery, just as he would be criminally liable therefor as
an accessory or accomplice. There are several problems
with this reading of the statute.
One problem is that, as we previously discussed, the
crime of conspiracy is targeted not at the underlying
substantive crime but at the illicit agreement itself.
Before adopting the state’s interpretation of the statute,
then, we would require a clear indication that the legis-
lature intended to calibrate the punishment of conspira-
cies according to the vagaries of the resulting crime, if
any, rather than according to the scope of the criminal
agreement itself. The state has made no such showing.
Another problem is that there simply is no need for
the state’s proposed rule. The state has § 53a-48 (a)
at its disposal to prosecute criminal agreements, and
various substantive criminal statutes are available to
punish any crimes borne of such agreements. If a con-
spiracy culminates in an actual robbery, or an attempted
robbery, each participant in or accessory to that rob-
bery may be convicted under General Statutes §§ 53a-
134, 53a-135, or 53a-136, as appropriate, depending on
the actual criminal conduct involved. Thus, if one partic-
ipant decides to brandish a gun in what had been
planned as an unarmed robbery, his accomplices may
be convicted of robbery in the first degree for their role
in the crime, regardless of their knowledge or intention
with regard to the weapon. See State v. Gonzalez, supra,300 Conn. 506; see also General Statutes § 53a-8. More-
over, to the extent that it was reasonably foreseeable
that a member of the conspiracy might unilaterally
depart from the plan and use a firearm during the crime,
every member of the conspiracy—even those who do
not directly participate in the robbery—could be con-
victed of the more serious robbery charge, based on a
Pinkerton12 theory of liability.13 When the object offense
is actually attempted or committed, then, the state has
more than adequate remedies at its disposal to hold
each coconspirator criminally liable in proportion to
the seriousness of the crime.
The problem in the present case is that the state
failed to secure a conviction on the substantive charge.
The jury unanimously found the defendant not guilty
of attempt to commit robbery in the second degree.
There has been no finding, then, that any substantive
crime ever was attempted or committed. What the state
seeks is, in essence, a second bite at the apple. It seeks
to bootstrap a conviction by taking the position that,
even if the defendant agreed only to commit a third
degree, unarmed robbery, and even though the jury
rejected the state’s theory that he attempted to commit
a robbery involving the display or threatened use of a
purported weapon, he nonetheless was properly con-
victed of conspiracy to commit robbery in the second
degree solely on the basis of those allegations. Imposing
liability under those circumstances and to that extent
would turn Pinkerton on its head and dramatically
expand the already broad reach of conspiracy law. We
decline to reach such a result, at least in the absence
of a clear indication of legislative authorization.
We next address the state’s contention that its inter-
pretation of § 53a-48 (a) is consonant with the Model
Penal Code, on which Connecticut’s Penal Code is mod-
eled; see State v. Courchesne, 296 Conn. 622, 671–72,
998 A.2d 1 (2010); and also with the conspiracy law of
other jurisdictions. We disagree with this contention.
Considering first the Model Penal Code, the provision
corresponding to § 53a-48 (a) is Model Penal Code
§ 5.03 (1), which provides in relevant part: ‘‘A person
is guilty of conspiracy . . . to commit a crime if with
the purpose of promoting or facilitating its commission
he: (a) agrees . . . that . . . one or more of [the con-
spirators] will engage in conduct that constitutes such
crime . . . .’’ 2 A.L.I., Model Penal Code and Commen-
taries (1985) § 5.03 (1), pp. 382–83.
The Model Penal Code’s treatment of the question
presented in this appeal turns on the distinction we
previously have discussed between the three types of
‘‘elements of an offense,’’ namely conduct, results, and
attendant circumstances. See 1 id., § 1.13 (9), p. 209.
The American Law Institute’s explanatory note to § 5.03
(1) provides that ‘‘[g]uilt as a conspirator is measured
by the situation as the actor views it; he must have the
purpose of promoting or facilitating a criminal offense
. . . . The purpose requirement is meant to extend to
result and conduct elements of the offense that is the
object of the conspiracy, but whether or how far it also
extends to circumstance elements of that offense is
meant to be left open to interpretation by the courts.’’
(Emphasis added.) 2 id., § 5.03 (1), explanatory note,
p. 384. The American Law Institute elaborates in the
comments to § 5.03: ‘‘It is worth noting, further, that in
relation to those elements of substantive crimes that
consist of proscribed conduct or undesirable results of
conduct, the [Model Penal] Code requires purposeful
behavior for guilt of conspiracy, regardless of the state
of mind required by the definition of the substantive
crime. . . . [T]he actor’s purpose must be to promote
or facilitate the engaging in of such conduct by himself
or another.’’ (Emphasis added.) Id., comment 2, p. 407.
More generally, the drafters of the Model Penal Code
made clear that one of their primary purposes in framing
the conspiracy provisions as they did was ‘‘to focus
inquiry on the culpability of the actor whose liability
is in issue, rather than on that of the group of which
he is alleged to be a part.’’ Id., comment 1, p. 393. Thus,
the Model Penal Code categorically rejects the state’s
theory that conspiracy carries no greater mens rea
requirement than that of the object crime. Rather, the
Model Penal Code requires that the accused have the
specific purpose—that is, intent—to accomplish each
conduct and results element of the planned offense.
The fact that the Model Penal Code takes no position
with respect to the mens rea requirement governing
attendant circumstances elements is of little moment,
because, as we already have explained, the display or
threatened use of a purported weapon is clearly a con-
duct element of § 53a-135 (a) (2).
Nor are we aware of any instance in which a court
interpreting a conspiracy statute founded on the Model
Penal Code has applied the rule for which the state
advocates in the present case. To the contrary, other
courts repeatedly have held that criminal liability for
conspiracy lies only when the accused specifically
intended to commit every element of the plotted
offense.
New York law is particularly instructive in this regard.
See Commission to Revise the Criminal Statutes, supra,
Conn. Gen. Stat. Ann. § 53a-48a, comment, p. 10 (lan-
guage of Connecticut conspiracy statute is based on
revised New York Penal Law); see also State v. Havican,
213 Conn. 593, 601, 569 A.2d 1089 (1990) (because draft-
ers of Connecticut Penal Code ‘‘ ‘relied heavily’ ’’ on
New York Penal Law, Connecticut courts look to New
York law for guidance in interpreting ambiguous crimi-
nal statutes). People v. Joyce, 100 App. Div. 2d 343, 474
N.Y.S.2d 337, appeal denied, 62 N.Y.2d 807 (1984), a
decision of the Appellate Division of the New York
Supreme Court, is squarely on point with respect to the
present case. In Joyce, the defendant, Robert Patrick
Joyce, was convicted of conspiracy in the fourth degree,
in violation of New York Penal Law § 105.10 (McKinney
Supp. 1979), on the basis of charges that he had con-
spired to commit burglary in the second degree. Id.,
344; see id., 346. One element of the latter crime was
that, during a burglary, the accused or another partici-
pant display what appears to be a firearm. See N.Y.
Penal Law § 140.25 (1) (d) (McKinney 1981). Under New
York law, one need not intend or even know that a
coparticipant in a burglary plans to display a purported
firearm to be held criminally liable as an accomplice
in the substantive offense. See People v. Joyce, supra,
347 n.*. With regard to conspiracy to commit that crime,
however, the court interpreted ‘‘the plain language’’ of
N.Y. Penal Law § 105.10 (McKinney Supp. 1979),14 which
is substantially similar to § 53a-48, to mean that ‘‘the
[government was required] to prove beyond a reason-
able doubt that [Joyce] agreed to the display of what
would appear to be a firearm.’’ Id., 347.15
Other courts have reached the same conclusion as
Joyce. See, e.g., People v. Mass, 464 Mich. 615, 643–44,
628 N.W.2d 540 (2001); State v. Rodriguez, 164 N.H.
800, 812, 64 A.3d 962 (2013); State v. Suggs, 117 N.C.
App. 654, 661–62, 453 S.E.2d 211 (1995). English law also
is relevant to our resolution of the certified question.
Section 1 (2) of chapter 45 of the Criminal Law Act,
1977,16 provides: ‘‘Where liability for any offence may
be incurred without knowledge on the part of the person
committing it of any particular fact or circumstance
necessary for the commission of the offence, a person
shall nevertheless not be guilty of conspiracy to commit
that offence . . . unless he and at least one other party
to the agreement intend or know that that fact or cir-
cumstance shall or will exist at the time when the con-
duct constituting the offence is to take place.’’ Although
not controlling, the fact that each of these jurisdictions
has expressly adopted the principle that, to be crimi-
nally liable for conspiracy, one must specifically intend
every element of the object offense seriously under-
mines the state’s contention that such a rule amounts
to an ‘‘absurdity . . . .’’
The state next contends that its interpretation of
§ 53a-48 (a) finds support in federal conspiracy law.
Specifically, the state argues that United States v. Feola,
420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975),
stands for the proposition that federal conspiracy law
imposes no greater mens rea requirement than that of
the substantive offense that constitutes the object of
an alleged conspiracy. Feola, however, is readily distin-
guishable from the present case. In Feola, the respon-
dent was convicted of violating the federal conspiracy
statute, 18 U.S.C. § 371 (1970),17 on the basis of his role
in a scheme to assault and rob several purported heroin
buyers who, unbeknownst to him, were undercover
federal agents. See United States v. Feola, supra, 674.
The offense charged as the object of the conspiracy
was assault of a federal officer engaged in the perfor-
mance of his official duties. 18 U.S.C. § 111 (1970); see
United States v. Feola, supra, 672–73. On appeal, the
United States Supreme Court concluded that, to be con-
victed of the underlying substantive offense, the
offender need not understand that the victim of his
assault is a federal officer. United States v. Feola, supra,
676, 684. The court reasoned that that element of the
substantive offense merely serves as the hook needed
to confer federal jurisdiction and that Congress
intended that federal officers, who might be engaged
in locally unpopular law enforcement operations, would
have the full protection of federal as well as state assault
laws. See id., 683–84. For similar reasons, the court also
concluded that one may conspire to violate 18 U.S.C.
§ 111 (1970) without having the specific intent to assault
a federal agent. See id., 695–96.
We do not read Feola to apply to statutory provisions
such as the one at issue in the present case. Any compar-
ison between the federal and Connecticut conspiracy
statutes is extremely problematic in light of their radi-
cally different penalty provisions. Under § 53a-51, con-
spiracy is punishable by a prison term not to exceed
the maximum term for the object offense, except in the
case of conspiracy to commit a class A felony. Under
18 U.S.C. § 371, by contrast, a conspiracy to commit a
felony is punishable by a prison term not to exceed five
years, regardless of the degree or seriousness of that
felony. See 18 U.S.C. § 371 (1970); see also 18 U.S.C.
§ 371 (2012) (same). Accordingly, because punishment
for violation of the federal statute does not depend
on the degree of the object offense, the United States
Supreme Court, in construing that statute, simply was
not confronted with the issue presented by this appeal:
whether a coconspirator must intend the conduct con-
stituting the aggravating factors that increase the degree
of a crime before he may be subjected to increased
punishment on the basis of the presence of those
factors.
We also agree with the defendant that Feola stands
only for the limited proposition that one need not intend
an attendant circumstance element of a crime the pri-
mary purpose of which is to confer federal jurisdiction.
See United States v. Feola, supra, 420 U.S. 685, 687,
692–94 (distinguishing crime elements based on status
or identity of intended victim from those relating to
nature and seriousness of illicit acts or conduct); see
also id., 696 (‘‘[when] knowledge of the facts giving rise
to federal jurisdiction is not necessary for conviction of
a substantive offense embodying a mens rea require-
ment, such knowledge is equally irrelevant to questions
of responsibility for conspiracy to commit that offense’’
[emphasis altered]). Finally, the court in Feola repeat-
edly emphasized that a criminal agreement is no more
blameworthy, and the object offense no more danger-
ous or opprobrious, simply because the participants are
aware that the offense will violate federal as well as
state law. See id., 693. The clear implication is that a
different outcome would be appropriate when, as in the
present case, the seriousness of the offense is precisely
what is at issue. Nothing in Feola, then, suggests that
a person may be held liable for a higher degree of
conspiracy, and thus exposed to a more severe penalty,
for having conspired to commit a crime involving con-
duct constituting an aggravating factor that he neither
approved of nor intended.
Accordingly, our review of the statutory text, the
public policies that animate the law of conspiracy, and
persuasive authority from other jurisdictions all compel
the conclusion that, under § 53a-48 (a), the state must
prove that a person accused of conspiracy to commit
robbery in the second degree specifically intended that
every element of that offense be committed.
2
We next address the state’s argument that it would
have been irrational for the legislature to adopt a legisla-
tive scheme in which offenders face broad vicarious
liability for their roles in first and second degree robber-
ies—whether as participants, accessories or, under a
Pinkerton theory, coconspirators—and yet to stop
short of extending that same vicarious liability to the
crime of conspiracy itself under § 53a-48 (a). In this
opinion, we already have indicated a number of ratio-
nales for this distinction.
First, there is a fundamental difference between hold-
ing a person liable for his role in an actual crime, what-
ever that role might be, as opposed to punishing him
solely for agreeing to commit a crime. ‘‘[T]he conspiracy
doctrine will incriminate persons on the fringe of
offending who would not be guilty of aiding and abetting
or of becoming an accessory, for those charges . . .
lie [only] when an act which is a crime has actually
been committed.’’ Krulewitch v. United States, supra,
336 U.S. 450 (Jackson, J., concurring). There are sound
historical, practical and theoretical reasons for impos-
ing stricter liability in the latter case than in the former.
See, e.g., People v. Luciano, New York Supreme Court,
Docket No. 5715/11 (N.Y. Sup. April 27, 2012) (‘‘It is
one thing to hold a defendant who intends to commit
a robbery liable for a limited number of the common
unintended consequences of that crime. It is another
to punish a person for entering into an agreement to
do something he never agreed to do.’’).
Second, under Pinkerton, coconspirators are already
held vicariously liable for crimes in which their cocon-
spirators’ use of weapons or purported weapons is rea-
sonably foreseeable. The state’s proposed rule would
represent a substantial expansion of, rather than a mere
corollary to, that principle. Pinkerton liability is for-
ward looking, holding conspirators liable as principals
for crimes that predictably result from an already
formed and clearly defined conspiracy. The state’s pro-
posed rule, by contrast, would create a legal anachro-
nism: it turns back the clock and rewrites the terms of
the conspirators’ original criminal agreement to reflect
conduct that coconspirators are alleged to have subse-
quently performed. Such a rule would substantially ease
the burden on the state in prosecuting an alleged con-
spiracy, creating what would, in effect, be a presump-
tion that conspirators agreed in advance to conduct
constituting any aggravating factors that are alleged to
have subsequently transpired. There is no indication
that the legislature intended to adopt that sort of ‘‘in
for a penny, in for a pound’’ theory of conspiracy.18
C
For all of the foregoing reasons, we conclude that,
in order to convict a defendant of conspiracy to commit
robbery in the second degree in violation of §§ 53a-135
(a) (2) and 53a-48 (a), the state must prove that the
defendant specifically agreed that there would be the
display or threatened use of what was represented as
a deadly weapon or dangerous object during the rob-
bery or immediate flight therefrom. We therefore agree
with the Appellate Court that the defendant is entitled
to a new trial before a properly instructed jury.19
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH, McDONALD and ROBINSON, Js., concurred.
1
Under General Statutes § 53a-51, the penalty for conspiracy, like the
penalty for attempt, is the same penalty ‘‘as the most serious offense which
is . . . an object of the conspiracy, except that . . . conspiracy to commit
a class A felony is a class B felony.’’
2
General Statutes (Rev. to 2007) § 53a-135 (a) provides in relevant part:
‘‘A person is guilty of robbery in the second degree when he commits robbery
. . . and . . . (2) in the course of the commission of the crime or of immedi-
ate flight therefrom he or another participant in the crime displays or threat-
ens the use of what he represents by his words or conduct to be a deadly
weapon or a dangerous instrument.’’
Hereinafter, all references to § 53a-135 are to the 2007 revision.
3
The trial court imposed a sentence of five years imprisonment, execution
suspended after fifteen months, and three years of probation.
4
For the sake of brevity, we sometimes refer to this element of the crime
of robbery in the second degree as the display of a purported weapon.
5
Thereafter, the defendant claimed, as an alternative ground for affirming
the judgment of the Appellate Court; see Practice Book § 84-11; that there
is a reasonable probability that certain of the trial court’s jury instructions
misled the jury. Because we affirm the judgment of the Appellate Court on the
ground raised in the certified question, we need not address the defendant’s
alternative ground for affirmance.
6
Under Connecticut law, larceny involves the wrongful taking, obtaining,
or withholding of another person’s property with the intent to deprive that
other person of that property or to appropriate the same to himself or a
third person. See General Statutes § 53a-119. Larceny is graded primarily
on the basis of the value and type of property appropriated. See generally
General Statutes §§ 53a-119, and 53a-121 through 53a-125b. Robbery entails
the use or threatened use of force in the course of committing a larceny;
see General Statutes § 53a-133; and is graded primarily on the basis of the
type of force or threat applied. See generally General Statutes §§ 53a-134
through 53a-136a.
The parties do not dispute that, in order to conspire to commit robbery
in the second degree in violation of §§ 53a-135 (a) (2) and 53a-48 (a), one
must specifically intend not only that a larceny occur, but also that force
be used or threatened with the intent either to overcome resistance or to
compel delivery of the victim’s property. See General Statutes § 53a-133;
General Statutes (Rev. to 2007) § 53a-135 (a) (2); cf. State v. Avila, 223
Conn. 595, 603, 613 A.2d 731 (1992).
7
Because the defendant failed to raise this instructional claim at trial, he
sought to prevail on appeal under State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989). State v. Pond, supra, 138 Conn. App. 236. He contended that the
omitted part of the instruction involved an essential element of the charged
crime and, therefore, that its omission from the court’s instructions to the
jury represented a constitutional violation. Id.8
Prior to 2008, one element of burglary in the second degree was that
the crime be committed at night. General Statutes (Rev. to 2007) § 53a-102
(a) (1).
9
For a discussion of the potential for this sort of ambiguity that character-
izes so-called ‘‘opaque’’ verbs such as ‘‘intend,’’ see generally J. Anderson,
‘‘Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation,’’ 127
Harv. L. Rev. 1521 (2014).
10
We note that the state’s interpretation of Padua as carving out an
exception for attendant circumstances elements hinges on the questionable
hypothesis that, if we had meant to require that the defendants in that case
actually intended to sell drugs within 1500 feet of a public housing project,
we could not have found the instructional error in question to be harmless.
This is true, the state contends, because there was no evidence in the record
in Padua that the defendants specifically intended to sell drugs in a protected
zone. The state, however, overlooks the fact that those defendants apparently
resided in the public housing project from which they sold drugs over a
matter of months. See State v. Padua, 73 Conn. App. 386, 411–12 n.6, 808
A.2d 361 (2002), rev’d, 273 Conn. 138, 869 A.2d 192 (2005). The state’s theory,
then, rests on the rather tenuous assumption that the defendants in Padua
might not have understood that they lived in a public housing project.
11
The commentary to the Penal Code does indicate that § 53a-48 differs
from its predecessor. The commentary provides that the following change
appeared in § 53a-48: ‘‘the requirement that the defendant must have a
specific intent to agree in the performance or causation of criminal conduct.
A general intent to promote or facilitate the criminal object or means is not
sufficient to establish guilt.’’ Commission to Revise the Criminal Statutes,
Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-48 (West 2012) comment,
p. 10. The commentary offers no further guidance, however, as to the scope
of that specific intent requirement.
12
v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).
13
In State v. Walton, 227 Conn. 32, 43, 45–46, 630 A.2d 990 (1993), we
recognized the principle of vicarious liability that the United States Supreme
Court articulated in Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S.
Ct. 1180, 90 L. Ed. 1489 (1946), under which conspirators may be held liable
for criminal offenses committed by their coconspirators that are (1) within
the scope of the conspiracy, (2) in furtherance of it, and (3) reasonably
foreseeable as a necessary or natural consequence of the conspiracy.
14
New York Penal Law § 105.10 (McKinney Supp. 1979) provides in rele-
vant part: ‘‘A person is guilty of conspiracy in the fourth degree when, with
intent that conduct constituting:
‘‘1. a class B or class C felony be performed, he agrees with one or more
persons to engage in or cause the performance of such conduct . . . .’’
15
The state’s efforts to distinguish Joyce are unavailing. The state refers
to dictum in Joyce indicating that, in the case of a general conspiracy
statute that does not identify a particular class of object felonies, it ‘‘may
be appropriate’’ to adopt the rule that ‘‘one who joins a conspiracy after its
inception, knowing of its central criminal design, may be held accountable
for the actions and declarations of his coconspirators which occurred before
his entry into the conspiracy . . . .’’ (Citations omitted; emphasis added.)
People v. Joyce, supra, 100 App. Div. 2d 347. That possible exception to the
general rule for which Joyce stands is inapplicable to the present case.
16
The statutory language has since been amended in ways not relevant
to the present discussion. See Armed Forces Act, 2006, c. 52, § 45 (U.K.).
17
Title 18 of the 1970 edition of the United States Code, § 371, provides:
‘‘If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be fined not more than
$10,000 or imprisoned not more than five years, or both.
‘‘If, however, the offense, the commission of which is the object of the
conspiracy, is a misdemeanor only, the punishment for such conspiracy
shall not exceed the maximum punishment provided for such misdemeanor.’’
18
For all of the reasons discussed herein, we are unpersuaded by the
dissenting opinion. In light of the criticisms leveled by the dissenting justice,
however, we take this opportunity to underscore that our holding in this case
does not require that the state prove the existence of a formal conspiracy. Nor
must the state prove that the defendant knew all of the details of the planned
crime. There must, however, be at least circumstantial evidence that the
defendant intended those aspects of the object offense that constitute its
essential elements and determine the penalty to which an offender is poten-
tially subject.
19
On appeal, the state does not challenge the Appellate Court’s conclusion
that the trial court’s failure to so instruct the jury constituted harmful error.