Criminal Law Ch 11 - Burglary

Does LA combine all stealing crimes into one?

yes

Under the theft statute…

each instance where one person takes or misappropriates the property of another is theft, regardless of the relationship of the parties or the means employed

To be guilty of theft

the offender must have intended to permanently deprive the owner of the property. If the offender intend’s to return the property —> theft is not satisfied.

Robbery is 

an aggravated form of theft. 

to commit a robbery

the offender must take something of value from the person of another or from the immediate control of another by force or intimidation. Property in another room in a house could be in the possession of another and thus the subject of a robbery.

What are the grades of robbery?

• Armed robbery

• Armed robbery with the use of a firearm

• first degree robbery

• second degree robbery

• simple robbery

“Anything of Value“

Any conceivable thing of value - 14:2

Elements of theft

1) a misappropriation or taking

2) A thing of value that belongs to another

• For shoplifting, “value” is the actual retail price of the property at the time of the offense

3) taking without the owner’s consent or by fraudulent conduct

4) the specific intent to permanently deprive the owner of the thing taken.

• 1.     Can be formed after the taking.

  2.     Concealing the item is proof of mens rea.

14:67

• A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

• B.

  • (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of twenty-five thousand dollars or more shall be imprisoned at hard labor for not more than twenty years, or may be fined not more than fifty thousand dollars, or both.

  • (2) When the misappropriation or taking amounts to a value of five thousand dollars or more, but less than a value of twenty-five thousand dollars, the offender shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than ten thousand dollars, or both.

  • (3) When the misappropriation or taking amounts to a value of one thousand dollars or more, but less than a value of five thousand dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than three thousand dollars, or both.

  • (4)

    • (a) When the misappropriation or taking amounts to less than a value of one thousand dollars, the offender shall be imprisoned for not more than six months or may be fined not more than one thousand dollars, or both.

    • (b)

      • (i) If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.

      • (ii) If the offender in such cases commits the crime of theft of a package that has been delivered to an inhabited dwelling owned by another, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.

• If the offender commits an assault upon a store or merchant's employee who is acting in the course and scope of his employment duties during the commission or attempted commission of theft, at least fifteen days of the sentence imposed under this Section shall be served without benefit of probation or suspension of sentence.

• When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.

• In a prosecution under this Section where the property allegedly misappropriated or taken was held for sale by a merchant, an intent to permanently deprive the merchant of the property held for sale may be inferred when the defendant:

  • (1) Intentionally conceals, on his person or otherwise, goods held for sale.

  • (2) Alters or transfers any price marking reflecting the actual retail price of the goods.

  • (3) Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection.

  • (4) Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods.

  • (5) Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods.

Robbery v. Theft

Robbery is a crime against the person.

i.         EX: You cannot “rob” a bank.

Robbery has a harsher penalty than theft.

c.     Theft is a crime against the property.

d.     “Anything of value” = any conceivable thing of the slightest value, movable or immovable, corporeal orincorporeal, public or private, and including transportation, telephone and telegraph service, or any other service available for hire.

Asportation

Carrying Away

Is theft general or specific intent crime?

specific intent

In a prosecution under this Section where the property allegedly misappropriated or taken was held for sale by amerchant, an intent to permanently deprive the merchant of the property held for sale may be inferred when the defendant:

(1)  Intentionally conceals, on his person or otherwise, goods held for sale.

(2)  Alters or transfers any price marking reflecting the actual retail price of the goods.

(3)  Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection.

(4)  Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods.

(5)  Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods.

State v. McIntyre

Court held that using another student’s ID to enter a football game was not theft

State v. Coleman

Court held a cashier taking money from the cash register was theft/embezzlement

Fauria v. Doe

Court held that a customer who sprayed static guard on her pants in a store w/o buying the product committed a theft

State v. Marcello

Court held that when a homeless person used soap and paper towels to washup in a public restroom, without consent, his action was not theft

Common Law - Larceny

Actus Reus – usurping trespassing & asportation.

Mens rea – Double SI – Animus Furandi “Animating the spirit ” aka intent

    1. SI to take

    2. caption it or basically decision to keep it.

Person has the right to recapture property within reason and with permission.

Doctrine of continuing trespass: unintentionally taking or just taking, taking continues and intent may be developed later.

Defenses: Intoxication, duress, insanity.

embezzlement 

a.     the felonious taking or misappropriation takes place after the lawful receipt of goods through a relationship of the victim.

Felony theft v. Misdemeanor theft

Felony Theft = $1000 or more;

Misdemeanor Theft = less than $1000.

State v. Victor

·      An offender may use a third party to take control of an item

·      In this case, the offender sent his two daughters to the cash register after he placed a television in a terrarium box.

State v. Ellis

·      If you have intent at the beginning to deprive an owner permanently of an item, but then have a change of heart and return the item, you are still guilty

Basically if intent + taking concur at any moment, returning the item does not “undo“ the crime because the crime has already been completed. 

Questions and Comments :p 

• Intent to permanently deprive can be developed later, crime is not complete until this happens

• this element of taking without the requisite intent is know as continuing trespass.   

State v. Frost

·      Contractor fraud

·      The formation of intent to deprive an owner of his property permanently need not coincide with the actual taking

·      Defendant guilty of theft even though he had not intent to deprive the owner of her moneypermanently when he took the money. However, when he did not provide his service that the victim paid him before and did not return her money, his intent was formed.

basically intent can be formed later

Questions and comments :o 

• Difference between asportation and taking

State v. Hardy

·      Court said that the allegations that the defendant (District Attorney) took money by means offraudulent representation that he would take care of DWI tickets fall squarely within the statute.

 Malfeasance in Office (14:134)

a.     Committed when any public officer or public employee…

i.         (1) Intentionally refuses/fails to perform any duty lawfully required of him; or

ii.         (2) Intentionally performs any such duty in an unlawful manner; or

iii.         (3) Knowingly permits any other public officer/employee, under his authority, to intentionallyrefuse/fail to perform any duty lawfully required of him or any such duty in an unlawful manner.

  Unauthorized Use of a Movable (previously joyriding) (14:68)

a.     The intentional taking or use of any movable which belongs to another, either without the other’sconsent, or by means of fraudulent conduct, practices, or representations, but without any intent to deprive the other of the movable permanently.

b.     The fact that the movable takes or used to be classified as an immovable is immaterial.

c.     Responsive verdict of a theft charge.

Example of   Unauthorized Use of a Movable (previously joyriding) (14:68)

·      Gisclair: The services of employees are not tangible objects and cannot be the object of a charge of unauthorized use of movables. LA has no statute for stealing labor/services. Defendant was not guilty of theft or unauthorized use of a movable when he used government employees on companytime, and without extra pay, to help renovate his camp.

o   Not theft because – Human effort and work are not the subject of ownership (state and parish can’town another man’s skill or knowledge). If anyone owns them it is the employees themselves and there is no charge that the services were stolen from the employees.

o   Not unauthorized use of a movable because – the services of employees are not tangible objects and cannot be the object of a charge of unauthorized use of movables.

·      Defendant could have been charged with malfeasance

Illegal Possession of Stolen Things (14:69)

a.     Intentional possessing, procuring, receiving, or concealing anything of value which has been the subjectof robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Elements of Illegal Possession of Stolen Things (14:69)

a.     State must prove 4 elements…

i.         (1) Property was stolen;

ii.         (2) Property was of value;

iii.         (3) D knew or should have known the property was stolen;

1.      An owner’s testimony and circumstantial evidence (such as a broken steer column on a car) can prove this element.

iv.         (4) D intentionally possessed, procured, received or concealed the property.

1.     An affirmative defense for possessing is that the accused, within 72 hours of his acquiring knowledge/good reason to believe that the thing was a subject of robbery/theft, reports the fact or belief in writing to the DA in the parish of his domicile.

Elements of all grades of Robbery in general

(1)  Taking of

·      the slightest asportation/deprivation of an item for the slightest period of time is sufficient; Theslightest segregation of the property moved the slightest distance is sufficient (State v. Conrad)

·      Victim need not know if the taking at the time it was removed (State v. Thomas)

(2)  anything of value

(3)  belonging to another

(4)  from the person of another or in the immediate control of another

(5)  by use of force or intimidation

·      If an item is taken without the use of force or intimidation, it is not a robbery

o   French quarter hustle (entertainment to take your money) is not a robbery (State v. Florant)

o   A look in someone’s eyes is not sufficient to establish force or intimidation beyond a reasonable doubt (State v. Florant)

·      Victim must be intimidated by the defendant; if the victims subjective reactions indicate that he perceived no harm then it cannot be armed robbery (State v. Byrd)

·      With force or intimidation, there is an increased risk of danger to human life posed

·      If intimidation allows the offender to conduct the theft, there need not be a causal connection betweenthe victim’s fear of harm and the robber’s acquisition of the property (State v. Thomas)

·      Force or intimidation can take place during the res gestate of the taking, such that it is fair to say it isone continuous transaction to satisfy the “force or intimidation” element.

o   Can take place before the taking (See State v. Thomas)

o   Can take place after the taking (See State v. Myers)

Is theft a responsive verdict to robbery?

NO

What are the crimes of robbery and theft against?

Robbery = crime against a person

theft = crime against property 

Armed Robbery (14:64)

• general intent with a dangerous weapon

a.     State must prove that…

i.         (1) D was armed with a dangerous weapon;

ii.         (2) D took something of value;

iii.         (3) Taking was accomplished through force/intimidation;

iv.         (4) Object was taken either from the person of another or from the person’s immediate control.

Case application of Armed Robbery

i.         Byrd: V’s potential reaction to an instrumentality that is not inherently dangerous can be consideredby the jury in determining whether the instrument in the manner used is likely to produce GBH/is a dangerous weapon.

A.   First Degree Robbery (14:64.1) – GENERAL INTENT, V believes D has a dangerous weapon

 State must prove…

i.         (1) The taking;

ii.         (2) Of anything of value belonging to another;

iii.         (3) From the person of another or from the immediate control of another;

iv.         (4) By force or intimidation;

• It is sufficient if the force or intimidation is used for the escape.

a.     Force/intimidation can occur in the RES GESTAE of the taking,

b.     Force/intimidation can take place AFTER the taking,

c.     Sufficient if force/intimidation is used to help offender retain possession,

d.     Sufficient if force/intimidation is used to carry away the property.

v.                   (5) The D induced a subjective belief in the V that he was armed with a dangerous weapon AND

vi.                    (6) V's belief was objectively reasonable.

A.   Second Degree Robbery (14:64.4) – SPECIFIC INTENT (usually charge 2DB too)

a.     ELEMENTS:

i.         (1) The taking;

ii.         (2) Of anything of value belonging to another;

iii.         (3) From the person or from the immediate control of another;

iv.         (4) When the offender intentionally inflicts serious bodily injury.

b.     Offender will almost always ALSO be charged with second degree battery, but the prosecutor could charge either.

c.     Allen: If a robbery is carried out by more than 1 person, each D does not have to strike the V so long as he has the requisite specific intent.

A.   Simple Robbery (14:65) – GENERAL INTENT, NO dangerous weapon

a.     ELEMENTS:

i.         (1) The taking;

ii.         (2) Of anything of value belonging to another;

iii.         (3) From the person of another or that is in the immediate control of another;

iv.         (4) By use of force or intimidation;

1.     V does NOT have to believe they will be physically harmed by the offender forintimidation in simple robbery.

2.     If intimidation allows an offender to conduct theft, that is enough.

v.      (5) When a D is NOT armed with a dangerous weapon.

b.     More serious crime than theft.

c.     EX: D who approaches a cashier, demands money, grabs money from register IS guilty of DR even if the V stepped back and didn’t interfere. The D still took something of value through intimidation.