AD1 reverses second-degree conspiracy conviction for refusal to instruct the jury on the legal standard for proof in a case resting on circumstantial evidence.


AD1 agreed that Mr. G was entitled to a circumstantial evidence charge and that the court's failure to give this instruction was not harmless. The trial judge gave a circumstantial-evidence instruction on all counts except the one count for which Mr. G was convicted, second-degree conspiracy. The trial court found that Mr. G wasn't entitled to the charge because there was direct evidence that Mr. G's co-conspirators had committed overt acts in furtherance of the conspiracy (and an overt act is an element of conspiracy). AD1 held that what mattered was the lack of direct evidence of Mr. G's own participation in the conspiracy. Because there was none, the instruction should have been given, and the error was not harmless. Beth Caldwell represented Mr. G on appeal.