Crimes Against Property

Question 1

What are the elements of larceny? (10.3%)

Answer 1

• Taking (a.k.a. “caption”; any movement of property, however slight) and

• And carrying away* (a.k.a. “asportation”;
–*ELIMINATED IN MPC, which focuses on “unlawful control”; any movement of property, however slight; most courts will impute another person’s asportation to the defendant if the person acted at the defendant’s direction);

• Of another person’s property;
• Without his consent (trespassory);

–defendant bears the burden of proving that there was consent

–Continuing trespass rule: When an initial taking was trespassory but there was no intent at the time to permanently deprive the person of the property, then the continuing trespass rule serves to deem the original trespass “continuing” so that it coincides with later-acquired criminal intent.

• With the intent to deprive him of it permanently.

Question 2

What are the elements of larceny by trick? (6.9%)

Answer 2

Larceny by trick is

• Larceny
• Accomplished by fraud or deceit
  
  • The representation (whether oral, written, or by actions) must be a false representation of a material past or present fact. A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient.
• Inducing the victim’s reliance
• Resulting in the CONVERSION of the victim’s property.
  
  • Property is converted when the defendant, in a manner so serious as to deprive the victim of the use of the property, deprives the victim of possession of the property or interferes with the property. The deprivation must be substantial enough to justify a court to order the defendant to pay the full fair market value of the property.

Larceny by trick requires that the defendant fraudulently induce the victim to deliver possession of, but not title to, the property to the defendant.

Question 3

How does larceny by trick differ from false pretenses? (6.9%)

Answer 3

Larceny by trick: the defendant obtains possession.

False pretenses: the defendant obtains title.

Question 4

What are the elements of embezzlement? (10.3%)

Answer 4

Embezzlement is the:

• Fraudulent
  
  • intent to defraud
  • still counts for embezzlement if the defendant intends to return similar property or the cash equivalent of the value of the property
• Conversion
  
  • serious interference with the owner’s property rights
• Of the property
  
  • same types of property subject to larceny
• Of another
• By a person who is in lawful possession of the property.
  
  • ​i.e. the defendant starts out having the owner’s consent to have the property but commits embezzlement by converting the property to his own use
  • Custody of the property is insufficient – the defendant must be in lawful possession of the property when the conversion occurs for it to constitute embezzlement. Possession involves a greater scope of authority to deal with property than does custody (e.g., low level employees usually only have custody of their employer’s property – thus, they commit larceny if they take it).

Question 5

What are the elements of larceny by false pretenses? (6.9%)

Answer 5

Larceny by false pretenses entails:

• Obtaining title to the property
  
  • same types of property subject to larceny
• Of another person
• Through the reliance of that person
• On a known false representation of a material past or present fact; and
  
  • A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient.
  • The representation may be made orally, in writing, or by actions (e.g., resetting a car’s odometer).
  • Silence does not constitute a representation, even when the defendant is aware of the owner’s misunderstanding, unless the defendant caused the misunderstanding or the defendant has a fiduciary obligation to the victim.
• The representation is made with the intent to defraud.
  
  • The defendant must know that the representation is false and specifically intend to defraud. Most courts find that a defendant acts knowingly and has knowledge of a particular fact when he is aware of a high probability of the fact’s existence and deliberately avoids learning the truth. A few states require actual knowledge of a particular fact.
  • If the defendant subjectively believes that he owns the property in question, he will not be guilty of false pretenses.

In short, the defendant obtains TITLE to someone else’s property through an act of deception.

Question 6

What are the elements of common-law burglary? (6.9%)

Answer 6

Common-law burglary is the:

• Breaking
  
  • NOT REQUIRED BY MOST STATES
  • breaking = using force, even if light
  • not a breaking to enter a dwelling through an open door or window
  • breaking by fraud or threat, without use of force, is also possible
• And entering
  
  • occurs when any portion of the defendant’s body, or an instrument used by the defendant to gain entry, crosses into the dwelling
• Of the dwelling
  
  • or part of one, e.g. opening a closet or wall safe, though mere opening of an object within the dwelling, such as a desk drawer, trunk, or box, does not constitute a breaking
  • all states have statutes that expand the type of structure to include non-dwellings, such as businesses, buildings, or cars, and surrounding areas, such as yards
• Of another
  
  • note that the owner of a dwelling who has transferred the possessory interest to another, e.g., a tenant, can be guilty of burglary
• At nighttime
  
  • i.e., not enough light to see the burglar’s face
  • very few states require that all forms of burglary be committed at night
• With the specific intent to commit a felony therein
  
  • A defendant who fails to commit the underlying felony may nevertheless be guilty of burglary as well as attempt to commit the underlying felony
  • If the underlying felony is completed, it does NOT merge with the burglary
  • Many states have broadened the scope of the crimes intended to be committed to include misdemeanor thefts.

Question 7

Receiving stolen property (not a top rule)

Answer 7

To be guilty of receiving stolen property, the defendant must receive control of stolen property, know that the property is stolen, and intend to permanently deprive the owner of the property. Property that is unlawfully obtained through larceny, embezzlement, or false pretense is stolen property. The act of receiving the property must coincide with the recipient’s knowledge that the property is stolen. Some jurisdictions require that the defendant have actual, subjective knowledge that the property has been stolen. Other jurisdictions permit the defendant’s knowledge to be inferred from facts that would alert a reasonable person to unlawful acquisition of the property.