Justia Lawyer Rating
Best Lawyer
Super Lawyer - Top 100
Super Lawyer - Top 100
Best Lawyers
Avvo Rating 10.0
AV Preeminent
The National Trial Lawyers
The Best Lawyers in America
Best Lawyers
CLEA
Advocates for Justice
Business North Carolina Legal Elite - 2021
DUI Defense
NBTA
*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Criminal Law - Outline - Part 8

By Lindsey Jackson

Download the PDF version of this outline

<< Part 7

i. Accessory after the fact

  1. separate crime
    1. before and during the crime are charged as principal
    2. charged apart from the principal
      1. charge people for accessory after the fact
  2. lower sentence
  3. no involvement in preparation or commission (that would be aiding and abetting)
  4. “the clean-up crew”
  5. U.S. v. Calderon: A gang war/turf war. The defendant picks up the shooter after a crime and she is charged with accessory after the fact to murder. She argues she didn’t know the guy was dead or dying and she can’t be charged with accessory to murder. She says it would be attempted murder or something lower.
    1. Government needs to prove:
      1. Knowledge that a crime has been committed
    2. They couldn’t show she knew the victim was dead or dying and the conviction was reversed on insufficient evidence
  6. Key: person is not involved in the actual commission of the crime or before the crime
    1. Needs to know they committed a crime and helped them
    2. Key element = knowledge
    3. Focused on timing → happens after the crime
      1. Accomplish liability → happens before or during
    4. Generally, don’t need to know what the crime was
      1. Except murder → need to show they knew the victim was dead or dying

j. Abandonment and Withdrawal

  1. General Rule = doesn’t matter/not a defense
    1. Attempt – substantial step; conspiracy – agreement
      1. Completed and you can’t get out of them
    2. Majority: no defense
    3. One exception: (circumstance)
      1. Pinketon liability rule
        1. Conspiracy → liable for their actions if reasonably foreseeable and in furtherance of the conspiracy
        2. Conspiracy is over when someone withdrawals
          1. Not a defense because there was a conspiracy
          2. But they are not liable for what happens after they are out of it
  2. How to Withdrawal
    1. Affirmatively
      1. Depends on the court but generally look for the person communicating directly to their coconspirator that they withdrawal
      2. Can’t just disappear or not show up
      3. If situation where the cannot withdrawal safely; go to the police and inform them of the conspiracy and that is a withdraw
    2. Small conspiracy → tell everyone in the conspiracy you withdraw
    3. Big conspiracy → tell whoever you report to/deal with
IX. Burglary

a. Common law (NC and state bar)

b. Elements:

  1. Break
  2. Enter
  3. Dwelling house of another
  4. At night
  5. With the intent to commit a felony inside

c. Specific intent → more than just intending the actus reus

d. Breaking

  1. Need to be a trespassory entry created by the defendant; creating an opening into the dwelling
    1. Entering an existing opening is not breaking = not burglary
    2. Opening an unlocked closed door → created an opening
  2. No destructive force required
  3. Constructive breaking
    1. Created an opening by fraud, deception, or threatened violence

e. Entering

  1. Any part of the burglar’s body enters the house = entering
  2. If burglar enters by putting an instrument inside to commit the felony
    1. Not to commit the breaking – it needs to be used to commit the felony
    2. Can be used for both but only if used for that intent

f. Dwelling House of Another

  1. Curtilage of the house is considered dwelling house of another
    1. Needs to be directly associated, close to the home/sleeping place
    2. Look at circumstances/facts

g. With Intent to commit a felony inside

  1. Lack of concurrence with breaking and entering
  2. If mens rea is not present, → no intent → no burglary

h. Nighttime

  1. Between sunset and sunrise
  2. It changes with the seasons
  3. No focus on time
X. Larceny

a. Theft/larceny = same

b. Common law

c. Elements

  1. Unauthorized taking (“caption”)
    1. Securing control over the item
  2. Carrying away (“asportation”)
    1. Slight change in position of the item
  3. Personal property of another
  4. With the intent to permanently deprive another of the property

d. Larceny is the core; other offenses are built off of it

e. Larceny by trick

  1. look at the moment of taking; they must take possession of the property
    1. different from taking “title”
    2. false pretenses → you got “title” to the item, not just possession
    3. taking “title” or “ownership” by trickery
  2. Purchase = false pretenses
  3. Borrow/rent = larceny by trick

f. People v. Shannon: they let him go through with the crime to show his intent and help the case for larceny.

  1. Asportation
    1. Just need some movement, doesn’t need to be out of the store
    2. Severed possession of custody of owner and in possession of thief
    3. Just a brief moment/slight movement
    4. Not an unconditional return of the clothes
    5. Shoplifting: intent to deprive the store of money here; need intent to deprive the store of some property

g. Not larceny to take a thing for a temporary purpose and intend to return it

h. Vehicle taking with intent to return it = joyriding

  1. Unless you destroy the property before you bring it back = permanent deprivation

i. Doesn’t matter if you steal from a thief, you are still a thief = committed larceny

  1. No such thing as finders-takers: must make a reasonable effort to find the true owner

j. Misdemeanor Larceny and Felony Larceny

  1. Over $1,000 = felony
  2. Look at market value or replacement value, if market value cannot be determined
  3. Sentimental value is not a factor
  4. Do not include sales tax → just the price
XI. Embezzlement

a. Lawful possession (unlawful possession = larceny) at the outset

b. Moment of taking/possession

  1. Lawful: larceny
  2. Unlawful: larceny

c. Elements:

  1. Defendant took possession lawfully
  2. Converted possession for your own benefit

d. State v. Stahl: clerk at store with drop-box (only access to the manager). Only control over the cash register. Takes money from the cash register and the drop-box. At the time, the amount to exceed for embezzlement was over $100. He was convicted of embezzlement.

  1. Court overturns and changes to larceny
  2. Should have been separate crimes charged of larceny and embezzlement

e. Key: entrusted lawfully with the property/money

  1. Look at moment of possession
XII. Robbery

a. Larceny plus 2 elements

b. Added

  1. By force or fear
  2. From the person or immediate presence and control

c. People v. Gomez: victim is not present at taking initially. Victim follows the defendant and the defendant shoots at him as he is following.

  1. Court says the force or fear and immediate presence can be satisfied during the taking or the carrying away
    1. don’t need both

d. U.S. v. Burnley: Robbed a bank without using threat/force. Claims without that, no robbery.

  1. Fear = intimidation
    1. Even without express threat; still intimidated through circumstances
    2. Infer if they don’t comply, something would happen to them
    3. Ordinary reasonable person standard
    4. Explicit threats not required
XIII. Defenses

a. Entitled to defenses under the Constitution

b. Types

  1. Failure of Proof Defense
    1. Mistake of fact
      1. Negates the mens rea element
      2. Modern rule = mistake of fact must be:
        1. Honest and reasonable under the circumstances
        2. Ex. Knowingly possess cocaine
          1. Facts and circumstances
      3. Ignorance of law is never a defense
        1. Only exception is when the statute says the person must know of the law (statutory requirement knowledge be shown)
    2. Alibi (failure of proof = identification)
      1. SODDI defense
      2. Defendant claims he wasn’t there
      3. Rare defense
      4. Written notice to government before trial:
        1. Specific places he claims to have been
        2. Name and addresses of witnesses he intends to rely on
          1. You can’t surprise the government with it
          2. Potential to mislead the jury if no notice
      5. Notice to the government required for alibi, public authority, and insanity
      6. Specific instructions required
        1. U.S. v. Zuniga: refused to instruct on alibi at trial. The court of appeals reversed.
          1. If evidence is established, the instruction should be given
      7. Public Authority
        1. Committed a crime at the request of the government (informants)
        2. Knowingly acted in violation of criminal law, but did so based on reasonable reliance on the authorization by a government official to have to file notice
        3. Notice requirements:
          1. Agency or intelligence agency
          2. Agency member who supervised
          3. Time frame
        4. Affirmative defense
          1. You admit every element of the crime but claim a different reason why they should not be convicted
          2. Burden on the defendant to prove the defense
            1. Preponderance of the evidence
            2. Goes back to the government to disprove if they meet their burden
        5. U.S. v. Alvarado: Defendant became a rogue informant. He was a confidential informant several occasions. His previous agreements had expired, and he was told to stop. He never attempted to inform the government
          1. Very narrow defense for CIs
          2. Requirements to assert and succeed:
            1. Federal law enforcement official authorized the defendant to commit the particular act
              1. Either expressed, or
              2. Communications in course of dealing to lead a reasonable person to believe
            2. Official had the authority
            3. The defendant reasonably relied on the authorization
      8. Duress
        1. Affirmative defense
        2. Applies when:
          1. Threat of imminent death or serious bodily harm (can be to a third party)
          2. No reasonable, legal alternative
          3. The defendant was not responsible for creating the threat
        3. You cannot raise duress as a defense to murder
          1. Only self-defense to murder
          2. Public policy: innocent lives
      9. Necessity
        1. Choice of two evils
        2. Duress → another human placing you in a position
        3. Necessity → other outside circumstances put you in that position
        4. You can’t assert necessity when there were other reasonable means to get rid of one of the evils
        5. Economic necessity is not an available defense
        6. Not a defense to murder
      10. Insanity
        1. Very rare/successful
        2. Different approaches
          1. Majority: M’Nagten Rule
            1. At the time of the crime, the defendant suffered from mental disease or defect
            2. That rendered defendant unable to know what he was doing, or
            3. If the defendant did know what he was doing, the defendant did not know the wrongfulness of his actions
        3. Key principles
          1. Affirmative defense
          2. Mental disease or defect
            1. Little guidance on what it is
            2. Not the same as mental illness
            3. Safe to say:
              1. Schizophrenia
              2. Bipolar disorder
            4. Legal determination; not medical determination
              1. Only evidence from the doctor is what disease is
Client Reviews
★★★★★
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together. I went to any lengths for my case because he won my trust almost immediately... J.R.
★★★★★
My daughter had a second DUI and when it all seemed hopeless, Bill was able to get the charges dropped. This is a man who is extremely knowledgeable, yet still keeps his integrity which was impressive to me. He handles himself with dignity. If you hire him, you will have the best of the best, along with his expansive intellect and wisdom about the law. Lisa
★★★★★
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
★★★★★
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.