Specific Intent Crimes

Question 1

What is the continuing trespass rule relating to larceny?

Answer 1

The continuing trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive.

However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner.

Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

Question 2

How can a defendant limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy?

Answer 2

By withdrawing from the conspiracy at any time after it is formed by:

(i) giving notice to his co‑conspirators OR
(ii) timely advising legal authorities of the existence of the conspiracy.

Note: There is no requirement that the defendant thwart the conspiracy.

Question 3

What is the effect of withdrawal on liability for the conspiracy itself (three approaches)?

Answer 3

1) Common law: Withdrawal never a defense
2) Federal/Majority rule: May only withdraw after the agreement but before an overt act has been committed, by
(i) communicating notice of his intent not to participate to the other potential co-conspirators or
(ii) informing the police about the agreement.
3) MPC/Minority view: May only withdraw by acting voluntarily to “thwart the success” of the conspiracy.

Question 4

What are the six elements of common-law larceny?

Answer 4

Larceny is the:

(i) Trespassory;
(ii) Taking and;
(iii) Carrying away;
(iv) Of the personal property;
(v) Of another;
(vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Note: Larceny is a specific-intent crime.

Question 5

What are the four categories of specific-intent crimes? (Think FIAT)

Answer 5

(i) First-degree murder;
(ii) Inchoate offenses (attempt, solicitation, conspiracy);
(iii) Assault with intent to commit a battery; and
(iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

Question 6

What are the five elements of embezzlement?

Answer 6

Embezzlement is the:

(i) Fraudulent;
(ii) Conversion;
(iii) Of the property;
(iv) Of another;
(v) By a person who is in lawful possession of the property.

Question 7

Under the majority and MPC rules, what elements are added to and/or removed from the common-law elements of conspiracy?

Answer 7

The Majority/MPC rules:

(i) Add the requirement of an overt act in furtherance of the conspiracy (but the MPC does not apply this requirement if the conspiratorial crime is a felony); and
(ii) Remove the requirement of “two or more persons,” allowing unilateral conspiracies.

Question 8

What are the six common-law elements of burglary?

Answer 8

(i) Breaking and;
(ii) Entering;
(iii) Of the dwelling;
(iv) Of another;
(v) At nighttime;
(vi) With the specific intent to commit a felony therein.

Question 9

Under modern law, what inchoate crimes merge?

Answer 9

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

Note: A defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense designed to culminate in the commission of the same crime.

Question 10

What are the four elements of common-law conspiracy?

Answer 10

Common-law conspiracy is:

(i) An agreement;
(ii) Between two or more persons;
(iii) To accomplish an unlawful purpose;
(iv) With the intent to accomplish that purpose.

Note: Conspiracy is a specific-intent crime.

Question 11

Accomplice

What is an accomplice and what is their liability?

Answer 11

A_n accomplice is a person who:_

i) aids or abets a principal
ii) prior to or during the commission of the offense with the specific intent that the crime be committed.

An accomplice is liable to the same extent as the principal for:

i) the crime for which the accomplice provided encouragement or assistance AND
ii) other crimes committed by the principal that were a natural and probable consequence of the accomplice’s conduct.

Question 12

Robbery requires that:

Answer 12

Robbery requires proof that:

1) the defendant unlawfully took and carried away the victim’s personal property with the specific intent to permanently deprive the victim of that property (i.e., larceny) AND
2) the property was taken from the victim’s person or presence by force (i.e., battery) or intimidation (i.e., assault).

Since larceny and battery/assault are necessarily committed during a robbery, they are lesser included offenses to robbery.

And under the doctrine of merger, lesser included offenses merge into the more serious crime.

• So if the elements of robbery are proved, the defendant may only be convicted of robbery—not robbery and its constituent offenses.

Question 13

Larceny (themis)

Answer 13

Larceny is the:

i) trespassory (i.e., without consent) taking and
ii) carrying away
iii) of another’s
iv) personal property with the
v) specific intent to
vi) permanently deprive the person of that property (i.e., intent to steal).

Question 14

A person who takes another’s property through fraud or deceit may be guilty of either:

Answer 14

false pretenses – if the person thereby obtained title to the property or

larceny by trick – if the person thereby obtained mere possession of the property and converted it by so seriously interfering with the victim’s property that the victim is deprived of its use or possession.

• Larceny by trick is a larceny accomplished by fraud or deceit that results in the conversion of the property of another.
• Larceny by trick differs from false pretenses in that the defendant acquires mere possession of (not title to) the property.

Question 15

Common law Burglary

Answer 15

Common law burglary* requires proof of the following:

1) an unlawful breaking and entering of another’s dwelling at night AND
2) the specific intent to commit a felony (e.g., larceny) therein.

Once the defendant enters the dwelling with the requisite intent, the burglary is complete.

• This means that there is no need to prove that the defendant completed the underlying felony to obtain a burglary conviction.

A burglary defendant who did not complete the underlying felony is also guilty of the attempted commission of that felony.

• That is because the defendant (1) specifically intended to commit the felony and (2) performed an overt act in furtherance of the felony—the unlawful breaking and entering.

Question 16

Larceny of abandoned vs. lost property

Answer 16

Abandoned property

• Not subject to larceny because owner has surrendered all right to property

Lost or misplaced property

Subject to larceny if, at time of finding, finder:

1) knows or believes he/she can locate owner AND
2) takes & carries away property with intent to permanently deprive owner of property

Question 17

Common Law Conspiracy

Answer 17

Conspiracy is

(1) an agreement between two or more persons to accomplish an unlawful purpose
(2) with the specific intent to accomplish that purpose.

The common law follows the bilateral approach to conspiracy, which requires proof of at least two guilty minds.

• As a result, a defendant cannot be convicted of this crime if the other alleged conspirator(s) merely feigned agreement.

Question 18

Solicitation

Answer 18

Solicitation is

(1) the enticing, encouraging, requesting, or commanding of another person to commit a crime
(2) with the specific intent that the other person commit the crime.

The crime of solicitation is complete upon the encouragement of the crime, so it does not matter if the other person agrees to or can actually commit the solicited crime.

• As a result, factual impossibility is no defense to solicitation.

Question 19

Conspiracy under MPC

Answer 19

Under the MPC, a defendant can be convicted of conspiracy if:

1) the defendant entered into an agreement with another to commit a crime
2) the defendant specifically intended that the crime be committed AND
3) at least one conspirator committed an overt act in furtherance of the agreement.

Since the MPC follows the unilateral approach to conspiracy, an agreement exists even when only one party to the conspiracy actually agrees—e.g., when the other parties merely feign agreement or are ultimately acquitted.

Question 20

Attempt - Moder prevailing view

Answer 20

Under the modern prevailing view, a defendant is guilty of attempt if the defendant:

1) had the specific intent to commit a crime (e.g., robbery) AND
2) took a substantial step toward the commission of that crime.

In most jurisdictions, the crime of attempt is completed once the defendant has taken a substantial step by engaging in conduct that exceeds mere preparation and tends to effect the commission of the crime.

• As a result, a defendant who has taken a substantial step may not legally abandon (or withdraw from) the attempt due to a change of heart or fear of apprehension.*

*Some jurisdictions DO recognize voluntary abandonment as a defense to attempt.

• However, abandonment is not voluntary if it is motivated by a desire to:
  
  • (1) avoid detection,
  • (2) delay commission of the crime to a more favorable time, OR
  • (3) select another victim.

Question 21

Substantial Step Test of Attempt

Answer 21

Under the subjective “substantial step” test, the conduct must exceed mere preparation and tend to effect the commission of the attempted crime.

It does not matter whether the crime attempted is factually impossible to commit due to circumstances unknown to the defendant.

****As a result, factual impossibility is never a defense to attempt****

Question 22

Elements of Larceny

Answer 22

i) Trespassory – without owner’s consent
ii) Taking – removal from owner’s possession
iii) Carrying away – movement or asportation of property, however slight
iv) Personal property – anything subject to ownership except real property, intangibles & services
v) Another’s property – property must be in possession of someone other than defendant
vi) Intent to permanently deprive – specific intent to steal must exist at time property is taken

Larceny is the trespassory taking and carrying away of another’s personal property with the specific intent to permanently deprive the person of that property.

• The carrying-away (i.e., asportation) element is satisfied when the property is moved even a short distance (e.g., mere inches).
• Additionally, a defendant is guilty of larceny even if the property is returned to the place from which it was taken or to its rightful owner.

Question 23

Is a defendant still guilty of larceny if they return the item?

Answer 23

YES.

A defendant is guilty of larceny even if the property is returned to the place from which it was taken or to its rightful owner.

Question 24

What are the two types of criminal assault?

Answer 24

There are two types of criminal assault:

1) Attempted battery – when the defendant has the specific intent to commit, and takes a substantial step toward committing a battery
2) “Fear of harm” assault (i.e., apprehension assault) – when the defendant intentionally places another in reasonable apprehension of imminent harmful or offensive contact

“Criminal assault occurs when a defendant (1) attempts to commit a battery or (2) intentionally places another in reasonable apprehension of imminent harmful or offensive contact.”

Question 25

At common law, can a conspirator be convicted of conspiracy if all other co-conspirators are acquitted at the same trial?

Answer 25

NO.

At common law, a conspirator cannot be convicted of conspiracy if all other coconspirators are acquitted at the same trial.

Question 26

When is the conspiracy completed?

Answer 26

The conspiracy is completed upon the occurrence of the agreement and (if required) the overt act—the unlawful purpose need not be accomplished.

Question 27

Crimes committed by co-conspirators

Pinkerton Rule

Answer 27

“Under the Pinkerton Rule, a conspirator is criminally liable for any foreseeable crimes committed by a coconspirator acting in furtherance of the conspiracy.”

Under the Pinkerton Rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy.

Question 28

Criminal liability for attempt arises when a person:

Answer 28

Criminal liability for attempt arises when a person:

1) has the specific intent to commit a crime
2) performs an overt act in furtherance of the target crime, but
3) does not complete it.

Question 29

Larceny vs. Common Law Burglary

Answer 29

Larceny is the trespassory taking and carrying away of another’s personal property with the intent to permanently deprive that person of the property.

In contrast, common-law burglary is the breaking and entering of another’s dwelling at nighttime with the specific intent to commit a felony therein.

Question 30

Robbery requires proof of three elements:

Answer 30

1) The defendant committed larceny—i.e., a trespassory taking and carrying away of a victim’s personal property with the specific intentto permanently deprive the victim of that property.
2) The property was taken from the victim’s person or in the victim’s presence.
3) The taking was accomplished by force or intimidation.

Question 31

For larceny, who can commit the trespassory taking requirement?

Answer 31

Larceny is the trespassory taking and carrying away of another’s personal property with the specific intent to permanently deprive the owner of that property.

A trespassory taking can be committed by the defendant personally or the defendant’s agent—even one who is unaware of the defendant’s criminal intent (i.e., an innocent agent).

Example:

Here, the husband decided that he was not going to pay for the diamond ring (intent to permanently deprive). He then used his wife to take and carry away the ring without the jewelry store’s permission (trespassory taking and carrying away). Although the wife believed that the husband had purchased the ring and therefore lacked the intent to steal, she acted as the man’s innocent agent when she put the ring on and left the store. Therefore, the husband committed larceny.

Question 32

Does conspiracy require the agreement be express?

Answer 32

NO.

Conspiracy requires an agreement between two persons to commit a crime, but the agreement need not be express. It can be implied from conduct demonstrating an intent to jointly achieve a shared criminal objective

Question 33

Accomplice

common law & modern view

Answer 33

An accomplice is a person who:

(1) aids or abets the principal prior to or during the commission of a crime with
(2) the specific intentthat the crime be committed.*

An accomplice is responsible for the crime to the same extent as the principal regardless of whether the accomplice participated in or was present at the crime.

At common law, an accomplice could be convicted of the crime only if the principal was previously convicted.

However, under the modern majority view, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has received immunity from prosecution, or is acquitted.

*A minority of states hold a person liable as an accomplice if he/she intentionally or knowingly aids, induces, or causes another to commit an offense.

• Specific intent that the crime be committed is not required under this standard.

Question 34

Accomplice

rule statement

Answer 34

An accomplice (1) aids or abets the principal prior to or during the commission of a crime with (2) the specific intent that the crime be committed.

An accomplice need not participate in or be present at the crime to be held liable and, under the modern majority approach, may be convicted even if the principal is not.

Question 35

will slight aid or encouragement suffice for someone to be an accomplice, even when such assistance is not ultimately necessary to complete the crime?

Answer 35

YES.

Slight aid or encouragement will suffice, even when such assistance is not ultimately necessary to complete the crime.

“Accomplice liability is imposed when a person provides even slight aid or encouragement to the principal with the specific intent that the encouraged crime be completed—even when that assistance is not ultimately necessary to complete the crime.”

Question 36

False Pretenses

Answer 36

A defendant is guilty of false pretenses if the defendant:

1) knowingly misrepresented a past or present material fact
2) did so with the specific intent to defraud AND
3) thereby obtained title to (i.e., ownership of) another’s property.

Question 37

Forgery

Answer 37

Forgery is:

(1) the making of a false writing of apparent legal significance with
(2) the specific intent to defraud.

“Making” includes:

i) creating a document,
ii) altering a document, or
iii) fraudulently inducing another to sign a document when that person is unaware of the significance of the document.

Question 38

Solicitation and Conspiracy

Merger

Answer 38

Solicitation is an inchoate crime that occurs when a person:

(1) entices, encourages, requests, or commands another to commit a crime
(2) with the specific intent that the solicited crime be committed.

Solicitation is completed once these elements are met. But if the solicited crime is completed, THEN the solicitation merges into the completed target crime, thereby barring a conviction for both crimes.

In contrast, the crime of conspiracy does not merge into the completed target crime.

At common law, conspiracy is:

(1) an agreement between two or more persons to accomplish an unlawful purpose
(2) with the specific intent to accomplish that purpose.

Therefore, when a solicited party agrees to commit the solicited crime, a conspiracy is formed.

A conspirator can then be held liable for the target crime and all substantive crimes committed by a coconspirator acting in furtherance of the conspiracy.

Question 39

Parties to a crime

modern & majority approach

Answer 39

1. Principal
   i) Commits criminal act with requisite mens rea OR
   ii) Tricks or forces another (ie, innocent agent) to commit criminal act

Liability: liable for resulting crime

2. Accomplice:
   * Aids or encourages a principal before or during crime with the specific intent that the crime be committed

Liability: liable to the same extent as the principal

3. Accessory after the fact:
   * Knows principal has committed felony & helps principal avoid arrest or conviction

Liability: Liable for independent crime (not principal’s).

Question 40

Is mere knowledge that another person intends to commit a crime enough too make a person an accomplice?

Answer 40

NO.

Mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice.

Question 41

Exclusions from accomplice liability

Answer 41

1. Member of protected class
   * Members of class criminal statute was designed to protect are immune from liability (eg, statutory rape)
2. Exempted necessary party
   * When crime requires multiple participants but criminal statute only imposes liability on one, others are immune from liability (eg, sale of narcotics)
3. Withdrawal

No liability if accomplice voluntarily withdraws before crime becomes unstoppable by:

• repudiating encouragement
• undoing or neutralizing assistance
• notifying authorities or otherwise preventing crime

Question 42

Even if a person satisfies the elements of an accomplice, the person may be excluded from liability as an accomplice if:

Answer 42

An accomplice is a person who aids or abets the principal prior to or during the commission of a crime with the specific intent that the crime be committed.

But even if a person’s conduct satisfies these elements, the person may be excluded from liability as an accomplice if:

1) the crime requires more than one participant (e.g., the distribution of drugs requires a distributor and a purchaser)
2) the criminal statute imposes liability on only one participant (e.g., distribution statutes impose liability only on the distributor) AND
3) the person acts as the nonliable participant (e.g., the buyer).

Question 43

If the defendant satisfies all the elements of burglary except they fail to commit the underlying felony, can they still be guilty of burglary?

Answer 43

YES.

Burglary is the (i) breaking and (ii) entering (iii) of the dwelling (iv) of another (v) at nighttime (vi) with the specific intent to commit a felony therein.

A defendant who fails to commit the underlying felony is nevertheless guilty of burglary.

Question 44

Felony Murder

Answer 44

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK).

Most states apply the agency theory when a bystander is killed by a police officer or due to resistance by the victim of the felony.

Under this theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agent.

Question 45

Attempt

Examples of “acts” that may constitute a “substantial step” if they corroborate the D’s criminal purpose (from the MPC)

Answer 45

Any of the following acts may constitute a substantial step if they corroborate the defendant’s criminal purpose (from the MPC):

i) Lying in wait, searching for, or following the intended victim;
ii) Unlawful entry into the place contemplated for the commission of the crime;
iii) Enticing the intended victim to go to such place;
iv) Possession of materials specially designed for committing the crime;
v) Possession of materials to be used in the commission of the crime at or near the place of commission; and
vi) Soliciting an innocent agent to engage in criminal conduct.

Question 46

Attempt requires:

Answer 46

1) a substantial step toward the commission of a crime, coupled with
2) the specific intent to commit the crime.

If the crime is successfully completed, the attempt is merged into the completed crime.

Question 47

Attempt:

Substantial step test

Answer 47

A subjective test, called the “substantial step” test, is applied to determine whether an attempt has occurred.

Under this test, conduct does not constitute a substantial step if it is in mere preparation; the act must be conduct that tends to effect the commission of a crime.

Question 48

Attempt

dangerous proximity test

Answer 48

Some states continue to apply the traditional common-law “dangerous proximity” test.

Under this test, an attempt does not occur until the defendant’s acts result in a dangerous proximity to completion of the crime.

Question 49

Attempt

abandonment

Answer 49

At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime because of a change of heart.

Upon the completion of a substantial step, the crime of attempt is completed; there can be no abandonment or withdrawal.

Some states do recognize voluntary abandonment as a defense to attempt.

Even then, abandonment is not voluntary if it is motivated by a desire to avoid detection, a decision to delay commission of the crime until a more favorable time, or the selection of another similar objective or victim.

Abandonment by the defendant does not constitute a defense for an accomplice who did not join in the abandonment or withdrawal.

Question 50

False Pretenses

Answer 50

False pretenses (also called “obtaining property by false pretenses” or “larceny by false pretenses”) is:

i) Obtaining title to the property;
ii) Of another person;
iii) Through the reliance of that person;
iv) On a known false representation of a material past or present fact; and
v) The representation is made with the intent to defraud.

Question 51

False Pretenses

title must pass

Answer 51

Title to the property must pass from the victim to the defendant.

Title can be obtained without possession of the property, but mere possession does not constitute false pretenses.

If the defendant subjectively believes that he owns the property in question, he will not be guilty of false pretenses.

Question 52

Larceny by trick

Answer 52

Larceny by trick is:

i) Larceny
ii) Accomplished by fraud or deceit
iii) That results in the conversion of the property of another.

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 53

Larceny by trick

• false representation of material present or past fact*
• Reliance by the victim*

Answer 53

1) False representation of material present or past fact

The representation (whether oral, written, or by actions) must be false in fact and be 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.

2) Reliance by the victim
* The victim must rely upon the false representation, and that reliance must cause the victim to give possession to the defendant. This standard is subjective, not objective

Question 54

Embezzlement

Answer 54

Embezzlement is the:

i) Fraudulent;
ii) Conversion;
iii) Of the property;
iv) Of another;
v) By a person who is in lawful possession of the property.

Question 55

Embezzlement

Conversion

Answer 55

Conversion is the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner’s rights to the property.

Interference with the owner’s rights to the property can be caused by selling the property, damaging it, or unreasonably withholding possession.

The defendant need not personally benefit from the conversion. No movement or carrying away of the property is required.

If it is unclear whether there was a conversion of the property, then the victim must demand a return of the property, and the embezzler must refuse to return the property before a claim for embezzlement can be made.