Offenses Against the Property and Habitation

Question 1

General Summary of Property Crimes

Answer 1

• Traditional analysis: larceny, embezzlement, false pretenses, receiving stolen property
• Modern statutes: single “consolidated” crime of theft

Question 2

Larceny Elements

Answer 2

1. taking (exercise of control);
2. asportation (some movement);
3. corporal personal property of another;
4. from possession of another;
5. wrongfully—either:
   
   • without permission; or
   • with permission obtained by deception (larceny by trick); and
6. with intent to permanently deprive.

Question 3

“Taking” and “Asportation” of the Property of Another

Answer 3

• Usually, if D asports the property, there is also a completed taking.
• Sometimes there is no taking because despite asportation D has not exercised real control
  
  • e.g. store clerk moving merchandise across the store to steal is asportation but not taking. But, placing merchandise in your pocket is both.

Question 4

Asportation

Answer 4

only some movement of the property

Question 5

Taking

Answer 5

some control adverse to owner

Question 6

Premises Requirement for a Taking

Answer 6

To complete the taking for larceny, D need not remove the property from the premises.

Question 7

Possession Rights and Taking

Answer 7

• Larceny is about possession, not title.
• D need only take property from someone with a greater right to possession than D.
  
  • e.g. taking from mechanic with lien is larceny even if the car title is in your name

Question 8

Intent to Permanently Deprive

Answer 8

At the time of the “taking,” the defendant must have intended to either:

• permanently keep the property himself; or
• do something with the property that would create at least a high risk that the owner would never get the property back.

Question 9

Taking with intent to return

Answer 9

Taking with intent to return cannot be larceny.

Question 10

Timing of Taking

Answer 10

• What controls is what the defendant intended to do with the property at the time of the taking, not what actually happened to it.

Question 11

Risk of Permanent Loss

Answer 11

• WIth larceny, the critical issue is whether the intended use of the property involved a high enough risk of permanent loss to the owner.

Question 12

“Coincidence” Between Act and Intent

Answer 12

• General Rule: When a crime requires both a particular act and an intent, the defendant must have the required intent when he does the act constituting the crime.

Question 13

“Coincidence” Between Act and Intent

the Larceny Exception

Answer 13

Exception for Some Larceny Cases: “Continuing Trespass” Rule

• If you take something without permission with the intent to borrow it, but instead keep it, you’re guilty of larceny.

Elements:

• Forming the intent after the taking and during the possession is sufficient only if the original taking was wrongful:
  
  • without consent, or
  • with consent obtained by deception

Question 14

Elements of embezzlement

Answer 14

1. Possession of property under trust arrangement;
2. Conversion of that property (use of it contrary to the terms of the trust arrangement); and
3. with intent to defraud.

Question 15

Embezzlement intent requirement

Answer 15

Intent to return or replace converted property does not show the lack of the intent to defraud required for embezzlement

Question 16

Custody/Possession and Larceny/Embezzlement

Answer 16

1. A person who has “possession” of the property of another can commit embezzlement but not larceny of that property.
2. A person who has only “custody” of the property of another does not have possession and can commit larceny of that property.
3. “Possession” requires extensive and discretionary control.

Question 17

Employee/Employer Embezzlement

Answer 17

• Usually, an employee has only custody of employer’s property and thus commits larceny by taking it.

Question 18

Elements of false pretenses

Answer 18

1. obtaining title to property from another;
2. by means of a misrepresentation of:
   
   • a present fact; or
   • past fact; and
3. with intent to defraud.

Question 19

Examples of Misrepresentations/Non-misrepresentations

Answer 19

Not sufficient misrepresentations—

• unkept promise; or
• misrepresentation of future fact.

Sufficient misrepresentation:

• a misrepresented intention (saying you’ll pay it back when you won’t)

Question 20

Money and false pretenses

Answer 20

for the purposes of false pretenses, getting money is equal to getting title to the money

Question 21

Failure to correct a misunderstanding

Answer 21

• Usually an affirmative misrepresentation is required.
• Failure to correct a misunderstanding is sufficient for false pretenses if the defendant creates the misunderstanding.

Question 22

Theft

Answer 22

A person commits theft if:

• He unlawfully exercises control over the property of another
• without effective permission and
• with the intent to deprive the other of that property.

Question 23

Robbery elements

Answer 23

Larceny in which property is taken either by:

• force (violence); or
• threats (intimidation).

Question 24

Robbery by force

Answer 24

• force must be used to obtain property or prevent victim from immediately regaining it.

Question 25

Robbery by threats

Answer 25

1. threats must be of imminent physical harm;
2. victim must be put in fear of harm; and
3. threat must be such as would cause apprehension of immediate harm in a reasonable person.

Question 26

Force Requirement

Answer 26

1. Force must be closely related to the taking of the property
2. Despite the effort used, no force involved if:
   
   • D lifts items from V’s pocket; or
   • D slips item from V’s hand without resistance.

Question 27

When an Action Constitutes a Threat

Answer 27

• Action constitutes a threat only if a reasonable person would be put in fear of immediate harm.

Question 28

Larceny Definition

VA

Answer 28

Any crime that would be larceny, embezzlement, or false pretenses under common law may be charged as larceny.

Question 29

Types of Larceny

VA

Answer 29

Grand Larceny

Occurs when a person commits:

1. Larceny from the person of another, taking money or things worth $5 or more;
2. Simple Larceny, not from the person of another, taking goods and chattels worth $500 or more; or
3. Simple Larceny, not from the person of another, taking any firearm, regardless of its value.

Petit Larceny: lesser amounts

Question 30

Presumption of Larceny

VA

Answer 30

• One in the unexplained and exclusive possession of recently stolen property can be presumed to be guilty of larceny

Question 31

Larceny and Robbery

VA

Answer 31

• Larceny is a lesser included offense of robbery.

Question 32

Extortion

VA

Answer 32

1. Threatening injury to someone’s:
   
   • character, person, or property, or
   • accusing someone of an offense, and
2. thereby extorting money, property, etc…
3. Sending note/electronic communication threatening to kill/do great bodily harm to the victim/her family.

Question 33

Burglary Elements

Answer 33

1) Entry;
2) by breaking;
3) of the dwelling of someone else;
4) during the nighttime; and
5) with the intent to commit a felony inside the structure.

Question 34

Definition of dwelling

Answer 34

Dwelling: Place actually used as a sleeping place.

Question 35

Actions that Qualify as Entering/Breaking

Answer 35

1) Entry can be by an instrument
2) Breaking requires only some force to create an opening
3) D must have necessary intent at time of entry
4) D need not carry out the intent to be guilty

Question 36

VA Burglary Statute

Answer 36

Common Law, except:

1) expand places covered;
2) eliminate need for breaking;
3) eliminate requirement that entry be in nighttime; and
4) expand intent.

Question 37

Burglary within a dwelling

Answer 37

Burglary can be committed by entering a part of a dwelling, that is, as by going from one room to another.

Burglary is not committed by entering a thing within a dwelling.

Question 38

Intent to Commit a Felony

Answer 38

1. Prosecution must prove:
   
   • D entered with intent to commit certain acts; and
   • those acts if committed would be a felony.
2. Need not prove D knew the law made these acts a felony.
3. Mistaken belief that one’s intended conduct will be a felony is not “intent to commit a felony.”

Question 39

Arson Elements

Answer 39

a) malicious
b) burning;
c) of another’s dwelling.

Question 40

Burning requirements for Arson

Answer 40

“Burning” requires:

a) some physical damage;
b) by fire (not smoke or heat); and
c) to a part of the structure itself.

Question 41

Malice Requirement for Arson

Answer 41

• Awareness of a high risk is enough to make burning malicious.

Question 42

Arson Burn Requirement

Answer 42

Arson requires that some part of the structure be burned by fire

Question 43

VA Arson Definition

Answer 43

Definition: The malicious burning of any building.

Question 44

VA distinction for burning requirement for Arson

Answer 44

• Burning includes the use of explosive devices and other substances.

Question 45

VA Definition of Dwelling for Arson

Answer 45

• Dwelling: This includes any structure or building in which persons usually dwell or lodge, including:
  
  • manufactured homes, boats, trailers, hotels, hospitals, mental health facilities, houses of worship, railroad cars, vessels, jails, or prisons, but outhouses are not dwellings for purposes of the arson statutes.