Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2923.01 -- Conspiracy.
State v. Moore, 161 Ohio App. 3d 778, 2005-Ohio-3311, ¶18-26 -- Applying State v. Childs (2000), 88 Ohio St. 3d 194, a conspiracy to commit aggravated robbery count is reversed because the indictment only tracked statutory language and failed to allege a specific substantial overt act in support of the conspiracy. The state may reindict.
State v. Daniels (1993), 92 Ohio App. 3d 473, 482 -- The five elements to be independently proven for admission of the statement of a co-conspirator are: (1) the existence of a conspiracy, (2) the defendant's participation in the conspiracy, (3) the declarant's participation in the conspiracy, (4) the statement was made in the course of the conspiracy, and (5) the statement was made in furtherance of the conspiracy.
State v. Adkins (2000), 136 Ohio App. 3d 765, 772-775 -- Although the statements of a co-conspirator are ultimately admissible upon proof of the five factors listed in State v. Daniels (1993), 92 Ohio App. 3d 473, 482, it is within the discretion of the court to allow some latitude in admitting such statements before proof of all of these elements. Evid. R. 801(D)(2)(e) only states that the existence of a conspiracy must be independently proven before the statements are received. Though State v. Milo (1982), 6 Ohio App. 3d 19 also calls for proof of the defendant's participation prior to admission, the subsequent decision of the Supreme Court in State v. Carter (1995) 72 Ohio St. 3d 545 does not repeat this requirement.
State v. Childs (2000), 88 Ohio St. 3d 194 -- While most offenses may be charged by reciting statutory language, R.C. 2923.01 requires a substantial overt act in furtherance of a conspiracy be both "alleged and proved." This means an indictment not setting forth such an act is deficient and conviction, notwithstanding a bill of particulars setting forth the additional allegation. Conviction reversed.
State v. Shelton (1977), 51 Ohio St. 2d 68 -- Syllabus: (1) A conspiracy to commit a crime does not necessarily end with the commission of the crime. (2) A declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity. (State v. DeRighter, 145 Ohio St. 522, approved and followed.)
State v. Papp (1980), 68 Ohio App. 2d 21 -- "Overt act," as used in the conspiracy statute means an act done outwardly, without attempt at concealment, and performed pursuant to and manifesting a specific intent or design. Mailing a letter offering to pay for the commission of a planned murder is an overt act.
State v. Marian (1980), 62 Ohio St. 2d 250 -- Conspiracy to commit murder conviction upheld where co-conspirator only feigned participation, but defendant was involved in planning offense and committed a substantial overt act in furtherance of the conspiracy by supplying a gun and $500.
State v. Liberatore (1982), 69 Ohio St. 2d 583, 596-587 -- "In Ohio the declaration of a co-conspirator is not admissible as an exception to the hearsay rule unless the declaration is made during the course of and in furtherance of the conspiracy or resulting coverup. State v. Shelton (1977), 51 Ohio St. 2d 68. Since the prior statement which implicated Liberatore was made to a person known by the declarant to be an FBI agent, such statement clearly cannot be said to have been made in furtherance of or during the pendency of the conspiracy or cover-up."
State v. Carter (1995), 72 Ohio St. 3d 545 -- Paragraphs three and four of the syllabus: "(3) The statement of a co-conspirator is not admissible pursuant to Evid. R. 801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof. (4) A confession to police by one co-conspirator implicating a second co-conspirator is not made 'during the course and in furtherance of the conspiracy' within the scope of Evid. R. 801(D)(2)(e), as such a statement is made at a point in time when the confessor is no longer attempting to conceal the crime and has abandoned the conspiracy."
State v. Endicott (1994), 99 Ohio App. 3d 688 -- Syllabus by the Court: "A trial court commits plain error when it fails to instruct a jury on the essential elements of a principal crime which is the subject of an alleged conspiracy for which an accused is standing trial."
State v. Milliner (1994), 98 Ohio App. 3d 262, 268 -- If a provision of the code by itself defines conspiracy as a violation of that provision, the penalty is controlled by that provision and not by R.C. 2923.01(J).
State v. Taniguchi (1994), 96 Ohio App. 3d 594 -- Reversible error to have allowed investigator to testify as to statements of co-conspirators before existence of conspiracy was established, notwithstanding the fact the co-conspirators later testified. The order of presentation was important, as the investigator's testimony added an air of credibility to the subsequent testimony of the codefendants.
State v. Malinovsky (1991), 81 Ohio App. 3d 170 -- States's claim was that police chief conspired with a subordinate to threaten fire inspectors who stood in the way of operation of his daughter's SPCA sponsored bingo hall. (1) Content of threats made by subordinate were not hearsay, but were themselves part of the crime. The issue was not whether they were true, but rather, were they made. (2) Such statements became admissible for the truth of the matter asserted, against the chief, when a prima facie case of conspiracy had been established.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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