Criminal Law

Question 1

United States v. X-Citement Video, Inc.

Answer 1

👶🎥

Application of the Staples rule: knowingly applies to “minor” and to “sexually explicit activity”

Question 2

Statute: Sparks Burglary

Answer 2

Elements:
(i) enters
(ii) any house, room, store, or other building
(iii) with intent to commit larceny or any felony

Mens rea =
(i) specific intent to commit a felony
(ii) silent otherwise; apply recklessly

(California statute)

Question 3

Ostrosky v. State

Answer 3

🎣🪪

Mistake of Law is almost never a valid defense, but if the mistake was made as a result of reasonable reliance on a court order, then it is a defense

Question 4

Rehaif v. United States

Answer 4

🔫👽

Application of the Staples rule: student must know his citizenship status because it is an element of the crime.

Mistake of Law defense: because citizenship status is governed by a different set of statutes, mistake of law governing citizenship status is a defense for another offense, of which it is an element

Question 5

State v. Evans

Answer 5

🪪✍️💰

Corporations are persons protected by the identity theft statute in Washington.

Plain meaning and legislative intent (discerned from legislative history) clearly establish this. Thus it is not necessary to apply the rule of lenity by interpreting the statute in Evans’ favor

Question 6

Statute: Negligent Homicide

Answer 6

Causing the death of another person negligently (while unaware of a risk of death resulting, when you should have been aware)

Cabrera rule: Criminal negligence is a step up from tort negligence. Criminal negligence involves a GROSS deviation from the standard of care. It is characterized by “serious blameworthiness” and conduct which creates a risk. Examples: driving while intoxicated, texting while driving, speeding really excessively, drag racing.

Question 7

State v. Ramirez

Answer 7

🙅‍♀️

Balancing a defendant’s right to due process of law (specifically, their constitutionally protected ability to develop an effective defense) with a victim’s rights to be treated with dignity, to be free from intimidation, and to have inconveniences minimized (Crime Victim’s Bill of Rights).

Here, the court decided that the defense can contact the victim by phone or email, but can’t show up at their house. The defense can request the victim’s address, but if the victim says no, their request will not be granted.

Question 8

State v. Pigford

Answer 8

🥬🚛

Possession elements:
(i) knowingly had
(ii) power
(iii) intent
to exercise control over the drug

Because Pigford had exclusive dominion and control over his trailer and its contents (which included the marijuana), it can be inferred that he knowingly had the power and intent to exercise control over the marijuana.

Possession alone does not prove knowledge of the presence, illicit nature, and quantity of the drug.

Here, knowledge could be inferred from the circumstances (Pigford was far off course, he was nervous, the marijuana was easily found once inside the trailer, quantity/value of marijuana made alternative theory that someone else left it there implausible)

“This little piggy drove a truck full of marijuana”

Question 9

United States v. Rizo-Rizo

Answer 9

👽🤷

Immigration law is regulatory, so strict liability applies. The defendant did not need to know his immigration status to be guilty of entering the U.S. without inspection

Question 10

Attempt

Answer 10

MPC definition:
i. Acted purposely to cause the result element of the target crime (e.g. for murder = acted to accomplish the purpose of the death of another)
ii. Acted with the mens rea required for the attendant circumstance and result elements of the target crime (e.g. for possession of a controlled substance, knowledge of the presence and illicit nature of the substance)
iii. Substantial steps taken toward the accomplishment of the target crime which are highly corroborative of the person’s purpose
(United States v. Jackson)

Dangerous Proximity Test = but-for timely interference, the target crime would have occurred
(People v. Rizzo)

Question 11

Statute: Prostitution

Answer 11

i. solicit or engage in
ii. any lewd act (for the purpose of sexual gratification of one or both actors)
iii. between two persons (customer and sex worker)
iv. in exchange for money or other consideration

mens rea = recklessly

(Wooten v. Superior Court)

Question 12

State v. Mitchell

Answer 12

❄️☠️

A felony is inherently dangerous (and can support a 2nd degree murder charge via the felony murder rule) when the felony is reasonably likely to lead to death.

(1) Abstract approach = umbrella judgment about whether the crime is always dangerous/not dangerous as a matter of law
(2) Factual approach = case-by-case judgment about whether a crime was carried out in an inherently dangerous manner

Here, the court orders the jury to use the factual approach to determine whether distribution of a controlled substance (as carried out by Mitchell) was inherently dangerous for purposes of the felony murder rule.

Question 13

United States v. Jackson

Answer 13

📺👶🙊

A threat to disclose information which will damage someone’s reputation is extortionate if
(1) The person making the demand has no rightful legal claim to the money (especially not that much money); and
(2) The demand for payment has no nexus with the threat to disclose (the threat would not resolve the claim if it came to fruition, rather, making good on the threat makes payment less likely)

Cosby love child

Question 14

Statute: Voluntary manslaughter

Answer 14

Causing the death of another person with malice aforethought, BUT with the justification of a provocation defense

(i.e. would be guilty of second-degree murder, except that the defendant was provoked)

Question 15

State v. Robinson

Answer 15

🏌️🤕

Malice aforethought can be proved via depraved heart (extreme indifference to the value of human life) when
(a) the defendant acted recklessly by disregarding such a significant risk that death would occur that it was almost knowledge that the death would occur; OR
(b) the defendant, if asked, would be ok with the person dying as a result of his actions

Here, Robinson was guilty of depraved heart second-degree murder because he manifested extreme indifference to the value of human life when he struck Crowley so hard with a golf club that the club became embedded in Crowley’s skull and killed him.

Question 16

State v. Smith

Answer 16

🥴🍆

If the victim was too drunk to legally consent to sex, but the defendant was also drunk and may not have realized that the victim could not consent, is he guilty of rape?

Mens rea for legal consent is negligence (a reasonable person should realize when there is a risk that the other party does not have the legal capacity to consent).

Reasonable mistake of fact about victim’s legal capacity is a valid defense IF a reasonable person who was intoxicated to the same degree as the defendant would not have understood that the other party was too intoxicated to legally consent to sex.

Question 17

Cheek v. United States

Answer 17

🙏

Violations of the tax code are a general intent crime (willfully intend the conduct, not necessarily a further result).

An earnest and reasonable mistake of fact is a defense for general intent crimes.

There is a lower bar for what qualifies as a reasonable mistake of fact under a complex regulatory scheme like the internal revenue code law.

Here, Cheek’s belief that the tax code as a whole was unconstitutional was unreasonable and thus not an excuse. However, his earnest belief that his wages did not qualify as taxable income was reasonable. Because of this mistaken belief, he could not have willfully violated the tax code by failing to pay taxes and file returns.

Question 18

Martin v. State

Answer 18

🥴🛣️

Conduct must be voluntary to be criminal

Question 19

People v. Billa

Answer 19

🚗🔥☠️

Under the felony murder rule, a defendant is liable for causing the death of any other person (including co-conspirators) during the commission of a felony when
(i) The defendant was present at the scene;
(ii) The defendant actively participated in actions in furtherance of the felony; AND
(iii) Actions in furtherance of the felony caused the death

Here, Billa was present and actively participating in events that furthered the conspiracy and led to his co-conspirator’s death. Thus, he is guilty of murder via arson under the felony murder rule.

[Limit on Felony Murder Rule]

Question 20

Case Law: Extortion

Answer 20

(1) United States v. Jackson: A threat to disclose information which will damage someone’s reputation is extortionate if
(1) The person making the demand has no rightful legal claim to the money (especially not that much money); and
(2) The demand for payment has no nexus with the threat to disclose (the threat would not resolve the claim if it came to fruition, rather, making good on the threat makes payment less likely)

(2) United States v. Avenatti: The Jackson rule applied:
(1) Lawyer had no rightful legal claim to money from Nike (especially not that much money)
(2) Lawyer’s threat had no nexus to the demanded payment (if he disclosed the information, he would lose his leverage)

Question 21

Papachristou v. City of Jacksonville

Answer 21

🍞

A statute is void-for-vagueness (unconstitutionally vague) when:
(1) the statute fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden
(2) the statute encourages arbitrary and/or discriminatory enforcement because it allows for discretionary rather than standardized enforcement

Here, the Jacksonville ordinance is unconstitutionally vague because the proscribed conduct is so broad that the statute makes criminal a broad range of activities which are normally innocent (like “loafing”). It also permits arbitrary and discriminatory enforcement because it provides no standards to guide law enforcement.

Question 22

People v. Perry

Answer 22

🏨🛌🏃‍➡️

The use of a hotel room is property within the meaning of the statute and the taking of such property by deception can result in the owner being permanently deprived of its benefit.

Question 23

United States v. Moran

Answer 23

📼👮‍♂️

Copyright infringement is a general intent crime (willfully intend the conduct, not necessarily a further result).

An earnest and reasonable mistake of fact is a defense for general intent crimes.

There is a lower bar for what qualifies as a reasonable mistake of fact under a complex regulatory scheme like copyright law.

Here, Moran earnestly believed that he was acting lawfully under copyright law, and his conduct reflects this belief. He could not have willfully violated this complex body of law if he believed that he was acting lawfully

“Moran the Moron”

Question 24

State v. Shumway

Answer 24

🎮🔪☠️

Voluntary manslaughter = intentionally causing the death of another with malice aforethought BUT with an excuse (provocation, sudden combat, extreme emotional distress) that lowers the charge from second-degree murder.

Extreme emotional distress elements:
(1) Distress caused by the victim;
(2) Defendant’s extreme emotional distress “eclipsed their ability to reason;”
(3) A reasonable person in the circumstances would be provoked such that their extreme emotional distress “eclipsed their ability to reason;”
(4) no cooling-off period between provocation and events causing death

Here, because Ray initiated the conflict when he retrieved the knife and began poking at Shumway, because Shumway had been bullied his whole life, and because Shumway had a stab wound to his hand, there was evidence that he acted out of extreme emotional distress and therefore his charge should be reduced from murder to voluntary manslaughter.

Question 25

Kier v. State

Answer 25

🚬🚗

To prove constructive possession, the state must show some connection between the person and the drug other than spatial proximity. The state must show that the defendant knowingly had
(1) power
(2) intention
at a given time to exercise control over the drug

When the state’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall exclude every other reasonable hypothesis save that of the guilt of the accused.

The circumstantial evidence presented at trial was entirely consistent with Kier’s theory of innocence. The state failed to prove Kier’s possession beyond reasonable doubt.

Question 26

People v. Lauria

Answer 26

📞💁‍♀️

Conspiracy: when is the supplier of goods or services a co-conspirator in a crime?

(1) When the whole purpose of the business is to further some illegal activity.
(2) When the seller knows of the criminal use to which his supplies are put AND there is evidence that he intends to participate based on
(a) his special interest in the activity, or
(b) the aggravated nature of the crime itself

Here, Lauria is not guilty of conspiracy to commit prostitution, because there was insufficient evidence that he intended to further the prostitutes’ activities by providing answering services to them, and no circumstantial evidence from which a special interest in their activities could be inferred.

Question 27

Kolender v. Lawson

Answer 27

🪪

A statute is void-for-vagueness (unconstitutionally vague) when:
(1) the statute fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden
(2) the statute encourages arbitrary and/or discriminatory enforcement because it allows for discretionary rather than standardized enforcement

Here, the disorderly conduct - loitering - statute is unconstitutionally vague because it fails to describe what kind of identification would be sufficiently credible to satisfy the statute so that the person is not guilty of loitering. Without these guidelines, the statute permits “a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections”

Question 28

Conn v. State

Answer 28

🥛🔫

Conspiracy = agreement to commit a crime. Conspiracy is a crime in itself. The target crime need not have occurred.

Elements:
(1) Intent to commit the target crime (inherent in the agreement to commit the crime)
(2) Entered into an agreement to commit the crime (sometimes bilateral agreement, meaning agreement with undercover law enforcement doesn’t count)
(3) Any of the co-conspirators performed an overt act in furtherance of the agreement

Here, Conn was convicted of conspiracy to murder Stacy Howell. The intent and agreement to commit the crime are not at issue, and there were several overt acts in furtherance of the commission of the crime (surveillance x 2, experimental milk jug silencer).

Question 29

State v. Texieira

Answer 29

🦵🤕

Murder = causing the death of another person after premeditation

Premeditation requires forming the intent to kill a “period of time” prior to the killing, but it doesn’t have to be that long of a time period.

Here, Texieira is guilty of murder for causing Ortega’s death by kicking him in the head in a fight outside of a nightclub.

Question 30

MPC Rules for Mens Rea in Statutory Interpretation

Answer 30

(1) If the statute is silent, apply Recklessly to all material elements
(2) If the statute prescribes a mens rea term, it applies to all material elements
(3) A higher level of mens rea satisfies a lower level

Question 31

Alexis v. McDonald’s

Answer 31

🍔⛔️

A statute that says nothing about race can be enforced discriminatively.

Here, Alexis and her family refused to leave a McDonald’s after being told to do so, and thus they are guilty of criminal trespass. They were asked to leave, and Alexis later beaten, because they were black.

Question 32

City of Greenville v. Peterson

Answer 32

🥪⛔️

A statute that says nothing about race can be enforced discriminatively.

Here, a group of ten black people were convicted of trespassing because they refused to leave a store after the manager told them to leave, and thus they are guilty of criminal trespass. The manager asked them to leave because they didn’t want to serve black people at the lunch counter.

Question 33

State v. Moon

Answer 33

🏛️💸

Embezzlement = theft of funds entrusted to you by your employer. Intent to permanently deprive can be inferred if the defendant disposes of the stolen funds in a way that makes it unlikely that the owner would ever recover them.

Question 34

State v. Ducker

Answer 34

🚗👶👶

Application of the Staples rule: the offense of aggravated child abuse contains the elements of (1) knowledge of conduct, (2) knowledge of circumstances; and (3) strict liability for result of conduct. The conduct and circumstances separate guilty from innocent conduct, so knowledge does not apply to the result element.

Child abuse is illegal regardless of whether it leads to death. The court applies strict liability to the result element, so it was no defense that Ducker did not know that her actions would lead to the death of her children.

Question 35

State v. Shedrick

Answer 35

💵🤷

Shedrick was charged with first degree theft. The value of property stolen is a material element of this offense, and thus the defendant’s culpable mental state relevant to the value of property stolen must be proven.

Here, the court applies negligence (should have been aware of a risk that the property stolen was valuable enough for first degree theft). A reasonable person would have realized this risk, so Shedrick was negligent in not realizing it.

“Shedrick shoulda known”

Question 36

Queen v. Dudley & Stephens

Answer 36

☠️🍽️

In order to save your own life you may not lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or anyone else

Question 37

People v. Rizzo

Answer 37

💰👨‍💼🤷‍♂️

Attempt = “dangerous proximity” to the crime occurring. Test: In all probability, the intended crime would have been accomplished but for timely interference (in a parallel universe without the interference, would the crime have occurred?)

Here, Rizzo and his co-defendants are not guilty of attempted robbery because they were unable to find their intended victim in order to rob him.

Question 38

People v. Luke

Answer 38

🏢🤷🏢

A person knowingly enters or remains unlawfully in a building when he is aware that he is not licensed or privileged to do so. Luke accidentally entered the public housing building, believing that he was licensed to enter to visit his aunt. Thus he was not guilty of criminal trespass.

Mistake of fact (believed he was authorized to be in the building, when in fact he was not) prevented Luke from having the requisite mens rea (knowingly) to be guilty of trespassing.

“Luke was Lost”

Question 39

Commonwealth v. Lopez

Answer 39

💪🍆

Rape = sex by physical force

Consent (or the lack thereof) is irrelevant. Defendant’s mental state about consent (or the lack thereof) is irrelevant. Therefore, a mistake of fact as to the giving of consent is irrelevant.

Here, Lopez is guilty of rape because his mistake of fact defense (he thought the victim was a willing participant) is irrelevant. Sex + force = rape, without having to consider whether a reasonable person would understand that consent was given.

Question 40

Doe 1 v. United States

Answer 40

🙊

The Victims’ Bill of Rights includes the right to confer with the attorney for the Government on the case.

Here, Epstein’s victims’ right to conferral was violated, because the Government concealed the possibility of a plea agreement with Epstein from the victims. Epstein then killed himself in prison, making prosecution and potential plea deals moot.

Question 41

Conspiracy

Answer 41

Conspiracy = agreement to commit a crime. Conspiracy is a crime in itself. The target crime need not have occurred.

Elements:
(1) Intent to commit the target crime (inherent in the agreement to commit the crime)
(2) Entered into an agreement to commit the crime (sometimes bilateral agreement, meaning agreement with undercover law enforcement doesn’t count)
(3) Any of the co-conspirators performed an overt act in furtherance of the agreement (not required in all jurisdictions)

Question 42

Commonwealth v. Alvarez

Answer 42

❄🧑‍🏫

No mens rea was needed for the attendant circumstance element (strict liability applied) because the legislature expressly stated that lack of knowledge of the element was not an excuse.

“Al-var-is he from the school?”

Question 43

People v. Cabrera

Answer 43

🚗🏞️☠️

Negligent homicide = causing the death of another unintentionally, where the defendant should have been aware of a substantial and unjustifiable risk of death.

Criminal negligence = a gross deviation from the standard of care of a reasonable person
* Non-perception of unreasonable risk
* Additional affirmative act which creates unreasonable risk
* Seriously blameworthy carelessness

Here, the evidence was not sufficient to show that Cabrera’s conduct in driving too quickly around the corner with four other teens in the car was not only a failure to perceive a risk of death but also seriously blameworthy conduct that created the risk. The three counts of negligent homicide were dismissed.

Question 44

Statute: Modern Rape

Answer 44

Rape = sex without consent (without actual consent, or with a person who lacked the legal capacity to consent)

Consent must be freely and affirmatively given. (State in the Interest of MTS). A reasonable person in the circumstances would understand that consent was freely and affirmatively given. Consent can be withdrawn, nullifying any prior consent given (John Z)

Force not a necessary element of the offense

Shifts the burden to the defendant to prove that consent was freely and affirmatively given

Question 45

United States v. Hunte

Answer 45

👫🚬

To prove constructive possession, the state must show that the defendant knowingly had
(1) power
(2) intention
at a given time to exercise control over the drug (either directly or through others)

There was a clear nexus between Hunte and the drugs, and regardless of the fact that she was not the leader of the group, she acted in concert with the leader. All members of the group had joint possession of the drugs.

“on the Hunte for marijuana”

Question 46

State v. Schminkey

Answer 46

🥴🛻

Theft is a specific intent crime (intent to permanently deprive). The mere fact that Schminkey took the pickup without the owner’s consent does not allow the inference that he intended to permanently deprive the owner of the vehicle. Additional facts are needed to make that inference.

“Schminkey drinkey drivey”

Question 47

State v. Porter

Answer 47

🖤

Porter got into a fight outside of a bar. He punched Flett, knocking him to the ground, then punched him 2-3 more times in the face. Flett died. Porter was charged with 2nd degree murder.

Intent to kill is not a necessary element of 2nd degree murder, so long as malice aforethought can be proved via intent to cause serious bodily injury or depraved heart.

Here, the court determines that Porter demonstrated a depraved heart (extreme indifference to the value of human life) and thus that the second degree murder charge was proper.

Question 48

Statute: Second degree murder

Answer 48

Causing the death of another person with malice aforethought.

Three theories of malice aforethought:
(1) Intentional killing (purpose or knowledge with regards to the killing)
(2) Intent to cause serious bodily injury which is likely to lead to death
(3) Depraved heart (extreme indifference to the value of human life)

Question 49

Statute: Involuntary manslaughter

Answer 49

Causing the death of another person recklessly (while aware of and having disregarded a risk of death resulting)

Usually equivalent to Reckless Homicide.

Question 50

State v. Loge

Answer 50

🚗🍺

Traffic law is regulatory, so strict liability applies. In this case, the structure of the open container statute further suggests strict liability applies.

Question 51

Elonis v. United States

Answer 51

👨‍💻🎤

Application of the Staples rule: knowingly applies to the threatening nature of Elonis’ Facebook posts. Suggests that recklessly may suffice for elements which separate innocent from guilty conduct

“Tone Dougie”

Question 52

State v. Norman

Answer 52

🧤💎🫰

A person is justified in using deadly force in self-defense only when force that would result in death or serious bodily injury is imminently threatened against them.

“Inevitable” that he would kill me ≠ imminent threat of force

Here, it may be true that the abusive husband would have inevitably killed his wife, but she was not justified in causing his death because the threat to her life was not imminent.

Question 53

Case Law: Criminal Trespass

Answer 53

(1) People v. Luke:

A person knowingly enters or remains unlawfully in a building when he is aware that he is not licensed or privileged to do so.

Luke accidentally entered the public housing building, believing that he was licensed to enter to visit his aunt. Thus he was not guilty of criminal trespass.

(2) Jacques: a fenced-in area is not a structure under the “entering without breaking” statute

Question 54

United States v. Gladish

Answer 54

👧🤷‍♂️

“Impossibility” = “under the facts as the defendant believed them to be,” the defendant was guilty of committing the crime, even thought it was impossible for him to be guilty of the crime itself. The defendant is thus guilty of an attempt of that crime.

Distinction between attempt impossibility and mitigation of guilt for the actual crime due to mistake of fact: whether the fact at issue is true or false.
(a) If the fact is true, then the defendant could indeed have committed the crime. Charge the actual crime and excuse with the mistake of fact defense.
(b) If the fact is false, then the defendant could not have committed the crime. Charge attempt via impossibility.

Here, the “girl” Gladish thought he was talking to was an adult government agent. He cannot be found guilty of solicitation of a minor, but he can be found guilty of attempted solicitation of a minor via impossibility.

Question 55

Case law: theft

Answer 55

(1) State v. Moon: Embezzlement = theft of funds entrusted to you by your employer. Theft = taking the property of another with the intent to permanently deprive

(2) People v. Perry: “use of a hotel room” is property, and Perry used deception to deprive the hotel of its value permanently

Question 56

Smallwood v. State

Answer 56

🍆💉

A necessary element of attempted murder is the intent to kill. Intent to kill may be inferred from circumstantial evidence:
(a) Defendant’s conduct has natural and highly probable consequence of the result occurring
(b) Defendant’s words indicate the result was desired
(c) Defendant used a deadly weapon directed at a vital part of the body (under the proper circumstances)

Here, death by AIDS was not a sufficiently probable result of Smallwood’s actions (unprotected sexual intercourse despite knowing he was HIV+) to infer the requisite intent to kill that would support an attempted murder conviction.

Question 57

United States v. Shabani

Answer 57

💊🤝

21 U.S.C. § 846 the drug conspiracy statute does not require the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy.

Here, Shabani could be convicted of drug conspiracy even in the absence of an overt act toward the furtherance of the conspiracy.

Question 58

Defenses & Justifications

Answer 58

Defenses:
Mistake of Law = generally not an excuse, unless
(a) Mistake of other law (Rehaif, Varszegi)
(b) Reasonable reliance on court order (Ostrosky)

Mistake of Fact = can be an excuse because it prevents the culpable mindset needed to be guilty of a crime
(a) Specific intent crime = earnest belief in mistaken fact (Oglivie false official statements)
(b) General intent crime or knowledge = earnest AND reasonable belief in mistaken fact (Oglivie Bigamy, Moran copyright violation, Cheek tax violation, Luke trespassing
(c) Impossibility = mistaken fact means they are guilty of attempt but not the substantive crime (Gladish)

Ordinary Self-Defense
(i) reasonable belief
(ii) immediately necessary
(iii) to prevent against imminent use of unlawful force by the victim
(iv) defendant was not initial aggressor
(v) defendant used proportionate force

Deadly Force Self-Defense
(i) reasonable belief
(ii) immediately necessary
(iii) to protect against imminent use of deadly force OR felony (rape, arson, robbery, kidnapping)
(iv) victim was the one threatening the imminent deadly force (victim was not an innocent bystander)
(v) defendant was not initial aggressor
(vi) duty to retreat (some jurisdictions)

Justifications:
Provocation/Extreme Emotional Distress
(i) provocation came from victim
(ii) defendant’s distress so severe it eclipsed their ability to reason
(iii) a reasonable person would have been so provoked that their ability to reason was eclipsed
(iv) no cooling-off period between provocation and event causing death

Question 59

Legal consent

Answer 59

Legal consent has to do with whether an individual has the capacity to understand the act and its consequences and make a decision about whether to participate.

Individuals do not have the legal capacity to consent when:
- Severely intoxicated (People v. Giardino)
- Unconscious
- Mental disorder
- Developmental disability
- Physical disability

mens rea regarding legal capacity to consent = negligence (a person should be aware of whether or not another person has the capacity to consent)

Reasonable mistake of fact is a defense for legal consent. Can consider subjective things alongside reasonable person standard.

Question 60

State v. Holmes

Answer 60

👧⛔️

For a charge of statutory rape, the age of the victim is strict liability. It does not matter whether the defendant knew the age of the victim or not.

Mistake of fact as to the age of the victim is not a defense.

Most states allow a defense if the defendant is close in age to the victim (3-5 years).

Here, statutory rape is a strict liability crime, mistake of age is not a defense, and Holmes’ conviction is affirmed.

Question 61

State ex rel. Thomas

Answer 61

🚗🚗☠️

Involuntary manslaughter = recklessly causing the death of another (did not intend to cause death, but aware of the facts which create the risk that death will occur and consciously disregarded that risk)

Here, the court chooses to admit evidence showing that Reagan did not have the requisite mens rea of recklessness because he was being chased, and thus unable to recognize and disregard the risk of death occurring. This evidence would support a justification defense (self-defense or duress) which is not available to Reagan because his actions resulted in the death of a third party, not the aggressor, but the evidence will not be considered for that purpose.

Question 62

Wilcox v. Jeffrey

Answer 62

🎷

Aiding and abetting (a.k.a. Complicity) is a mechanism for convicting an accomplice of a substantive crime. The substantive crime must have occurred to convict an accomplice of aiding and abetting it.

Elements:
(1) Purpose for the target crime to occur
(2) Intentional conduct which aids or encourages the perpetrator of the crime
(2) Specific intent that the conduct would encourage or help bring about the crime

Here, Wilcox paid for a ticket to the show and did not protest it. Thus, he (and everyone in the audience) is guilty of aiding and abetting Hawkins in working without legal permission.

Question 63

Case Law: Constructive Possession

Answer 63

To prove constructive possession, the state must show that the defendant knowingly had the power and intention to exercise control over the drug.

The defendant’s conduct or circumstantial evidence must show that the defendant must know:
(i) the drug was present
(ii) the drug was a controlled substance
(iii) the weight of the drug (pure or aggregate weight, when applicable)
(iv) they had the ability to exercise control over the drug

Possession alone does not prove knowledge.

Cases:
(1) Kier: elements not met for joint on the floorboard

(2) Hunte: All members of the group had joint possession of the drugs

(3) Pigford: Possession can be inferred from the fact that the defendant had
(1) dominion AND
(2) control
over his trailer and its contents (which included the marijuana).

(4) Garcia: Guilty knowledge includes knowledge of both
(1) the presence of and
(2) the illicit nature of
the substance possessed.

(5) Ryan: (1) Defendant has to know the pure weight of the drug he possessed.
(2) Knowledge of the pure weight of the drug possessed can be inferred from evidence like negotiations concerning weight, potency, price, or number of doses.

Question 64

McBoyle v. United States

Answer 64

✈️≠🚗

An airplane is not a “vehicle” within this statute, because the specific examples of the term “motor vehicle” evoke only images of vehicles moving on land

“McBoeing”

Question 65

Carter v. United States

Answer 65

🥊≠💰

The elements of a lesser included offense must be a subset of the elements of the greater charged offense (the lesser offense cannot include any elements which are not included in the greater offense).

Here, a bank robber is unsuccessful in arguing for larceny as a lesser included charge of robbery because larceny includes three elements which are not included in robbery.

“Cart full of money from the bank”

Question 66

Statute: Possession with Intent to Distribute

Answer 66

(i) knowingly or intentionally
(ii) possess
(iii) a controlled substance
(iv) with intent to distribute

Mens rea = knowingly or intentionally for all
United States v. Hunte

Question 67

Statute: Aiding & Abetting a Suicide

Answer 67

Elements:
(i) deliberately
(ii) aids or advises or encourages another (intentional conduct which is intended to encourage)
(iii) to commit suicide

Mens Rea:
Statute specifies deliberately (purposely); apply to all material elements

Felony
In re. Joseph G.

Question 68

People v. Goetz

Answer 68

🚇🔫

A person is justified in using deadly force self-defense when he reasonably believes that another person is using/about to use deadly physical force against them OR another person is attempting to commit an enumerated felony, including robbery

Here, Goetz may have been justified in using deadly force against the first three teens who approached him to ask for money/rob him. It is unlikely that he was justified in using deadly force against the fourth teen, who never approached him and who he shot twice.

Question 69

State v. Pacheco

Answer 69

👮‍♂️🤫

MPC normally allows unilateral conspiracies, but this particular conspiracy statute requires a bilateral agreement. Sacharoff thinks unilateral conspiracy misses the point of punishing conspiracy because “two criminals working together are more dangerous than one.”

Conspiracy to commit murder requires a mutual agreement between two or more persons. If one of those persons is an undercover agent who does not actually want the crime to occur, then no conspiracy existed. (Not the rule in all jurisdictions).

Here, Pacheco conspired (unknowingly) with an undercover police officer. Thus, he cannot be convicted of conspiring with the officer.

Question 70

Case law: Robbery

Answer 70

(1) State v. Keeton: intent (to threaten force) may be inferred from the circumstances of the transaction and actions of the defendant.

(2) Carter v. United States: bank larceny is not a lesser included offense of bank robbery because it contains three elements that bank robbery does not contain.
Both robbery and larceny:
- takes
- any thing of value
- belonging to/in possession of any bank

Larceny but not robbery:
- carries away
- intent to steal or purloin
- value exceeding $1,000

Question 71

In re. Joseph G.

Answer 71

🚗⛰️

If (i) a mutual suicide pact is genuine, (ii) the instrumentality of death is the same for both parties to the pact, and (iii) the attempted death is simultaneous, the survivor of the act is guilty of aiding and abetting a suicide rather than murder

Question 72

Pinkerton v. United States

Answer 72

🧾🤥

Pinkerton Doctrine = once a conspiracy has been formed, the acts of one co-conspirator are the acts of all co-conspirators, both for the purposes of proving conspiracy and proving the substantive crime. Under the Pinkerton doctrine, all co-conspirators can be convicted of the substantive crime no matter how remote their involvement was.

There is no merger problem with charging both conspiracy to commit the substantive offense and committing the substantive offense itself.

Here, though Daniel was in prison when his brother Walter committed tax fraud, the fact they conspired to commit tax fraud means that Daniel is guilty of committing the tax fraud himself.

Question 73

United States v. Santos

Answer 73

💰🧼🧺

“Proceeds” in money laundering statute means “profits,” not “receipts,” because that interpretation is more favorable to defendants

“Santos was a saint so he gets the rule of lenity”

Question 74

People v. John Z.

Answer 74

✅…⛔️

Rape = sex without consent at the time of penetration. If consent is first given and then later withdrawn, then the withdrawal of consent nullifies any earlier consent. Forcible persistence in what has then become nonconsensual intercourse is rape.

Holding:
(1) Consent can be withdrawn
(2) If consent is withdrawn, the perpetrator may or may not have a reasonable time to stop the activity (reasonable time may or may not be a defense)

What must be proved for rape:
(1) Consent is withdrawn
(2) A reasonable person would know that consent had been withdrawn
(3) The defendant continued the act after consent was withdrawn
(4) The defendant used force after consent was withdrawn

Here, if in fact Laura did initially give consent, substantial evidence shows that she withdrew it and John Z. persisted anyway. Thus, he is guilty of rape.

Question 75

Paschal v. State

Answer 75

👨‍🏫

Ar. Code § 5-14-125(a)(6) prohibiting sex between teachers and students under 21 years of age criminalizes consensual sexual intercourse between adults, and thus infringes on the Constitutional right to privacy.

Relationship of trust and authority is not a part of the statute.

Here, a teacher had a months-long affair with a student the school where he taught, but because she was a legal adult and consented, he was not guilty of statutory rape.

Question 76

Statute: Extortion

Answer 76

(i) Intent to extort money
(ii) Threat to injure property or reputation
(iii) Unless money or other consideration given
(iv) Person making the demand has no rightful legal claim to the money
(v) Money demanded has no nexus with the threat made (they don’t tie together in any way, and if the threat is made good on, the purpose of getting money will be defeated rather than accomplished)

Question 77

State ex rel. Kuntz

Answer 77

🔪📞

American Bystander Rule = a bystander has no legal duty to rescue or summon aid for another person. In other words, if you fail to act, and your failure to act causes the death of another person, then you are not guilty of criminal homicide.

Exceptions: (definitely know the two starred items)
* If you created the peril*
* If you have a special relationship with the victim*
* Statute creates a duty
* Contractual relationship
* Voluntary assumption of care
* Landowner
* Control the conduct of others

Exception to the exception: if you have a duty to save/call for help, but you yourself are unsafe, then your duty to save/call for help does not kick in until you have reached safety for yourself.

Here, Kuntz had a special duty because she had a husband-wife relationship with Becker. However, she did not have a duty until she herself was safe.

Question 78

mens rea terms

Answer 78

(1) “Willfully”/general intent = a voluntary, intentional violation of a known legal duty (MPC equates this to “Knowingly”)

(2) Specific intent = the intent to perform some act along with the desire to produce some result/harm (MPC treats specific intent as an attendant circumstance element)

(3) “Deliberately” (Joseph G) = a purposeful act done in order to produce some additional harmful result, perhaps also with deliberation in advance (MPC = use “Purposely”)

(3) “Maliciously” (V.V.) = no fixed meaning, but can usually be satisfied by MPC knowingly or purposely

(4) Purposely = conscious object to engage in conduct of that nature, to cause such a result, or knows or hopes that an attendant circumstance exists.

(5) Knowingly = aware that his conduct is of that nature (illegal/violates a known legal duty), that it is practically certain that his conduct will cause such a result, or is aware that an attendant circumstance exists. Can also be satisfied by willful blindness.

(6) Recklessly = consciously disregards a substantial risk that the material element exists or will result from his conduct

(7) Negligently = should be aware of a substantial risk that the material element exists or will result from his conduct

(8) Strict liability = guilty regardless of state of mind. Applies to regulatory crimes (see Balint test) or when a crime/element expressly made strict liability by legislature. MPC does not accept strict liability in any circumstance.

Question 79

Statute: Theft

Answer 79

Elements
(i) takes possession or control
(ii) of the property of another or property in possession of another
(iii) with the intent to permanently deprive the other thereof

Mens Rea = silent
MPC = Recklessly for (i) and (ii)
Staples = Knowingly for (i) and (ii)

Question 80

People v. Sparks

Answer 80

➡️🚪💭

A bedroom within a single-family home is a “room” within the meaning of the CA burglary statute. Intent can be formed after the defendant’s entry into the house. If it is formed prior to the defendant’s entry into the room, they are guilty of burglary.

Question 81

People v. V.V.

Answer 81

🎇🔥🧑‍🚒

Malice = knowledge (intentional conduct, knowing that the harm was likely occur)

Malice may be presumed or inferred from the intentional doing of the act without justification or excuse or mitigating circumstances

“V.V. bad fireworks”

Question 82

People v. Cowden

Answer 82

💡

The value of property stolen determined what level of offense Cowden could be charged with

“Cow lamp”

Question 83

Yates v. United States

Answer 83

🎣➡️🌊

A fish is not a “tangible object” within the Sarbanes-Oxley Act destruction of evidence statute. Ejusdem generis can be supported by plain meaning and contextual usage of the term in other related statutes.

“Enron fish”

Question 84

Statutory Interpretation

Answer 84

1. Plain meaning
2. Contextual meaning
3. Legislative intent (as determined by the structure of the statutes around it)
4. Grading/merger problem/surplussage
5. Absurdity
6. Ejusdem generis
7. Rule of lenity

Question 85

Aiding & Abetting (Complicity)

Answer 85

Aiding and abetting (a.k.a. Complicity) is a mechanism for convicting an accomplice of a substantive crime.

Elements:
(1) Intentional conduct which aids or encourages the perpetrator of the crime
(2) Specific intent that the conduct will encourage or help bring about the crime

Question 86

Statute: Common Law Burglary

Answer 86

Elements:
(i) breaks and enters
(ii) dwelling
(iii) at night
(Iv) with the intent to commit a felony therein

Mens rea:
(i) specific intent to commit a felony
(ii) otherwise, statute silent; apply recklessly

Question 87

Wooten v. Superior Court

Answer 87

👯‍♀️

Pimping is soliciting another person for sex work in order to support your own livelihood. Pandering is procuring another person for the purpose of prostitution and causing them to remain in the business by promises/threats/etc.

Prostitution is the predicate offense for both of these crimes. It involves (1) a lewd act (2) between the prostitute and the customer, (3) in exchange for money or other consideration

Question 88

People v. Stark

Answer 88

👷‍♂️💸

If the definition of a crime consists only of the description of conduct, without reference to do a further act, it is a general intent crime.

Here, the only act the statute describes is the diversion of funds, and there is no reference to a specific intent to permanently deprive the rightful owner of the funds. It is immaterial whether Stark intended to pay back the funds or not, just that he diverted them from their designated purpose.

“Construction Ponzi scheme”

Question 89

United States v. Avenatti

Answer 89

✓💸

The Jackson rule applied:
(1) Lawyer had no rightful legal claim to money from Nike (especially not that much money)
(2) Lawyer’s threat had no nexus to the demanded payment (if he disclosed the information, he would lose his leverage)

“Just don’t do it, Harvey Spector”

Question 90

United States v. Jackson (attempt)

Answer 90

🏦🕵️🕵️‍♂️

MPC Approach for attempt: To be guilty of an attempt, you must (1) intend the completed crime and (2) take a “substantial step” toward its completion

Mens rea:
(1) Purpose to do the conduct of the intended crime; AND
(2) mens rea required for the attendant circumstance and/or harm element of the intended crime

Conduct:
(1) “Substantial steps” taken towards accomplishment of the crime; AND
(2) Conduct is highly corroborative of the person’s criminal purpose (conduct furthers the purpose of committing the crime)

Here, Jackson and co. are guilty of attempted robbery because their conduct strongly corroborated their criminal purpose and were substantial steps toward its accomplishment.

Question 91

American Bystander Rule

Answer 91

No legal duty for a person to rescue or summon aid for another person. If you see someone in peril and fail to act to help them, and your failure to act causes them to die, you are NOT guilty of criminal homicide.

Exceptions: A failure to act can give rise to criminal liability when a particular relationship exists between the victim and the bystander:
(1) Duty based on personal relationship (parent-child, husband-wife, etc.)
(2) Duty based on statute
(3) Duty based on contract
(4) Duty based on voluntary assumption of care
(5) Duty based on creation of the peril
(6) Duty to control the conduct of others
(7) Duty based on being a landowner

Exception to the exception: if you have a special duty to summon aid BUT you yourself are in an unsafe condition, then you do NOT have a duty to summon aid UNTIL you yourself are safe.

Kuntz case: Kuntz had a husband-wife relationship with Becker event though they were not legally married. Additionally, she created the peril by stabbing him, thus she had a duty to summon aid. However, because she was herself in an unsafe position, she did not have a duty to summon aid until she reasonably thought she was safe.

Question 92

People v. Kellogg

Answer 92

🥴🏘️

It is not permissible under the 8th Amendment for a state to impose criminal punishment because of a person’s condition of being a homeless alcoholic, but it IS permissible to impose criminal punishment when the addict engages in conduct which spills into public areas

Question 93

People v. Giardino

Answer 93

🥴🍆

Actual consent is not sufficient by itself to establish a defense to a charge of rape.

The victim also must have had the legal capacity to understand the act and give legally cognizable consent voluntarily and freely. The mens rea associated with legal capacity to consent is negligence (because a reasonable person would be able to identify a risk that the other party lacked the capacity to consent).

A person can be sufficiently intoxicated to deprive them of their ability to exercise reasonable judgment and thus render them incapable of giving legal consent.

Here, there is substantial evidence that the victim actually consented and that she possessed the legal capacity to do so.

Question 94

Whitaker v. People

Answer 94

🚌💊🤷

The drug possession and importation statutes specified knowledge as the mens rea, and thus knowledge should apply to all material elements under the MPC.

However, here the court determined that the legislature indicated a clear contrary purpose by the structure of the statute. Thus, the court applied strict liability to the knowledge of the quantity of the controlled substance.

Question 95

Gray v. Kohl

Answer 95

🚌🔲

A statute is void-for-vagueness (unconstitutionally vague) when:
(1) the statute fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden
(2) the statute encourages arbitrary and/or discriminatory enforcement because it allows for discretionary rather than standardized enforcement

Here, the School Safety Zone statute is unconstitutionally vague because it leaves ordinary citizens to guess at whether their reason for being in the zone is “legitimate.” The statute also gives law enforcement unbridled discretion in enforcement because it contains no standard to ascertain whether a person is within the zone on “legitimate business.”

Question 96

Statute: Keeping intoxicating liquors in a motor vehicle

Answer 96

(i) driver of a motor vehicle
(ii) owner not present
(iii) keep or allow to be kept in a motor vehicle
(iv) when such vehicle is upon the public highway
(v) any bottle or receptacle containing booze
(vi) which has been opened

Mens rea:
Silent; normally apply recklessly, but here, apply strict liability because it is a traffic offense (regulatory)

Misdemeanor
State v. Loge

Question 97

United States v. Hale

Answer 97

🧑‍🦯

Two part rule for willful blindness: a defendant must
(1) subjectively believe that there is a high probability that a fact exists
(2) take deliberate actions to avoid learning that fact

“Ah hale naw the goods weren’t stolen”

Question 98

Hicks v. United States

Answer 98

🤠🔫

Aiding and abetting (a.k.a. Complicity) is a mechanism for convicting an accomplice of a substantive crime when the accomplice could not otherwise have been convicted of it because they did not do the conduct themselves.

Elements:
(1) Intentional conduct which aids or encourages the perpetrator of the crime
(2) Specific intent that the conduct will encourage or help bring about the crime

Here, Hicks was not convicted of aiding and abetting murder because there was insufficient evidence to show that Hicks intended to encourage Rowe to kill Colvard.

Question 99

Ordinary self-defense

Answer 99

Non-deadly force

i. reasonably believes
ii. immediately necessary
iii. to protect against imminent use of unlawful force (not in response to words alone or to resist arrest)
iv. force defendant used is proportionate to force used against the defendant
v. defendant was not the initial aggressor

Question 100

Statute: Operating a motor vehicle without consent

Answer 100

Elements
(i) takes possession or control of
(ii) any self-propelled vehicle
(iii) the property of another
(iv) without the consent of the owner of such
(v) without the intent to permanently deprive the owner thereof

Mens rea = silent; apply recklessly

Aggravated misdemeanor

Question 101

People v. Jacques

Answer 101

🤺

A fenced-in area is not a “structure” within the entering without breaking statute. Steps:
(1) Plain meaning
(2) ejusdem generis (unless a contrary purpose appears)

“Jaques says en garde when he fences”

Question 102

United States v. Balint

Answer 102

💊🧾

Strict Liability applies to regulatory offenses. Multi-factor test for identifying regulatory offenses:
(a) purpose = prevent a possible future harm (malum prohibitum) rather than punish conduct which is dangerous in itself (malum in se)
(b) conduct/item in question puts a person on notice that it is likely highly regulated
(c) legal classification of something (immigration status, type of drug, etc.)
(d) carries less harsh penalties
(e) statute is silent regarding mens rea
(f) strict liability does not “sweep in a broad range” of apparently innocent conduct

“IRS form for opium sales”

Question 103

Commonwealth v. Coleman

Answer 103

🔫🚗

1st degree murder = intentionally causing the death of another person after premeditation (“cool reflection”)

Intent to kill can be inferred from the defendant’s conduct.

There is no set period of time that constitutes premeditation. Seconds are enough, as long as the resolution to kill must be formed prior to the blow being struck.

Here, Coleman’s walking to his car to get a gun constituted the requisite premeditation for a murder charge, even though the killing occurred in the heat of the moment during a brawl outside of a nightclub.

Question 104

Interstate v. United States

Answer 104

🎥🤑

To prove conspiracy, you must prove that an agreement exists, but you can prove it circumstantially.

Here, conspiracy to fix movie showing prices between distributors and theaters was easily proved through the letters and conduct of the people involved

Question 105

Statute: Robbery

Answer 105

Elements:
(i) steals
(ii) the property of another
(iii) by force or threat of force

Mens rea = silent
MPC = Recklessly for all
Staples = Knowingly for all

Question 106

Staples v. United States

Answer 106

🔫🪪

A defendant must know the facts that make his conduct illegal. If an element divides innocent conduct from guilty conduct, then there must be a mens rea to that element, and it can be no lower than knowingly

Test: if you remove an element from the definition of the crime, is the conduct still illegal? (example: Any person who sells drugs within 500 feet of a school - if the proximity to the school is removed, the conduct of selling drugs is still illegal, so knowingly doesn’t apply to that element)

Question 107

Statute: First-Degree Murder

Answer 107

(i) causing the death of another;
(ii) deliberately, after pre-meditation (“cool reflection)

Question 108

Attempt (impossibility)

Answer 108

Same as the MPC definition for attempt, but due to a mistake of fact, the crime was not actually committed.

“Under the facts as the defendant believed them to be” the defendant was guilty of committing the crime. This person is not actually guilty of committing the crime, because the fact was not true (it was impossible for them to actually have committed the crime), but they are guilty of attempting to commit the crime.

(United States v. Gladish)

Question 109

Deadly force self-defense

Answer 109

Force likely to cause death or serious bodily injury, OR force that results in death even though not intended/expected to do so

i. reasonably believes
ii. immediately necessary
iii. to protect against imminent use of deadly force (not merely in retaliation) OR to protect against commission of an enumerated felony (robbery, rape, kidnapping, arson)
iv. (in some jurisdictions only) duty to retreat if you can do so in complete safety unless you are in your home (castle doctrine)
v. defendant was not initial aggressor

Deadly force in defense of home: justified when the intruder is threatening a violent crime, whether or not they are threatening to use deadly force against the occupant

Question 110

People v. Ryan

Answer 110

🍄⚖️

(1) Statute specifies knowledge, so the defendant had to know the pure weight of the drug possessed to be guilty.
(2) Knowledge of the pure weight of the drug possessed can be inferred from evidence like negotiations concerning weight, potency, price, or number of doses.
(3) Post-Ryan statute: knowledge of aggregate weight not required, but knowledge requirement for pure weight stands

Question 111

State v. Varszegi

Answer 111

🖥️🖨️💰

Mistake of Law defense: because the defendant did not know that his lease provision allowing him to seize and sell his tenant’s property was not valid under the statutes governing leases, he believed he was entitled to her property and therefore did not act with the felonious intent needed to prove the crime.

“How Varsze-gonna go to punish his tenant?”

Question 112

United States v. Oglivie

Answer 112

👰👰‍♀️

(1) False official statement = specific intent crime. If Oglivie honestly believed something was true (i.e. that he was divorced) then he had no intent to deceive another because he didn’t think he was lying. Found not guilty because his belief was earnest.
(2) Bigamy = general intent crime. A mistake of fact (i.e. whether he was divorced) is only an excuse if the belief is both honest and reasonable. Found guilty because his belief was not reasonable.

Question 113

Statute: Theft (Moon)

Answer 113

Elements:
(i) obtains or exercises unauthorized control over
(ii) the property of another
(iii) with the intent to permanently deprive him thereof

As used in this section, “exercises unauthorized control” includes but is not limited to trespassory taking, larceny by conversion, larceny by bailee and embezzlement.

Mens rea = silent
MPC = recklessly for (i) and (ii)
Staples = knowingly for (i) and (ii)

State v. Moon

Question 114

Conspiracy (supplier)

Answer 114

A supplier of goods or services used in the commission of a crime is a conspirator for that crime when:

(1) The entire purpose of his business or sole use of his products/services is to further illegal activity; OR

(2) The vendor knows of the criminal use to which is goods and services are put AND
(a) There is direct evidence that he intended to participate in the enterprise OR
(b) He acquires a special interest in the enterprise by sharing the profits or charging a premium for illegal use

Question 115

Commonwealth v. Acevedo

Answer 115

🏡🥊☠️

Voluntary manslaughter = intentionally causing the death of another with malice aforethought BUT with an excuse (provocation, sudden combat, extreme emotional distress) that lowers the charge from second-degree murder.

Provocation excuse elements:
(1) Provocation must come from the victim;
(2) Defendant was subjectively provoked to act because their extreme emotional distress “eclipsed their ability to reason;”
(3) A reasonable person in the circumstances would be provoked such that their extreme emotional distress “eclipsed their ability to reason;” and
(4) There was no cooling off period (or no change of location) between the provocation and the act which caused the death

Here, because Acevedo was surrounded in the fight outside of the house party, he was repeatedly punched in the head, he was knocked to the ground, and he had not chance for his emotions to cool, there was evidence in support of provocation.

Question 116

Statute: Diversion of Construction Funds

Answer 116

Elements:
(i) receives money for the purpose of obtaining or paying for services, labor, materials or equipment
(ii) willfully fails to apply such money for such purpose by either
(iii)(a) failing to complete the improvement or
(iii)(b) failing to pay for service, labor, materials or equipment
(iv) wrongfully diverts the funds to a use other than that for which the funds were received

Mens rea:
Statute specifies willfully (general intent, knowledge); apply to all material elements.

This is NOT a theft statute. There is no element of intent to permanently deprive.

Public offense
People v. Stark

Question 117

State in the interest of M.T.S.

Answer 117

🍆✅

Rape = sex without consent, and no force is required beyond that which is necessary to achieve penetration. Consent = (1) freely given (not coerced); AND (2) affirmative (the word “yes,” or other conduct from which affirmative consent can be inferred)

This is the “modern” approach, but it shifts the burden of proof to the defendant and puts the victim on trial.

Here, the victim had not affirmatively and freely expressed consent to intercourse with the defendant, and thus he is guilty of rape

Question 118

Garcia v. State

Answer 118

⚾️🤷

Guilty knowledge includes knowledge of both
(1) the presence of and
(2) the illicit nature of
the substance possessed.

The jury found that Garcia knew of the presence of the item, but did not find on whether he knew of the illicit nature of the substance possessed. Garcia should not have been convicted without the jury finding him guilty of the latter.

“Meth softball”

Question 119

State v. Keeton

Answer 119

💵🥊

Assault =
(i) Purposely
(ii) Cause bodily injury to another
(iii) Cause another to fear imminent bodily injury

Intent to injure/cause another to fear injury may be inferred from the circumstances of the transaction and actions of the defendant.

Here, Keeton’s actions were sufficient to support the inference that Keeton had intent to make contact with or threaten the clerk in a manner meeting the definition of assault.

“Heisman”

Question 120

Statute: Criminal Trespass

Answer 120

5 Elements
(i) knowingly
(ii) enters or remains unlawfully
(iii) in a building or upon real property
(iii)(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders; or
(iii)(b) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry or use thereof

Mens Rea = knowingly for all elements

Criminal Trespass in the 3rd degree

Question 121

Felony Murder Rule

Answer 121

(1) A defendant is guilty of first degree murder when they cause the death of another during the commission of an enumerated felony (robbery, arson, rape, kidnapping)

(2) A defendant is guilty of second degree murder when they cause the death of another during the commission of an unenumerated, but inherently dangerous felony

Limits:
(1) Billa Rule: (i) present at the scene; (ii) actively participated in actions furthering the conspiracy; and (iii) actions furthering the conspiracy caused the death
(2) Mitchell Rule: (i) abstract or (ii) factual approach for determining whether a felony is inherently dangerous
(3) Merger Doctrine: If the defendant’s primary purpose in committing the felony was to cause the injury which led to death, then the felony murder rule cannot be used to charge them with murder on top of the felony. Felonies excluded = assault, child negligence, reckless homicide, negligent homicide.

Question 122

Statute: Assault

Answer 122

(i) Purposely;
(ii) Cause bodily injury to another; OR
(iii) Cause another to fear imminent bodily injury

Question 123

Actual Consent

Answer 123

(i) Freely and affirmatively given
(ii) Reasonable person would understand consent given/not given
(iii) Can be withdrawn

Mens rea = negligence (a reasonable person would be aware of a risk that consent had not been given, so the defendant should be aware as well)

Question 124

Provocation/Extreme Emotional Distress

Answer 124

(i) caused by victim
(ii) eclipsed defendant’s ability to reason
(iii) a reasonable person would have been provoked such that their ability to reason was eclipsed
(iv) no cooling off period between provocation and act causing death