THE LAW PROFESSOR

A GOULD'S MODEL STUDENT:  JIM THOMAS

CA FYLSE ESSAY EXAMINATION, QUESTION #3, OCTOBER, 2008

Deanna, a single mother of ten-year old Vickie, worked as a cashier at the local grocery store. Deanna had recently broken off her relationship with Randy, a drug addict who had been violent toward her on several occasions. One morning Randy was in the parking lot outside the grocery store and telephoned Deanna at work. Randy told Deanna that a friend of his was outside Vickie's school. Randy said that if Deanna did not immediately bring $1,000 to Randy in the parking lot, he would call and direct his friend to harm Vickie.

Over the next several minutes, Deanna put in her pants pocket $400 from her cash register at the grocery store. She then went to the manager's office, where she had heard there was a safe containing a large amount of cash. No one else was in the manager's office.

Alma, an assistant manager who works at the cash register next to Deanna's, saw how upset Deanna was after the phone call. Alma followed Deanna to the manager's office, where she found Deanna looking through desk drawers. Deanna told Alma that she was looking for the keys to the safe because she “needed some papers” from it. Alma smiled, told Deanna where the keys were, and then said, “You don't have to lie to me, Deanna. I'll be outside keeping watch for you.” Deanna replied, “Thank you so much, Alma, I am in a desperate situation right now and will return the money to the safe as soon as I can.”

As Alma stood in the hallway outside the manager's office, Deanna opened the safe, removed $600, relocked the safe, and returned the key to its location. Deanna then brought $1,000 to Randy in the grocery store parking lot.

What crimes, if any, can Deanna and Alma reasonably be charged with, and what defenses might each assert? Discuss.

Answer A to Question 3,

The Legal Educator Student: Jim Thomas

GRADE:  90

What crimes can Deanna and Alma be charged with and what defenses might they assert?

State v. Deanna

Common Law Burglary

Common Law Burglary is defined as the breaking and entering [of a] dwelling house of another at night with the intent to commit a felony.

Here, the local store is not a dwelling house, and the theft does not occur at night, and there is not breaking and entering. Thus, there is no Common Law Burglary.

Modern Statutory Burglary

Modernly, breaking has evolved into unauthorized entry. Nighttime has been eliminated. Dwelling house has changed to any protected structure. Here, we have an unauthorized entry into a protected structure, the safe, during the day without consent or privilege.

Inner Door Doctrine

If a room or inner structure is part of the protected structure, here, the Grocery Store, if the D breaks into the Safe, it will be construed as an inner breaking for burglary purposes.

Here, Deanna broke into the safe, and took $600 which was the property of another, the Store. Thus, unauthorized entry and breaking into the safe, without consent, with the intent to commit a crime, the larceny, taking of the $600.

Defenses

Deanna will argue that she had consent of Alma, who was her supervisor. Store will assert that Alma had no such right and that the entry was without consent, voiding the use of the key. The defense fails, and she commits a larceny.

Larceny

Under the Common Law (CL) is a trespassory taking of and carrying away of the tangible personal property of another with the specific intent to permanently deprive the owner.

Here, Deanna, takes the property with the “intent to return the money” according to the facts. If the Court believes this, she would have a defense to the larceny and the underlying modern burglary. However, she handles the money in such a way, “giving the money to Randy,” who intends to abscond with it. Since she lacks the substantial capacity to return the money, then the Court must find the “intent to permanently deprive or steal." Further, Deanna is a low level employee, and would only have custody of any money. This also leads to larceny and not embezzlement.

Thus, Deanna will be guilty of larceny.

Defenses

Consent / Condonation

Is defined as willingness by the victim. Here, Deanna will argue that Alma gave her consent and the key to the safe. The DA will argue that the key was given to Anna with “fraudulent intent,” as she told Alma she was going to find some papers.

This would give rise to the Continuing Trespass doctrine. Thus, when Deanna gives the money to Randy, who has no intent to return it to her, the mens rea, for intent to steal, becomes concurrent with the continuing trespass in larceny.

Duress

Is defined as an act by another person, which in the reasonable person would lead to the compunction to commit a crime. It is only available for minor crimes like larceny and not murder. Here, Randy threatened immediate harm to  Deanna.s daughter, a very serious offense of severe bodily injury. A reasonable person of normal resistance would probably have acted the same. If believed by the Court, Deanna could have a defense to the larceny and the Burglary supra.

Embezzlement

Is defined as the wrongful conversion of the tangible personal property of another entrusted with lawful possession.

When Deanna took the $400 from the cash register it was already in safekeeping of the Grocery Store (Store). Thus, store had possession, and even though Deanna would usually have only custody, here she has possession. Deanna puts the money in her pocket, and thus she intends to “convert it to her own use” by giving it to Randy. Since she had possession the property charge on the $400 is embezzlement.

Thus, Deanna, can be charged with Embezzlement of the $400.

Conspiracy

Is the agreement by 2 or more persons with the Specific Intent to Commit the Target Crime.

Modernly, the majority requires an overt act in furtherance of the Conspiracy.

Here, the target crimes will be larceny and Burglary of the Safe.

Wharton's Rule

There must be one more criminal mind to commit a conspiracy than is required to commit the crime. Here, since larceny and embezzlement can be committed by one person the rule is satisfied.

Pinkerton Rule

All coconspirators can be charged with and convicted of all the crimes of the other coconspirators, which are committed in furtherance of the criminal conspiracy.

Agreement

At Common Law that was all that was required. Modernly, there is the overt act here; the opening of the safe with the key is the overt act.

Implied Agreement

Here, the facts are silent about the agreement; however, Alma “followed Deanna into the manager's office” and stood lookout for her. This would be an implied agreement to commit the crime by Alma. If the Court does not find this as an agreement, the DA can still get Alma as an accomplice, as noted infra. Under Pinkerton, both of the D's, Deanna and Alma, will be charged with all of the crimes.

Unilateral Theory of Conspiracy

Under a jurisdiction that follows the MPC, only the Defendant has to consider himself as conspiring with someone to be charged with conspiracy. Thus, in a jurisdiction that follows the MPC, Deanna could be charged with conspiracy without the agreement of Alma.

Conclusion

Larceny of the $600.

Embezzlement of the $400.

Modern Statutory Burglary of the Safe.

Conspiracy to Commit Larceny, Embezzlement, and Burglary.

State v. Alma

Accomplice

Is defined as Aiding and Abetting the Principal in the commission of the crime with the Specific Intent that the crime be committed. Here, Alma by conduct accompanied Deanna to the office to open the safe. She also smiled, which is construed as consent, and proceeded to “keeping watch for you.”

Thus, by conduct she aided Deanna by telling her where the keys were, and demonstrated her approval. So Alma aided and abetted Deanna in the crimes.

Accomplice Liability

An accomplice is chargeable with all the crimes of the principals that are reasonably foreseeable in the target crimes. Here, the larceny and embezzlement, and the burglary of the safe are all foreseeable. Thus, if the Court does not find the agreement in the conspiracy then Alma can still be charged as an accomplice.

Defenses for Alma. None.

Conclusion

Alma can be charged with all of the crimes of Deanna, either under Conspiracy Theory, or as an accomplice depending on whether the Court finds the Agreement for the Conspiracy (Implied by Conduct).

Dr. Jim Thomas with The Law Professor.

Dr. Thomas Followed The Law Professor's Methods,

and Received the Excellent Score of "90" on His Criminal Law Essay.  See Below.