STATE of Arizona, Appellee,
HAIRE, Presiding Judge.
This is an appeal by Charles Anthony ("Carl") Verive (hereinafter "defendant") from his convictions on charges of attempting to dissuade a witness and conspiracy to dissuade a witness. The convictions were based on jury verdicts rendered after a six day trial.
The underlying facts may be stated simply. Howard Woodall had filed a false affidavit with a trial court in relation to civil litigation. Lee Galvin filed an affidavit exposing Woodall's perjury. Upon learning of Galvin's cooperation with authorities in regard to exposing the perjury, Woodall and defendant agreed that defendant would go to Galvin's home and beat Galvin in an effort to dissuade him from becoming a witness against Woodall. In return for this beating, defendant would receive from Woodall $900 and a motorcycle. On December 3, 1973, defendant drove to Galvin's home accompanied by one Mr. Baugh with whom defendant had been drinking. Defendant confronted Galvin in the doorway of the house, saying: "Do you know Howard Woodall? Well, he sent us." Defendant then proceeded to beat Galvin. In response to the scuffle, Galvin's wife started screaming and his son intervened to rescue him.
A few days after this incident defendant and Woodall were arrested by federal authorities on federal charges of witness tampering. Woodall posted bail and was released within a day. Then, Woodall provided defendant with bail money with which defendant secured his release. In 1974, the federal charges were dismissed.
In 1978, Woodall became willing to testify against defendant, after having secured his own immunity from prosecution. . . .
* * *
DOUBLE PUNISHMENT AND DOUBLE JEOPARDY
The grand jury indictment against defendant charged him with two
(1) Conspiracy, second degree; A.R.S. ss 13-331 B and 13-1825 (Repealed, eff. Oct. 1, 1978), and
(2) Attempt to dissuade a witness, A.R.S. ss 13-1825 and 13-108 (Repealed, eff. Oct. 1, 1978).
[p. 579] The jury rendered guilty verdicts on both counts, and accordingly, the trial court entered judgments of guilt on the conspiracy and attempt charges and sentenced defendant to concurrent nine to ten year terms.
On appeal defendant argues for the first time that to convict and sentence defendant on both attempt and conspiracy violated the statutory proscription against double punishment, A.R.S. s 13-1641 (Repealed, eff. Oct. 1, 1978), as well as constitutional prohibitions against double jeopardy.
We first consider whether the two convictions violated A.R.S. s 13-1641, which provides as follows:
"Different punishments for same offense; limitation and bar
"An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." (Repealed, eff. Oct. 1, 1978).
Violations of this statute can be raised for the first time on appeal. State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964). The statute's purpose is to preclude attaching more than one punishment to one act. The test for determining whether one act of the defendant has been punished more than once was established in State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971). Denominated as the "identical elements test", it requires that, after eliminating the evidence necessary to support one of the charges, the remaining evidence must be sufficient to support the remaining charge. State v. Davis, 119 Ariz. 529, 582 P.2d 175 (1978); State v. Tinghitella, supra. See also State v. Gracia, 121 Ariz. 417, 590 P.2d 1363 (1979). The test focuses upon the evidence actually presented at the trial, to establish that each punishment could have related to a different act. That the punishable acts occur within a very short time span is not material to the application of this test. State v. Tinghitella, supra.
To apply this test one must determine what elements must be proven to satisfy each charge and whether each charge can be supported without using the same act to prove more than one charge.
An essential element of conspiracy is an unlawful agreement with one or more persons to engage in the commission of a felony or to cause the commission of a felony. A.R.S. s 13-331 (Eff. 1971, repealed eff. October 1, 1978); State v. Dupuy, 116 Ariz. 151, 568 P.2d 1049 (1977). Also essential to a conviction for a second degree conspiracy is proof of some overt act to effect the object of the conspiracy. A.R.S. s 13-332 (Repealed, eff. Oct. 1, 1978); State v. Dupuy, supra. At least one overt act must be expressly alleged in the indictment and proved. A.R.S. s 13-333 (Repealed, eff. Oct. 1, 1978).
Defendant argues that the state relied upon the same overt act
to prove both the attempt and the conspiracy. If only one overt act were
alleged in the conspiracy indictment, this same act could not be used to
establish an essential element of any other charge. State v. Gracia, supra.
However, two overt acts were specifically alleged in support of the conspiracy
"(1) CARL VERIVE aka CHARLES ANTHONY VERIVE struck LERLIA LEE GALVIN with his fist on or about the 1st day of DECEMBER, 1973;
"(2) CARL VERIVE aka CHARLES ANTHONY VERIVE or JAMES A. ROBISON went to 948 West 10th Street, Mesa, Arizona."
Either of these acts was sufficient to support the conspiracy charge; only one was required. The conspiracy charge was supported by proof that defendant Verive went to Galvin's home pursuant to the agreement to dissuade Galvin from testifying. Eliminating this evidence, there remained evidence of an overt act sufficient for a conviction of attempt. This meets the Tinghitella test. Therefore, we find no violation of A.R.S. s 13-1641.
[p. 580] This, however, does not end our inquiry. Defendant has
also asserted that to convict him of both attempt to dissuade a witness
and conspiracy to dissuade a witness violates his rights under the double
jeopardy clause of the fifth amendment to the United States Constitution,
"(N)or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."
Similarly, Article 2, s 10 of the Arizona constitution contains a provision regarding double jeopardy which states:
"Self-incrimination; double jeopardy
"No person shall ... be twice put in jeopardy for the same offense."
Defendant contends that to convict him of both attempt and conspiracy to dissuade a witness violates one or both of these provisions.
Assuming that either of these provisions applies to multiple convictions
arising from a single trial, we find that neither of them has been violated.
In this single trial context, our concern is limited to whether the charges
upon which the defendant is convicted are really the same offense, or,
of equal importance, whether one of the charges is a lesser included offense
of another. Under Arizona law, an offense is lesser included when the greater
offense cannot be committed without committing the lesser offense. State
v. Dugan, 125 Ariz. 194, 608 P.2d 771 (1980); State v. Morgan, 128 Ariz.
362, 625 P.2d 951 (App.1981). The federal test is substantially the same
and has been stated as follows:
"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....' "
Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977).
Under both the state and federal tests the particular facts used to satisfy the elements in any given case are not relevant to the inquiry. The tests are based upon the statutory elements of offense. The United States Supreme Court has discussed this matter as follows:
"Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.' Id., 284 U.S. at 304, 52 S.Ct. at 182. As Blockburger and other decisions applying its principle reveal, the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.' (some citations omitted). Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 (n. 17), 43 L.Ed.2d 616 (1975)."
See also, Brown v. Ohio, supra.
The Arizona courts have treated the test for a lesser included offense similarly. In State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980), the Arizona Supreme Court stated:
"The elements of the crime as prescribed in the statute determine whether a crime is a lesser included offense of a greater offense, not the facts of a given case."
125 Ariz. at 487, 610 P.2d at 1048.
Generally, a conviction of conspiracy does not preclude the simultaneous conviction of the substantive crime contemplated by the conspiracy. The common law doctrine that the substantive offense, if a felony, is merged in the conspiracy has been abandoned. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); State v. Gracia, supra. If, in addition to being convicted of conspiracy to dissuade a witness, defendant had been convicted [p. 581] of the completed crime of dissuading the witness, we would not hesitate to affirm convictions as to both. Each of those crimes includes as element that the other does not. Conspiracy requires an agreement; dissuading a witness does not. Dissuading a witness requires a successful dissuasion; conspiracy does not. Therefore, it is permissible for the legislature to attach criminal responsibility to each of those distinct crimes.
However, here, both of defendants' offenses were inchoate. Successful accomplishment of the intended result (i. e., dissuasion) was not required by either. Therefore, was have carefully considered whether this distinction affects whether attempt to dissuade a witness is a lesser included offense of conspiracy to dissuade a witness. The elements of attempt to dissuade a witness are: 1) the intent to dissuade the witness, and 2) an overt act in furtherance of that intent. Conspiracy to dissuade a witness, second degree, requires: 1) the intent to dissuade the witness, 2) an overt act, and 3) an agreement between two or more people. Unless the overt act required to establish an attempt is significantly different than the act required to establish a conspiracy, attempt to dissuade a witness would be a lesser included offense of conspiracy to dissuade a witness.
Without determining the exact parameters of the overt act requirement of conspiracy and attempt, we conclude that an act which would support a conspiracy conviction would not necessarily be sufficient to support an attempt conviction. Therefore, the attempt is not a lesser included offense of conspiracy. A conspiracy to dissuade can be committed without committing an attempt to dissuade.
The primary focus of the crime of conspiracy is the agreement itself, the collusion, the secrecy and the resulting threat to society that such criminal liaisons create. See State v. Dupuy, supra. The act is required as a method of showing that some step has been taken toward executing the illicit agreement. State v. Dupuy, supra. Any action sufficient to corroborate the existence of the agreement and to show that it is being put into effect is sufficient to support the conspiracy. In contrast, the crime of attempt focuses more directly upon the unequivocal nature of the steps taken toward consummating the intended crime. In attempt, the act for which the defendant is held criminally responsible, must be more than preparatory. Perkins, in his treatise on criminal law, concludes that the "overt act" in a conspiracy "need not amount to an attempt to commit the crime which is the object of the combination." Perkins, Criminal Law, 618 (2d ed. 1968).
That the overt act required for a conspiracy is different than
that required for an attempt has been recognized in Arizona. In State v.
Celaya, 27 Ariz.App. 564, 556 P.2d 1167 (1976), the court stated:
"Care must be taken not to equate the overt act required by conspiracy with the overt act required in the crime of attempt. Whereas under the crime of attempt, mere preparation does not constitute an overt act, this is not true when dealing with the overt act required by conspiracy. The overt act may be merely a part of preliminary arrangements for commission of the ultimate crime. People v. Buono, 191 Cal.App.2d 203, 12 Cal.Rptr. 604 (1961). It need amount to no more than an act showing that the conspiracy has gone beyond a mere meeting of the minds upon the attainment of an unlawful object and that action between conspirators as such has begun. (Citation omitted)."
27 Ariz.App. at 569; 556 P.2d at 1172.
Perkins explains further:
"The function of the 'overt act' is quite different in the two offenses. In the case of attempt the act must go beyond preparation because the attempt is deemed a punishable segment of the crime intended. But if the statute requires an 'overt act' for conviction of conspiracy, whether such act is held to be a part of the conspiracy or only required evidence thereof, the purpose of the requirement is merely [p. 582] to afford 'a locus poenitentiae, so that before the act done one or more of the parties may abandon their design, and thus avoid the penalty prescribed by the statute.' " (Footnotes omitted). Perkins, Criminal Law 618 (2d ed. 1969).
We conclude that conspiracy to dissuade a witness and attempt to dissuade a witness are separate and distinct offenses. Each offense requires proof of an element that is not required to prove the other. Conspiracy requires an agreement. Attempt requires an act beyond mere preparation. Neither is a lesser included offense of the other. We find no constitutional or statutory infirmity in the convictions or sentences imposed.
The judgment and sentences of the trial court are affirmed.