Criminal Law (Barbri)

Assault First Degree-Type One

The defendant commits first degree assault when the defendant intentionally causes serious physical injury and:

-Uses a deadly weapon

-The victim is an on-duty police officer, firefighter, or EMT

-The victim is 62 or older; or

-The injury is permanently disfiguring or disabling

Assault First Degree-Type Two

The defendant commits first degree assault when the defendant recklessly causes serious physical injury and:

-Engages in conduct that creates a substantial risk of death, or

-Is in flight from a felony

Assault Second Degree

The defendant commits second degree assault when the defendant:

-Recklessly causes serious physical injury (except as above)

-Recklessly causes (non-serious) physical injury with a deadly weapon or to someone who is pregnant, 62 or older, or 5 or younger; or

-Intentionally causes (non-serious) injury to an on-duty police offi- cer, firefighter, EMT, or state employee

Assault Third Degree

The defendant commits third degree assault when the defendant:

-Recklessly causes physical injury, or

-Negligently (criminal negligence) causes physical injury with a deadly weapon

Vehicular Assault First Degree

The defendant commits first degree vehicular assault when the defendant:

-While operating a motor vehicle under the influence of alcohol or drugs

-Causes serious physical injury to another

-By the defendant's negligent operation of the vehicle (simple/tort negligence)

Vehicular Assault Second Degree

There are 2 types of second degree vehicular assault:

-The defendant's criminally negligent operation of a vehicle causes serious physical injury to another (no drugs or alcohol)

-While operating a vehicle under the influence of alcohol or drugs, the defendant's negligent operation causes non-serious injury to another (simple negligence)

Offensive Touching

The defendant commits offensive touching when the defendant intentionally touches another person with a body part, any instrument, or a bodily fluid, knowing that the touching is likely to cause offense or alarm.

Endangering the Welfare of a Child

A parent or other adult with responsibility over an individual under the age of 18 is guilty of endangering the welfare of a child when they:

-Knowingly act in a manner likely to injure the minor's physical, mental, or moral welfare; or

-Intentionally do, or fail to do, any act that results in the minor being neglected or a delinquent child

Reckless Endangering

First degree reckless endangering involves reckless conduct that creates a substantial risk of death to another person. Second degree is reckless conduct that creates a substantial risk of physical injury to another person.

Menacing (Misdemeanor) and Aggravated Menacing (Felony)

A person commits menacing by intentionally placing another person in fear of imminent physical injury. If a deadly weapon is used, the crime is aggravated menacing.

Terroristic Threatening

The defendant commits terroristic threatening when the defendant threatens to commit any crime likely to result in death or serious injury to persons or property.

Gang Participation

The defendant is guilty of gang participation when the defendant: (1) actively participates in a criminal street gang with knowledge that its members engage in a pattern of criminal gang activity and (2) knowingly promotes, furthers, or assists in any felony criminal conduct by gang members.

Hoax Device

It is a crime to possess, transport, use, or place a hoax device with the intent to cause anxiety, unrest, fear, or personal discomfort to any person or group.

Kidnapping Second Degree

The defendant commits second degree kidnapping when the defendant unlawfully restrains another, whom the defendant releases unharmed and in a safe place, and with the purpose to do one of the following:

-Hold the victim for ransom or reward

Use the victim as a shield or hostage

-Facilitate the commission of any felony or flight thereafter

-Inflict physical injury upon the victim or violate or abuse the victim sexually

-Terrorize the victim or a third person

-Take or entice any child under 18 from a parent, guardian, or custodian

Kidnapping First Degree

First degree kidnapping is the same as second degree except that the defendant does not release the victim unharmed and in a safe place.

Unlawful Imprisonment

Second degree unlawful imprisonment is the knowing and unlawful restraint of another person. First degree is the knowing and unlawful restraint of another person under circumstances that expose that person to the risk of serious physical injury.

Rape

-Second degree: Intentional sexual intercourse without consent

-First degree: Intentional sexual intercourse without consent that causes physical or severe emotional injury

-Third degree: Intentional sexual intercourse where the victim is under 16 and the defendant causes physical or severe emotional injury

-Fourth degree: Intentional sexual intercourse where the victim is under 16, or the victim is under 18 and the defendant is 30 or older (and the victim and defendant are not married)

Unlawful Sexual Contact Third Degree

The defendant commits third degree unlawful sexual contact when the defendant has sexual contact with another person that the defendant knows is offensive to the other person or is without consent.

Unlawful Sexual Contact Second Degree

The defendant commits second degree unlawful sexual contact when the defendant intentionally has sexual contact with another person who is under 18.

Unlawful Sexual Contact First Degree

The defendant commits first degree unlawful sexual contact when the defendant: (1) commits second or third degree unlawful sexual contact and (2) causes physical injury to the victim or uses a deadly weapon.

Sexual Harassment

The defendant commits sexual harassment when the defendant: (1) threatens to engage in conduct likely to result in the commission of a sexual offense against any person, or (2) attempts to induce another person to have sexual contact or intercourse with the defendant, knowing that it is likely to cause annoyance, offense, or alarm.

Child Pornographhy

It is a crime to knowingly possess any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act, or a visual depiction that has been created or edited to make it appear that a child is engaging in a sexual act or in the simulation of such an act.

Sexual Exploitation of a Child

The defendant commits sexual exploitation of a child when the defendant knowingly: (1) photographs or films a child engagingin or simulating a prohibited sexual act, or (2) finances, produces, publishes, or promotes any media depicting a child engaging in or simulating a prohibited sexual act.

Murder First Degree

The are 4 major categories of first degree murder:

-Intentional killing

-Reckless killing during the commission of, or flight from, any felony

-Reckless killing of a police officer, corrections officer, EMT, or firefighter lawfully performing their duties

-Causing death using an explosive device

Murder Second Degree

Second degree murder is a killing that is committed: (1) recklessly and under circumstances that manifest a cruel, wicked, and depraved indifference to human life (“depraved heart” murder), or (2) with criminal negligence during the commission of, attempt to commit, or flight after any felony.

Recklessly

The defendant acts recklessly with respect to an element of an offense when the defendant is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct.

Criminal Negligence

The defendant acts with criminal negligence with respect to an element of an offense when the defendant fails to perceive a riskthat the element exists or will result from the conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Negligence

The defendant acts with negligence with respect to an element of an offense when the defendant fails to exercise the standard of care that a reasonable person would observe in the situation.

Felony Murder-Agency Rule

Delaware follows the agency approach to first and second degree felony murder, which requires that the killing be committed by a felon or one of the felon's accomplices.

Manslaughter

There are 3 major categories of manslaughter:

-Reckless killing

-A killing that results from an intent to cause serious injury where the defendant’s conduct seems reasonably likely to cause death

-Intentional killing under the influence of extreme emotional dis- turbance (“EED”)

Criminal Negligent Homicide

Criminally negligent homicide occurs when a person causes the death of another with criminal negligence.

Vehicular Homicide First Degree

First degree vehicular homicide occurs when the defendant operates a motor vehicle under the influence of alcohol or drugs, and the defendant's criminally negligent operation of the vehicle causes another person's death.

Vehicular Homicide Second Degree

Second degree vehicular homicide is the criminally negligent operation of a vehicle that causes another person’s death (non-DUI) or the negligent operation of a vehicle that causes another person’s death while the driver is under the influence of alcohol or drugs.

Theft

The defendant commits theft when the defendant takes, exercises control over, or obtains the property of another with the intent to permanently deprive the owner of it.

Embezzlement

The defendant commits theft when the defendant legally receives, takes, exercises control over, or obtains the property of another and fraudulently converts the property to the defendant's own use.

False Pretenses

The defendant commits theft when the defendant, with the mens rea prescribed in type 1 or 2, obtains the property of another by intention- ally creating or reinforcing a false impression as to a present or past fact.

Extortion (Blackmail)

The defendant commits extortion when, with the mens rea prescribed for theft, the defendant compels or induces another person to deliver property by instilling fear that, if the property is not delivered, the defendant or the defendant's agent will:

-Cause physical injury to someone

-Cause damage to property, or

-Expose a secret or publicize an asserted fact, whether true or false, that subjects the victim to hatred, contempt, or ridicule

Claim of Right as Affirmative Defense

In any prosecution for theft or extortion, it is an affirmative defense that the property was appropriated by the actor under a claim of right, made in good faith.

Robbery Second Degree

A defendant commits second degree robbery when, in the course of committing a theft, the defendant uses force or fear to unlawfully acquire property or retain it immediately after it is taken.

Robbery First Degree

First degree robbery is second degree robbery where the defendant:

-Causes physical injury to a non-participant in the crime

-Displays what appears to be a deadly weapon or represents through words or conduct that the defendant has a deadly weapon

-Threatens death upon another; or

-Commits the crime against someone 65 or older

Receiving Stolen Property

Receiving stolen property is intentionally receiving, retaining, or disposing of the property of another person with intent to deprive the owner of it, knowing that it has been acquired under circumstances amounting to theft. It is also a crime to sell stolen property.

Forgery

Forgery occurs when the defendant makes or alters a writing of another without consent and with the intent to defraud.

Arson Third Degree

The defendant commits third degree arson when the defendant recklessly damages a building or intentionally starts a fire or causes an explosion.

Arson Second Degree

The defendant commits second degree arson when the defendant intentionally damages a building by fire or explosion.

Arson First Degree

The defendant commits first degree arson when the defendant inten- tionally damages a building by fire or explosion, and the defendant either knows someone other than an accomplice is in the building or the presence of another person is a reasonable possibility.

Criminal Mischief

The defendant commits criminal mischief when the defendant inten- tionally or recklessly damages the tangible personal property of another (no need for fire or explosion).

First Degree Burglary

The defendant commits first degree burglary when the defendant knowingly enters or remains unlawfully in an occupied dwelling with the intent to commit a crime therein.

First Degree Home Invasion Burglary

First degree home invasion burglary is first degree burglary, as defined above, plus the burglar or an accomplice commits or attempts to commit:

-First or second degree robbery, assault, murder, or kidnapping, or

-Manslaughter or rape of any degree

Second Degree Burglary

Second degree burglary is knowingly and unlawfully entering or remaining:

-In a dwelling with the intent to commit a crime therein (the dwelling need not be occupied); or

-In a building with the intent to commit a crime therein and (1) armed with a deadly weapon or explosives or (2) causing physical injury to an innocent party

Third Degree Burglary

Third degree burglary is knowingly and unlawfully entering or remaining in a building with the intent to commit a crime therein (no deadly weapon or injury to innocent third parties).

Possession of Burglar's Tools

Possession of a burglar’s tools means the defendant is in possession of any tool or instrument commonly used for committing or facilitating unlawful entry into a premises, and the defendant intends to use the tool or instrument to gain unlawful entry into premises.

Criminal Trespass

A person commits criminal trespass when they knowingly enter or unlawfully remain:

-First degree: In a dwelling or a building used to house animals

-Second degree: In a building or upon real property enclosed in a manner manifestly designed to exclude intruders

-Third degree: Upon real property

Drug Dealing

Drug dealing is the manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance.

Aggravated Factors Drug Dealing

The definition above is for a "D" felony. The offense will be upgraded to a "C" or "B" felony depending on: (1) the quantity of the controlled substance; and (2) the existence of at least 1 of 3 aggravating factors:

-The offense occurred within a protected school zone.

-The defendant intentionally fled in a vehicle from law enforcement.

-The defendant resisted arrest with force or violence.

Drug Paraphernalia

It is unlawful for any person to use, or possess with intent to use, drug paraphernalia. However, there is an exception for drug paraphernalia pertaining to the use of marijuana.

Maintaining a Drug Property

It is unlawful for one who is an owner or tenant of a property to knowingly consent to its use for the manufacture or delivery of controlled substances.

POSSESSION OF DEADLY WEAPONS BY PERSONS PROHIBITED ("PDWPP")

The following are among those persons considered "persons prohibited":

-Any person convicted of a felony

-Any person convicted of a crime of violence involving physical injury to another

POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY ("PFDCF")

In PFDCF, the firearm can be operable or inoperable, and it can be loaded or unloaded.

POSSESSION OF A DEADLY WEAPON DURING THE COMMISSION OF A FELONY ("PDWDCF")

For purposes of PDWDCF, a deadly weapon includes:

-Any firearm, as described for PFDCF, that is accessible to the defendant

-Any “dangerous instrument,” meaning any instrument readily capable of causing death or serious physical injury under the circumstances in which it is used, attempted to be used, or threatened to be used

CARRYING A CONCEALED DEADLY WEAPON ("CCDW")

The crime of CCDW consists of carrying a concealed deadly weapon upon or about the person without a license to do so.

Definition of Solicitation

The defendant commits solicitation when, intending that another person engage in conduct constituting a crime, the defendant invites the other person to engage in conduct that would constitute the crime or an attempt to commit it.

Solicitation

The degree of solicitation depends on the underlying crime:

-First degree: The solicited crime is a Class A felony (for example, first degree murder, first degree rape, or abuse of an impaired adult resulting in death).

-Second degree: The solicited crime is a felony other than a Class A felony.

-Third degree: The solicited crime is a misdemeanor.

Affirmative Defense of Renunciation

It is a defense if the defendant, under circumstances manifestinga voluntary and complete renunciation of the criminal purpose, prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by:

-Fear of detection or apprehension

-Postponement of the criminal conduct until another time

The Substantial Step Requirement

A substantial step is an act or omission which leaves no reasonable doubt as to the defendant's intention to commit the crime.

Conspiracy

A person is guilty of conspiracy when, intending to promote or facili- tate the commission of a crime, the person:

Agrees with one or more persons to engage in conduct constitut- ing the crime or an attempt or solicitation to commit it; or

Agrees to aid one or more persons in the planning or commission of the crime or an attempt or solicitation to commit it

First degree: Object of the conspiracy is a Class A felony.

Second degree: Object of the conspiracy is any other felony.

Third degree: Object of the conspiracy is a misdemeanor.

Affirmative Defense of Renunciation-Conspiracy

It is a defense if the defendant, under circumstances manifesting a voluntary and complete renunciation of the criminal purpose, prevented the commission of the crime that was the object of the conspiracy.

Hindering Prosecution

The defendant is guilty of hindering prosecution when, knowing that an individual has committed a crime, the defendant intention- ally hinders the apprehension of that person or the filing of charges against the person by either:

-Helping him elude capture by law enforcement, or

-Tampering with physical evidence against him

Duress

The defendant has the defense of duress if the defendant was coerced into committing a crime by the use or threat of force, from another person, against the defendant or a third party which a reasonable person in the defendant’s situation would have been unable to resist. Note: The threat must come from a person, not a “natural force.”

Entrapment

The defendant has the defense of entrapment if the defendant was induced by a law enforcement official or their agent to engage in the criminal activity when the defendant is not otherwise disposed to do so.

Unlawful Use of a Payment Card

The defendant commits unlawful use of a payment card when the defendant uses, or knowingly permits or encourages another to use, a payment card to obtain anything of value knowing that: (1) the card is stolen, forged, or fictitious; (2) the card belongs to another person who has not authorized its use; (3) the card has been revoked or canceled; or (4) the use of the card is unauthorized by the issuer.