2.3 Inchoate Crimes & Principles of Liability

Inchoate Crimes & Principles of Liability

In law enforcement operations, peace officers frequently encounter criminal conduct before an offense reaches fruition, or investigate crimes executed by multiple actors fulfilling distinct roles. Colorado criminal law provides distinct statutory mechanisms for charging uncompleted offenses (Inchoate Crimes) and holding participants accountable (Parties to Crime).

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1. Inchoate Crimes: Attempt, Conspiracy & Solicitation

Inchoate offenses punish steps taken toward the commission of a substantive crime. As a general statutory grading rule in Colorado, an inchoate crime is graded one classification lower than the target offense (e.g., Attempted F2 is an F3; Conspiracy to commit F3 is an F4; Attempted F1 is an F2).

                               INCHOATE OFFENSES (Article 2)
        ┌──────────────────────────────┬──────────────────────────────┐
        ▼                              ▼                              ▼
   CRIMINAL ATTEMPT               CONSPIRACY                 CRIMINAL SOLICITATION
  (C.R.S. § 18-2-101)         (C.R.S. § 18-2-201)             (C.R.S. § 18-2-301)
  • Intent to commit crime    • Agreement between 2+ actors   • Commands/encourages another
  • Substantial step taken    • Intent to promote crime       • Intent that felony be committed
  • Factual impossibility     • Overt act in furtherance      • Unilateral offense (no
    is NO defense               by any co-conspirator           agreement required)

A. Criminal Attempt (C.R.S. § 18-2-101)

• Statutory Elements:
  1. The actor harbored the culpable mental state required for the target offense; and
  2. The actor engaged in conduct constituting a substantial step toward the commission of the offense.
• The Substantial Step Test: A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
  • Preparation vs. Attempt: Mere planning, gathering information, or purchasing common household items is non-criminal preparation. Concealing oneself near a victim's home with burglary tools, pointing a firearm at a teller, or pouring accelerant against a building constitutes a substantial step.
• Factual Impossibility is NO Defense (C.R.S. § 18-2-101(2)): It is no defense to an attempt prosecution that the crime was factually impossible to commit, provided the crime could have been committed had the attendant circumstances been as the actor believed them to be.
  • Example: A thief reaches into an empty pocket to steal a wallet; an offender shoots into an empty bed believing the victim is asleep inside; a buyer purchases non-controlled powder believing it is cocaine from an undercover officer. In all cases, Attempt liability attaches.
• Abandonment / Renunciation Defense (C.R.S. § 18-2-101(3)): An affirmative defense exists only if the actor completely and voluntarily renounced their criminal purpose. Abandonment is not voluntary if motivated by:
  • Apprehension of imminent detection or arrest;
  • A sudden obstacle making execution more difficult; or
  • A decision to postpone the crime to a better time or different victim.

B. Conspiracy (C.R.S. § 18-2-201)

• Statutory Elements:
  1. The actor agrees with one or more persons that they or one of them will engage in conduct constituting a crime or attempt/solicitation; and
  2. The actor acts with the intent to promote or facilitate the commission of the target crime; and
  3. An overt act in furtherance of the conspiracy is performed by the actor or by a co-conspirator.
• The Overt Act Requirement (C.R.S. § 18-2-201(2)): Unlike Attempt (which requires a substantial step), Conspiracy requires only an overt act—which can be a minor preparatory act (e.g., buying duct tape, driving to inspect a bank layout, renting a getaway vehicle). Once any co-conspirator performs one overt act after the agreement, all co-conspirators are guilty of Conspiracy.
• Scope of Liability (Pinkerton Rule): In Colorado, co-conspirators are legally responsible for all reasonably foreseeable offenses committed by fellow conspirators in furtherance of the unlawful conspiracy.
• Withdrawal / Renunciation (C.R.S. § 18-2-202): To effectively withdraw from a conspiracy, an actor must thwart the conspiracy under circumstances demonstrating a complete and voluntary renunciation, or give timely warning to law enforcement before any overt act is committed or before the target crime occurs.

C. Criminal Solicitation (C.R.S. § 18-2-301)

• Statutory Elements: With the intent that another person commit a felony, the actor commands, induces, entreats, or otherwise attempts to persuade another person to commit that felony.
• Unilateral Nature: Solicitation is complete the instant the request or inducement is made. It does not require that the solicited party agree, accept money, or take any action.
• Renunciation: An affirmative defense if the solicitor persuaded the other person not to commit the felony or otherwise prevented its commission.

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2. Parties to Crime: Complicity vs. Accessory After the Fact

Peace officers must clearly distinguish between Complicity (holding an actor liable for the full principal offense during its commission) and Accessory to Crime (a distinct separate offense punishing post-crime obstruction).

┌────────────────────────────────────────────────────────────────────────┐
│                     THEORY OF LIABILITY COMPARISON                     │
├──────────────────────────────────┬─────────────────────────────────────┤
│ COMPLICITY (C.R.S. § 18-1-603)   │ ACCESSORY (C.R.S. § 18-8-105)       │
├──────────────────────────────────┼─────────────────────────────────────┤
│ • NOT a separate charge          │ • Standalone substantive charge     │
│ • Occurs BEFORE or DURING crime  │ • Occurs AFTER crime is completed   │
│ • Aiding, abetting, encouraging  │ • Harboring, concealing, assisting  │
│ • Dual Intent required           │ • Intent to hinder apprehension     │
│ • Liable for FULL principal crime│ • Graded lower based on felony tier │
└──────────────────────────────────┴─────────────────────────────────────┘

Complicity: Legal Accountability for Conduct of Another (C.R.S. § 18-1-603)

C.R.S. § 18-1-603: "A person is legally accountable as a principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense."

• Not a Standalone Crime: An officer does not charge "Complicity to Robbery." The defendant is charged directly with Robbery as a Principal under a complicity theory.
• The Dual Intent Requirement: To establish complicity, the prosecution must prove:
  1. The accomplice had the intent to aid, abet, advise, or encourage the primary actor; AND
  2. The accomplice had the culpable mental state required for the underlying offense, or was aware that the principal intended to commit the crime.
• The 'Mere Presence' Doctrine: A person's mere presence at the scene of a crime, even with knowledge that a crime is being committed and even with silent approval, does not make that person a complicitor. There must be some active encouragement, assistance, or agreed-upon duty (e.g., serving as a lookout, driving the getaway car, or distracting a security guard).

Accessory to Crime / After the Fact (C.R.S. § 18-8-105)

• Statutory Elements: With intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of another person who has committed a crime, the actor:
  1. Harbors or conceals the offender;
  2. Warns the offender of impending discovery or apprehension;
  3. Provides the offender with money, transportation, weapon, disguise, or other means of avoiding discovery or escape; or
  4. Conceals, alters, or destroys physical evidence or uses force/deception to obstruct.
• Grading Matrix:
  • If underlying crime is a Class 1 or 2 Felony ➔ Accessory is a Class 4 Felony.
  • If underlying crime is a Class 3, 4, 5, or 6 Felony ➔ Accessory is a Class 5 Felony.
  • If underlying crime is a Misdemeanor ➔ Accessory is a Class 2 Misdemeanor.

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3. Comprehensive Inchoate & Accountability Matrix