People v. Ambrose

• Court: Appellate Court of Illinois
• Writing for the Court: BARRY
• Citation: People v. Ambrose, 28 Ill.App.3d 627, 329 N.E.2d 11 (Ill. App. 1975)
• Decision Date: 27 May 1975
• Docket Number: No. 72--253,72--253
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clay Burn AMBROSE, Defendant-Appellant.

Page 11

329 N.E.2d 11

28 Ill.App.3d 627

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clay Burn AMBROSE, Defendant-Appellant.

No. 72--253.

Appellate Court of Illinois, Third District.

May 27, 1975.

John W. Mathers, Peoria, for defendant-appellant.

James Christy, Asst. State's Atty., Michael Mihm, State's Atty., Peoria, for plaintiff-appellee.

BARRY, Justice.

The defendant, Clay Burn Ambrose, was charged by indictment with the conspiracy to commit an armed robbery at the R. C. Cola Company in Pioneer Park, of Peoria County, between October 27, 1971 and December 9, 1971. He was convicted after a jury trial and sentenced to 3 to 5 years in the Illinois State Penitentiary.

In this appeal from his conviction the defendant claims that he was not convicted of conspiracy to commit armed robbery beyond a reasonable doubt. He bases this contention on the allegation that the state failed to adequately prove that there was an agreement or common design between co-conspirators. He also argues the state failed to prove an overt act toward the completion of armed robbery was committed during the conspiracy. He further asserts that the act in furtherance of the conspiracy had to involve the use of a dangerous weapon. The defendant submits that he was denied a fair trial because of several other errors allegedly committed by the trial judge. He urges that it was error for the trial court to admit evidence concerning events occurring allegedly after the conspiracy had ended. He further claims there was reversible error in allowing the prosecutor to imply in his closing argument that there was more than the one conspiracy involved. Finally, the defendant contends that his trial was prejudiced because the trial court did not give I.P.I. Criminal Instruction 14.01, defining the elements of armed robbery which was the object of the conspiracy.

The defendant allegedly conspired with one Thomas Ford to rob the plant manager of the R. C. Cola Company at gun point as he left the company premises in Peoria with money to be deposited in a bank. The manager performed this money transfer on a routine basis every day. He left at the same time and traveled over the same route on each daily trip. On October 27, 1971, the defendant and Thomas Ford met at Ford's house. There they agreed to commit the armed robbery. Later that same day the defendant, Thomas Ford, Marilyn Lovins, and Ford's family made a trip to the scene where the robbery would occur. They surveyed the scene and established the details of their plan. Testimony at the trial showed that the defendant's fiance, Marilyn Lovins, had agreed to take part in the robbery. She was to drive the get away car. Testimony also indicated that the defendant's father had agreed to help with the armed robbery. Following their initial conversation and survey of the scene the defendant and Thomas Ford, and Marilyn Lovins made several trips to the premises of the R. C. Cola Company to observe the manager transfer the money to a bank. These later trips to the proposed scene were made individually by the defendant and Thomas Ford and together with other people. On October 29, 1971, after a trip to the scene with his brother, Thomas Ford called the police and became an informer. He was directed to continue his activities with the defendant to ascertain the date of the proposed armed robbery. Before Ford could accomplish this he became involved in an argument with the defendant and withdrew from the conspiracy or plot.

One day later, November 8, 1971, he communicated his withdrawal to the police.

Defendant first claims that no agreement or common design to commit the armed robbery existed. It is argued that Ford never had the required intent to commit the armed robbery because he was or turned police informer. The facts in the case indicate that outwardly it appeared the defendant and Ford had come to an agreement on October 27, 1971 to commit the armed robbery. The evidence at the trial was in conflict as to which party instigated the criminal design. Nevertheless, there was ample evidence to allow the jury to reasonably believe that the two men had agreed to commit the crime. That fact determination cannot be disputed. We find that Ford had the requisite intent.

The state would have this court read the conspiracy statute of the Illinois Criminal Code to hold that only the intent of the individual defendant is necessary in a conspiracy case. The state feels that it is not an element of the conspiracy to prove that the co-conspirator Ford needed to have the intent to agree with the defendant and the intent to carry out the scheme. With this we cannot agree. Changes in our criminal code in recent years provide that the co-conspirators do not have to be prosecuted or even be guilty of an offense in order to convict a defendant of conspiracy. Yet, the older case law requiring two or more people for a conspiracy is still valid. It would be absurd to claim a conspiracy could be entered into by one individual alone. By the terms of our statute the crime of conspiracy involves an agreement. The definition of agreement implies an intent to agree between a minimum of two people. Therefore the state's contention that the intent of a co-conspirator to agree with the defendant to commit armed robbery is unnecessary is fallacious.

The defendant asserts that another element of the crime of conspiracy also has not been adequately proven; according to Ill.Rev.Stat., ch. 38, sec. 8--2, some overt act in furtherance of agreement must be committed. Despite defendant's contention that there was no overt act sufficient to satisfy this element, we feel several sufficient overt acts were committed. The trio of Ford, the defendant, and Marilyn Lovins traveled to the scene of the proposed crime immediately after the agreement to survey the area. Ford bought a car to be used in the armed robbery. He also went to the scene himself without the defendant several times to observe the manager. The defendant accompanied by Marilyn Lovins went to survey the R. C. Cola Company premises without Ford present. Since a co-conspirator, by himself, can commit the overt act in furtherance of the conspiracy to bind his fellow co-conspirators, these acts of the several persons involved could easily be found by the jury to satisfy the overt act requirement. The acts of observation of the premises of the R. C. Cola Company after the agreement to rob its manager at gun point are clearly sufficient to meet the overt act requirement of the conspiracy statute. The defendant claims these acts of observation were only in preparation for the armed robbery. By this he admits that the observation was a sufficient overt act in furtherance of the conspiracy. The defendant has confused the offense of conspiracy with that of attempt. One element of the crime of attempt is a substantial step toward the commission of the object offense. On the other hand, the conspiracy statute requires a much lesser step toward the completion of the object offense for the conspiracy to exist. For conspiracy, only an overt act in furtherance of the conspiracy is needed. In our opinion, an act of planning is therefore a sufficient overt act for conspiracy.

Often conspiracies are hard to detect and since such combinations of criminals impose a greater threat to the public than the criminal acting alone, the legislature obviously intended that any overt act in furtherance of the conspiracy, even in the planning stage, would satisfy that element of the offense of conspiracy. If that had not been their intention there would have been no need to differentiate between the overt act necessary for attempt and the overt act necessary for conspiracy as the statute does. According to the prevailing view, People v. Kroll, 4 Ill.App.3d 203, 280 N.E.2d 528 (1972), only one act in furtherance of the conspiracy is necessary. That act can be done by either the defendant or a co-conspirator. Here there were numerous acts presented in the evidence from which a jury could properly find that the overt act element of the conspiracy charge was proven.

The defendant erroneously argues that the overt act sufficient to establish a conspiracy to commit armed robbery must be one using a dangerous weapon. The testimony is in conflict regarding whether Marilyn Lovins had a gun at the initial agreement and on the trip to observe the R. C. Cola Company premises. The jury could well have believed she was in possession of the gun when the overt act was accomplished. Nevertheless, the defendant is again confusing the elements of the crime of conspiracy with those of attempt. Further our conspiracy statute does not refer to the nature of the offense that is the object of the conspiracy except that it must be an offense as defined by the Illinois Criminal Code. For a conspiracy, the agreement to commit, with the intent to commit the object offense, and the commission of an act in furtherance of the conspiracy is all that is required....