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STATE OF CONNECTICUT v. TERRELL

WILLIAMS POND

(SC 19074)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.

Argued February 10, 2014—officially released February 10, 2015

Leonard C. Boyle, deputy chief state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, and John C. Lion, senior assistant state’s

attorney, for the appellant (state).

Kevin Munn, certified legal intern, with whom were

Timothy H. Everett, assigned counsel, and, on the brief,

Bryce Petruccelli, certified legal intern, for the appellee (defendant).
Opinion

PALMER, J. General Statutes § 53a-48 (a), Connecticut’s criminal conspiracy statute, provides that ‘‘[a] person is guilty of conspiracy when, with intent that

conduct constituting a crime be performed, he agrees

with one or more persons to engage in or cause the

performance of such conduct, and any one of them

commits an overt act in pursuance of such conspiracy.’’1

The dispositive issue presented by this certified appeal

is whether, to be convicted of conspiracy, a defendant

must specifically intend that every element of the

planned offense be accomplished, even an element that

itself carries no specific intent requirement. Because

we are not persuaded that the legislature intended to

punish offenders for conspiring to commit crimes that

they never agreed or intended to commit, we conclude

that § 53a-48 (a) does impose such a requirement.

The charges in this case arose from an incident in

which the defendant, Terrell Williams Pond, and his

friend, Montel Harris, allegedly approached the victim,

Stanislaw Grzadko, on a public street, and Harris displayed a carbon dioxide (CO2) pistol (air pistol) while

demanding that Grzadko surrender the contents of his

pockets. A jury found the defendant not guilty of

attempt to commit robbery in the second degree but

found him guilty of conspiracy to commit robbery in

the second degree in violation of General Statutes (Rev.

to 2007) § 53a-135 (a) (2)2 and § 53a-48 (a). The trial

court rendered judgment in accordance with the jury’s

verdict,3 and the defendant appealed to the Appellate

Court, claiming, among other things, that the trial court

improperly had failed to instruct the jury that, to find

the defendant guilty of the conspiracy charge, it must

find that he had specifically intended that the planned

robbery would involve the display or threatened use

of what Harris represented to be a deadly weapon or

dangerous instrument.4 The Appellate Court agreed

with the defendant, reversed the judgment of the trial

court, and remanded the case for a new trial. State v.

Pond, 138 Conn. App. 228, 238–39, 50 A.3d 950 (2012).

We granted the state’s petition for certification to

appeal, limited to the following question: ‘‘Did the

Appellate Court properly determine that in order to

[establish that] a defendant [is guilty] of conspiracy to

commit robbery in the second degree in violation of

. . . §§ 53a-48 (a) and 53a-135 (a) (2), the state must

prove that the defendant conspirator had the specific

intent that there would be a display or threat of the use

of what was represented to be a deadly weapon or

dangerous instrument, even if that specific intent is not

required for proof of [that element of] the underlying

crime of robbery in the second degree?’’ State v. Pond,

307 Conn. 933, 56 A.3d 714 (2012).5 We answer the

certified question in the affirmative and, accordingly,

affirm the judgment of the Appellate Court.
The opinion of the Appellate Court, as supplemented

by the record, sets forth the following facts that the

jury reasonably could have found. ‘‘On October 27, 2008,

[Grzadko] . . . ate dinner and then went for his evening walk. . . . [W]hile he was walking on the Dixwell

Avenue sidewalk [in the town of Hamden], he was

approached from behind by the defendant and . . .

Harris, both of whom were riding bicycles on the sidewalk. Harris approached [Grzadko] on his left, the

defendant approached on his right . . . . Harris asked

[Grzadko] where he was going and then demanded that

he stop, repeating the order ‘two [or] three times . . . .’

When [Grzadko] continued to walk, the defendant

pushed his bicycle in front of [him], forcing him to stop.

With [Grzadko] now unable to move forward, Harris

raised his jacket and lifted the handle of what appeared

to be a gun, [which] later [was] determined to be [an

air] pistol, from his waistband, asking [Grzadko], ‘do

you know what it is?’ When [Grzadko] responded, ‘yes,

yes, I know,’ and as the defendant continued to block

[Grzadko] from moving, Harris ordered [Grzadko] to

remove everything from his pockets. Rather than turn

his belongings over to the two young men, [Grzadko]

turned to the side and ran into traffic on Dixwell Avenue

in order to escape. The defendant and Harris rode off

on their bicycles. Shortly thereafter, [Grzadko] called

the Hamden police and reported the incident. Later that

evening, the Hamden police detained the defendant and

Harris, and [Grzadko] later identified them as the two

young men who had accosted him.’’ State v. Pond, supra,

138 Conn. App. 231–32.

The defendant was charged with attempt to commit

robbery in the second degree and conspiracy to commit

robbery in the second degree. The case was tried to a

jury, and the defendant testified in his own defense. In

addition to denying that he was one of the perpetrators

of the alleged holdup, the defendant specifically denied

that he was aware that Harris was carrying an air pistol

on the evening in question. The only evidence that the

state proffered with regard to the alleged conspiracy

was Grzadko’s testimony describing the few minutes

during which the attempted robbery occurred. Nevertheless, the jury returned a verdict of guilty on the

conspiracy count and not guilty on the attempt count.

The opinion of the Appellate Court sets forth the

following additional facts concerning the trial court’s

jury instructions. ‘‘After reading the conspiracy statute

to the jury, giving general instructions on what was and

was not required to prove an agreement and instructing

on the necessity of an overt act, the court stated: ‘The

third element is that the defendant had the intent to

commit robbery in the second degree. The intent for

that crime is that at the time of the agreement he

intended to commit larceny. The defendant may not

be found guilty unless the state has proved beyond a
reasonable doubt that he specifically intended to commit a larceny when he entered into the agreement. In

summary, the state must prove beyond a reasonable

doubt that the defendant had an agreement with one

or more other persons to commit robbery in the second

degree, at least one of the coconspirators did an overt

act in furtherance of the conspiracy, and the defendant

specifically intended to deprive the owner of his property.’ ’’

6

Id., 237–38.

On appeal to the Appellate Court, the defendant

claimed, among otherthings, that the trial court improperly had failed to instruct the jury that, to be guilty of

conspiracy to commit robbery in the second degree

under §§ 53a-135 (a) (2) and 53a-48 (a), the defendant

must have specifically intended that his coconspirator

would display orthreaten the use of what the coconspirator would represent to be a deadly weapon or dangerous instrument.7

Id., 231, 236. In addressing the

defendant’s claim, the Appellate Court relied on this

court’s decision in State v. Padua, 273 Conn. 138, 869

A.2d 192 (2005), for its conclusion that § 53a-48 (a)

‘‘requires specific intent to bring about all of the elements of the conspired offense, even those that do not

by themselves carry a specific intent [requirement].’’

(Emphasis in original.) State v. Pond, supra, 138 Conn.

App. 234. The Appellate Court interpreted Padua to

mean that, ‘‘in order to prove [that] the defendant [is]

guilty of conspiracy to commit robbery in the second

degree in violation of [§§] 53a-135 (a) (2) [and 53a-48

(a)], the state needed to prove that he and his coconspirator specifically had an agreement to display a deadly

weapon or dangerous instrument and thatthe defendant

had the specific intent that such a weapon orinstrument

would be displayed.’’ Id.Concluding thatthe trial court’s

failure to instructthe jury in accordance with this principle as to an essential element of the charged crime was

not harmless; id., 239; the Appellate Court reversed the

judgment of the trial court and remanded the case for

a new trial. Id.

Judge Borden issued a separate concurrence in which

he agreed with the Appellate Court majority that that

court was bound by Padua to conclude that the trial

court’s instructions to the jury were deficient. Id. (Borden, J., concurring). Judge Borden also opined, however, that imposing a higher mens rea requirement for

conspiracy than that required to commit the underlying

or object offense created an unwarranted anomaly in

the Penal Code, and he therefore invited this court to

reconsider the interpretation of § 53a-48 (a) that we

adopted in Padua. See id., 239, 251 (Borden, J., concurring).

On appeal to this court following our granting of

certification, the state contends that the language in

Padua on which both the Appellate Court majority and

Judge Borden relied was dictum and does not control
the present case. In the alternative, the state urges us

to accept Judge Borden’s invitation to reexamine the

interpretation of § 53a-48 (a) that we adopted in Padua

and to hold that one need not specifically intend every

element of robbery in the second degree in order to be

guilty of conspiracy to commit that offense. For the

reasons set forth hereinafter, we agree with the Appellate Court that Padua controls the outcome of this case

and that an essential element of conspiracy to commit

robbery in the second degree in violation of §§ 53a-135

(a) (2) and 53a-48 (a) is that the defendant have the

specific intent, as part of the unlawful agreement, that,

during the plotted robbery orthe immediate flight therefrom, a coconspirator will display or threaten the use

of an object that the coconspirator represents to be a

deadly weapon or dangerous instrument.

I

We first consider whether the Appellate Court properly concluded that our decision in Padua controls the

outcome of the present case. We agree that it does.

In Padua, the defendants were all members of an

extended family that, for months, had been conducting

a lucrative drug trafficking operation out of their apartment in a public housing project; see State v. Padua,

supra, 273 Conn. 143–44, 158; an operation that this

court characterized as ‘‘part of the daily life of the

household.’’ Id., 158. The defendants were convicted

of, among other things, conspiracy to sell marijuana

within 1500 feet of a public housing project. Id., 142.

At the time, it was settled law that the accused need

not know that the place of sale is within a protected

zone to be guilty of the underlying drug crime. See State

v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (state

need not prove that defendant knew that location of

narcotics sale was within 1000 feet of school to secure

conviction under General Statutes [Rev. to 1991] § 21a278a [b]).

On appeal, the Appellate Court reversed the conspiracy convictions, concluding that the trial court improperly had instructed the jury that an essential element

of the charged crime was that the conspiracy must

have been formed within 1500 feet of a public housing

project, rather than that the object of the conspiracy

must have been to sell drugs from such a location. State

v. Padua, supra, 273 Conn. 145, 165. On appeal to this

court, the state conceded that the instruction was incorrect but argued that the impropriety was harmless

beyond a reasonable doubt because abundant evidence

in the record, together with the conviction of the defendants on related drug charges, left no doubt that the

defendants had in fact knowingly conspired to sell marijuana from their public housing project apartment. Id.,

165–66. We agreed and reversed the judgment of the

Appellate Court. Id., 166, 171, 187.
In construing § 53a-48, we explained that ‘‘[c]onspiracy is a specific intent crime, with the intent divided

into two elements: [1] the intent to agree or conspire

and [2] the intent to commit the offense which is the

object of the conspiracy. . . . Thus, [p]roof of a conspiracy to commit a specific offense requires proof

that the conspirators intended to bring about the elements of the conspired offense. . . . In [Padua], the

charged object of the conspiracy was to sell marijuana

within 1500 feet of a public housing project. The essential elements of the crime of conspiracy to sell marijuana within 1500 feet of a public housing project are (1)

intent to agree or conspire, (2) intent to sell marijuana

within 1500 feet of a public housing project, and (3)

an overt act committed in pursuance of this conspiracy.

. . . Thus, it was the state’s burden to establish that

the defendants conspired or agreed to sell marijuana

at a specific location within 1500 feet of a public

housing project . . . .’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Id., 167–68.

In Padua, we repeatedly observed that, to be guilty

of the charged conspiracy, the defendants must have

agreed not just to sell marijuana, but to sell it within

1500 feet of a public housing project, as well. See id.,

179–80, 182, 183.

The defendant in the present case, taking the cited

language at face value, maintains that Padua stands for

the proposition that, to be guilty of conspiracy, one

must specifically intend to commit every element of the

underlying substantive, or object, offense, even when an

element of that offense itself carries no specific intent

requirement. The defendant asserts that this interpretation of Padua is consistent both with State v. Williams,

182 Conn. 262, 266, 438 A.2d 80 (1980), in which we

held that a jury need not find a defendant guilty of

the crimes of robbery and conspiracy to commit that

robbery in the same degree, and with our statement in

State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986), that,

‘‘[t]o sustain a conviction for conspiracy to commit a

particular offense, the [state] must show not only that

the conspirators intended to agree but also that they

intended to commit the elements of the offense.’’

(Emphasis in original; internal quotation marks omitted.) Id., 4.

The state reads Padua differently. In Padua, the state

posits, we merely required that the defendants have

agreed to sell drugs from a geographic location that

happened to be situated within 1500 feet of a public

housing project. To be convicted of conspiracy, the

defendants did not have to know that the chosen location was close to a public housing project, nor did they

have to specifically intend to ‘‘violate the protected

zone . . . .’’ In the present case, by extension, the state

contends that it was not required to prove that the

defendant specifically intended or agreed to the ‘‘aggra-
vating circumstance,’’ namely, that a purported weapon

would be displayed; rather, the state was required to

prove only that the defendant agreed to the robbery

itself.

The state’s argument relies on the well established,

if somewhat arcane, distinction between three types

or categories of essential elements that define each

criminal offense: conduct, results, and attendant circumstances. See, e.g., State v. Beverly, 224 Conn. 372,

378 n.7, 618 A.2d 1335 (1993); P. Robinson & J. Grall,

‘‘Element Analysis in Defining Criminal Liability: The

Model Penal Code and Beyond,’’ 35 Stan. L. Rev. 681,

693 (1983). Under this rubric, conduct elements encompass all of the various criminal behaviors, such as the

forming of an agreement to commit a crime or the

brandishing of a weapon. Results elements, by contrast,

focus on the outcomes of criminal conduct, such as

the death of a victim, or the subjecting of a victim to

substantial risk of bodily injury. With respect to both

conduct and results elements, attaching a mens rea

requirement to the criminal element is typically a relatively straightforward matter.

Assignment of a mens rea requirementto an attendant

circumstances element of a criminal offense, by contrast, can be more troublesome. Attendant circumstances encompass elements such as the time or location of a crime, characteristics of the perpetrator or

victim (e.g., the victim’s age or the perpetrator’s status

as a convicted felon), or circumstantial features of the

weapon used (e.g., whether a firearm is registered or

operational). The problem is that a person may intend

or agree to commit an offense that satisfies the circumstantial element of a crime without recognizing that it

does so. For instance, one may agree to commit a burglary at 7 p.m. on a particular day without knowing

what time the sun will set that day and, thus, that the

burglary will take place at night.8 Similarly, one may

scheme to have sexual relations with a particular

woman without knowing that she has not yet reached

the age of consent, or to sell drugs at a particular location without knowing its proximity to the nearest school

or public housing project. When the legislature assigns

a mens rea requirement to a circumstantial element of a

criminal offense, then, there is a potential for ambiguity

that, for the most part, does not apply to conduct and

results elements. Specifically, the intent requirement

may apply merely to the referential aspect of the element (e.g., the intended time, location, or victim of the

crime), or it also may encompass the descriptive aspect

of the attendant circumstance (e.g., the fact that the

intended time, place or victim will, in fact, satisfy the

circumstantial element of the crime).9

Returning to the certified question, we note that the

state reads Padua to mean that, to conspire to commit

an offense that includes an attendant circumstances
element, an individual need only have the requisite

mens rea with respect to the referential aspects of the

attendant circumstance. In the state’s view, for example, criminal liability for conspiracy would lie in the

previously described scenarios even if the accused did

not specifically intend to carry out a night-time burglary, to seduce a minor, or to sell drugs in a prohibited location.

For purposes of this opinion, we assume without

deciding that our decision in Padua does in fact carve

out an exception, with respect to the descriptive aspect

of attendant circumstance offense elements, to the generalrule that a defendant may be found guilty of conspiracy under § 53a-48 (a) only when he specifically intends

that every element of the object crime be committed.10

We nevertheless conclude that the jury was improperly

instructed in the present case, because, under the conduct-results-attendant circumstances rubric, the display element of § 53a-135 (a) (2) would describe a type

of criminal conduct rather than an attendant circumstance.

The display or threatened use of a weapon is quintessential criminal conduct. See, e.g., People v. Torres, 848

P.2d 911, 915 (Colo. 1993) (display of weapon deemed

actus reus of crime of disorderly conduct with deadly

weapon). Nor is the display or threatened use of a

weapon subject to the type of reference/description

ambiguity on which the state’s interpretation of Padua

hinges. Either a conspirator intends that his associates

will display a purported weapon during the planned

robbery, or he does not. There is no middle ground.

To support its contention that the display of a purported weapon represents an attendant circumstance

rather than a conduct element of the crime of robbery

in the second degree, the state relies on various decisions of this court in which we have stated that being

armed with a deadly weapon is an aggravating circumstance of the crime of robbery. See, e.g., State v. Gonzalez, 300 Conn. 490, 505, 15 A.3d 1049 (2011). The state’s

argument is unavailing, however, because it conflates

two distinct and unrelated meanings of the term ‘‘circumstance.’’ In the cases to which the state directs our

attention, we used the term ‘‘aggravating circumstance’’

in a general sense to refer to any feature or characteristic of a crime the presence of which elevates the degree

of the crime and thus the penalty to which the offender

is subject. We also have characterized as aggravating

circumstances many activities and behaviors that

unequivocally fall under the rubric of conduct and that

would not qualify as attendant circumstances. See, e.g.,

State v. Rizzo, 303 Conn. 71, 152, 31 A.3d 1094 (2011)

(killing in especially cruel, heinous or depraved manner), cert. denied, U.S. , 133 S. Ct. 133, 184 L.

Ed. 2d 64 (2012); see also Statewide Grievance Committee v. Spirer, 247 Conn. 762, 783 n.14, 725 A.2d
948 (1999) (pattern of misconduct, submission of false

evidence, and obstruction of disciplinary proceedings).

More directly on point are our cases construing General Statutes § 53a-49 (a), which provides in relevant

part: ‘‘A person is guilty of an attempt to commit a

crime if, acting with the kind of mental state required

for commission of the crime, he: (1) Intentionally

engages in conduct which would constitute the crime

if attendant circumstances were as he believes them

to be . . . .’’ (Emphasis added.) In State v. Cox, 293

Conn. 234, 977 A.2d 614 (2009), we explained that the

attendant circumstance provision of that statute refers

to a ‘‘situation [in which] one engages in conduct which

would constitute the offense if matters were as he perceived them . . . [but] some mistake in fact prevents

[the conduct] from being a crime even though the actor

intends to commit one.’’ Id., 241. We provided as examples a criminal defendant who seeks to bribe a juror

but mistakenly approaches a nonjuror; id., 242; or an

individual who tries to shoot a police officer, unaware

that his gun is broken. Id., 246. By contrast, the conduct

at issue in the present case—the display of a purported

weapon—cannot be the subject of that sort of mistake

and thus would not qualify as an attendant circumstance. See id. (concluding that defendant’s display of

what he later claimed to be BB gun was not attendant

circumstance for purposes of attempt statute).

Accordingly, even if we assume without deciding that

the state is correct that Padua carved out a limited

exception to the general rule that, to violate § 53a-48

(a), a coconspirator must intend that every element of

the object offense be committed, the present case falls

outside the ambit of that attendant circumstances

exception. We therefore conclude that the Appellate

Court properly determined that, under Padua, the trial

court should have instructed the jury that, to find the

defendant guilty of conspiracy to commit robbery in

the second degree in violation of §§ 53a-135 (a) (2) and

53a-48 (a), it had to find that the defendant specifically

intended that the robbery would involve the display or

threatened use of what Harris represented to be a

deadly weapon or dangerous instrument.

II

Although we conclude that the Appellate Court properly determined that Padua governs the present case,

we recognize that, in Padua, we did not explain the

basis for our conclusion that the legislature, in enacting

§ 53a-48, imposed a specific intent requirement with

respect to conspiracy that may be stricter than that

governing the object offense. Accordingly, we accept

the invitations of the state and Judge Borden in his

concurrence in the Appellate Court; see State v. Pond,

supra, 138 Conn. App. 239, 251 (Borden, J., concurring);

to revisit the issue, and we take this opportunity to

explain in greater detail the basis for our conclusion.
Well settled principles of statutory interpretation govern our analysis of § 53a-48. ‘‘Because statutory interpretation is a question of law, our review is de novo.

. . . When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language . . . . In seeking to determine that

meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship

to [the broader statutory scheme]. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered. . . . The test to determine ambiguity is

whetherthe statute, when read in context, is susceptible

to more than one reasonable interpretation. . . . When

a statute is not plain and unambiguous, we also look

for interpretive guidance to the legislative history and

circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its

relationship to existing legislation and common law

principles governing the same general subject matter

. . . .’’ (Internal quotation marks omitted.) McCoy v.

Commissioner of Public Safety, 300 Conn. 144, 150–51,

12 A.3d 948 (2011).

A

A person is guilty of conspiracy under § 53a-48 (a)

‘‘when, with intent that conduct constituting a crime

be performed, he agrees with one or more persons to

engage in or cause the performance of such conduct,

and any one of them commits an overt act in pursuance

of such conspiracy.’’ To establish a violation of § 53a48 (a),the state must prove that three essential elements

are satisfied: (1) the accused intended that conduct

constituting a crime would be performed; (2) the

accused formed an agreement with one or more persons

to engage in such conduct; and (3) any one of the coconspirators performed some overt act in furtherance of

the conspiracy. E.g., State v. Millan, 290 Conn. 816, 825,

966 A.2d 699 (2009). Conspiracy, then, is a ‘‘specific

intent crime, with the intent divided into two elements:

[1] the intent to agree or conspire and [2] the intent to

commit the offense which is the object of the conspiracy.’’ (Internal quotation marks omitted.) State v. Beccia, supra, 199 Conn. 3–4. In accordance with General

Statutes § 53a-51, the penalty for conspiracy is the same

as the penalty for the object offense, except that conspiracy to commit a class A felony is a class B felony.

Standing alone, the intent provision of § 53a-48 (a),

that is, ‘‘with intent that conduct constituting a crime

be performed,’’ is subject to multiple interpretations.

As the defendant contends, the statute reasonably can

be read to require that the accused specifically intend
that each part of each element of a particular crime,

the crime that forms the object of the conspiracy, be

performed. However, the statutory language also could

simply mean that (1) the accused must enter into the

conspiracy with a criminal intent, or (2) whatever conduct the accused agrees and intends to perform must,

in fact, be illegal. In other words, as the state suggests,

the accused must intend to commit the general class

or type of crime that constitutes the object of the conspiracy but need not intend to commit conduct constituting particular aggravating factors that determine the

degree of the crime or otherwise impact the sentence

imposed. Because the statutory language is subject to

multiple, plausible interpretations, and it does not

expressly address or resolve the certified question,

§ 53a-48 (a) is facially ambiguous. Cf. L. Alexander &

K. Kessler, ‘‘Mens Rea and Inchoate Crimes,’’ 87 J. Crim.

L. & Criminology 1138, 1157 (1997) (recognizing ambiguity of similar conspiracy statutes).

The defendant maintains, however, that any ambiguity in the intent provision of the conspiracy statute is

resolved by (1) the agreement provision of that statute,

and (2) other sections of the Penal Code governing

inchoate offenses. The defendant first observes that

§ 53a-48 (a) provides that, to conspire to commit a particular crime, a person must ‘‘[agree] with one or more

persons to engage in or cause the performance of . . .

conduct [constituting the crime] . . . .’’ (Emphasis

added.) The defendant contends that the italicized language clearly indicates that the intent proscribed by

the conspiracy statute must be the specific intent to

commit the precise crime that constitutes the object of

the conspiracy.

The state counters that nothing in the express language of § 53a-48 (a) dictates that, if two individuals

agree and intend to commit conduct constituting simple

robbery, for example, they may not be subject to a

heightened penalty if the planned crime ultimately

involves conduct constituting an aggravating factor

such as the display of a weapon. Put differently, the

state’s contention is that the reference in § 53a-48 (a)

to criminal conduct that constitutes the object of a

conspiracy is itself subject to multiple interpretations;

it may be construed broadly, in reference to a type of

crime, such as robbery, or narrowly, in reference to a

specific grade or degree of that crime.

The defendant also argues, however, that any ambiguities in the text of § 53a-48 (a) may be resolved by

comparing the statutory language with that of General

Statutes § 53a-8 (a), which governs accomplice liability,

and § 53a-49 (a), which governs criminal attempt. The

defendant contends, and we agree, that, if the legislature had intended to impose the same kind of strict

liability for conspiracy as it did for accomplice liability

and criminal attempt, it would have used the same statu-
tory language to characterize the respective mens rea

requirements. It did not. Compare General Statutes

§ 53a-48 (a) with General Statutes §§ 53a-8 (a) and 53a49 (a).

The legislature adopted the relevant language of the

three sections of the Penal Code at the same time, in

the same public act. See Public Acts 1969, No. 828, §§ 8,

48 and 50. Section 53a-8 (a) defines the state of mind

required to be an accessory to a crime as ‘‘the mental

state required for commission of an offense . . . .’’ Section 53a-49 (a) likewise provides that, to attempt to

commit a crime, one must act ‘‘with the kind of mental

state required for commission of the crime . . . .’’ In

both cases, the legislature expressly provided and

clearly intended that the mens rea requirement for aiding in the commission of or attempting to commit a

crime shall be no different from the mens rea requirement for the commission of a crime by a principal.

By contrast, § 53a-48 (a) provides that the mens rea

requirement for conspiracy is the ‘‘intent that conduct

constituting a crime be performed . . . .’’ It is well

established that, when construing statutes, we presume

that the legislature has created a harmonious and consistent body of law. E.g., Renaissance Management

Co. v. Connecticut Housing Financial Authority, 281

Conn. 227, 238, 915 A.2d 290 (2007). Furthermore, when

‘‘a statute, with reference to one subject contains a

given provision, the omission of such provision from

a similar statute concerning a related subject . . . is

significant to show that a different intention existed.’’

(Internal quotation marks omitted.) Hatt v. Burlington

Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). In

the present case, the legislature, in defining the requisite

intent for conspiracy in § 53a-48 (a), declined to use

the language from §§ 53a-8 (a) and 53a-49 (a) providing

that the intent necessary to violate those statutes is

identical to the ‘‘mental state required for commission

of’’ the underlying offense. We presume that this choice

of statutory language was purposeful and, therefore,

that the legislature did not intend that the mens rea

requirement for conspiracy would mirror that of the

object offense. Accordingly, we agree with the defendant that the decidedly most reasonable interpretation

of § 53a-48 (a) is that, to conspire to commit robbery

in the second degree in violation of §§ 53a-135 (a) (2)

and 53a-48, a defendant must specifically intend that

the planned robbery will involve the display or threatened use of a purported weapon.

B

The state nevertheless maintains that, if the legislature had intended to require that the state prove a

greater mens rea for conspiracy to commit robberies

than for the robberies themselves, it would have done

so expressly, and that its failure to do so is the clearest

indication of the intent of § 53a-48 (a). The state also
contends that construing the statute as we did in Padua

leads to absurd results. In light of these claims, we look

to extratextual sources to confirm that our interpretation of the statutory language does not depart from

the intent of the legislature. These sources include the

legislative policy the statute was designed to implement, the legislative history and circumstances surrounding the enactment of the statute, the relationship

of the statute to other legislation and common-law principles governing the same general subject matter. E.g.,

Thomas v. Dept. of Developmental Services, 297 Conn.

391, 399, 999 A.2d 682 (2010).

In this case, neither party has brought to our attention, and our own review has not identified, anything

in the legislative history of § 53a-48 (a) that would

resolve the textual ambiguity or clarify the legislature’s

intent.11 Rather, the parties have focused their attention

on two issues: (1) whether the legislature, in enacting

§ 53a-48 (a), could reasonably have intended to impose

a stricter mens rea requirement for conspiracy than

that required to commit the crime that constitutes the

object of that conspiracy; and (2) whether construing

§ 53a-48 (a) in such a manner would be consistent with

the provisions of the Penal Code governing accessorial

liability. We answer both questions in the affirmative.

1

The state first maintains that the legislature could

have had no plausible rationale for requiring that a

person intend that a purported weapon be displayed in

order to subject him to criminal liability for conspiracy

to commit robbery in the second degree, when the law

imposes no such specific intent requirement for the

robbery itself. Interpreting the statute in such a manner,

the state contends, would lead to the absurd result of

requiring that the state prove a more specific mens rea

to obtain a conviction for conspiracy than that required

for obtaining a conviction for the commission of the

plotted offense or serving as an accessory thereto. The

defendant responds that, because the crime of conspiracy is defined and its punishment is determined with

respect to the specific object offense at which the illegal

agreement is directed, it would make no sense to subject a person to conviction for conspiring to commit

crimes that he neither planned nor agreed to commit.

We agree with the defendant.

To understand why the intent provision of § 53a-48

(a) must be interpreted as the defendant contends, it

is importantto recognize the extentto which conspiracy

differs fundamentally from the substantive crimes that

may constitute its object. Broadly speaking, the law

proscribes two stages of the criminal process: (1) the

actual—or attempted—commission of a crime; and (2)

prior conduct aimed at planning, preparing for, or soliciting participation in such a crime. There are a number

of well established differences in how the law treats
these two stages of the criminal endeavor, reflecting

the different evils at which the respective prohibitions

are directed.

Substantive crimes such as robbery are prohibited,

first and foremost, because of the direct harms that

they inflict on the victims, whose rights to be free in

their persons and property are thereby impaired. For

example, the commentary to the Penal Code indicates

that ‘‘[t]he basic rationale [for the criminalization of

robbery] is protection against the terror of the forcible

taking.’’ Commission to Revise the Criminal Statutes,

Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-133

(West 2012) comment, p. 209. Because of these tangible

and apparent harms, as well as the ever presentrisk that

an attempted or completed crime will lead to further,

unanticipated injuries to the intended victims, bystanders, or public safety officers, most substantive crimes

such as robbery have been recognized in one form or

another since the earliest days of human civilization.

See, e.g., Code of Hammurabi § 22 (‘‘[i]f a man has

committed highway robbery and has been caught, that

man shall be put to death’’),reprinted in C. Kent, Israel’s

Laws and Legal Precedents (1907) p. 297.

Anticipatory crimes such as conspiracy are different.

As we explained in State v. Johnson, 162 Conn. 215,

292 A.2d 903 (1972), ‘‘[t]he commission of a substantive

offense and a conspiracy to commit it are separate and

distinct crimes. . . . [This reflects the fact that] [t]he

crime of conspiracy . . . has characteristics and ingredients which separate it from all other crimes.’’ (Citations omitted.) Id., 219. Unlike substantive crimes such

as robbery, for example, conspiracy has no direct victims. Rather, ‘‘[t]he gravamen of the crime of conspiracy

is the unlawful combination . . . . The prohibition of

conspiracy is directed not at the unlawful object . . .

but at the process of agreeing to pursue that object.’’

(Citations omitted; internal quotation marks omitted.)

State v. Beccia, supra, 199 Conn. 3. Because conspiracy

consists primarily of a meeting of minds and a criminal

intent, ‘‘[i]t is always predominantly mental in composition . . . .’’ (Internal quotation marks omitted.) Krulewitch v. United States, 336 U.S. 440, 447–48, 69 S. Ct.

716, 93 L. Ed. 790 (1949) (Jackson, J., concurring). A

defendant can be convicted of conspiracy, therefore,

even if the criminal plot never comes to fruition. See,

e.g., State v. Flores, 301 Conn. 77, 96–97, 17 A.3d

1025 (2011).

Unlike the substantive offenses that constitute its

objects, the crime of conspiracy itself is of relatively

modern origins. The notion that one may be punished

merely for agreeing to engage in criminal conduct was

unknown to the early common law. 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 12.1 (a), p. 254.

Until the late seventeenth century, the only recognized

form of criminal conspiracy was an agreement to make
false accusations or otherwise to misuse the judicial

process. See id. And it was not until the nineteenth

century that courts in the United States began to view

conspiracies as distinct evils. S. Morrison, ‘‘The System

of Modern Criminal Conspiracy,’’ 63 Cath. U. L. Rev.

371, 380 (2014). In part, this reflects the law’s traditional

hesitance to criminalize ideation and communication

in the absence of actual criminal conduct. See S. Kadish

et al., Criminal Law and Its Processes: Cases and Materials (8th Ed. 2007) p. 191.

That criminal conspiracies ultimately came to be seen

as crimes in their own right reflects the fact that joint

criminal plots pose risks to society that, if not unique,

are undoubtedly greater than those posed by lone-wolf,

would-be felons. Conspiracies may bolster the resolve

of their members; they may benefit from the division

of labor in the execution of criminal schemes; and they

may lead to the commission of additional crimes beyond

those initially envisioned. Cf. Krulewitch v. United

States, supra, 336 U.S. 448–49 (Jackson, J., concurring);

State v. Rodriguez, 107 Conn. App. 685, 707, 946 A.2d

294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008).

The predominantly ideational nature of a criminal conspiracy, however, together with the distinct harms that

the conspiracy laws seek to avert, provides several

answers to the question why the legislature would have

imposed a higher mens rea requirement for conspiracies

than for the underlying substantive offenses.

First, it stands to reason that the legislature would

have imposed a higher intent requirement for conspiracy than for some substantive crimes because conspiracy, by its very nature, is ‘‘predominantly mental in

composition . . . .’’ (Internal quotation marks omitted.) Krulewitch v. United States, supra, 336 U.S.

447–48 (Jackson, J., concurring); see also State v. Johns,

184 Conn. 369, 379, 439 A.2d 1049 (1981) (‘‘[t]he essence

of the conspiracy charge is the illegal agreement’’). In

contrast to most substantive crimes, which are defined

principally by their actus rei, or guilty acts, the actual

conduct required to establish a conspiracy is relatively

minimal. See, e.g., S. Morrison, supra, 63 Cath. U. L.

Rev. 408. Although it is true that § 53a-48 (a) requires

that one of the coconspirators have performed an overt

act in furtherance of the conspiracy, such overt act may

be de minimus, it may itself be a legal and innocuous

activity, and it need not be personally performed by

the accused. See, e.g., State v. Fuller, 58 Conn. App.

567, 580, 754 A.2d 207, cert. denied, 254 Conn. 918, 759

A.2d 1026 (2000); State v. Trumbull, 1 Conn. Cir. Ct.

454, 467, 187 A.2d 445 (App. Div.), cert. denied, 150

Conn. 711, 204 A.2d 935 (1962); S. Morrison, supra, 408.

Moreover, the agreement itself need not be overt or

formal, and may be established purely by inference. See

State v. Millan, supra, 290 Conn. 825–26. Accordingly,

just as the legislature has imposed more stringent actus

reus requirements for substantive offenses that are
defined principally with respect to their conduct elements, so may it reasonably demand a greater showing

of wrongful intent for an anticipatory, inchoate crime

such as conspiracy, which predominantly criminalizes

the wrongful scheme. ‘‘[T]he law makes up, as it were,

for the deficiency in the actus reus of the crime by

insisting on a greater degree of mens rea.’’ (Footnote

omitted.) J. Stannard, ‘‘Making Up for the Missing Element—A Sideways Look at Attempts,’’ 7 Legal Stud.

194, 194 (1987).

Second, on the most basic level, it makes sense to

impose a specific intent requirement for conspiracy to

commit robbery in the second degree, but not for robbery in the second degree, because one crime actually

involves the display or threatened use of a purported

weapon and the other does not. The substantive crime

of robbery in the second degree, as defined in § 53a135 (a) (2), requires that, in the course of a robbery or

immediate flight therefrom, the defendant or another

perpetrator display or threaten the use of what is represented to be a deadly weapon or a dangerous instrument. An accomplice to an actual or attempted robbery

may be held criminally liable for his associate’s display

or threatened use of a purported weapon and thus convicted of the more serious crime of robbery in the second degree, even if he did not intend or even know that

such a display would occur. See State v. Gonzalez,

supra, 300 Conn. 506. In defining the various degrees

of the crime of robbery, the legislature has made a

reasonable determination that, if an individual willingly

participates in a robbery or attempted robbery, during

which one of the perpetrators actually threatens the use

of deadly force, thatindividual should be held criminally

liable for the increased risk that injury or death will

result, even if he did not specifically intend for the

threat to be made.

It makes little sense, however, to say that, if an individual plans and agrees to participate in a simple,

unarmed robbery, he then may be held criminally liable

for planning or agreeing to an armed robbery, or one

in which a purported weapon is displayed or its use

threatened, when he had no such intention and agreed

to no such plan. Such an interpretation of § 53a-48 (a)

would lead to results that are both absurd and unwelcome. For one thing, the state’s interpretation would

obliterate the distinction between conspiracy to commit

robbery in the first, second, and third degrees. As we

previously noted, conspiracy neither requires nor

entails the commission or attempted commission of the

object offense. See State v. Flores, supra, 301 Conn.

96–97. The crime has only three essential elements: an

agreement to engage in unlawful conduct, the intent to

commit a crime, and some minimal overt act evidencing

that the illicit plan amounts to more than mere phantasy. See, e.g., State v. Millan, supra, 290 Conn. 825.

All that distinguishes conspiracy to commit robbery in
the first, second, and third degrees, then, is the object

offense, that is, whether the conspirators’ intent was

to commit a crime involving the use of an actual or

purported weapon. The actual use or display of a

weapon or purported weapon is not an element of those

crimes. See State v. Johns, supra, 184 Conn. 379; see

also State v. Beccia, supra, 199 Conn. 3 (‘‘[t]he gravamen

of the crime of conspiracy is the unlawful combination

and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy’’ [internal

quotation marks omitted]). If, as the state proposes,

one could be found guilty of conspiracy to commit

robbery in the second degree merely by virtue of agreeing and planning to commit simple, third degree robbery, then the elements of those two crimes would

be identical, and there would be no legal distinction

between them.

Pragmatically, the state’s interpretation of § 53a-48

(a) could lead to unintended and undesirable consequences. Under the state’s reading of the statute, an

individual who plans a simple, unarmed robbery nevertheless can be convicted of the more serious crime of

conspiracy to commit robbery in the first or second

degree if weapons are ultimately used without his

knowledge or consent. In other words, even if, during

the planning stages of a robbery, the accused vigorously

and at that time successfully beseeches his coconspirators not to display or use actual or purported weapons

during the contemplated crime, he nevertheless may

be convicted and sentenced just as if he had championed their display or use if his coconspirators ultimately

engaged in such conduct. The reason the law punishes

conspiracies to commit armed robberies more severely

is to discourage would-be felons from planning this

more dangerous class of crime. The state’s proposed

interpretation of the statute would eliminate any

such disincentive.

Third, we presume that the most straightforward

reading of the statutory language is the correct one and

that the accused must have specifically intended every

element of the planned crime, because a contrary interpretation of § 53a-48 (a) would create the potential for

abuse. When the state prosecutes a conspiracy, particularly one that never has ripened into an actual crime,

it seeks to punish behavior—thought, speech, and collaboration—that would be legal if not for its illicit

design. It is only the fact that the agreement is directed

at a criminal object that renders it criminal. Moreover,

the legislature has determined that conspirators shall

be subject to punishment only in proportion to the

seriousness of the offense planned. See General Statutes § 53a-51 (conspiracy is crime of same grade and

degree as most serious offense that is object of conspiracy). We see no reason, then, why the state should not

be made to demonstrate that an individual accused of

conspiring to commit a class C felony, and facing a
possible sentence reflective of that more serious crime,

actually agreed and intended to carry out such a crime.

To require less would permit the state to prosecute

a person who conspires with a would-be pickpocket,

shoplifter or library book bandit for conspiracy to commit an armed felony without proving that that person

either intended to or did in fact engage in such a crime.

Of course, the state is not arguing that an individual

who has conspired to commit a simple, unarmed robbery can, on that basis alone, be convicted of robbery

in the first or second degree. Rather, we understand

the state’s position to be that, when an individual agrees

to the commission of a simple robbery, and when the

coconspirators then follow through and attempt to put

the conceived plan into effect, that individual becomes

strictly liable for any unanticipated escalation of the

robbery, just as he would be criminally liable therefor as

an accessory or accomplice. There are several problems

with this reading of the statute.

One problem is that, as we previously discussed, the

crime of conspiracy is targeted not at the underlying

substantive crime but at the illicit agreement itself.

Before adopting the state’s interpretation of the statute,

then, we would require a clear indication that the legislature intended to calibrate the punishment of conspiracies according to the vagaries of the resulting crime, if

any, rather than according to the scope of the criminal

agreement itself. The state has made no such showing.

Another problem is that there simply is no need for

the state’s proposed rule. The state has § 53a-48 (a)

at its disposal to prosecute criminal agreements, and

various substantive criminal statutes are available to

punish any crimes borne of such agreements. If a conspiracy culminates in an actualrobbery, or an attempted

robbery, each participant in or accessory to that robbery may be convicted under General Statutes §§ 53a134, 53a-135, or 53a-136, as appropriate, depending on

the actual criminal conduct involved. Thus, if one participant decides to brandish a gun in what had been

planned as an unarmed robbery, his accomplices may

be convicted of robbery in the first degree for their role

in the crime, regardless of their knowledge or intention

with regard to the weapon. See State v. Gonzalez, supra,

300 Conn. 506; see also General Statutes § 53a-8. Moreover, to the extent that it was reasonably foreseeable

that a member of the conspiracy might unilaterally

depart from the plan and use a firearm during the crime,

every member of the conspiracy—even those who do

not directly participate in the robbery—could be convicted of the more serious robbery charge, based on a

Pinkerton12 theory of liability.13 When the object offense

is actually attempted or committed, then, the state has

more than adequate remedies at its disposal to hold

each coconspirator criminally liable in proportion to

the seriousness of the crime.
The problem in the present case is that the state

failed to secure a conviction on the substantive charge.

The jury unanimously found the defendant not guilty

of attempt to commit robbery in the second degree.

There has been no finding, then, that any substantive

crime ever was attempted or committed. What the state

seeks is, in essence, a second bite at the apple. It seeks

to bootstrap a conviction by taking the position that,

even if the defendant agreed only to commit a third

degree, unarmed robbery, and even though the jury

rejected the state’s theory that he attempted to commit

a robbery involving the display or threatened use of a

purported weapon, he nonetheless was properly convicted of conspiracy to commit robbery in the second

degree solely on the basis of those allegations. Imposing

liability under those circumstances and to that extent

would turn Pinkerton on its head and dramatically

expand the already broad reach of conspiracy law. We

decline to reach such a result, at least in the absence

of a clear indication of legislative authorization.

We next address the state’s contention that its interpretation of § 53a-48 (a) is consonant with the Model

Penal Code, on which Connecticut’s Penal Code is modeled; see State v. Courchesne, 296 Conn. 622, 671–72,

998 A.2d 1 (2010); and also with the conspiracy law of

other jurisdictions. We disagree with this contention.

Considering first the Model Penal Code, the provision

corresponding to § 53a-48 (a) is Model Penal Code

§ 5.03 (1), which provides in relevant part: ‘‘A person

is guilty of conspiracy . . . to commit a crime if with

the purpose of promoting or facilitating its commission

he: (a) agrees . . . that . . . one or more of [the conspirators] will engage in conduct that constitutes such

crime . . . .’’ 2 A.L.I., Model Penal Code and Commentaries (1985) § 5.03 (1), pp. 382–83.

The Model Penal Code’s treatment of the question

presented in this appeal turns on the distinction we

previously have discussed between the three types of

‘‘elements of an offense,’’ namely conduct, results, and

attendant circumstances. See 1 id., § 1.13 (9), p. 209.

The American Law Institute’s explanatory note to § 5.03

(1) provides that ‘‘[g]uilt as a conspirator is measured

by the situation as the actor views it; he must have the

purpose of promoting or facilitating a criminal offense

. . . . The purpose requirement is meant to extend to

result and conduct elements of the offense that is the

object of the conspiracy, but whether or how far it also

extends to circumstance elements of that offense is

meant to be left open to interpretation by the courts.’’

(Emphasis added.) 2 id., § 5.03 (1), explanatory note,

p. 384. The American Law Institute elaborates in the

comments to § 5.03: ‘‘It is worth noting, further, that in

relation to those elements of substantive crimes that

consist of proscribed conduct or undesirable results of

conduct, the [Model Penal] Code requires purposeful
behavior for guilt of conspiracy, regardless of the state

of mind required by the definition of the substantive

crime. . . . [T]he actor’s purpose must be to promote

or facilitate the engaging in of such conduct by himself

or another.’’ (Emphasis added.) Id., comment 2, p. 407.

More generally, the drafters of the Model Penal Code

made clearthat one oftheir primary purposes in framing

the conspiracy provisions as they did was ‘‘to focus

inquiry on the culpability of the actor whose liability

is in issue, rather than on that of the group of which

he is alleged to be a part.’’ Id., comment 1, p. 393. Thus,

the Model Penal Code categorically rejects the state’s

theory that conspiracy carries no greater mens rea

requirement than that of the object crime. Rather, the

Model Penal Code requires that the accused have the

specific purpose—that is, intent—to accomplish each

conduct and results element of the planned offense.

The fact that the Model Penal Code takes no position

with respect to the mens rea requirement governing

attendant circumstances elements is of little moment,

because, as we already have explained, the display or

threatened use of a purported weapon is clearly a conduct element of § 53a-135 (a) (2).

Nor are we aware of any instance in which a court

interpreting a conspiracy statute founded on the Model

Penal Code has applied the rule for which the state

advocates in the present case. To the contrary, other

courts repeatedly have held that criminal liability for

conspiracy lies only when the accused specifically

intended to commit every element of the plotted

offense.

New York law is particularly instructive in this regard.

See Commission to Revise the Criminal Statutes, supra,

Conn. Gen. Stat. Ann. § 53a-48a, comment, p. 10 (language of Connecticut conspiracy statute is based on

revised New York Penal Law); see also State v. Havican,

213 Conn. 593, 601, 569 A.2d 1089 (1990) (because drafters of Connecticut Penal Code ‘‘ ‘relied heavily’ ’’ on

New York Penal Law, Connecticut courts look to New

York law for guidance in interpreting ambiguous criminal statutes). People v. Joyce, 100 App. Div. 2d 343, 474

N.Y.S.2d 337, appeal denied, 62 N.Y.2d 807 (1984), a

decision of the Appellate Division of the New York

Supreme Court, is squarely on point with respect to the

present case. In Joyce, the defendant, Robert Patrick

Joyce, was convicted of conspiracy in the fourth degree,

in violation of New York Penal Law § 105.10 (McKinney

Supp. 1979), on the basis of charges that he had conspired to commit burglary in the second degree. Id.,

344; see id., 346. One element of the latter crime was

that, during a burglary, the accused or another participant display what appears to be a firearm. See N.Y.

Penal Law § 140.25 (1)(d)(McKinney 1981). Under New

York law, one need not intend or even know that a

coparticipant in a burglary plans to display a purported

firearm to be held criminally liable as an accomplice
in the substantive offense. See People v. Joyce, supra,

347 n.*. With regard to conspiracy to commit that crime,

however, the court interpreted ‘‘the plain language’’ of

N.Y. Penal Law § 105.10 (McKinney Supp. 1979),14 which

is substantially similar to § 53a-48, to mean that ‘‘the

[government was required] to prove beyond a reasonable doubt that [Joyce] agreed to the display of what

would appear to be a firearm.’’ Id., 347.15

Other courts have reached the same conclusion as

Joyce. See, e.g., People v. Mass, 464 Mich. 615, 643–44,

628 N.W.2d 540 (2001); State v. Rodriguez, 164 N.H.

800, 812, 64 A.3d 962 (2013); State v. Suggs, 117 N.C.

App. 654, 661–62, 453 S.E.2d 211 (1995). English law also

is relevant to our resolution of the certified question.

Section 1 (2) of chapter 45 of the Criminal Law Act,

1977,16 provides: ‘‘Where liability for any offence may

be incurred without knowledge on the part of the person

committing it of any particular fact or circumstance

necessary for the commission of the offence, a person

shall nevertheless not be guilty of conspiracy to commit

that offence . . . unless he and at least one other party

to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.’’ Although

not controlling, the fact that each of these jurisdictions

has expressly adopted the principle that, to be criminally liable for conspiracy, one must specifically intend

every element of the object offense seriously undermines the state’s contention that such a rule amounts

to an ‘‘absurdity . . . .’’

The state next contends that its interpretation of

§ 53a-48 (a) finds support in federal conspiracy law.

Specifically, the state argues that United States v. Feola,

420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975),

stands for the proposition that federal conspiracy law

imposes no greater mens rea requirement than that of

the substantive offense that constitutes the object of

an alleged conspiracy. Feola, however, is readily distinguishable from the present case. In Feola, the respondent was convicted of violating the federal conspiracy

statute, 18 U.S.C. § 371 (1970),17 on the basis of his role

in a scheme to assault and rob several purported heroin

buyers who, unbeknownst to him, were undercover

federal agents. See United States v. Feola, supra, 674.

The offense charged as the object of the conspiracy

was assault of a federal officer engaged in the performance of his official duties. 18 U.S.C. § 111 (1970); see

United States v. Feola, supra, 672–73. On appeal, the

United States Supreme Court concluded that, to be convicted of the underlying substantive offense, the

offender need not understand that the victim of his

assault is a federal officer. United States v. Feola, supra,

676, 684. The court reasoned that that element of the

substantive offense merely serves as the hook needed

to confer federal jurisdiction and that Congress

intended that federal officers, who might be engaged
in locally unpopularlaw enforcement operations, would

have the full protection offederal as well as state assault

laws. See id., 683–84. For similar reasons, the court also

concluded that one may conspire to violate 18 U.S.C.

§ 111 (1970) without having the specific intent to assault

a federal agent. See id., 695–96.

We do not read Feola to apply to statutory provisions

such as the one at issue in the present case. Any comparison between the federal and Connecticut conspiracy

statutes is extremely problematic in light of their radically different penalty provisions. Under § 53a-51, conspiracy is punishable by a prison term not to exceed

the maximum term for the object offense, except in the

case of conspiracy to commit a class A felony. Under

18 U.S.C. § 371, by contrast, a conspiracy to commit a

felony is punishable by a prison term not to exceed five

years, regardless of the degree or seriousness of that

felony. See 18 U.S.C. § 371 (1970); see also 18 U.S.C.

§ 371 (2012) (same). Accordingly, because punishment

for violation of the federal statute does not depend

on the degree of the object offense, the United States

Supreme Court, in construing that statute, simply was

not confronted with the issue presented by this appeal:

whether a coconspirator must intend the conduct constituting the aggravating factors thatincrease the degree

of a crime before he may be subjected to increased

punishment on the basis of the presence of those

factors.

We also agree with the defendant that Feola stands

only forthe limited proposition that one need not intend

an attendant circumstance element of a crime the primary purpose of which is to confer federal jurisdiction.

See United States v. Feola, supra, 420 U.S. 685, 687,

692–94 (distinguishing crime elements based on status

or identity of intended victim from those relating to

nature and seriousness of illicit acts or conduct); see

also id., 696 (‘‘[when] knowledge of the facts giving rise

to federal jurisdiction is not necessary for conviction of

a substantive offense embodying a mens rea requirement, such knowledge is equally irrelevant to questions

of responsibility for conspiracy to commit that offense’’

[emphasis altered]). Finally, the court in Feola repeatedly emphasized that a criminal agreement is no more

blameworthy, and the object offense no more dangerous or opprobrious, simply because the participants are

aware that the offense will violate federal as well as

state law. See id., 693. The clear implication is that a

different outcome would be appropriate when, as in the

present case, the seriousness of the offense is precisely

what is at issue. Nothing in Feola, then, suggests that

a person may be held liable for a higher degree of

conspiracy, and thus exposed to a more severe penalty,

for having conspired to commit a crime involving conduct constituting an aggravating factor that he neither

approved of nor intended.
Accordingly, our review of the statutory text, the

public policies that animate the law of conspiracy, and

persuasive authority from otherjurisdictions all compel

the conclusion that, under § 53a-48 (a), the state must

prove that a person accused of conspiracy to commit

robbery in the second degree specifically intended that

every element of that offense be committed.

2

We next address the state’s argument that it would

have been irrational forthe legislature to adopt a legislative scheme in which offenders face broad vicarious

liability fortheirroles in first and second degree robberies—whether as participants, accessories or, under a

Pinkerton theory, coconspirators—and yet to stop

short of extending that same vicarious liability to the

crime of conspiracy itself under § 53a-48 (a). In this

opinion, we already have indicated a number of rationales for this distinction.

First, there is a fundamental difference between holding a person liable for his role in an actual crime, whatever that role might be, as opposed to punishing him

solely for agreeing to commit a crime. ‘‘[T]he conspiracy

doctrine will incriminate persons on the fringe of

offending who would not be guilty of aiding and abetting

or of becoming an accessory, for those charges . . .

lie [only] when an act which is a crime has actually

been committed.’’ Krulewitch v. United States, supra,

336 U.S. 450 (Jackson, J., concurring). There are sound

historical, practical and theoretical reasons for imposing stricter liability in the latter case than in the former.

See, e.g., People v. Luciano, New York Supreme Court,

Docket No. 5715/11 (N.Y. Sup. April 27, 2012) (‘‘It is

one thing to hold a defendant who intends to commit

a robbery liable for a limited number of the common

unintended consequences of that crime. It is another

to punish a person for entering into an agreement to

do something he never agreed to do.’’).

Second, under Pinkerton, coconspirators are already

held vicariously liable for crimes in which their coconspirators’ use of weapons or purported weapons is reasonably foreseeable. The state’s proposed rule would

represent a substantial expansion of, rather than a mere

corollary to, that principle. Pinkerton liability is forward looking, holding conspirators liable as principals

for crimes that predictably result from an already

formed and clearly defined conspiracy. The state’s proposed rule, by contrast, would create a legal anachronism: it turns back the clock and rewrites the terms of

the conspirators’ original criminal agreement to reflect

conduct that coconspirators are alleged to have subsequently performed. Such a rule would substantially ease

the burden on the state in prosecuting an alleged conspiracy, creating what would, in effect, be a presumption that conspirators agreed in advance to conduct
constituting any aggravating factors that are alleged to

have subsequently transpired. There is no indication

that the legislature intended to adopt that sort of ‘‘in

for a penny, in for a pound’’ theory of conspiracy.18

C

For all of the foregoing reasons, we conclude that,

in order to convict a defendant of conspiracy to commit

robbery in the second degree in violation of §§ 53a-135

(a) (2) and 53a-48 (a), the state must prove that the

defendant specifically agreed that there would be the

display or threatened use of what was represented as

a deadly weapon or dangerous object during the robbery or immediate flight therefrom. We therefore agree

with the Appellate Court that the defendant is entitled

to a new trial before a properly instructed jury.19

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js., concurred.

1 Under General Statutes § 53a-51, the penalty for conspiracy, like the

penalty for attempt, is the same penalty ‘‘as the most serious offense which

is . . . an object of the conspiracy, except that . . . conspiracy to commit

a class A felony is a class B felony.’’

2 General Statutes (Rev. to 2007) § 53a-135 (a) provides in relevant part:

‘‘A person is guilty ofrobbery in the second degree when he commits robbery

. . . and . . . (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly

weapon or a dangerous instrument.’’

Hereinafter, all references to § 53a-135 are to the 2007 revision.

3 The trial court imposed a sentence of five years imprisonment, execution

suspended after fifteen months, and three years of probation.

4 For the sake of brevity, we sometimes refer to this element of the crime

of robbery in the second degree as the display of a purported weapon.

5 Thereafter, the defendant claimed, as an alternative ground for affirming

the judgment of the Appellate Court; see Practice Book § 84-11; that there

is a reasonable probability that certain of the trial court’s jury instructions

misled the jury.Because we affirm the judgment ofthe AppellateCourt on the

ground raised in the certified question, we need not address the defendant’s

alternative ground for affirmance.

6 Under Connecticut law, larceny involves the wrongful taking, obtaining,

or withholding of another person’s property with the intent to deprive that

other person of that property or to appropriate the same to himself or a

third person. See General Statutes § 53a-119. Larceny is graded primarily

on the basis of the value and type of property appropriated. See generally

General Statutes §§ 53a-119, and 53a-121 through 53a-125b. Robbery entails

the use or threatened use of force in the course of committing a larceny;

see General Statutes § 53a-133; and is graded primarily on the basis of the

type of force or threat applied. See generally General Statutes §§ 53a-134

through 53a-136a.

The parties do not dispute that, in order to conspire to commit robbery

in the second degree in violation of §§ 53a-135 (a) (2) and 53a-48 (a), one

must specifically intend not only that a larceny occur, but also that force

be used or threatened with the intent either to overcome resistance or to

compel delivery of the victim’s property. See General Statutes § 53a-133;

General Statutes (Rev. to 2007) § 53a-135 (a) (2); cf. State v. Avila, 223

Conn. 595, 603, 613 A.2d 731 (1992).

7 Because the defendant failed to raise this instructional claim at trial, he

sought to prevail on appeal under State v. Golding, 213 Conn. 233, 567 A.2d

823 (1989). State v. Pond, supra, 138 Conn. App. 236. He contended that the

omitted part of the instruction involved an essential element of the charged

crime and, therefore, that its omission from the court’s instructions to the

jury represented a constitutional violation. Id.

8 Prior to 2008, one element of burglary in the second degree was that

the crime be committed at night. General Statutes (Rev. to 2007) § 53a-102
(a) (1).

9 For a discussion of the potential for this sort of ambiguity that characterizes so-called ‘‘opaque’’ verbs such as ‘‘intend,’’ see generally J. Anderson,

‘‘Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation,’’ 127

Harv. L. Rev. 1521 (2014).

10 We note that the state’s interpretation of Padua as carving out an

exception for attendant circumstances elements hinges on the questionable

hypothesis that, if we had meant to require that the defendants in that case

actually intended to sell drugs within 1500 feet of a public housing project,

we could not have found the instructional error in question to be harmless.

This is true, the state contends, because there was no evidence in the record

in Padua that the defendants specifically intended to sell drugs in a protected

zone. The state, however, overlooks the factthatthose defendants apparently

resided in the public housing project from which they sold drugs over a

matter of months. See State v. Padua, 73 Conn. App. 386, 411–12 n.6, 808

A.2d 361 (2002), rev’d, 273 Conn. 138, 869 A.2d 192 (2005). The state’s theory,

then, rests on the rather tenuous assumption that the defendants in Padua

might not have understood that they lived in a public housing project.

11 The commentary to the Penal Code does indicate that § 53a-48 differs

from its predecessor. The commentary provides that the following change

appeared in § 53a-48: ‘‘the requirement that the defendant must have a

specific intent to agree in the performance or causation of criminal conduct.

A general intent to promote or facilitate the criminal object or means is not

sufficient to establish guilt.’’ Commission to Revise the Criminal Statutes,

Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-48 (West 2012) comment,

p. 10. The commentary offers no further guidance, however, as to the scope

of that specific intent requirement.

12 v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).

13 In State v. Walton, 227 Conn. 32, 43, 45–46, 630 A.2d 990 (1993), we

recognized the principle of vicarious liability that the United States Supreme

Court articulated in Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S.

Ct. 1180, 90 L. Ed. 1489 (1946), under which conspirators may be held liable

for criminal offenses committed by their coconspirators that are (1) within

the scope of the conspiracy, (2) in furtherance of it, and (3) reasonably

foreseeable as a necessary or natural consequence of the conspiracy.

14 New York Penal Law § 105.10 (McKinney Supp. 1979) provides in relevant part: ‘‘A person is guilty of conspiracy in the fourth degree when, with

intent that conduct constituting:

‘‘1. a class B or class C felony be performed, he agrees with one or more

persons to engage in or cause the performance of such conduct . . . .’’

15 The state’s efforts to distinguish Joyce are unavailing. The state refers

to dictum in Joyce indicating that, in the case of a general conspiracy

statute that does not identify a particular class of object felonies, it ‘‘may

be appropriate’’ to adopt the rule that ‘‘one who joins a conspiracy after its

inception, knowing of its central criminal design, may be held accountable

for the actions and declarations of his coconspirators which occurred before

his entry into the conspiracy . . . .’’ (Citations omitted; emphasis added.)

People v. Joyce, supra, 100 App. Div. 2d 347. That possible exception to the

general rule for which Joyce stands is inapplicable to the present case.

16 The statutory language has since been amended in ways not relevant

to the present discussion. See Armed Forces Act, 2006, c. 52, § 45 (U.K.).

17 Title 18 of the 1970 edition of the United States Code, § 371, provides:

‘‘If two or more persons conspire either to commit any offense against the

United States, or to defraud the United States, or any agency thereof in any

manner or for any purpose, and one or more of such persons do any act

to effect the object of the conspiracy, each shall be fined not more than

$10,000 or imprisoned not more than five years, or both.

‘‘If, however, the offense, the commission of which is the object of the

conspiracy, is a misdemeanor only, the punishment for such conspiracy

shall not exceed the maximum punishment provided for such misdemeanor.’’

18 For all of the reasons discussed herein, we are unpersuaded by the

dissenting opinion. In light of the criticisms leveled by the dissenting justice,

however, we take this opportunity to underscore that our holding in this case

does notrequire that the state prove the existence of a formal conspiracy. Nor

must the state prove that the defendant knew all of the details of the planned

crime. There must, however, be at least circumstantial evidence that the

defendant intended those aspects of the object offense that constitute its

essential elements and determine the penalty to which an offender is potentially subject.

19 On appeal, the state does not challenge the Appellate Court’s conclusion
that the trial court’s failure to so instruct the jury constituted harmful error.