¶1dissenting.
¶2While it may not be entirely clear from the majority opinion, the person with whom appellant conspired to commit arson was an alcohol, tobacco and firearms agent who never had any intention of engaging in criminal conduct. In a word, appellant was duped by the ATF agent.
¶3The crime of which appellant stands convicted is conspiracy which requires an agreement between two or more persons to engage in criminal conduct. When one of the parties to the agreement has no intention of engaging in such criminal conduct, there can be no conspiracy. As aptly stated by the Court of Appeals, “There is no such thing as a conspiracy of one.” This proposition was established a long time ago in Green v. Commonwealth, 264 Ky. 725, 95 S.W.2d 561 (1986), as follows:
From the very nature of the crime, a conspiracy cannot be committed by one person alone, but must be committed by two or more persons. For this reason, it is the general rule that one defendant charged with the crime of conspiracy cannot be convicted where the disposition of the case against all of his alleged coconspirators is such that the basis of the charge of conspiracy is removed.
¶5The reason underlying the crime of conspiracy is the greater potential for harm when two or more persons are acting in concert. As a means of preventing the greater harm, the law, in effect, punishes criminal intent providing it is accompanied by an overt act. 10 Abramson, Kentucky Practice § 3.39-.40 (1990). To soften such a harsh rule, however, the law provides in KRS 506.070(3) that “a defendant cannot be convicted of conspiracy if all of his co-conspirators have been acquitted or discharged under circumstances amounting to an acquittal.” This statute recognizes that if the co-conspirator has been acquitted or discharged, there is no agreement to support the conspiracy. It is as logical, if not more so, to conclude that no agreement exists when one of the parties is a police officer who has no intention of engaging in criminal conduct. In such a circumstance, there is simply no basis to punish peremptorily as such amounts to the punishment of criminal intent.