People v. Hoffman

¶1dissenting.

¶2The majority holds that the defendant’s conviction of conspiracy to manufacture a dangerous drug must be reversed because the jury’s verdict of guilty of that charge is inconsistent with its verdict of not guilty on the charge of attempt to manufacture a dangerous drug. I disagree and therefore respectfully dissent.

¶3The majority relies on the rule established in People v. Robles, 160 Colo. 297, 417 P.2d 232 (1966), now codified in section 18-2-206(2), C.R.S.1973, to reach its conclusion.1 The rationale for this rule was succinctly explained in Robles, where the defendant was acquitted of robbery but convicted of conspiracy to commit robbery:

The very same evidence which the jury apparently did not believe was sufficient to prove the defendant participated in the robbery was the only evidence which could prove him guilty of conspiracy.

¶4Id. at 301, 417 P.2d 232, 234 (1966) (emphasis in original). See also Armijo v. People, 170 Colo. 411, 462 P.2d 500 (1969). As we said in People v. Coca, 185 Colo. 10, 13, 521 P.2d 781, 783 (1974), “[a] jury will not be permitted to believe the evidence for the purpose of the conspiracy and disbelieve it for the purpose of the substantive crime.”

¶5The Roblesrule has common application in conspiracy cases, where the only evidence of the agreement necessary to the crime of conspiracy often is the circumstantial evidence provided by the commission of the substantive offense itself.2 The case before us is different. Criminal attempt requires that the defendant “[engage] in conduct constituting a substantial step toward the commission of the offense,” section 18-2-101(1), C.R.S.1973 (1978 Repl.Vol. 8), whereas conspiracy requires only that an “overt act in pursuance of that conspiracy” be established, section 18-2-101(1), C.R.S.1973 (1978 Repl.Vol. 8). The jury might well have concluded that the conduct of the defendant and other participants went far enough to establish an overt act but did not rise to the level of a substantial step.

¶6Additionally, the defendant’s associate Conley testified to the existence of his agreement with the defendant to undertake the drug manufacturing enterprise, and this evidence is separate from the evidence that the defendant’s activities in pursuing the drug manufacturing and distribution scheme. The jury might have believed the evidence about the agreement but disbelieved some of the separate evidence about the acts accomplished in furtherance of the scheme. In this respect the present case is like People v. Albers, 196 Colo. 66, 582 P.2d 667 (1978), where we upheld a conspiracy conviction against a Roblesrule challenge because the testimony of the defendant’s co-conspirators provided ample evidence of conspiracy independent of that establishing commission of the substantive offense.

¶7I would reject the defendant’s Robleschallenge and would address his other assignments of error.