VIRGINIA CRIMINAL LAW JOHN G. DOUGLASS UNIVERSITY OF RICHMOND SCHOOL OF LAW

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1 VIRGINIA CRIMINAL LAW JOHN G. DOUGLASS UNIVERSITY OF RICHMOND SCHOOL OF LAW CHAPTER 1: PARTIES TO A CRIME A. Parties t a Crime 1. Basic Principles Accmplice liability = mens rea r mental state t cmmit a crime + an act designed t assist in the cmmissin f a crime Virginia uses the term accessry instead f the cmmn law term accmplice. 2. Principal in the First Degree (P1) Directly cmmits the prhibited act 3. Principal in the Secnd Degree (P2) With the intent t assist P1 cmmit the crime Aids, supprts, r encurages Is (r cnstructively present = within easy call, lkut, getaway driver) 4. Accessry Befre the Fact (ABF) Same intent and actins as P1 BUT nt B. Guilty f Substantive Crime A P2 r ABF is guilty f the substantive crime itself. Being a P2 r ABF is nt a separate ffense. Example 1: Je and Bill agree t rb a liqur stre. Je ges t Ann and says, Get me a gun s I can rb a liqur stre. Ann prvides the gun. Bill sits utside the stre in getaway car while Je ges inside, threatens the cashier with the gun, and takes mney. Je is f rbbery. He is a. Bill is f rbbery. He is a. Ann is f rbbery. She is an. Example 2: Same facts, but Je says nthing t Ann abut the rbbery. He nly says, I need a gun, and she prvides it nt knwing its purpse. Ann is f rbbery, because.

2 C. Timing T be guilty as P2 r ABF, must aid P1 befre the crime is cmpleted. Example 3: Darth kills Vic. Ten minutes later, Al arrives n the scene. Unknwn t Darth r Al, Vic is dead. Al encurages Darth t sht Vic again. Is Al guilty as an accmplice in the murder f Vic? Al is as a P2 r ABF because the crime was cmpleted befre Al became invlved. Example 4: (Williams v. Cmmnwealth, 66 Va. App. 638) Darth steals a Jeep. Thirty minutes later, he picks up his friend Ann and tells her that the Jeep is stlen. Ann says, That s cl, let s g pick up my friend, Al. They pick up Al and tell him that the Jeep is stlen. Al smiles and says nthing. Darth is P1. Darth is guilty f grand larceny as a P1. Ann is because larceny is a cntinuing ffense and anyne wh knwingly the stlen prperty and directs its mvement r is guilty f larceny. Al is because mere is nt enugh. D. Guilty Principal Generally, fr there t be an accmplice, there must be a guilty principal. Cmmnwealth must prve that sme P1 cmmitted the crime. But, need nt charge r cnvict the P1. Distinguish dctrine D causes an inncent persn t cmmit the criminal act. The actr is incmpetent, insane, lacks mens rea. Example 5: The defendant, intending t steal a car, tells Ann, That s my car, please drive it away fr me. Unknwn t Ann, the defendant is lying. In fact, it s nt the defendant s car and the defendant has n permissin t take it. Ann drives it away. The defendant is f larceny f the car because he had the t steal and he used an inncent agent t cmmit the criminal act. E. Punishment f Accmplices Generally, P2s and ABFs are punished the same as P1s. exceptin ( shter rule) P1 (the shter ) cmmits capital murder. P2 and ABF are guilty nly f first-degree murder. In killing teams (e.g., sniper and sptter), bth may be P1s. Exceptin t shter rule : D hires smene t kill V Themis Bar Review, LLC VA Criminal Law

3 D, engaged in cntinuing criminal enterprise r act f terrrism, rders killing. CHAPTER 2: PARTIES TO A CRIME CONTINUED; INSANITY DEFENSE; DIMINISHED CAPACITY; INTOXICATION; INFANCY A. Accessry After the Fact 1. In General AAF is a separate categry f criminal liability. AAF t any felny is a class 1 misdemeanr (Va. Cde Ann ). 2. Elements X actually cmmitted crime AAF, knwing X cmmitted crime, Receives, cmfrts, r assists Harbrs a fugitive; cnceals evidence 3. Exceptin t AAF Exceptin fr clse family members and emplyees Example 6: Xavier (X) rbs a bank. He drives t his girlfriend s (G) hme and tells her, Hide this mney that I just stle frm a bank. The girlfriend puts the mney in a clset. X drives t his brther s (B) huse and tells him he rbbed a bank. B helps X hide in the clset while the cps cme lking fr him. X then ges t the hme f his friend, F, and asks t stay in a spare bedrm. F, unaware f the rbbery, allws X t use the bedrm. G is as an AAF because she a felny has been cmmitted and assists in the f evidence after the fact. B is as an AAF because he is a. F is as an AAF because he is that a crime has been cmmitted. B. Criminal Respnsibility 1. Insanity Determining Insanity: Start with the diagnsis D must have a mental disease r defect. VA recgnizes tw tests: test; based n what D knws r perceives (M Naughten test) A persn is insane if he is unable t tell right frm wrng r t understand the nature and cnsequences f his actins. test; based n lack f self-cntrl ( Irresistible impulse test) A persn is insane if he is unable t cntrl his actins. VA Criminal Law 2016 Themis Bar Review, LLC 3

4 Example 7: D, as a result f earlier traumatic brain injury, suffers paranid delusins. His delusins led him t believe that a salesman at his dr was a grizzly bear abut t attack him. He sht and killed the salesman. D was charged with murder. D is because he has a, and as a result, he is unable t understand the f his actins. Example 8: D suffers frm schizphrenia. The disease makes him hear what he believes t be the vice f Gd cmmanding him t sacrifice his sn. D kills his sn and is charged with murder. D is because he has a mental disease r defect, and as a result, is unable t distinguish. Example 9: D suffers frm psych mtr epilepsy, a cnditin that causes seizures where he lacks cnscius cntrl f muscle mvement. During a seizure, he chkes V t death. D is charged with murder. D is because he had an irresistible impulse as a result f a diagnsable mental disease r defect. Example 10: D suffers frm emtinal prblems that result in a vlatile persnality and less than nrmal impulse cntrl. D bumps int V n the street and V calls D a klutz. D respnds by beating V t death with his fists. D is because (i) a vlatile persnality is nt a diagnsable disease r defect, (ii) there is n evidence t suggest that D is incapable f determining right frm wrng, and (iii) a limited amunt f self-cntrl is nt sufficient t satisfy the irresistible impulse test. Prcedure (Va. Cde Ann ) D must give ntice days befre trial. Burden f prf D must raise insanity as an defense. D must prve the existence f a mental disease r defect by a (which requires expert testimny). D must prve insanity t the satisfactin f the jury. Verdict: nt guilty by reasn f insanity (NGRI) Cnsequences f NGRI - D in custdy f Cmmissiner f Mental Health Juveniles - N insanity defense is available, since nt prvided by either statute r cmmn law, and nt cnstitutinally required. Distinguish diminished capacity While VA allws expert testimny n mental disease/defect when D raises an insanity defense, VA des nt allw expert testimny t negate the mens rea element f a crime Themis Bar Review, LLC VA Criminal Law

5 Example 11: D, diagnsed as schizphrenic, suffers frm delusins. D sees V with a valuable painting. D, influenced by delusin and thinking the painting is his, grabs it frm V and runs away. D is charged with larceny. D des nt give ntice f an insanity defense, but seeks t ffer expert testimny abut his schizphrenic delusins in rder t prve that D lacked the intent t cmmit larceny. The curt will the expert testimny because expert evidence f mental disease is inadmissible t negate the mens rea. 2. Intxicatin As a general rule, vluntary intxicatin is nt a defense. Invluntary intxicatin can negate mens rea. Exceptin: Vluntary intxicatin can negate the element f first-degree murder. Example 12: Darth, very drunk after dwning numerus shts f whiskey at a bar, pulls ut his gun, and shts and kills Victr. Darth later claims that he was nly playing, that he believed the gun was unladed, and that his drunkenness caused him t frget he had laded the gun. Darth is charged with first-degree murder. Darth asks fr an instructin t the jury t cnsider his drunkenness in determining whether he had an intentin t kill. Shuld the curt give such an instructin?. Under Virginia law, vluntary intxicatin cannt the mens rea element f a crime. The jury will be instructed t disregard his drunkenness and treat him as if he were sber. Example 13: Darth nw asks the judge t instruct the jury n the questin f premeditatin. Is he entitled t such an instructin?. The jury can cnsider his drunkenness in determining whether he was s intxicated that he was unable t the crime. 3. Infancy (Treatment f Juveniles) Persns under 18 are treated as juveniles. Crimes cmmitted by juveniles are called delinquent acts. Jurisdictin is in Juvenile & Dmestic Relatins District Curts. In cases f certain serius ffenses by juveniles r lder, the case may be transferred t Circuit Curt and prsecuted as an adult felny. VA Criminal Law 2016 Themis Bar Review, LLC 5

6 CHAPTER 3: HOMICIDE AND VOLUNTARY MANSLAUGHTER A. Hmicide 1. Murder Murder is the: Killing Of a human being With. Causatin: Killing requires causatin, i.e., D s act, r culpable missin, must cause the death f the victim. Example 14: Victr is dead frm natural causes. Darth, believing Victr is alive, shts Victr in the head. Darth is charged with murder. Is Darth guilty r nt guilty f murder? Darth is f murder because he did nt. Victr was already dead. Where multiple, sufficient causes cincide, each D is deemed t cause death (e.g., A and B bth sht D in the head simultaneusly. Either sht wuld kill. Bth can be guilty f murder.) Malice (a term f art) Malice distinguishes murder frm manslaughter and includes: In mst instances, an ; ; Example 15: D intends t kill A, but kills B instead. ; r Intent t cause serius bdily injury but death results Reckless hmicides result frm malicius acts likely t cause death r serius injury. 2. Degrees f Murder a. Secnd-degree murder The default categry fr intentinal killings (unless Cmmnwealth prves elevating facts) b. First-degree murder Adds the element f Any willful, deliberate, and premeditated killing. Premeditatin means thught befre actin. A few secnds can be enugh Themis Bar Review, LLC VA Criminal Law

7 In any case where there is an identifiable t kill, evidence f premeditatin will exist. c. Capital murder First-degree murder (willful, deliberate, and premeditated killing), plus ne ther element, defined by statute (e.g., murder in the cmmissin f a rbbery r a rape, murder f a plice fficer, murder f mre than ne victim n a given ccasin, murder f a prisn guard, etc.). Refer t the utline fr a full list. B. Vluntary Manslaughter Intentinal killing Cmmitted in the There must be legally adequate. Categries: Mutual cmbat; respnse t assault; immediate respnse t an attack n a friend r family member in yur presence; r witnessing adultery. Prvcatin must cause the defendant t. Objective test: prvcatin wuld cause even a reasnable persn t lse cntrl. Timing: If there is sufficient cling time, then it will likely be murder nt manslaughter. alne are nt generally deemed t be sufficient prvcatin. Example 16: Darth arrives hme and finds his wife in bed with her yga instructr. Darth walks ut t his pickup truck, lads his shtgun, reenters his huse, shts and kills the yga instructr befre he can get away. Is Darth guilty f murder r vluntary manslaughter? Darth is guilty f. There is a prvcatin, but the prblem is timing. There has been time fr Darth t cl dwn. Example 17: Victr walks up t Darth in a bar and calls Darth a scum-sucking, lw- life pig. Darth flies int a rage and chkes Victr t death. Murder r vluntary manslaughter? Darth is guilty f, because wrds alne are nt sufficient prvcatin t qualify fr vluntary manslaughter. C. Invluntary manslaughter An unintentinal killing An act by the defendant that causes death but was nt intended t kill. Cases f Cmmitted under circumstances where the defendant a high level f risk that smebdy is ging t be hurt. Wantn, reckless disregard fr a high risk f fatal results. Sme VA cases use the term. VA Criminal Law 2016 Themis Bar Review, LLC 7

8 DUI Manslaughter Va. Cde Ann defines death caused by drunk driving as invluntary manslaughter. Example 18: Darth, drinking heavily, hands a laded revlver t a five-year-ld child. The child accidentally shts and kills himself. Is Darth guilty f a hmicide? Darth is guilty f because he has caused the death f the child by a reckless act. He was aware f the risk f harm and disregarded the risk. Example 19: Darth asks the curt fr an instructin that his drunkenness caused him t fail t recgnize the risk f harm t the child. Shuld the curt give such an instructin?. Example 20: Defendant was driving a car, racing away frm plice fficers in a high-speed chase. A plice car struck and killed a persn. The defendant was charged with invluntary manslaughter and cnvicted. The cnvictin was upheld by the Virginia Curt f Appeals. The defendant cmmitted a reckless act with the understanding that it risked life and limb f bystanders. Even thugh the defendant s car did nt hit the victim, the defendant s actins caused the death f the victim. CHAPTER 4: FELONY MURDER/HOMICIDE A. In General Tw different crimes in VA The analysis f a felny murder questin begins with the cmmissin f a. As a result, a persn dies, whether intended r nt. B. Felny Murder Treated as -degree murder Elements A killing in the cmmissin f, r attempt t cmmit A listed predicate felny (arsn, rape,, rbbery, r burglary) C. Felny Hmicide Treated as -degree murder Killing while in the curse f SOME felnius act Any lesser felny is a sufficient predicate ffense Themis Bar Review, LLC VA Criminal Law

9 D. Cnnectin Necessary fr Felny Murder/Felny Hmicide Killing must be in cmmissin r in prsecutin f predicate ffense. VA uses res gestae thery, requires a cnnectin in time, place, and causatin. Example 21: Mntague (M) steals a car. The next day, while driving the stlen car in anther cunty and trying t elude plice, M strikes and kills a pedestrian. M is charged with felny hmicide based n the predicate felny f larceny. M mves t strike the Cmmnwealth s evidence. Has M cmmitted felny hmicide?. The stealing f the vehicle was already cmplete and the killing was t far remved in and frm the felny f larceny. Other cases, hwever, have cnsidered larceny t be a cntinuing ffense as lng as the defendant pssesses the stlen gds. Example 22: Davis is driving his car after having been declared an habitual ffender (a felny in VA). He accidentally strikes and kills a pedestrian. Davis is charged with felny hmicide. Des the Cmmnwealth have a prima facie case?. The actin f driving the car is the predicate felny, and the killing was in time and place with the felny. E. Accmplices All participants in the predicate felny, whether as P1, P2, r ABF, may be guilty f felny murder/felny hmicide. C-felns as victims: D s liability fr felny murder/hmicide des nt extend t the death f a c-feln killed by the victim r by plice in resistance t the crime. Example 23: Darth, Andy, and Al plan t rb a bank using a gun. Darth and Andy enter the bank. Darth pints the gun at a teller and takes mney. A security guard fires and kills Andy. Darth then fires and kills the guard. Darth rushes ut t the car where Al waits as getaway driver. They speed ff. Al is f felny murder f the security guard, because he is a in the underlying predicate ffense that caused the death f the security guard. Al is f felny murder f Andy, because the victim falls within the c-feln exceptin. VA Criminal Law 2016 Themis Bar Review, LLC 9

10 CHAPTER 5: THEFT CRIMES A. Theft Crimes Felny/Misdemeanr thefts f gds r chattels with a value f r mre, r $5 r mre frm the persn are punished as felnies (i.e., grand larceny). Cmmn Law Definitins: VA still recgnizes cmmn law distinctins amng theft crimes. Therefre, yu must distinguish amng Larceny, Embezzlement, and False Pretenses. B. Larceny Trespassry (wrngful) taking frm the f anther Generally, a trespassry taking means withut and includes takings by frce r by stealth. Als includes sme takings where wner s cnsent is btained thrugh fraud, i.e. larceny by trick. (asprtatin) Even the slightest mvement is enugh Of tangible persnal prperty Intangibles (i.e., time) cannt be the subject f larceny. With the intent permanently t deprive the wner f the prperty Temprary takings d nt satisfy this element. Jyriding cars is nt larceny; it is cvered by a separate statute ( unauthrized use ). But planning t pay it back desn t negate mens rea Hnest claim f right negates mens rea (even if mistaken) C. Embezzlement Defendant cmes int pssessin f the prperty r rightfully. Then, D cnverts the prperty r uses it in a way that is t the prperty interests f the wner. D is entrusted with the prperty f anther (ften by an emplyer, custmer, r client). Intent: With the intent t permanently deprive the wner f the prperty (mens rea) D. False Pretenses Making a false statement f existing fact With the intent t defraud Which statement causes the victim t Pass TITLE t prperty Obtaining distinguishes larceny by trick Title t cash transfers with Themis Bar Review, LLC VA Criminal Law

11 Example 24: Withut permissin, Darth taps int his neighbr s cable televisin service and uses the cable signal fr several mnths withut paying. Is Darth guilty f a prperty crime? If s, what?, because larceny des nt apply t the taking f. Example 25: Bev, a bank teller, receives $200 in cash frm a custmer as a depsit t the custmer s accunt. When the custmer walks away, she pckets the mney, intending t keep it fr herself. Is Bev guilty f a prperty ffense? If s, what?, because she rightfully came int f the mney and then she cnverted it. Example 26: Dn, withut permissin, takes his girlfriend s necklace t a pawn shp and pawns it fr $500. He intends t redeem the necklace and give it back t his girlfriend. Dn is unemplyed and has n means t pay back $500. Is Dn guilty f a prperty ffense? If s, what?, because he has wrngfully taken the necklace and has n present ability t redeem the necklace, therefre satisfying the intent element. Example 27: Cal walks int a bank and hands the teller a nte that says Give me all the mney in yur drawer. The teller hands Cal $1,000 in cash. Cal runs away. Has Cal cmmitted a prperty ffense? If s, what?. Example 28: Intending t keep the car indefinitely, Dan uses a false ID and phny credit card t btain a car frm a rental agency and he drives away with the car. Has Dan cmmitted a prperty ffense? If s, what?, because Dan wrngfully btained pssessin f the vehicle by making false statements. He has nt btained title t the prperty. Example 29: Intending t keep the car indefinitely, Dan enters a car dealership and uses a false ID t sign a car lan agreement in a false name. The dealer hands him the keys and the title t the car and he drives away. Has Dan cmmitted a prperty ffense? If s, what?, because title t the car passed t Dan. Example 30: Tm walks int a paint stre and pulls gallns f paint frm the shelf. He ges t a clerk and falsely claims that he previusly purchased the paint and nw wants t return it fr a refund. The clerk gives him a $50 cash refund. Tm gives the paint t the clerk and walks ut f the dr with $50. Has Tm cmmitted a prperty ffense? If s, what? (Carter v. Cmmnwealth, 280 Va. 100), because the crime ccurs at the mment that the defendant des smething with the paint that is beynd the permissin f the stre wner. Nte that this may als be a case f taking $50 by false pretenses. VA Criminal Law 2016 Themis Bar Review, LLC 11

12 Example 31: Nan ntices that her lawnmwer is missing. She sees an identical lawnmwer in her neighbr s back yard. Believing (errneusly) that the lawnmwer is hers, Nan takes the mwer and puts it in her garage. Has Nan cmmitted a prperty ffense? If s, what?, because she lacks. CHAPTER 6: THEFT CRIMES CONTINUED A. Rbbery Elements: The taking f persnal prperty Frm the persn r f anther By r threat With the intent t steal (mens rea) Larceny is a lesser-included ffense f rbbery; rbbery is a larceny frm the persn by frce r threat. D the fllwing facts establish a prima facie case f rbbery? Example 32: Darth hnestly but errneusly believes his bss has shrted him $10 n his weekly paycheck. He walks int the payrll ffice and threatens the clerk, Give me ten bucks r I ll punch yu. The clerk cmplies., because there is n. Example 33: Dan, a skillful pickpcket, slips his hand int Vince s cat pcket and pulls ut Vince s wallet. Vince desn t feel a thing., because there was n frce r threat. Example 34: Deb, a less skillful pickpcket, tries t sneak mney ut f Vickie s purse. Vickie sees it happening and resists. Deb shves Vickie t the grund, grabs the purse, and runs away., because the element f frce is present. Example 35: Val places her jacket n a bench with her cell phne in the pcket. Dn, a stranger, walks up and starts talking t her. Val turns away and tries t ignre him. After a few uncmfrtable minutes she picks up her jacket, intending t leave, and ntices the cell phne is missing. She demands that Dn return the phne. He displays a knife and says, Will this change yur mind? Val gives up and walks away., because the taking was a cntinuing ffense such that the threat f frce was part f the taking Themis Bar Review, LLC VA Criminal Law

13 B. Burglary 1. Burglary Breaking and Opening an unlcked dr is enugh t cnstitute a breaking. Walking thrugh an pen dr is nt a breaking. Cnstructive breaking by fraud (e.g., defendant talks his way in by fraud) A dwelling Occupant need nt be present at the time At night With the intent t therein Burglary is cmplete even if the underlying felny is nt cmmitted. E.g., intent t cmmit larceny, rape, murder Intent must exist at the time f entry. 2. Burglary Act and timing brader than cmmn law Nighttime entry withut breaking; Breaking and entering in daytime; r Entering and cncealing self in daytime. Lcatins brader than cmmn law Huse, ffice, shp, warehuse Graded based n severity f felny intended Intent t cmmit murder, rape, rbbery, arsn (Va. Cde Ann ) Intent t cmmit ther ffenses (Va. Cde Ann ) D the fllwing facts establish a prima facie case f cmmn law r statutry burglary? Example 36: Darth plans t steal a televisin valued at $500 frm Vic s huse. One night when Vic is away n vacatin, Darth finds an unlcked windw, pens it, and crawls inside the huse. He sees Vic s pit bull and leaves quickly thrugh the pen windw withut taking anything., because he entered with the intent t cmmit a felny and it des nt matter that he never gt the chance t steal the televisin. (This als meets the brader requirements f burglary.) Example 37: Shrtly befre sunrise, a hmeless persn, Deb, finds an pen dr in a warehuse and walks inside lking fr a warm place t sleep. T her surprise, she finds valuable cpper piping wrth $500. She takes the cpper and VA Criminal Law 2016 Themis Bar Review, LLC 13

14 sells it fr cash., because there was n breaking and because she did nt intend t cmmit a felny at the mment she entered the warehuse. CHAPTER 7: ASSAULT AND BATTERY; SEXUAL OFFENSES A. Battery An actin (e.g., tuching, hitting, stabbing) (an intentin t cause injury r ffense) A result (bdily injury r ffensive tuching) B. Assault An battery; r An act that is intended t place anther persn in fear f bdily injury r ffensive tuching that results in such fear. D these facts establish a prima facie case f assault r battery? Example 38: Darth, intending t scare Vicki, pints a laser gun-sighting device at her that fcuses a red dt n her chest. Vicki runs with fright., because placing the laser light n her chest was an ffensive tuching and it was dne with the intent t cause fear. It is als, because it was an act intended t cause fear f injury, and it did cause such fear. Example 39: Deb trips and accidentally kncks Val int a cncrete wall, causing Val t skin her knee., because there is n t cause injury. Example 40: Deb takes a baseball bat and swings it at Val, intending t break Val s knee, but she misses entirely., because she attempted t cmmit a battery. C. Malicius Wunding Maliciusly sht, stab, cut r wund r cause bdily injury, with intent t maim,, disable r kill. Aggravated malicius wunding ccurs if the victim suffers and significant injury. D. Firearms Va. Cde Ann prhibits the r f a firearm while cmmitting r attempting t cmmit murder, rape, kidnapping, and ther listed vilent felnies. Separate ffense Mandatry, cnsecutive sentences (3yrs, 5 fr secnd ffense) Themis Bar Review, LLC VA Criminal Law

15 Example 41: Darth enters a restaurant at night thrugh an unlcked back dr int the kitchen. He pulls ut a gun, demands and receives mney frm an emplyee, and runs away. See Rwland v. Cmmnwealth, 281 Va. 396 (2011). Des this satisfy the elements f Va. Cde Ann ?, because the criminal act f burglary is cmpleted upn ; the gun was nt used r displayed during the entry. What firearms ffense did Darth cmmit? Use r display f a firearm during. He tk mney frm the presence f the emplyee by threat, and displayed the gun. Unlawful Discharge f a Firearm: At r against an ccupied dwelling r building Example 42: Darth sees Archie standing in frnt f a The cashier is wrking inside the stre. Intending t sht Archie, Darth fires and misses, and the bullet strikes the wall f the See Ellis v. Cmmnwealth, 281 Va. 499 (2011). Is Darth guilty under Va. Cde Ann ?, because the Cmmnwealth des nt need t prve that Darth intended t sht int the building. It is sufficient that he that there was an ccupied building in his line f fire. E. Rape 1. Elements Sexual intercurse (penetratin) Against the f the victim: By frce, threat, intimidatin; Thrugh the incapacity f victim; r With a child under 13 years ld. 2. Rape Shield Law Evidence f the victim s prir sexual cnduct is generally inadmissible, except: If it prvides an alternative f physical evidence; r Prir sexual cnduct with the defendant t shw absence f r threat. F. Kidnapping/Abductin Elements: Detaining r transprting a persn By frce, intimidatin, r deceptin With the intent t deprive the persn f liberty (i.e., hlding r mving smene against their will) Crimes f rbbery, rape, and hmicide ften give rise t abductin as well. VA Criminal Law 2016 Themis Bar Review, LLC 15

16 Such abductin is a separately punishable crime when it invlves sme mvement r restraint that is mre than necessary fr the accmpanying crime. Example 43: Defendant frces the victim t walk dwn stairs t basement, has intercurse against her will, ties her with rpe, and leaves. In additin t rape, can the defendant be cnvicted with abductin?, because the actins are part f the rape, but are beynd what is necessary t cmmit the rape and may be separately punished. Example 44: Defendant walks int a gas statin, displays a gun, and rders the attendant t walk tw r three steps t the cash register in rder t remve mney. The attendant hands ver cash frm the register. Defendant may nt be punished fr bth rbbery and abductin in this case. CHAPTER 8: INCOHATE OFFENSES Inchate Offenses (Inchate = incmplete) A. Cnspiracy 1. Elements An agreement t cmmit a felny The agreement need nt be explicit; it can be inferred frm the circumstances. Example 45: A victim is walking dwn the street and tw men step ut frm behind a car; ne hlds a gun n the victim while the ther takes mney frm the victim s pckets, it can be inferred that the tw have agreed t act tgether in a rbbery. S, they can be guilty bth f cnspiracy t cmmit a rbbery and f the rbbery itself. The specific intent (purpse) t cmmit the felny (mens rea) Example 46: A Nrth Carlina case illustrates the nature f the mens rea required and the difference between a purpse t cmmit a crime and simply knwing that a crime is being cmmitted. In that case, the defendant ran a telephne answering service and came t knw that ne f his custmers was a prstitute wh used the answering service t make cnnectins with ptential clients. The defendant was charged with cnspiracy t cmmit prstitutin. The Nrth Carlina curt ruled that the evidence was insufficient t prve cnspiracy, even thugh it prved that the defendant had knwledge /awareness that ne f his clients was engaged in prstitutin and was using his answering service fr that purpse. The curt said that knwledge alne was nt enugh. The evidence did nt shw that the defendant had the purpse r desire t bring abut the prstitutin business f his client Themis Bar Review, LLC VA Criminal Law

17 2. Overt Act NO vert act is required in Virginia. The crime f cnspiracy is cmplete upn agreement. Example 47: If tw peple sit dwn tgether, plan a rbbery, and agree t cmmit that crime, their agreement cmpletes the crime f cnspiracy. The agreement itself is the cnspiracy. 3. Number f Cnspiratrs It takes at least tw peple t cnspire a plurality requirement If nly ne persn truly agrees, there is n cnspiracy. Cmes up in undercver plice situatins Example 48: Darth agrees with Cry t set up a ccaine distributin peratin. Unknwn t Darth, Cry is an undercver plice fficer. Darth is f cnspiracy t distribute ccaine because there are nt tw peple wh agree t cmmit a crime. A third persn invlved tips the balance if there are at least tw in agreement. Example 49: Darth and Dan agree t set up a ccaine distributin peratin. They ask a third persn, Cry (an undercver plice fficer) t jin them. Darth and Dan are f cnspiracy t distribute ccaine because tw peple agreed t cmmit the crime. Whartn s Rule When the substantive ffense by definitin requires agreement by tw parties, the defendant cannt be separately punished fr the crime f cnspiracy. (e.g., ). Drug Buyer-Seller A simple buy-sell drug deal is nt cnspiracy t distribute (Distributin is the crime itself, rather than an agreement t cmmit a subsequent crime s n punishment fr bth cnspiracy t distribute and distributin). Hwever, tw peple can cnspire t distribute t a third persn. (The cnspiracy and the crime itself are nt the same, s Whartn s Rule wuld nt apply there.) 4. Merger Cncepts In Virginia, D may be charged with cnspiracy and substantive ffense. Cnspiracy is ffense; separately punished VA Criminal Law 2016 Themis Bar Review, LLC 17

18 Exceptin: But Va. Cde Ann prvides if the defendant is first cnvicted f the substantive ffense, he cannt be cnvicted f cnspiracy. Narrwly cnstrued Example 50: Defendant was cnvicted f the substantive ffense f malicius wunding under circumstance in which the victim died. The defendant was later charged with cnspiracy t cmmit murder under the same facts. The Virginia Supreme Curt said that Va. Cde Ann did nt prhibit the subsequent prsecutin fr cnspiracy under thse circumstances because it was cnspiracy t cmmit murder, nt cnspiracy t cmmit malicius wunding. The underlying charge was nt identical. Nte 1: The statute nly prhibits the subsequent cnvictin when there s been a prir cnvictin f the same substantive ffense. Va. Cde Ann des nt prhibit the tw charges being tried tgether in the same trial and punishment fr the tw ffenses. 5. Pinkertn Dctrine (Vicarius Liability) All c-cnspiratrs in a cnspiracy are treated as agents fr each ther and are liable fr any SUBSTANTIVE crimes cmmitted by ther c-cnspiratrs (an agency cncept) if the crimes are: In f the cnspiracy; and Reasnably freseeable as a cnsequence f the cnspiracy. 6. Withdrawal Example 51: Darth and Dan agree t rb a bank using firearms. Bth g in tgether t rb the bank and Darth shts the teller. Even thugh Dan did nt sht and kill smene, he can be guilty nt nly f cnspiracy t rb the bank but als f the substantive crime f murder under the Pinkertn dctrine because a c-cnspiratr cmmitted the murder during and in furtherance f the cnspiracy and that crime was reasnably freseeable under the circumstances. Example 52: Tw defendants were invlved in a ccaine distributin peratin that invlved a large quantity f ccaine. Cnspiratr #1 carried a firearm. Cnspiratr #2 was unaware f this and never carried the firearm himself. The federal curt said that Cnspiratr #2 can still be guilty f the substantive crime f carrying a firearm during a drug deal because bth were cnspiratrs in a cnspiracy t distribute ccaine. The carrying f the gun by #1 was in furtherance f the crime (cnspiracy) and it was reasnably freseeable t #2 that his c-cnspiratr wuld carry a gun. Nt a defense in Virginia. Because yu are guilty nce yu agree, yu cannt get ut f that liability thrugh withdrawal Themis Bar Review, LLC VA Criminal Law

19 But withdrawal ends yur liability Example 53: If cnspiratrs cnspired t rb a bank and Cnspiratr #2 withdrew frm the cnspiracy befre the bank rbbery tk place, and infrmed Cnspiratr #1 f his withdrawal, then Cnspiratr #2 wuld nt be liable fr an abductin f a teller if Cnspiratr #1 went ahead with the rbbery and abducted a teller. Cnspiratr #2 is n lnger liable fr substantive crimes that his c-cnspiratr might cmmit in furtherance f the cnspiracy. Withdrawal requires cmmunicatin t ther c-cnspiratrs. B. Attempts 1. Elements Specific intent t cmmit the crime (mens rea) A and vert act tward its cmmissin 2. Hw Much Actin is Necessary t be a Direct and Overt Act? Mre than mere preparatin Example 54: Dan, with intent t rape Jan, apprached her, brandished a knife, and rdered her t remve her clthing. Dan heard a siren and ran away. Is Dan guilty f attempted rape?, because he had the t cmmit the crime and he cmmitted a direct and vert act by threatening her with a knife and demanding that she remve her clthes. If he had nly decided t cmmit a rape and bught a knife, but never apprached the victim, it wuld likely be cnsidered mere preparatin. Example 55: A Virginia curt ruled in a rbbery case an attempt tk place when defendant shwed up utside the victim s dr, kncked n the dr, and demanded that victim pen the dr with the intentin t rb her. (The victim saw the defendant thrugh the peephle and did nt pen the dr.) 3. Specific Intent t Cmmit the Crime Because specific intent t cmmit the crime is required, ne cannt attempt crimes f negligence N attempted invluntary manslaughter because there is n intent t kill; invluntary manslaughter is an killing, a reckless killing. Example 56: Is there an attempted felny murder here? Dan and Al rbbed a bank tgether. T effect their escape, Al shts the security guards, Sam and Sal. Sam died. Sal survived. Is Dan guilty f felny murder f the guard that died?, because the killing was cmmitted during the cmmissin f the felny and Dan is guilty f the underlying rbbery as an accmplice alng with Al. Is Dan guilty f attempted felny murder f the guard that lived? VA Criminal Law 2016 Themis Bar Review, LLC 19

20 , because he did nt have the t bring abut any killing. CHAPTER 9: DEFENSES A. Self-Defense Self-Defense = Justifiable 1. Standard (fr Deadly Frce) A-R-N-I-S Rule: Actual belief, and Reasnable belief that such frce is Necessary t avid Imminent r Serius bdily harm r death 2. Prprtinality The amunt f defensive frce must be in relatin t the perceived threat. Escalating vilence prblems: ask whether the defendant is respnding t lawful, justifiable frce. Example 57: Darth and Vic argue. Darth shves Vic. Vic pulls ut a knife and lunges at Darth. Darth pulls ut his gun and shts Vic. Darth is charged with the murder f Vic and asserts self-defense. Des he have a valid claim f selfdefense?, because Darth started the fight with an unjustified shve, but Vic elevated the fight wrngfully by using a knife (deadly frce). Vic s frce was unjustified, and Darth respnds t the unjustified frce, and may have a valid claim f self-defense. 3. Retreat Retreat is nt necessary; a persn is allwed t stand his grund. Example 58: Darth (a speedy track athlete) sees Vic (an verweight frmer prfessinal wrestler) appraching n ft a blck away, brandishing a knife and yelling I m ging t kill yu. Darth, stands and waits until Vic is a few yards away, pulls a gun and shts Vic. Darth has a valid claim f self-defense because he is entitled t stand his grund. 4. If the Defendant Prvkes the Vilence Self-defense is nt available t ne wh unlawfully prvkes the vilence against. Example 59: Darth grabs Vickie and threatens t rape her. She grabs a baseball bat and starts t swing it at his head. Darth shts and kills her. Darth Themis Bar Review, LLC VA Criminal Law

21 des nt have a valid claim f self-defense because he brught abut the unlawful activity. 5. Excusable Hmicide Classic self-defense is justifiable hmicide Excusable hmicide - When the defendant bears sme fault in prvking the frce against him: The defendant may use frce in defense nly after: Retreating as far as pssible; Annuncing an intent t desist; and then Killing ut f necessity. 6. Cnsequences f Unreasnable Self-defense ( Imperfect Self-defense ) The defendant has an actual but bjectively unreasnable belief that frce is necessary. The crime is mitigated frm murder t manslaughter. B. Defense f Others Example 60: Darth and Vic argue in a bar. Vic, wh has n histry f carrying weapns, reaches in his pcket fr a cell phne. Darth, believing Vic is reaching fr a gun, pulls ut a pistl, shts and kills Vic. What result when Darth raises self-defense in a prsecutin fr murder?, because Darth had an hnest, but unreasnable belief in the need t use deadly frce. If the defendant that circumstances exist that wuld permit the apparent victim t use such frce in his wn defense. Mistake desn t negate the defense as lng as it s reasnable. C. Defense f Prperty A defendant wh lawfully pssesses prperty can use nn-deadly frce t prtect persnal prperty when he reasnably believes such frce is necessary. D. Entrapment Editr's Nte 1: The 2012 legislatin t which Prfessr Duglass refers was nt passed. The lecture and handut reflect current Virginia law regarding selfdefense. The idea fr the crime must with the law enfrcement agent; AND The defendant must nt have been t cmmit the crime. i.e., The defendant wuld nt have cmmitted the ffense but fr prcurement by the plice. [END OF HANDOUT] VA Criminal Law 2016 Themis Bar Review, LLC 21

22 Themis Bar Review, LLC VA Criminal Law