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MBE Crim Law > 4. Crimes Against The Property > Flashcards

4. Crimes Against The Property Flashcards

1
Q

What are Theft Crimes?

A

Theft crimes involve the taking of property from the victim by the defendant.

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2
Q

What factors distinguish theft crimes?

A

Factors include:
* Nature of the taking
* Whether the defendant acquired custody, possession, or title to the property.

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3
Q

What are two ways that property can be taken?

A

Property can be taken:
* By trespass, force, or threat
* By fraud, deception, or misrepresentation.

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4
Q

When does a person have custody of property?

A

A person has custody of property when it has been left with them, but they have no rights over it.

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5
Q

When does a person have possession of property?

A

A person has possession if they:
* Have custody
* Have authority to exercise discretion
* Have limited rights to use it
* Have borrowed it.

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6
Q

When does a person have title to property?

A

A person has title to property when they are the legal owner.

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7
Q

What is Larceny?

A

i.) unlawful taking and carrying away (the slightest movement is sufficient);
ii.) without consent; and
iii.) with intent to permanently deprive the owner of the property(the specific intent to dispossess must exist during the taking).

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8
Q

What constitutes the Actus Reus of Larceny?

A

The unlawful taking and carrying away of property possessed by another.

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9
Q

Is ownership necessary for larceny?

A

No, the victim need only have possession, control, and custody of the property.

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10
Q

Can a lawful owner commit larceny?

A

Yes, if the victim had a greater right to the property at the time of taking.

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11
Q

How can a bailee commit larceny?

A

A bailee has lawful possession of bailed property, but only has custody of items inside a closed container, as the bailor retains constructive possession of these items.

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12
Q

Are services and intangible property subject to larceny?

A

Yes, they are subject to larceny.

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13
Q

Can lost or mislaid property be subject to larceny?

A

In order to be guilty of larceny for lost or mislaid property, the finder MUST:
i.) intend to permanently deprive the owner of it; and

ii.) either know who the owner is or have reason to believe (from earmarkings on the property or from the circumstances of the finding) that she can find out the owner’s identity.

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14
Q

Can abandoned property be subject to larceny?

A

No, abandoned property cannot be subject to larceny.

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15
Q

What is the Mens Rea of Larceny?

A

The intent to permanently deprive the owner must accompany the taking.

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16
Q

Must carrying away and intent to permanently deprive occur simultaneously for Larceny?

A

Yes, they must generally occur at the same time.

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17
Q

The intent to permanently deprive property is met if the defendant:

A
  1. plans to keep, destroy, or ransom it;
  2. handles it recklessly risking loss; or
  3. uses it temporarily then abandons it, even if it eventually returns to the owner.
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18
Q

There is no intent to permanently deprive property if the defendant:

A
  1. plans to unconditionally return it promptly;
  2. pawns it intending to redeem and return it;
  3. takes it intending to pay or replace it if not unique; or
  4. mistakenly but genuinely believes they have a right to it.
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19
Q

What does the Doctrine of Continuing Trespass state?

A

when one takes property with the intent to return it, but later keeps it, larceny arises at the moment the defendant decides not to return the property.

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20
Q

Does a taking with permission from owner satisfy the continuing trespass doctrine?

A

No. A taking with permission from the owner will NOT satisfy the continuing trespass doctrine if the taker then decides not to return the property at a later date.

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21
Q

What is Robbery?

A

Robbery occurs when a person commits a larceny and:

(1) the property unlawfully taken was on the victim’s person or in the victim’s presence; and
(2) the taking was accomplished by force or intimidation

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22
Q

What does ‘Presence’ mean in the context of Robbery?

A

‘Presence’ refers to the area within the victim’s protection or control.

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23
Q

Property is in a person’s presence for purposes of robbery if:

A

i.) it is within the area within which the victim could reasonably be expected to exercise some physical control;
ii.) but for the fact that the victim was overcome by force;
iii.) or prevented by the fear or intimidation.

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24
Q

What is Robbery by Force?

A

The force or violence can be slight, but MUST be MORE than what is necessary to simply move the property.

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25
Q

For a sudden “snatching” of property to constitute robbery, it must be accompanied by:

A

i.) more force or violence than is necessary to remove the property from the person;
ii.) accompanied by a simultaneous act of intimidation or violence.

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26
Q

What is Robbery by Intimidation?

The threat of violence MUST:

A

i.) place the victim in actual fear; and
ii.) this fear must also exist during the taking.

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27
Q

Can an empty threat suffice for Robbery by Intimidation?

A

Yes. Even an empty threat that produces actual fear during the taking is sufficient.

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28
Q

The Model Penal Code definition of robbery requires that the theft be accompanied by:

A
  1. serious bodily injury upon another; or
  2. by threatening or placing another in fear of immediate serious bodily injury.
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29
Q

What is required for ‘Accomplished by Force or Intimidation’ in robbery?

A

Violence or the threat of violence must occur contemporaneously with the taking.

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30
Q

What is Extortion?

A

Extortion occurs when a person threatens to harm another to obtain something of value.

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31
Q

Does Extortion require threats of immediate physical harm or taking property?

A

No. Extortion does NOT require threats of immediate or imminent physical harm, and property does NOT need to be taken from the victim’s person or presence.

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32
Q

What is Blackmail?

A

Blackmail involves threatening to expose information to obtain something of value.

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33
Q

What is Larceny by Trick?

A

Larceny by trick occurs when a defendant:
i.) gains possession (not ownership) of someone’s property;
ii.) with the owner’s consent;
iii.) by fraud or misrepresentation;
iv.) with the intent to permenantly deprive the owner of that property.

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34
Q

What is Embezzlement?

A

Embezzlement is the fraudulent conversion of property by someone in lawful possession.

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35
Q

What is required for Embezzlement?

A

The person must be in lawful possession of the property.

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36
Q

Can Employees Commit Embezzlement?

A

An employee has possession and thus could commit embezzlement if:

i.) a third party gives property directly to an employee for the benefit of the employee’s employer; or

ii.) the employee is in a high-level position (e.g., an office manager, bank president, or corporate official).

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37
Q

Is Fraudulent conversion by a co-owner of property considered Embezzlement?

A

No. Fraudulent conversion by a co-owner of property is NOT embezzlement.

38
Q

Does Embezzlement include intangible property?

A

No. Embezzlement does NOT concern intangible property, real estate, or services.

39
Q

What is Fraudulent Conversion or Misappropriation?

A

Fraudulent conversion or misappropriation occurs when a person seriously interferes with another person’s ownership rights.

40
Q

Does slight movement or limited use “seriously interfere” with another person’s ownership rights?

A

No. slight movement or limited use will NOT “seriously interfere” with another person’s ownership rights, but more substantial movement or use of another person’s property can do so.

41
Q

Does fraudulent conversion require proof of the defendant’s personal gain?

A

No. Proving fraudulent conversion does NOT require proof that the defendant’s actions led directly to the defendant’s personal gain.

42
Q

Is a conversion fraudulent even if the defendant intended to later substitute it for equivalent property?

A

Yes. Conversion is STILL fraudulent even if the defendant intended to later substitute it for equivalent property.

43
Q

A conversion is NOT fraudulent if:

A
  1. the defendant intended to return the exact property; or
  2. believed their actions were within their rights to possess it.
44
Q

Embezzlement-Measurement of Defendant’s Culpability

A

The defendant’s culpability is measured by the value of the property when the crime was committed, NOT by its subsequent value.
This is true regardless of whether the embezzled funds are depleted or increased.

45
Q

What is Theft by False Pretenses?

A

(i) obtaining title (obtaining ownership rather than mere
possession);
(ii) by false misrepresentations (must be intentional false statements);
(iii) of past or existing fact
(misrepresentation of a future event does not qualify);
(iv) with the intent to defraud (the victim must be deceived or must act in reliance of defendant’s false statement in passing title).

Obtaining property through false pretenses is a specific intent crime, so the defendant must have the specific intent to defraud.

Further, because it is a specific intent crime, a mistake on the part of the defendant, no matter how unreasonable, is a defense to the crime of false pretenses.

46
Q

What items are considered Title to Personal Property?

A

Items include:
* Written instruments
* Stocks
* Bonds
* Notes
* Deeds
* Money
* Credit cards.

47
Q

Does a victim’s reliance on a false representation need to be the sole reason for a title transfer?

A

No, it must be a reason, but not necessarily the only reason.

48
Q

Can opinion be the basis of a false pretenses conviction?

A

No, opinion cannot be the basis of a false pretenses conviction because these are not representations of fact.

49
Q

What must the victim’s reliance on a false representation be?

A

The victim’s reliance on the false representation must be a reason, but not necessarily the only reason, for why the victim transferred.

50
Q

Is title voidable because of the defendant’s fraud?

A

Yes, title is voidable because of the defendant’s fraud.

51
Q

What constitutes Receiving Stolen Property?

A

A defendant is guilty of receiving stolen property when:
* he accepts property knowing it was stolen
* it is still stolen when received
* specifically intends to keep it permanently.

52
Q

How is a person considered to have received stolen property?

A

A person has ‘received’ stolen property if:
* he has physical possession of that property
* or exercises control over it.

53
Q

What does ‘Known to be Stolen’ mean?

A

The defendant must either:
* actually know
* or constructively know
* that the property was stolen at the time that the defendant received the property.

54
Q

What is Constructive Knowledge?

A

Constructive knowledge exists when:
* the facts and circumstances surrounding the receipt of the property leave no reasonable doubt
* that the receiver must have known, without further inquiry, that it was stolen.

55
Q

What is Intent to Permanently Deprive the Owner?

A

The defendant must have the specific intent to permanently deprive the owner of that property at the time of receiving the stolen property.

56
Q

Does the defendant have to be acting for personal gain to be charged with Receiving Stolen Property?

A

No, the defendant does not have to be acting for personal gain.

57
Q

When is there no intent to receive stolen property?

A

There is no intent to receive stolen property when the defendant intends to:
* unconditionally return the property to its owner
* conditionally return the property (such as upon payment of a reward).

58
Q

What is Forgery?

A

Forgery occurs when a person fraudulently makes a false writing with apparent legal significance with the intent to make wrongful use of the forged document.

59
Q

What is Fraudulent Making?

A

The making element will be satisfied by:
* the creation of a new document
* the altering of an existing document
* inducing someone to sign a document knowing that the person is unaware of the document’s significance.

60
Q

What does Forgery require regarding the document?

A

Forgery requires that the document itself not be genuine.

61
Q

What qualifies as a material alteration in forgery?

A

An alteration qualifies as a fraudulent making of a forged document if the alteration changes the legal meaning or effect of the document.

62
Q

What is a writing with apparent legal significance?

A

A writing with apparent legal significance must have some effect on legal rights or duties (e.g., a contract, a will, a negotiable instrument, a deed, or a mortgage).

63
Q

Does an intent to reimburse the victim negate a forger’s intent?

A

No, an intent to reimburse the victim or to collect on a good-faith claim of debt does not negate a forger’s intent to make wrongful use of the forged instrument.

64
Q

Can a forger who is not motivated by monetary gain still make wrongful use of the forged instrument?

A

Yes, a forger who is not motivated by the desire for monetary gain can still intend to make wrongful use of the forged instrument.

65
Q

When is Forgery considered ‘Completed’?

A

Completion of the ‘making’ element completes the crime; the defendant does not have to actually use the forged document to be found guilty of forgery.

66
Q

Can a defendant who acquired property by use of the forged document be charged with additional crimes?

A

Yes, a defendant who actually acquires property by use of the forged document may additionally be guilty of another crime, such as false pretenses.

67
Q

What is Check Fraud?

A

Check Fraud involves no-account or insufficient-funds checks given with the intent to defraud.

68
Q

What is Burglary?

A

Burglary occurs when a person

i.) breaks and enters into a structure of another;
ii.) with an intent to commit a felony or theft crime at the time of entry.

69
Q

What is the Breaking element for Burglary?

A

The ‘breaking’ must be:
* trespassory
* accomplished by someone who lacks authority or consent.

70
Q

What is an actual breaking?

A

An actual breaking occurs when the defendant:
i.) uses force, even slight force;
ii.) to create an opening that permits entry into a structure.

71
Q

The force necessary for an actual breaking can be slight, and includes such actions as:

A

*turning a key;
*opening an unlocked door or window;
*Opening a closed door; or
*Pushing open a door or window that is already partially
open.

72
Q

What is a constructive breaking?

A

A constructive breaking occurs when the defendant:
i.) uses fraud;
ii.) deception, or;
iii.) the threat of force to gain entry into a structure.

73
Q

When is there NO breaking in Burglary?

A

There is no breaking if the defendant took advantage of an opening left by the occupants, such as an unlocked, ajar door or window.

74
Q

What is the ‘Entering’ element for Burglary?

A

The ‘entering’ must be:
* trespassory
* accomplished by someone who lacks authority or consent.

75
Q

The entering element can be proven by showing that:

A

i.) any part of the defendant’s body was placed inside the structure; or

ii.) defendant inserted a tool inside the structure, so long as that tool was inserted for the purpose of accomplishing the felony or theft within.

76
Q

Does ‘entering’ need to occur at the same time as the breaking for Burglary?

A

No, the entering need not occur at the same time as the breaking, but it must be related to the breaking.

77
Q

What is the ‘Structure of Another’ element for Burglary?

A

The ‘Structure of Another’ element includes almost any structure and is not limited to dwellings or structures within the curtilage of a dwelling.

78
Q

Can intent formed after an initial entry satisfy the mens rea element for Burglary?

A

Yes, an intent formed after an initial entry can satisfy the mens rea element of burglary only if it is simultaneous with an additional ‘entry’ once inside the structure.

79
Q

When is a burglary considered ‘Complete’?

A

The burglary is complete once the defendant enters with sufficient criminal intent, regardless of whether the defendant commits or even attempts to commit the intended felony or theft crime therein.

80
Q

Does Burglary merge with other crimes?

A

No, a defendant who commits or attempts to commit burglary can be charged and convicted with both burglary as well as the other felony or theft offense.

81
Q

What is Arson?

A

Arson occurs when a person maliciously burns property.

82
Q

What is the Malicious element for Arson?

A

The malicious element can be satisfied by actions that intentionally or recklessly cause property to burn.

83
Q

What is an Intentional Burning?

A

An intentional burning is a burning done purposely or knowingly.

84
Q

Can a reckless burning be an unintentional burning?

A

Yes, a reckless burning is an unintentional burning that results from actions taken with a conscious disregard for the substantial and unjustifiable risks that a burning would occur.

85
Q

What is the Burning element for Arson?

A

The Burning element is satisfied by evidence of charring.

86
Q

Does a structure have to be extensively damaged to satisfy charring?

A

No, there is no requirement that the structure be extensively damaged or seriously charred.

87
Q

When is charring not satisfied?

A

Charring is not satisfied where the damage to the surface of the structure is merely discoloration or warping.

88
Q

Can a defendant burn her own property for Arson?

A

Yes, for purposes of arson, the property burned need not be property owned by someone other than the defendant.

89
Q

What is considered Property for Arson?

A

The property burned can be a dwelling, building, structure, vessel, or even personal property.

90
Q

Are duress is a defense to arson?

A

Yes. Duress is a defense to arson.

MBE Crim Law (8 decks)

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