LA BAR EXAM NON-CODE TOPIC 3 CRIMINAL LAW

Question 1

Second-Degree Murder; Not First-Degree Murder.

Answer 1

The crime of “first degree murder” was not committed. This crime includes the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm, and the offender is engaged in the perpetration or attempted perpetration of various enumerated felonies, including aggravated burglary. [La. Rev. Stat. 14:30(A)] Here, Kimberly and Nathan killed Heather during the commission of the crime of “aggravated burglary,” an “enumerated felony.” However, neither offender had the “specific intent to kill or inflict great bodily harm” on any human being. Rather, they tried to scare Heather rather than to kill her. Because this unintentional homicide occurred during the commission of a felony enumerated in the second-degree murder statute (aggravated burglary), though, both are guilty of second-degree murder (also known as felony murder). [La. Rev. Stat. 14:30.1]

Remember that felony murder may be first or second degree murder. If the defendant had the intent to kill or inflict great bodily harm, the felony murder is first degree. If the defendant did
not have that intent, the felony murder is second degree.

Question 2

Aggravated Battery.

Answer 2

Aggravated battery is a battery committed with a dangerous weapon. [La. Rev. Stat. 14:34(A)] Here, Kimberly committed aggravated battery on Heather when she struck Heather on the head with a bottle of liquor from the bar. A bottle used in that manner is a “dangerous weapon” because “in the manner used,” it was “calculated or likely to produce death or great bodily harm.” La. Rev. Stat. 14:2(A)(3)]

Question 3

Aggravated Assault with Firearm.

Answer 3

Aggravated assault with a firearm is an assault committed with a firearm. [La. Rev. Stat. 14:37.4] “Assault” includes the intentional placing of another in reasonable apprehension of receiving a battery. [La. Rev. Stat. 14:36] Here, Kimberly and Nathan committed this crime when Kimberly pointed the revolver (given to her by Nathan) at Heather.

Question 4

False Imprisonment with Dangerous Weapon.

Answer 4

False imprisonment while armed with a dangerous weapon is the unlawful intentional confinement or detention of another while the offender is armed with a dangerous weapon. [La. Rev. Stat. 14:46.1(A)] Here, Kimberly and Nathan committed this crime when they held Heather at gunpoint and then tied her to a chair.

Question 5

Aggravated Burglary.

Answer 5

“Aggravated burglary” includes the unauthorized entering of any structure where a person is present with the intent to commit a felony or any theft therein, and when the offender is armed with a dangerous weapon or commits a battery during the burglary. [La. Rev. Stat. 14:60] Here, Nathan and Kimberly entered Heather’s condominium when they were not authorized to enter. A person was present at the time, namely Heather. Kimberly held Heather at gunpoint, so she was armed with a dangerous weapon. Finally, Kimberly and Nathan made their entry with the intent to commit a theft and several felonies inside, including, among others, (1) theft of Heather’s bracelet, (2) aggravated assault with a firearm, (3) false imprisonment of Heather with a dangerous weapon, and (4) simple criminal damage of property worth over $500. This constitutes “aggravated burglary.” [La. Rev. Stat. 14:62.6(A)]

Question 6

Simple Criminal Damage to Property.

Answer 6

The crime of simple criminal damage to property is the intentional damaging of property of another without consent by means other than fire or explosion.
[La. Rev. Stat. 14:56] Nathan committed this crime by kicking Heather’s car and “leaving a significant dent.” He also committed this crime when he “rammed” a police car. Kimberly committed this crime by smashing Heather’s iPad and iPhone with her revolver.

Question 7

Criminal Trespass.

Answer 7

“Criminal trespass” includes the entry upon immovable property owned by another without express, legal, or implied authorization. [La. Rev. Stat. 14:63] Here, Nathan and Kimberly entered an area of the condominium marked “Maintenance Only.” Given that they had no authority to enter this area, they committed the crime of criminal trespass.

Question 8

Theft.

Answer 8

“Theft” is the misappropriation or taking of anything of value which belongs to another without consent and with the intent to permanently deprive. [La. Rev. Stat. 14:67(A)] Here, Kimberly committed theft by taking Heather’s diamond tennis bracelet off of her nightstand.

Question 9

Felon with a Firearm.

Answer 9

It is unlawful for a person who has been convicted of a felony crime of violence or a felony drug possession crime to possess a firearm. [La. Rev. Stat. 14:95.11 Here, Kimberly possessed a gun after having been convicted of aggravated battery - a crime of violence. She is a felon with a firearm.

Question 10

Illegally Supplying a Felon with a Firearm.

Answer 10

Illegally supplying a felon with a firearm is the intentional giving, selling, donating, providing, lending, delivering, or otherwise transferring a firearm to any person known by the offender to be a person convicted of a felony and prohibited from possessing a firearm as provided for in La. Rev. Stat. 14:95.1. Here, if Nathan knew of Kimberly’s prior conviction for aggravated battery, he committed this crime by giving Kimberly the revolver.

Question 11

Computer Tampering.

Answer 11

“Computer tampering” is the intentional commission of any of the actions enumerated in this subsection when that action is taken knowingly and without the authorization of the owner of a computer: (1) Accessing or causing to be accessed a computer or any part of a computer or any program or data contained within a computer.” [La. Rev. Stat. 14:73.7(A)(1)] Here, Nathan committed this crime when he “hacked into Heather’s email account” without authority.

Question 12

Stalking.

Answer 12

The crime of “stalking” includes the intentional and repeated harassing of another person in a manner that would cause a reasonable person to feel alarmed or to suffer emotional distress It includes distress caused by threats of death or bodily injury. [La. Rev. Stat. 14:40.2] Here, Kimberly threatened Heather repeatedly, including via email and in person, with threats of death or bodily injury.

Question 13

Criminal Conspiracy.

Answer 13

“Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination. [La. Rev. Stat. 14:26] Kimberly and Nathan agreed to commit a number of crimes jointly. They performed at least one overt act in furtherance of their conspiracy. They are both guilty of “criminal conspiracy.”

Question 14

Obstruction of Justice.

Answer 14

The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described: (1) tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. [La. Rev. Stat. 14:130. 1] Here, Nathan and Kimberly committed this crime by dropping cocaine in Heather’s apartment to frame her.

Question 15

Flight from an Officer.

Answer 15

Flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. [La. Rev. Stat. 14:108.1] Here, Nathan refused to stop his car after the police officer activated
“emergency lights and siren” and ordered Nathan to stop. This was “flight from an officer.”

Question 16

Reckless Operation of a Vehicle.

Answer 16

Reckless operation of a vehicle is the operation of any motor vehicle, aircraft, vessel, or other means of conveyance in a criminally negligent or reckless manner.
[La. Rev. Stat. 14:99] Here, Nathan engaged in the reckless operation of his car by “ramming” a police car and by engaging in a “high speed chase.”

Question 17

Hit and Run Driving.

Answer 17

Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid. [La. Rev. Stat. 14:100] Here, Nathan hit a police car and failed to stop.

Question 18

Possession of CDS.

Answer 18

Nathan and Kimberly possessed both “marijuana” and “cocaine.” As a result, they both can be charged with simple possession of a controlled dangerous substance.

Question 19

Possession of CDS with Intent to Distribute.

Answer 19

Kimberly possessed “marijuana” and gave a joint to Nathan. As a result, she can be charged with possession of a controlled dangerous substance with intent to distribute.

Question 20

Driving While Intoxicated.

Answer 20

The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: the operator is under the influence of alcoholic beverages; or, the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in La. Rev. Stat. 40:964. [La.
Rev. Stat. 14:98] Here, Nathan operated his automobile during and after smoking marijuana.

Question 21

Second degree battery.

Answer 21

Kyle can be charged with second degree battery. Battery is the intentional use of force or violence on the person of another.
Second degree battery is a battery committed when the offender intentionally inflicts serious bodily injury, including unconsciousness. Here, Kyle intentionally punched Michael in the jaw and knocked him unconscious. Therefore, Kyle should be charged with second degree battery.
Kyle may argue that he punched Michael in self-defense, but that argument will fail. In Louisiana, a person may use self-defense if he reasonably believes that his conduct is necessary under the circumstances. A person who is an aggressor or who brings on a difficulty cannot claim the right to self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. As discussed above, Kyle entered the store without permission and refused to leave when Charles and Michael demanded that he do so. As a result of Kyle’s actions, Michael likely was justified in attempting to punch Kyle. As the person who brought on the difficulty, Kyle could not use self-defense unless he withdrew in good faith and made his desire to withdraw known to Michael. Kyle did not withdraw, so his claim of self-defense will fail.

Question 22

Aggravated arson.

Answer 22

Kyle can be charged with aggravated arson. Aggravated arson is the intentional damaging by any explosive substance or by setting fire to any structure where it is foreseeable that human life might be endangered. Here, after he tied up Charles and Michael i e check cashing store, Kyle set fire to the store with gasoline. It was entirely foreseeable that Charles’s and Michael’s lives might be endangered by the fire.
Therefore, Kyle should be charged with aggravated arson.

Question 23

Attempted murder.

Answer 23

Kyle can be charged with attempted murder. A criminal attempt occurs when a person who has a specific intent to commit a crime does an act for the purpose of and tending directly toward the accomplishing of his object. To be guilty of attempted murder, the defendant must have specifically intended to kill his victims. Here, Kyle wanted to destroy all evidence of his presence at the store, which would include Charles’s and Michael’s eyewitness accounts of what happened there. As such, when Kyle set fire to the store with Charles and Michael tied up inside, he likely intended to kill them. Kyle set the fire for the purpose of killing them and tending directly toward killing them. However, neither Charles nor Michael died in the fire. Therefore, Kyle should be charged with attempted murder.

Question 24

First degree murder.

Answer 24

Kyle can be charged with first degree murder. First degree murder includes the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm, and is engaged in the perpetration or attempted perpetration of an enumerated felony, including aggravated arson. When a person has a specific intent to kill or inflict great bodily harm on a certain person but instead kills or harms another by mistake or inadvertence, he is responsible for the resulting death under the doctrine of transferred intent. Here, Kyle can be charged with aggravated arson for setting fire to the check cashing store (see above). Kyle set this fire with the intent to kill Charles and Michael. Although Charles and Michael did not die as a result of the fire, a firefighter sustained injuries from the fire that ultimately killed him. Under the doctrine of transferred intent, Kyle’s intent to kill Charles and Michael transferred to the firefighter. Therefore, Kyle should be charged with first degree murder.

Question 25

Carjacking.

Answer 25

Kyle can be charged with carjacking. Carjacking is the intentional taking of a motor vehicle belonging to another, while in the presence of that person, by use of force or intimidation. Here, Kyle intentionally waved a shotgun at Jenny, ordered her out of her car, jumped into the driver’s seat, and sped away. Because Kyle was waving the gun, the taking was done by intimidation. Therefore, Kyle should be charged with carjacking.

Question 26

Armed robbery.

Answer 26

Kyle can be charged with armed robbery. Armed robbery is the taking of anything of value belonging to another from that person, by use of force or intimidation, while armed with a dangerous weapon. As discussed with respect to carjacking, Kyle intentionally waved a gun to intimidate Jenny and force her out of her vehicle. He then was able to drive away in the vehicle. Therefore, Kyle should be charged with armed robbery.

Question 27

Defense of property.

Answer 27

Smooth, however, may argue that his second degree battery of Johnny was justifiable because Johnny trespassed into his apartment and committed a battery. The use of force is justifiable when committed for the purpose of preventing a forcible offense against the person, or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used is reasonable and apparently necessary to prevent such offense. Furthermore, there is a presumption that a person lawfully inside a dwelling held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises, if both of the following occur: (1) the person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling; and (2) the person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

Question 28

Simple burglary.

Answer 28

“Simple burglary” includes the unauthorized entering of any vehicle with the intent to commit a felony or any theft therein. Here, Billy “cracked open” a railcar with a crowbar and stole valuables from inside. This constituted “simple burglary.”

Question 29

Unauthorized Entry of a Place of Business.

Answer 29

“Unauthorized entry of a place of business” is the intentional entry by a person without authority into any premises belonging to another that is completely enclosed by a physical barrier that is at least six feet in height and that is used in whole or in part as a place of business. Here, Johnny and Billy climbed over the train yard fence, which was six feet high, without authority to do so.

Question 30

Assault by drive-by shooting.

Answer 30

Assault by drive-by shooting is an assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault. Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. Here, John and Ashley committed this crime when they both “hung out the window” of Ashley’s car with firearms and “fired several shots in the bar’s direction” where patrons were present.

Question 31

Disturbing the peace.

Answer 31

Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: (1) engaging in a fistic encounter; or (2) appearing in an intoxicated condition. Here, John committed this crime by going to the local bar and consuming “almost a fifth of whiskey” and becoming “intoxicated.” In addition, he engaged in a “fistic encounter” when he punched Ben with no justification.

Question 32

Second degree kidnapping

Answer 32

“Second degree kidnapping” includes the forcible seizing and carrying of a person from one place to another when the victim is used as a hostage, is used to flee from a felony or is physically injured. Here, Ricky and Julian committed this crime when they forcibly seized the Janitor and forced him into Julian’s car when not only using him as a hostage to flee from a felony, but also when they physically injured him.

Question 33

Criminal damage to a coin operated device.

Answer 33

“Criminal damage to a coin-operated device is the intentional damaging of any coin-operated device belonging to another. Here, Ricky and Julian committed this crime when they damaged the mall’s gumball machine with crowbars.