CRIMINAL LAW

CRIMINAL LAW

TEXT: CRIMINAL LAW AND PROCEDURE (Daniel Hall) - Lawyers COOP

CHAPTER 1: INTRODUCTION TO THE LEGAL SYSTEM OF THE UNITED STATES

1. Federal and state crimes

Federalism

The division of power between the federal and the state governments.

When the two conflict, the federal will prevail (the Supremacy Clause - Article VI)

In some areas, there is only federal law (ie. national currency)

Most crimes are primarily only under state law (ie. Murder)

And there is concurrent jurisdiction over some crimes (ie. Drugs, kidnaping).

The 14^th amendment=s due process clause (no state shall deprive a person of life, liberty or property without due process of law) gives the federal government power over the states in criminal procedural matters).

This includes the power to find state law unconstitutional (one of the checks and balances). - Marbury v. Madison, 1803

2. Different goals of criminal and civil law

Criminal law is designed to punish and deter.

Civil law is designed to compensate the victim.

The state (or United States) is the plaintiff in a criminal case.

The victim is the plaintiff in a civil case.

The level of proof differs (proof beyond a reasonable doubt/preponderance of the evidence.

The prosecutor in a criminal case has discretion on whether to bring it or not.

Actual damage must be shown in civil cases.

CHAPTER 2 - INTRODUCTION TO CRIMINAL LAW

3. Criminal law compared with criminal procedure

Criminal law deals with substantive law (elements of crime, parties, defenses)

Criminal procedure deals with arrest, search and seizure, trial and appeal.

Criminal procedure is constantly trying to balance the police power with civil rights.

4. Purposes of punishment

Deterrence: to deter both the defendant and others from criminal activity.

Incapacitation: to remove the violator from society

Rehabilitation: the most laudable goal

Retribution: society being paid back - still a legitimate goal.

5. Classes of felonies and misdemeanors

Virginia penalties

Felonies (18.2-10)

Class I: Death or 20-life + up to $100,000

Class II: 20-life + up to $100,000

Class III: 5-20 + up to $100,000

Class IV: 2-10 + up to $100,000

Class V: 1-10 or up to 12 mos. in jail + up to $2500

Class VI: 1-5 or up to 12 mos. in jail + up to $2500

Misdemeanors (18.2-11)

Class I: 12 mos. in jail + up to $2500

Class II: 6 mos. in jail + up to $1000

Class III: up to $500

Class IV: up to $250

Other crimes (such as rape) can have their own particular, designated penalties.

6. Sources of criminal law

English common law: primarily case law brought over from England with the colonists.

Some principles are still followed today and are incorporated by reference in the code (ie. The

definition of burglary - ages at which a child can be criminally responsible)

Constitutional law: sets the framework for the courts and delineates civil liberties and safeguards.

Statutory law: virtually all criminal law is not found in codes (which then may adopt or modify the common law - sometimes by reference).

Case law: adds judicial interpretation of terms and principles and also tests the constitutionality of statutes

CHAPTER 3 - THE TWO ESSENTIAL ELEMENTS OF CRIME

7. Mens rea - general v. specific intent

Mens rea: Criminal state of mind. The intent necessary to commit a crime.

General intent: the actor simply intends to commit the act - does not include the goal he was seeking - means that his actions were not accidental.

Specific intent: the goal or purpose (not motive) is included in the definition

8. Scienter

The specific background knowledge that must be present to show intent (ie. Knowledge that a person is a police officer before APO can be established.

9. Constructive intent - the presumption

A person is presumed to intend the natural and probable consequences of his actions.

As it is impossible to look into a person=s mind, this presumption helps prove the necessary intent. Of course, it can be rebutted.

10. Malum in se and malum prohibitum

Malum in se: crimes which are evil in themselves - also known as true crimes.

Malum prohibitum: crimes only because the law forbids the act (ie. Driving on the right side of the road, rather than the left) -- not inherently bad.

11. Transferred intent

When the defendant attempts to commit a crime against one person and accidentally commits it against another (or attempts to commit one type of crime and accidentally commits another), the law transfers the intent necessary from the intended to the actual victim.

This doctrine does not apply if the type of injury actually inflicted is totally different from the one intended (ie. A throws a baseball at B=s window and accidentally hits C in the head -- A would only be liable in negligence).

12. Strict liability crimes

Crimes which require no criminal intent at all.

Usually minor violations with no incarceration.

Although some (ie. Statutory rape) impose liability even if the wrongdoer honestly believes the victim is of age).

13. Vicarious liability

Situations in which one person is liable for the actions of another.

In some jurisdictions (not Virginia), the owner of a car is liable for the negligence of the driver (nor really criminal though).

A co-conspirator and those involved in criminal joint ventures can be liable for the actions of his partner which were reasonably forseeable.

14. Absolute and rebuttable presumptions in law

Absolute presumptions: conclusions that the jury must always reach in given situations

Rebuttable presumptions: conclusions that the jury must reach in given situations, but which can be rebutted by sufficient evidence to the contrary. Absent such evidence, they must be followed - they cannot be ignored by the jury.

15. Inferences

Conclusions which the jury are permitted to reach from a given set of facts - but which also can be rejected.

16. Actus rea

The criminal act.

The act must result from the criminal intent, not merely be close in time.

It must be voluntary. I must intend to physically do what is prohibited. It cannot be an accident.

Liability can be found if one allows himself to enter a situation in which he might involuntarily perform a dangerous act (such as continuing to drive while tired - or driving when subject to epileptic seizures).

Thoughts alone will not amount to a crime.

A person=s status cannot be declared criminal (such as being a drug addict).

17. Possession as an act

Some crimes prohibit the possession of illegal items. Possession of illegal drugs.

The act of possession is considered a criminal act.

18. Constructive possession

A legal theory which holds a person liable for exercising dominion and control over something. It need not be in close proximity - can be miles away as long as you have control over it - as in something in a safety deposit box.

Wynn v. Commonwealth, 5 Va. App. 283 (1987)

To support a conviction of constructive possession, the commonwealth must prove that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.

c/a/b: Defendant did not live in the apartment where marijuana was found - he was seen entering only once and remained for a brief period of time - men=s clothes were found there but with no indication that they were his size - an envelope found there indicated that he resided at a different address - his admission that he dated the tenant for three weeks and spent an occasional night there ---- insufficient to establish constructive possession.

19. Carrying offenses - contrasted with possession offenses

Requires more than the exercise of control - requires that the item be within easy reach

(equivalent to actual possession).

Some crimes prohibit the carrying of items in public but do not prohibit possession

(weapons).

20. Omissions as an act

An omission can be considered an act (and therefore a crime) if there is a duty to act.

Some criminal statutes impose a duty to act (ie. Filing a tax return).

The existence of a personal relationship can impose a duty to help another (parent-child)

This might also include those involved in a joint venture, such as mountain climbing.

The existence of a contract can also impose a duty to act (lifeguard).

A person can take on the duty to act by assuming it (agreeing to watch another=s child at a pool - or by beginning to go the assistance of someone else).

If a person creates a danger to others, he must thereafter do what he reasonably can to limit it.

21. Causation - sine qua non

Some acts are criminal even if the prohibited result does not occur (ie. Perjury does not require that the jury in fact believe the lie.

Other crimes require that a certain result occur. There must be causation.

Sine qua non: but for the conduct, the result would not have occurred. This is known as cause in fact.

22. Intervening cause

An event that comes into play after the wrongdoing and not anticipated by the wrongdoer. It will remove liability from the wrongdoer.

Poor medical treatment will not normally be considered an intervening cause (although gross negligence by a doctor or hospital will be considered intervening.

23. Legal cause - forseeability

Legal cause (proximate cause): must also be shown -- even if the act caused the result, there will be criminal liability only if the element of foreseeability is present.

24. Concurrent causes

If two persons independently act against a third person, and it is impossible to determine which one actually caused the damage, both persons will be held liable.

This would require one to actually produce evidence that he did not cause the damage in order to escape liability.

The criminal act must result from the criminal act. Thus if a person waited in the woods to kill his arch-enemy, and while he was waiting, he accidentally fired his shotgun, killing his enemy, he would not be liable (except maybe in negligence) even though the result he wanted in fact occurred.

CHAPTER 4: CRIMES AGAINST THE PERSON

25. Homicide

The killing of a human being by a human being.

Malice - the element that murder contains and manslaughter does not. It includes the idea of viciousness and hard-heartedness.

26. Felony-murder rule

The accidental death occurring during the commission of a felony makes the wrongdoer guilty of murder.

The malice requirement is met by the idea that intentionally engaging in the commission of a felony is enough.

27. BARRK

Virginia: the accidental death occurring during the commission of burglary, arson, rape, robbery and kidnaping makes the perpetrator guilty of Murder-I.

If it occurs during the commission of any other felony, it is Murder-II.

Deaths occurring during the flight from the felony have been found to have occurred during the commission of the felony.

This doctrine does not apply if the killing was the independent intentional act of one of the other participants.

28. Misdemeanor-manslaughter rule

Simply an extension of the felony-murder rule -- makes the accidental death occurring during the commission of a misdemeanor makes the perpetrator guilty of involuntary manslaughter (as long as the misdemeanor was malum in se).

Case #1: Haskell v. Commonwealth, 218 Va. 1033 (1978)

The appellant and three others attempted to rob a drunken sailor. They beat him, and the sailor attempted to prevent their escape and was shot and killed by one of the appellant=s partners. He argued that the felony-murder rule should not apply since the attempt to rob had been abandoned before the killing occurred. This argument was rejected.

The felony-murder rule applies when the killing is so closely related to the felony in time, place and causal connection as to make it part of the same criminal enterprise.

While all four assailants sought to escape from the scene of the attempted robbery without being identified or apprehended, the killing was closely related in time, place and causal connection to the attempted robbery, the two crimes being inextricably interwoven.

Case #2: Davis v.Commonwealth, 12 Va. App. 408 (1991)

Defendant was convicted of felony-murder II after accidentally killing someone while driving recklessly after having been declared an habitual offender (which makes it a felony to drive). This was found proper. He was driving recklessly in order to avoid detection (on the felony of driving after having been declared an habitual offender)

The Court added that it was because he was driving recklessly that made the conviction proper. His reckless driving was calculated to further the felony of driving after having been declared an habitual offender (in order to elude the police). Had he been driving carefully (even though still a felony), the felony-murder rule would not have applied.

Case #3: Wooden v. Commonwealth, 222 Va. 758 (1981)

The defendant participated in the armed robbery of an apartment. She and her co-felons waited for the arrival of their victim so they could rob him. The victim, however, shot and killed one of the robbers. One of the other robbers then killed him.

A criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony, there being no evidence of malice in the killing of the co-felon by the victim imputable to the defendant.

Case #4: Hickman v. Commonwealth, 11 Va. App. 369

The appellant and Wesley Beals, his cousin and good friend, took cocaine from a garage and went to Beals= truck to consume part of it. Appellant put cocaine on a small red mirror. Beals took the cocaine and injected himself. After doing this 3 or 4 times, he went into convulsions and lost consciousness. Appellant drove to the home of a friend, and they determined that Beals was dead. Appellant was convicted of felony-murder.

This was upheld on appeal. The appellant participated as a principal in the first degree, jointly with Beals, in the felonious act of knowingly and intentionally possessing cocaine and participated as a principal in the second degree in Beals= possessory act of ingestion of cocaine.

Commonwealth v. Montague, 536 S.E. 2d 910 (Va. 2000) - Defendant stole a car. Eleven hours later, during a police chase, he lost control of the car and accidentally hit and killed a pedestrian. The felony-murder rule was held not to apply as the theft and the chase were not parts of the same criminal enterprise.

Griffin v. Commonwealth, 33 Va. App. 413 (2000) - Defendant accidentally shot his friend while dancing in their apartment. Defendant was a convicted felon and his possession of the gun was therefore a felony. The felony-murder rule was held not to apply as the evidence failed to show that the accidental killing occurred >in furtherance of= the offense of possession of a firearm by a convicted felon. It is not enough that the killing occur during the felony or while it is being committed.

Barrett v. Commonwealth, 32 Va. App. 693 (2000) - Defendant was properly convicted of child abuse when she fell asleep after drinking, leaving her 2-year old daughter playing and giving her 10-month old son a bottle, knowing that her daughter had shown jealousy and aggressiveness toward the baby. His daughter drowned the baby in the bathtub.

But she was not guilty of felony-murder. Only acts causing death which are committed by those involved in the felony may be the basis of a felony-murder conviction.

The act causing death must result from some effort to further the felony before malice can be imputed to that act serving as the basis for a felony-murder conviction.

29. Capital murder

Virginia: 18.2-31

Capital murder carries death or 20-life if the defendant is 16 years old or older. If not, it carries 20-life (18.2-10)

The following offenses shall constitute capital murder, punishable as a Class I felony.

The wilful, deliberate and premeditated killing of any person:

1) in the commission of abduction, with intent to extort money or with intent to defile the victim

2) by another for hire

3) by a prisoner in a state or local correctional facility or while in the custody of an employee thereof

4) in the commission of a robbery or attempted robbery

5) in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy

6) of a law enforcement officer when such killing is for the purpose of interfering with the performance of his official duties

7) of more than one person as part of the same act or transaction

8) of more than one person within a 3-year period

9) in the commission of a prohibited drug transaction

10) by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise

11) of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman=s pregnancy without a live birth

30. Murder of a pregnant woman

18.2-31: The wilful and deliberate killing of a pregnant woman without premeditation, with intent to terminate the pregnancy - 10-40

The premeditated killing of a pregnant woman without the intent to terminate the pregnancy - Murder-I

31. Murder-I

Premeditated malicious killing other than capital murder. 20-life

32. Murder-II

Malicious killing without premeditation - 5-40

If there is no intent to kill, only to inflict serious bodily harm, the crime is Murder-II.

All murder is presumed to be Murder-II in Virginia.

33. Depraved heart murder

Requires that the defendant act in an extremely negligent way, creating a very high risk to human life, so as to evince a depraved heart. It is Murder-II.

34. Voluntary manslaughter

Eliminates the malice element.

Provocation: must be adequate to give rise to a heat of passion in a reasonable person.

Words and gestures alone will not amount to adequate provocation unless they give information about something that would justify it.

Cooling off period: if sufficient time has elapsed to cool off, malice will still be present.

Virginia includes a killing during mutual combat as voluntary manslaughter.

Punished as a Class V felony.

35. Involuntary manslaughter

Killing someone through criminal negligence (reckless - wilful and wanton behavior).

36. Virginia statute of DWI as involuntary manslaughter

Traditional tort law in Virginia: when someone is killed through simple or gross negligence, it is not involuntary manslaughter. DWI is considered gross negligence. It takes criminal negligence.

Virginia statutes have modified this approach in connection with driving while intoxicated:

If a person is killed by someone who is driving while intoxicated (which is normally only gross negligence), he shall be guilty of involuntary manslaughter.

And if he is in fact acting recklessly (with criminal negligence), he shall be guilty of aggravated involuntary manslaughter (1-20, one year of which is mandatory).

Case #5 - Gooden v. Commonwealth, 226 Va. 565 (1984)

Defendant was shooting at a deer crossing a power line right-of-way. His testimony differed from his original statements as to where he was at the time. The issue involved his criminal negligence.

Test for involuntary manslaughter: an accidental killing must result in the commission of a lawful act performed in a way so gross, wanton and culpable as to demonstrate a reckless disregard of human life.

Case #6: Davis v. Commonwealth, 230 Va. 201 (1985)

Defendant lived with her senile and totally disabled mother - she shared her mother=s social security benefits and served as her food stamp representative. Defendant had no other occupation and her mother received no other assistance. Her mother died in the hospital after having been diagnosed as having pneumonia, freezing to death and a chronic state of starvation.

This was found to be criminal negligence by the defendant, showing a callous disregard for human life.

Extra note: To be the victim of a homicide, the fetus must have been born alive. If the fetus is born dead as a result of injury to the mother, it is considered a battery to the mother.

ASSAULT AND BATTERY

37. Stalking

18.2-60.3: Any person who, on more than one occasion, engages in conduct directed at another person with the intent to place, or with knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person=s family or household member -- Class 2 misdemeanor.

This becomes a Class 1 misdemeanor if committed when there is an order in effect prohibiting contact with the victim or his family.

It is a Class 6 felony to threaten the governor or his immediate family.

38. Hazing

18.2-56: It shall be unlawful to haze or otherwise mistreat so as to cause bodily injury, any student at any school, college or university. Class 1 misdemeanor (unless the injury inflicted would justify a felony charge)..

Any person receiving bodily injury by hazing or mistreatment shall have a right to sue, civilly, the person or persons guilty thereof, whether adults or infants.

The president of any school, college or university receiving state funds, shall expel such student and shall make a report to the Commonwealth=s Attorney for action by the grand jury.

39. Battery

An intentional touching of another that is either offensive or harmful.

Objects held by the victim are considered extensions of the body.

A battery does not have to inflict pain or injury. It can be fairly defined as an illegal touching. Don=t describe it as unwanted, as many touchings which are unwanted are not illegal.

Adams v. Commonwealth, 33 Va. App. 463 (2000) - Shining a laser light on a police officer=s eye was sufficient to constitute a >touching= where the officer felt a stinging sensation as a result, and the defendant admitted that he did not get along with the officer.

40. Assault

Either the placing in fair or apprehension of an imminent battery (which requires apparent ability) or an attempt to commit a battery (which requires actual ability).

In Virginia, both assault and battery have been merged into the misdemeanor of simple assault.

18.2-57.1: Assault and battery against a law enforcement officer (knowing or having reason to know that he is a law enforcement officer) with a firearm: Class 1 misdemeanor with a mandatory minimum of 6 months.

Aggravated assault and battery: Assault with intent to commit another crime - raises it from a misdemeanor to a felony.

41. Victim chosen because of race - Virginia statute

18.2-57: If the defendant intentionally selects his victim because of race, religious conviction, color or national origin, the penalty shall include a mandatory minimum or 6 months, 30 days of which cannot be suspended.

If bodily injury occurs, it becomes a Class VI felony, with a mandatory minimum or 6 months, 30 days of which cannot be suspended.

42. Victim a family member

18.2-57.2: If it is against a family or household member, it is a Class 1 misdemeanor, but a third or subsequent offense within 10 years, it is a Class VI felony.

43. Object thrown from rooftop

If done with intent to cause injury to another, if more than one story above ground level, it is a Class VI felony.

44. Mayhem

At common law, this was intentionally dismembering a person -- it was designed to prevent persons from rendering others less able to fight for the king.

Today it is called maiming or malicious disfigurement.

18.2-51: If any person maliciously shoot, stab, cut or wound any person with intent to maim, disfigure, disable or kill....Class III felony if done maliciously --- Class VI felony if done without malice (such as during a heat of passion).

There is no presumption of intent to maim from a blow with the fist under ordinary circumstances.

If done to a law enforcement officer...5-30 with a mandatory minimum of 2 years (and if done without malice..Class VI felony with a mandatory minimum of 1 year).

If done when the victim is totally and permanently disabled....Class II felony.

If done with acid, lye or other caustic substance, or explosives....5-30 (without malice a Class VI felony).

If done while driving while intoxicated and showing a reckless disregard for human life.. -- Class Vi felony

RAPE

45. Rape - at common law

Forcible sexual intercourse with someone other than your wife. Only a man could commit it. Wives could not legally be raped.

Also, a man could use reasonable force to make his submit to sexual intercourse.

Today, many changes have occurred:

a) men can also be raped (gender-neutral)

b) husbands can be guilty in the rape of their wives

c) children who consent are still victims of rape

d) marital sexual assault statutes have emerged

e) older consenting children are victims of a lesser sexual offense

The utmost resistance is not required, if it would be dangerous to do so. But the absence of such resistance may be considered when relevant to show that the act was not against the will of the victim.

Extra note: there is a rebuttable presumption that a child between 10 and 12 is not physically able to commit rape.

46. Carnal knowledge

18.2-63

Sexual intercourse with a consenting child between 13 and 15:

a) if committed by an adult - Class IV felony

b) if committed by a child more than 3 years older than the victim - Class VI felony

c) if committed by a child less than 3 years older than the victim: fornication

18.2-66: If the carnal knowledge be with a child at least 14 years old, the subsequent marriage of the parties shall act as a defense - the court shall continue the case from time to time and when the victim reaches 16, if the defendant has supported the victim and any offspring, the case shall be dismissed....if not, the defendant can be prosecuted on the original charges.

47. Statutory rape

Voluntary sexual intercourse with a child under 13. Consent is no defense and good faith in the belief that the child is older is no defense.

48. Marital rape

Forcible sexual intercourse by one spouse against the other if either they are separated or there is serious injury. It is considered rape (not a reduced version).

49. Marital sexual assault

A lesser offense if one spouse forces the other to have sexual intercourse and they are living together and there is no injury....1-20.

50. Forcible sodomy - treated the same as rape

Carries the same penalty as rape.

Voluntary sodomy is also a crime, even between consenting adults -- and even between husband and wife (although a U.S. Circuit Court of Appeals case indicates that spouses may rely on their right of privacy -- a strange approach to this problem).

51. Evidence in rape cases

General reputation or opinion as the victim=s unchaste character or prior sexual conduct is not admissible.

18.2-67.7: Evidence of specific instances of the victim=s prior sexual conduct is admissible only if it is relevant and is:

A) offered to provide an alternative explanation for physical evidence of the offense charged which has been introduced by the prosecution (limited to explaining the presence of semen, pregnancy, disease or physical injury to the victim=s intimate parts)

B) Evidence of sexual conduct between the accused and the victim offered to support a contention that the alleged offense was not accomplished by force

52. Testimony by child victims

18.2-67.9: If the victim is a child aged 12 or under, the court has the discretion to allow the child to testify via closed circuit television -- this includes preliminary hearings as well as trial.

53. Exclusion of persons at preliminary hearings

18.2-67.8: In rape (or other sexual offense) cases, the court may exclude from the courtroom all persons except those whose presence would be supportive of the victim or the accused and would not impair the conduct of a fair hearing.

54. Incest

18.2-366 - It is a class.. I misdemeanor to have sexual intercourse with any person with whom one is forbidden to marry.

And a Class V felony for a person to have sexual intercourse with his daughter or granddaughter, or her son or grandson -- and a Class III felony if the victim is 13-18.

Case #7: Kifer v. Commonwealth, 228 Va. 256 (1984)

In February, 1983, husband moved out. Previously, she had left the husband from early January to the middle of February, but returned at that time and told him she wanted to reconcile.

They were en route to a lawyer for a separation agreement in February when she told him that she did not want to separate at that time. De had not had sexual intercourse with him for 5 months prior to March 6 (the date of the incident). On that date, he kicked the door to the home in when she refused him admittance and forced her to have sexual intercourse with him.

He was convicted of spousal rape by the trial court.

A wife=s revocation of implied consent to marital intercourse by a manifest intent to terminate the marital relationship must be shown by evidence establishing beyond a reasonable doubt: (a) that the wife has lived separate and apart from her husband; (b) she has refrained from voluntary sexual intercourse with him: c) and in light of all the circumstances, she has conducted herself in such a manner manifesting objectively to her husband that the marriage has ended de facto.

The evidence failed to establish the necessary revocation of consent -- her conduct over the prior six months was equivocal, indefinite and ambiguous.

Case #8: Snyder v. Commonwealth, 220 Va 792 (1980)

Defendant entered the victim=s home and had intercourse with her. He testified that she consented, as she had on previous occasions. She testified that she had not seen him before and did not consent. He was convicted.

There muse be evidence of some array or show of force sufficient to overcome resistance to sustain a conviction of forcible rape. Utmost resistance is not required if the victim believes it would be useless or cause her serious bodily harm.

A rape conviction can be sustained solely on the testimony of the victim, but not if such testimony is inherently incredible or so contrary to human experience as to render it unworthy of belief.

The evidence was not so inherently incredible -- was a jury issue -- conviction affirmed.

KIDNAPING

55. Kidnaping

The unlawful taking and confinement and asportation of another person by use of force, threat or deception.

Most courts require that the victim be moved a substantial distance (not Virginia).

If the asportation is only incidental to the crime (ie. Ordering a bank teller to move fro her window to the vault), it would not be sufficient to constitute this element.

18.2-47 - If a person, who, by force, intimidation or deception..seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person lawfully entitled to his charge, shall be guilty of abduction.....class. V felony.

18.2-47 - If committed by a parent and is subject to a contempt finding...Class I misdemeanor in addition to being held in contempt ----- if removed from the Commonwealth....Class VI felony.

18.2-48 - Abduction with intent (1) to extort money; (2) to defile the victim; (3) to put a child under 16 into prostitution.....Class II felony.

18.2-50 - Whenever it is brought to the attention of the members of the immediate family of any person that such person has been abducted, such members shall make immediate report thereof to the police... and shall render such assistance to the police.....Class II misdemeanor.

CHAPTER 5 CRIMES AGAINST PROPERTY

58. Arson

18.2-77 - If any person malicious burns, or by use of any explosive device destroys, in whole or in part, of any dwelling house or any occupied hotel, hospital, mental health facility, or other house in which persons usually dwell or lodge, any occupied railroad car, boat, vessel or river craft in which persons usually dwell or lodge, or any occupied jail or prison, or any occupied church.....5-life + $100.00.00 fine

Any such burning when the building or other place is unoccupied....Class IV felony.

There is no requirement that this occur at night.

There is no specific obligation on the part of the defendant to establish lack of occupancy.

59. Arson compared with older statute

Compare with the old statute: If any person in the nighttime, maliciously burn...any dwelling house....he shall be guilty of a Class II felony; but if the jury finds that such dwelling house was temporarily unoccupied...Class III felony.

This appeared to require evidence of lack of occupancy to reduce the penalty, which the defendant would have to introduce. Without any evidence as to occupancy, the higher penalty would be established.

But there was also a case interpreting the old statute...Davis c. Commonwealth, 16 Va. App. 6 (1993), which interpreted the >temporarily unoccupied= phrase in the old statute to mean not that no one happened to be at home but that it was not then being used as a dwelling at all.

This earlier statute also made arson during the day a Class IV felony.

Other points

When a building is burned, the law presumes the fire was caused by accident.

18-2-78 - No outhouse, not adjoining a dwelling house, nor under the same roof, although within the curtilage thereof, shall be deemed a part of such dwelling house unless someone usually lodge therein at night.

18.2-80 - If done with intent to defraud an insurance company or other person.....Class III if someone is inside......Class IV if no one is inside.

BURGLARY

60. Burglary

At common law, this was the breaking and entering the dwelling of another at night with intent to commit a larceny or felony therein.

61. Elements of burglary described

Breaking: to open a door or window (not destruction). It means to change the condition of the outside of the house to gain entry.

Merely walking through an open door is not sufficient.

Entry: any part of the person=s body will suffice.

Includes constructive entry, which would include sending a trained animal inside or doing something from the outside which would have an effect inside (ie. Shooting a gun from outside or using monitoring equipment to hear from outside what would normally require you to be inside).

Dwelling: now includes other things such as boats, railroad cars, offices, etc. in the statutory versions. But it has to be the dwelling of another.

Turner v. Commonwealth, 33 Va. App. 88 (2000) - The home was jointly owned by the defendant and his estranged wife. She had been living there for a year and he lived elsewhere. The home she occupied was their former marital abode. He had been ordered to have no contact with her due to his post-separation assault on her.

This was the >dwelling of another= for burglary purposes.

Night: some statutory versions do not require this. When it is required, the common law definition of night is not enough light to discern a person=s facial features. Virginia defines night as one hour after sunset to one hour before sunrise.

Night can be established by circumstantial evidence -- Inman v. Commonwealth (Va. App. 1990) - Because the burglar apparently needed to turn on the lights, the jury could reasonably infer that it was dark at the time of the burglary. -- Also Pair . Commonwealth (??)

When melted candle wax was discovered throughout the house, a nighttime burglary could reasonably be established.

62. Constructive breaking

Occurs when entry is gained by fraud or force.

63. Statutory burglary

In Virginia, there are numerous statutes including:

A) at night without breaking, or breaking during the day

b) entering a dwelling, office, shop, warehouse, bank, ship, railroad car, auto, truck or trailer (if used as a dwelling) with intent to commit murder, rape or robbery (1-20 or up to 12 mos in jail -- Class II felony if armed)

Possession of burglary tools with intent to commit a burglary, robbery or larceny....Class V felony. Such possession is prima facie evidence of intent.

Other points

The unexplained possession of recently stolen goods gives rise to the inference that the possessor is the thief, and this inference extends to an inference of burglary once a burglary has been established independently of the possession of the goods which came from it.

Case #9 - Bright v. Commonwealth, 4 Va. App. 248 (1987)- The Commonwealth may establish a prima facie case of burglary by proving that the goods were stolen from the house which was broken into, justifying the inference that both offenses were committed at the same time, by the same person and as part of the same criminal enterprise, and by proving that the goods were found soon thereafter in the possession of the accused.

C/a/b: On the night of 11-5-84, the victim left his house unoccupied. Later that week, he discovered that a handgun and pocket watch were missing from the house. He also noticed that a new window he was installing ws partially opened after he had secured it with shipping blocks that came with the window. The defendant was later apprehended after trying to sell the handgun.

Case #10 - Jones v. Commonwealth, 3 Va. App.295 (1986)

A silent alarm was activated in a Memco store after closing. The police responded and found the doors secure. The night manager let them in and found appellant and another inside. Goods had been moved from their original location in the store.

A constructive breaking occurs when the accused, with intent to steal, enters the premises with the consent of the owner, but with the intent to secret himself on the premises until closing and to then steal property.

LARCENY

64. Larceny - to take a and carry away the property of another with intent to permanently deprive the owner thereof.

Grand larceny: goods of $200 or more

Petit larceny: goods under $200

65. Larceny from the person - same as pickpocket

Grand if over $5

Other points

Grand larceny also includes stealing of a handgun, rifle or shotgun.

Penalty for grand larceny in Virginia is 1-20 or up to 12 mos in jail.-- 18.2-95

Asportation - some carrying away, however slight, is sufficient.

Property must belong to another. And be against his will -- lost property can be stolen

where abandoned property cannot be.

Owner must testify that it was taken against his will. - Judge Beard=s case.- Someone took a piece of luggage from the Greyhound Bus terminal and ran off. He was apprehended by the police. The government produced only the officer at trial -- and the case was dismissed.

Claim of right defense - if the defendant has a good faith belief that the property belongs to him.

Permanently deprive requirement - led to the enactment of UUV statutes.

Virginia has a recidivist statute which raises the penalty for subsequent offenses (30 days - 12 mos for a second offense --- third offense is a Class VI felony) - 18.2-104

67. Concealment

Includes concealment of goods, alteration of price tags and the transfer of goods from one container to another -- all with intent to steal. -- 18.2-103

Considered guilty of larceny (grand or petit depending on value).

68. Power of a merchant to detain on probable cause

18.2-105 - A merchant shall not be civilly liable for the arrest or detention of a suspected shoplifter provided it does not exceed one hour provided the merchant had probable cause for the detention.

Such detention is not governed by the requirements of Miranda. - Vazirnezami v. Commonwealth, (Va. App. 1991)

69. Receiving stolen property

18.2-108 - If any person buy or receive any stolen goods, knowing the same to have been stolen, he shall be guilty of the larceny thereof, and be proceeded against even if the principal offender not be convicted.

Actual knowledge is necessary -- it is not sufficient that a reasonable person would have known.

70. Unauthorized use

18.2-102 - Any person who shall take, drive or use any animal, aircraft, vehicle or boat without the consent of the owner, with intent to temporarily deprive the owner of his possession thereof, without intent to steal the same.....Class VI felony --- if the thing used is valued at less than $200 ......Class I misdemeanor.

The consent of the owner shall not be presumed because of the consent of the owner on a previous occasion.

71. Embezzlement

18.2-111 - Embezzlement is deemed larceny.

It is the unauthorized and fraudulent use of money or other thing of value, having first received it legitimately from an employer or by virtue of his profession.

Intent to return is immaterial.

There need be no intent to permanently deprive the owner thereof.

72. False pretenses

A false representation of a material present or past fact made with knowledge that the fact is false and with intent to defraud the victim thereby causing the victim to pass title to the wrongdoer.

Tricking a person into transferring possession (rather than title) is larceny by trick.

18.2-178 -- deemed guilty of larceny. But if he obtains the signature of the victim to a document, the false making thereof would be forgery.....Class IV felony.

73. Forgery and uttering

Forgery - the making or materially altering of a legal document with intent to defraud.

Uttering - the passing of a forged document as genuine with intent to defraud.

Forgery is complete when the writing is made -- it need not actually defraud the intended victim.

They are separate crimes and can be punished consecutively.

Forgery addresses the genuineness of the document itself, not the representations it contains. Thus, an employee who adds time to his time card is not guilty of forgery, because the card is genuine -- but he would be guilty of false pretenses.

74. Robbery

Taking personal property from the person of another by force or threat with intent to steal - the common law definition. The Virginia statute only provides the penalty.

It must be taken from the person=s presence.

Pickpocket: in Virginia, this is larceny from the person -- in D.C., this is robbery.

Penalty - 18.2-58 - 5-life.

Carjacking - 18.2-58.1 - The intentional seizure of the motor vehicle of another with intent to permanently or temporarily deprive another of possession of the vehicle by force or threat of force ----15-life.

This is a crime against the person as well as the person=s property. The violence must precede the taking. It does not cover the case where a person take=s the victim=s keys and then deprives the victim of her vehicle. Bell v. Commonwealth, 21 Va. App.693 (1996)

75. Extortion

18.2-59 - If any person threaten injury to the character, person or property of another person or accuse him of any offense and thereby extort money, property or pecuniary benefit....Class V felony.

The guilt or innocence of the victim of the extortion is irrelevant. >Whether persons upon whom extortion is practiced are vicious or virtuous, they are equally entitled to the protection of the law.= Mitchell v. Commonwealth, 75 Va. 856 (1880)

Claim of right is not considered a defense in Virginia. U.S. v. Teplin, 775 F. 2d 1261 (4th Cir. 1985).

Public disclosure or even proposed public disclosure is not extortion unless coupled with an effort to obtain money or other value from the victim. Wood v. Commonwealth, 8 Va. App. 560 (1989)

CRIMES AGAINST THE PUBLIC (CHAPTER 6)

These are victimless crimes and include crimes against morality, the public order and the administration of government.

Crimes against morality

76. Fornication

18.2-344 - Any person, not being married, who voluntarily shall have sexual intercourse with any person --- Class IV misdemeanor.

77. Lewd and lascivious cohabitation

18.2-345 - If any persons, not married to each other, lewdly and lasciviously associate or cohabit together, or whether married or not, be guilty of open and gross lewdness and lasciviousness.....Class III misdemeanor (Class I on repetition).

This statute is not aimed at fornication but at conduct, which by its openness and notoriety, tends to affront the public conscience and debase the community morality.

Everett v. Commonwealth, 214 Va. 325.

To constitute the offense, it is essential that it be proved that the parties live together in the same house as man and wife. Proof of occasional acts of incontinence is not sufficient. - Jones v. Commonwealth, 80 Va. 18 (1885).

Other point

Taking indecent liberties with a minor (defines >lascivious=)

Moyer v. Commonwealth, 33 Va. App. 8 (2000) - The word >lascivious= describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite (18.2-370.1).

Evidence was sufficient that the defendant acted with lasciviousness when the victims= testimony and the defendant=s journal entries demonstrated that he used his position as an adult role model to gain the trust of the victims, that he and the victims engaged in repeated nude paddlings, and that he was aroused sexually during at least two of the encounters.

78. Prostitution

18.2-346 - Any person who, for money or its equivalent, commits adultery, fornication...or offers to...and thereafter does any substantial act in furtherance thereof.....

Class I misdemeanor.

18.2-346.1 - As soon as practicable after conviction, the defendant shall submit to AIDS testing and counseling about AIDS.

18.2-347 -- It is a Class I misdemeanor to maintain a bawdy house.

79. Pimping

18.2-356 - Any person who shall receive money for procuring a customer for a prostitute

--- Class IV felony.

18.2-357 - Any person who shall knowingly receive any money from the earnings of a prostitute, except for consideration deemed good and valuable in law......Class IV felony.

80. Indecent exposure

18.2-387 - A Class I misdemeanor -- does not include breastfeeding.

81. Obscenity

18.2-372 - The word Aobscene@ shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

U.S. v. Guglielmi, 819 F. 2d 451 (4th Cir. 1987) - Materials that have a tendency to excite a lustful, shameful or morbid interest in nudity, sex or excretion meet the prurient interest element. Material that provoked normal, healthy, sexual desires is not obscene because it does not appeal to prurient interest.

18.2-374 - It shall be unlawful for any person knowingly to:

a) prepare any obscene item for the purpose of sale or distribution

b) print, copy, manufacture, produce or reproduce any obscene item for sale or distribution

c) publish, sell, rent, lend, transport in interstate commerce, or distribute or exhibit any obscene item

d) have in his possession with intent to sell, rent, lend, transport or distribute any obscene item.

18.2-374.1:1 - Any person who knowingly possesses any sexually explicit visual material utilizing or having as a subject a person less than 18 years of age.....Class III misdemeanor

(Class VI felony for subsequent offense)

NOTE: mere possession of child pornography is required whereas possession with intent to distribute is necessary for other types of pornography.

82. Unlawful assembly

18.2-406 - Whenever 3 or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order...Class I misdemeanor

(and any person carrying a weapon ... Class V felony).

WEAPONS OFFENSES

83. Carrying concealed weapons

18.2-308 - If any person carries about his person, hidden from common observation (i) any pistol, revolver, or any other weapon designed or intended to propel missile of any kind;

(ii) any dirk, bowie knife, switchblade knife, ballistic knife, razor, slingshot, spring stick, metal knucks or blackjack; (iii) any flailing instrument.....(iv) any disc........Class I misdemeanor

(second offense a Class VI felony and a third offense a Class V felony).