State v. Marian, 79-770

• Decision Date: 28 May 1980
• Docket Number: No. 79-770,79-770
• Citation: 405 N.E.2d 267,62 Ohio St.2d 250
• Parties: , 16 O.O.3d 284 The STATE of Ohio, Appellee, v. MARIAN, Appellant.
• Court: Ohio Supreme Court

Page 250

62 Ohio St.2d 250

405 N.E.2d 267, 16 O.O.3d 284

The STATE of Ohio, Appellee, v. MARIAN, Appellant.

No. 79-770.

Supreme Court of Ohio.

May 28, 1980.

Syllabus by the Court

A person is guilty of conspiracy under R.C. 2923.01, when with purpose to commit, promote, or facilitate the commission of one of the offenses listed in R.C. 2923.01(A), he plans the commission of the crime with another and does a substantial overt act in furtherance of the conspiracy, even though the other person feigns agreement and at no time intends to go through with the plan.

On December 3, 1977, Joseph Marian was arrested and charged with the crime of conspiracy to commit aggravated murder in violation of R.C. 2923.01(A)(1). An indictment was returned on the charges on January 26, 1978, and Marian was arraigned on February 3.

Marian filed a number of motions on April 14, 1978, including a motion to dismiss the indictment. On August 8, 1978, Marian filed a waiver of his right to speedy trial.

The indictment charges Marian with planning the murder of his wife, Patricia, with another, John Protain. It charges that in supplying Protain with a gun and with $500, Marian had committed a substantial overt act in furtherance of the conspiracy.

The parties stipulated, for purposes of the motion to dismiss the indictment, that immediately upon being informed of the plan, Protain determined that he would not commit the offense and feigned participation, and that Protain notified law enforcement authorities of his entire relationship with Marian at the first opportunity, which was prior to the alleged performance of any overt act set forth in the indictment. It was further stipulated that Protain proceeded to act in accordance with instructions from law enforcement authorities.

Following a hearing, the Court of Common Pleas of Mahoning County sustained Marian's motion and dismissed the indictment. That court held that R.C. 2923.01(A)(1) and (B), in defining the conspiracy offense, required that there be a "planning" between at least two people regarding the achievement of an unlawful objective and the commission of a substantial overt act toward its completion. Under the facts that are stipulated, Protain never intended to participate prior to the commitment of a substantial overt act.

The Court of Appeals reversed the trial court, holding that the provisions of R.C. 2923.01 prohibited situations where one person believes he is agreeing with another to achieve an unlawful purpose even though that other person does not intend to achieve that objective. The court also held that the facts alleged in the indictment constituted substantial overt acts, in furtherance of the conspiracy.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Vincent E. Gilmartin, Pros. Atty. and J. Christopher Varley, Youngstown, for appellee.

Lou A. D'Apolito and Mathew C. Giannini, Youngstown, for appellant.

CELEBREZZE, Chief Justice.

R.C. 2923.01 defines the crime of conspiracy. R.C. 2923.01(A), states, in part:

"No person, with purpose to commit or to promote or facilitate the commission of aggravated murder or murder, kidnapping, compelling prostitution or promoting prostitution, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or a felony offense of unauthorized use of a vehicle, corrupting another with drugs, trafficking in drugs, theft of drugs, or illegal processing of drug documents shall do either of the following:

"(1) With another person or persons, plan or aid in planning the commission of any such offense."

R.C. 2923.01(B) states that:

"No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by him or a person with whom he conspired, subsequent to the accused's entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of such character as to manifest a purpose on the part of the actor that the object of the conspiracy should be completed."

Under this statute one who is guilty of conspiring to commit one of the enumerated crimes is generally guilty of a crime to the next lesser degree than the most serious offense which is the object of the conspiracy. A conspiracy to commit murder or aggravated murder is a felony of the first degree.

Traditionally a criminal conspiracy has existed only if there has been a meeting of the minds of two or more people to act together to achieve an unlawful purpose. However, in 1962, the Model Penal Code defined conspiracy to include situations where only one of the participants actually intended to achieve the unlawful purpose. This has been called the "unilateral approach" of conspiracy and it has been adopted in many jurisdictions.

The Model Penal Code very clearly enacted the unilateral approach. In Section 5.03, the code states:

"(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

"(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or "(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime."

Section 5.04 states, in part:

"(1) * * * it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:

"(a) he or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic which is an element of such crime, if he believes that one of them does; * * *."

The language in R.C. 2923.01(A) is similar to that used in Section 5.03, but the statute has no provision equivalent to Section 5.04. It is unclear whether the General Assembly intended to adopt the unilateral approach and as a consequence this issue is before this court.

In State v. St. Christopher (1975), 305 Minn. 226, 232 N.W.2d 798, the Minnesota...