Definition

An inchoate offense is one which is not fully formed or developed; it is an action done in anticipation of a further criminal act.

In Colorado, there are three types of inchoate offenses: Attempt and Facilitation, Criminal Conspiracy, and Criminal Solicitation.

 

In Colorado, there are three types of inchoate offenses:

1)    Attempt and Facilitation

2)    Criminal Conspiracy

3)    Criminal Solicitation 

 


Attempt and Facilitation 

Criminal attempt is governed by C.R.S. § 18-2-101. A person commits criminal attempt if they intentionally engage in conduct which constitutes a substantial step towards the completion of a crime. An act, an omission, or possession which strongly indicates the actor or holder intends to complete a criminal offense could constitute a substantial step towards the completion of a crime.

            Criminal attempt is also committed by an actor who aids another to commit an offense or who is complicit in the commission of an offense. A person is legally accountable for the actions of another if they intend to promote or facilitate the commission of the offense through advisement or encouragement. C.R.S. § 18-1-603.

            If the crime attempted or aided in is one of violence, the attempted offense will also be considered a crime of violence. C.R.S. § 18-1.3-406. An exception to this exists for someone who attempts escape, which is instead governed by § 18-8-208.1. This is discussed further in Offenses Against Government Operations: Escape.

Example Cases: 

Hoggard forwarded an email of what she purported to be prior correspondence between herself and her ex-husband to a court-appointed investigator. It was later determined that Hoggard had inserted five sentences into the email in order to attempt to show that her ex-husband had threatened her. Hoggard was charged with attempt to influence a public servant, a class four felony. People v. Hoggard, 2017 WL 2806264, ¶ 37 (Colo. App. 2017).

Brooks was arrested for assaulting his girlfriend. While in jail he attempted to smuggle out letters persuading the victim and other witnesses to choose not to testify against him, or to testify falsely. These letters never made it out of the jail, and instead ended up in the hands of a prison guard. The fact that Brooks’ scheme failed provided no defense and Brooks was charged with attempt to tamper with a witness or victim. People v. Brooks, 2017 WL 2590518, ¶ 1 (Colo. App. 2017).

Possible Penalties: 

  •  If the underlying offense is a crime of violence, the actor must be sentenced to at least half of the presumptive range for such offense, but no more than twice the maximum. § 18-1.3-406.
  • Criminal attempt to commit a petty offense is a crime of the same class as the offense itself. C.R.S. § 18-2-101(8).
  • Criminal attempt to commit a class 1 misdemeanor is a class 2 misdemeanor. C.R.S. § 18-2-101(6).
  • Criminal attempt to commit a misdemeanor other than a class 1 misdemeanor is a class 3 misdemeanor. C.R.S. § 18-2-101(7).
  • Criminal attempt to commit a class 1 felony is a class 2 felony. C.R.S. § 18-2-101(4).
  • Criminal attempt to commit a class 2 felony is a class 3 felony. C.R.S. § 18-2-101(4).
  • Criminal attempt to commit a class 3 felony is a class 4 felony. C.R.S. § 18-2-101(4).
  • Criminal attempt to commit a class 4 felony is a class 5 felony. C.R.S. § 18-2-101(4).
  • Criminal attempt to commit a class 5 or 6 felony is a class 6 felony. C.R.S. § 18-2-101(4).
  • Criminal attempt to commit a level 1 drug misdemeanor is a level 2 drug misdemeanor. C.R.S. § 18-2-101(10)(b).
  • Criminal attempt to commit a level 2 drug misdemeanor is also a level 2 drug misdemeanor. C.R.S. § 18-2-101(10)(b).
  • Criminal attempt to commit a level 1 drug felony is a level 2 drug felony. C.R.S. § 18-2-101(10)(a).
  • Criminal attempt to commit a level 2 drug felony is a level 3 drug felony. C.R.S. § 18-2-101(10)(a).
  • Criminal attempt to commit a level 3 drug felony is a level 4 drug felony. C.R.S. § 18-2-101(10)(a).
  • Criminal attempt to commit a level 4 drug felony is a level 4 drug felony. C.R.S. § 18-2-101(10)(a).

Possible Defenses: Impossibility is not a defense to attempt. The court instead considers if the offense could have been completed if the circumstances were as the actor believed them to be. If the charge stems from one’s aid or complicity in another’s crime, it is not a defense if the crime was never committed or even attempted.  

An affirmative defense exists if the accused later abandoned their effort to commit the crime or attempted to prevent its commission. As an affirmative defense, the burden of production is placed on the defendant. The renunciation, abandonment, withdrawal or prevention must have been completely voluntary. It would not be enough if the actor simply reassessed the likely success of the plan and no longer found successful completion probable. Some defenses require that the harm was actually avoided, others dictate that the abandonment must occur before the crime becomes imminent and avoidance


Criminal Conspiracy is governed by C.R.S. § 18-2-201. A person commits conspiracy to commit a crime when they make an agreement with another person or persons that one of them will engage in criminal activity, or that they will aid another to attempt to complete a crime. It is enough if the actor knows of the others involved in the crime, they do not actually have to know their identity. The agreement must be intentional, with the purpose being to promote or facilitate a crime. The accused must have overtly acted in pursuance of the scheme, or those who they conspired with must have, in order to be charged with conspiracy. If the actor conspires to commit several crimes which are within a single criminal episode, they are guilty of only one count of conspiracy. 

            The crime of conspiracy continues until the crime is either committed or abandoned by the defendant and all of those with whom the defendant conspired. If solely the defendant has abandoned the conspiracy the crime continues unless they have given notice of their abandonment to those with whom they conspired. Notice must be proven by evidence or a showing that the defendant informed law enforcement authorities of the contemplated crime. C.R.S. § 18-2-204.

Example Cases: 

After Albers was convicted of conspiracy to commit robbery he contended that since he was acquitted of the substantive robbery charge, he must be acquitted of the conspiracy charge as well. The Supreme Court of Colorado held that the acquittal of a substantive offense only forecloses conviction of conspiracy to commit that offense if the evidence relied upon in both charges is identical. In this case, there was ample evidence of conspiracy independent of the commission of the robbery itself allowing the People to prove beyond a reasonable doubt that the appellant had participated in an agreement to commit the robbery, even if the People were not able to prove Albers had actually participated in the robbery.  People v. Albers, 582 P.2d 667, 668 (Colo. 1978).

            Palmer was convicted of multiple felonies, including conspiracy to commit reckless manslaughter, after firing gunshots at several victims. Palmer appealed, arguing that conspiracy requires a specific intention, while reckless manslaughter simply requires recklessness with respect to the result, making it logically impossible to specifically intend that an unintended death occur. The Supreme Court of Colorado agreed, holding that the culpable mental states mandated by conspiracy and reckless manslaughter are both legally and logically inconsistent, making conspiracy to commit reckless manslaughter not a cognizable crime. Palmer v. People, 964 P.2d 524 (Colo. 1998).

Possible Penalties:

  • If the crime about which was being conspired is a crime of violence in accordance with C.R.S. § 18-1.3-406, the conspiring itself is charged as a crime of violence. C.R.S. §18-2-201(4.5).
  • Conspiracy to commit a petty offense is a crime of the same class as the offense itself. C.R.S. § 18-2-206(6).
  • Conspiracy to commit a misdemeanor other than a class 1 misdemeanor is a class 3 misdemeanor. C.R.S. § 18-2-206(5).
  • Conspiracy to commit a class 1 misdemeanor is a class 2 misdemeanor. C.R.S. § 18-2-206(4).
  • If the person conspires to commit a felony for which no specific penalty is provided, they are guilty of a class 6 felony. C.R.S. §18-2-201(5).
  • Conspiracy to commit a class 1 felony is a class 2 felony. C.R.S. § 18-2-206(1).
  • Conspiracy to commit a class 2 felony is a class 3 felony. C.R.S. § 18-2-206(1).
  • Conspiracy to commit a class 3 felony is a class 4 felony. C.R.S. § 18-2-206(1).
  • Conspiracy to commit a class 4 felony is a class 5 felony. C.R.S. § 18-2-206(1).
  • Conspiracy to commit a class 5 or class 6 felony is a class 6 felony. C.R.S. § 18-2-206(1).
  • Conspiracy to commit a level 1 drug felony is a level 2 drug felony. C.R.S. § 18-2-206(7)(a).
  • Conspiracy to commit a level 2 drug felony is a level 3 drug felony. C.R.S. § 18-2-206(7)(a).
  • Conspiracy to commit a level 3 drug felony is a level 4 drug felony. C.R.S. § 18-2-206 (7)(a).
  • Conspiracy to commit a level 4 drug felony is a level 4 drug felony. C.R.S. § 18-2-206(7)(a).

Possible Defenses: As with criminal attempt, the affirmative defense of renunciation is a defense to conspiracy if the offender thwarted the success of the conspiracy they had previously conspired to commit. However, the circumstances surrounding the frustration of the crime must be completely voluntary. C.R.S. § 18-2-203.  The renunciation must not have been motivated in whole or in part by a belief that the crime would be detected, or by a decision to simply postpone the crime until another time or substitute a different victim or objective into the plan.

A person may not be convicted of a conspiracy to commit an offense if they are acquitted of the offense which was the object of the conspiracy, as long as the only evidence of the conspiracy was establishing the commission of the offense. If the conduct constituting conspiracy is so inherently unlikely to result in the actual commission of the crime that neither the offender nor their conduct presents a public danger, the court may impose a sentence for a lesser crime or even dismiss the prosecution.

Criminal Conspiracy


Criminal Solicitation 

 

A person is guilty of criminal solicitation if they command, induce, entreat, or otherwise attempt to persuade another to commit a felony. C.R.S. § 18-2-301. An actor may also be guilty of criminal solicitation if they offer their services, or another’s service, in commission of a crime.

Proof beyond the mere verbal act of soliciting another to commit a crime must exist. People v. Aalbu, 696 P.2d 796 (Colo. 1985). The jury must find beyond a reasonable doubt that solicitation was done with the specific intent to promote or facilitate the commission of the crime solicited. People v. Latsis, 578 P.2d 1055 (Colo. 1978). In order to procure a conviction, evidence must show the defendant:

  1. commanded, induced, entreated, or otherwise attempted to persuade another person to commit a felony
  2. with the intent to promote or facilitate the commission of that crime
  3. under circumstances strongly corroborative of an intention to promote or facilitate the crime.

Example Cases: 

Melina solicited others to kill a man, Bueno, whose cooperation with police led to criminal charges against Melina’s brother. Melina’s solicitation was not directed at any one individual, instead Melina made numerous statements to several individuals regarding his desire to have Beuno murdered. Rather than suggest Melina had committed several crimes of solicitation, Melina’s multiple conversations relating to disposing of Beuno were used as corroboration for his intent to have Bueno killed and led to one single charge of criminal solicitation. Melina v. People, 161 P.3d 635, 641 (Colo. 2007).

            Hood was convicted of conspiracy to commit first-degree murder and two counts of criminal solicitation. Hood argued on appeal that the offense of criminal solicitation should have been merged into the offense of conspiracy to commit the same act, thus he should not have been convicted of both crimes. The Colorado Court of Appeals held that as a conspiracy may be committed without the inducement required for solicitation, and solicitation may be committed with the parties involved ever reaching an agreement or taking an overt act to complete the object of the solicitation, neither crime is included in the other and the two crimes do not merge. A defendant may be convicted of multiple offenses which arose out of the same transaction, if the defendant violated more than one statute in the course of that transaction. People v. Hood, 878 P.2d 89, 95 (Colo.App. 1994).

Possible Penalties:

  • Criminal solicitation is subject to the same penalties outlined for criminal attempt in C.R.S. § 18-2-101. 

Possible Defenses: 

It is not a defense if the person solicited could not be guilty of the offense due to their lack of responsibility, culpability, or other incapacity. It is also irrelevant whether the person solicited actually believed they had been solicited.

If the defendant, after soliciting another person to commit a crime, then persuaded that person not to do so or performed in some way to prevent the commission of that felony, an affirmative defense for the defendant may be created. Circumstances must strongly indicate a complete and voluntary renunciation of the defendant’s criminal intent. Another possible defense to criminal solicitation is that if the criminal object were achieved, the defendant would be the sole victim of the offense. If the offense is so defined that the actor’s conduct would inevitably be incident to its commission, criminal solicitation may not be charged. This is also true if the nature of the offense is that if it were achieved, the actor would not be guilty under the statute defining the offense nor under C.R.S. § 18-1-603 dealing with complicity.