Conspiracy, defined; penalty.
(1) A person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony:
(a) He agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and
(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
(2) If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit such crime with such other person or persons whether or not he knows their identity.
(3) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
(4) Conspiracy is a crime of the same class as the most serious offense which is an object of the conspiracy, except that conspiracy to commit a Class I felony is a Class II felony.
A person prosecuted for a criminal conspiracy shall be acquitted if such person proves by a preponderance of the evidence that his or her conduct occurred in response to an entrapment.
Source:Laws 1977, LB 38, § 11; Laws 2015, LB268, § 8; Referendum 2016, No. 426.
Note: The changes made to section 28-202 by Laws 2015, LB 268, section 8, have been omitted because of the vote on the referendum at the November 2016 general election. This version of section 28-202 is found in the 2008 Reissue of Volume 2 of the Revised Statutes of Nebraska.
In enacting this section, the Legislature adopted the unilateral approach to the agreement element of conspiracy as found in the Model Penal Code. State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001).
A conviction under this section requires proof of an overt act, but not successful commission of a felony. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).
Because Nebraska adheres to the unilateral approach to the crime of conspiracy, the fact that none of the "coconspirators" at any time planned to follow through with the plan has no impact on the culpability of the defendant. State v. Knight, 239 Neb. 958, 479 N.W.2d 792 (1992).
Conspiracy requires the proof of an overt act which tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime. State v. Anderson, 229 Neb. 436, 427 N.W.2d 770 (1988); State v. Anderson, 229 Neb. 427, 427 N.W.2d 764 (1988).
Circumstantial evidence may be sufficient to establish the existence of a conspiracy or the criminal intent necessary for conspiracy. State v. Anderson, 229 Neb. 427, 427 N.W.2d 764 (1988).
An "overt act" is an act which tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime, but need not itself have the capacity to accomplish the conspiratorial objective and need not itself be a criminal act. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).
A person may be convicted of a conspiracy to solicit the commission of murder even though the person with whom he conspired feigned agreement and at no time intended to go through with the plan. An overt act is an act done in pursuance of the conspiracy and manifests an intent or design looking toward accomplishing the crime. The act need not have a tendency to accomplish the object of the conspiracy, nor be criminal in itself. State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982).
The Wharton Rule exception to establishing conspiracy does not apply to offenses that can be committed by one person, or if more or different people participate in the conspiracy than are necessary to commit the substantive offense, or when the substantive offense has not yet been committed by any of the conspirators. State v. Clason, 3 Neb. App. 339, 526 N.W.2d 673 (1994).