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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

CRIMINAL LAW OUTLINE
I. INTRODUCTORY MATTERS
A. CLASSIFICATION OF CRIMES.
1. Felony vs. Misdemeanor.
a. Common law. Under the common law, the felonies consisted only of murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary. Other crimes were misdemeanors.
b. Modern law. Most states now define a felony to include any crime punishable by imprisonment of one year or more.
i. Kansas law. The statute defining the crime generally specifies whether the crime is a misdemeanor or a felony. K.S.A. 21-3105(1), which applies when the statute defining the crime does not so specify, defines a felony as “a crime punishable by death or by imprisonment.”
2. Significance of distinction.
a. Applicability of felony murder rule. The felony murder rule cannot apply with respect to misdemeanors.
b. Required culpability.
i. Strict liability. Courts are unlikely to hold that a felony is a strict liability offense (i.e., a Apublic welfare@ offense) that requires no culpability at all.

ii. Subjective culpability. The statutory language defining many offenses does not unambiguously specify the culpability required respecting each element. Courts are more likely to hold that a felony requires subjective culpability (i.e., intent or recklessness as opposed to negligence) respecting one or more elements.

B. RELATIONSHIP BETWEEN OFFENSES.
1. Merger. When one offense merges with another, D cannot be convicted of and sentenced upon both. The general modern rule is that there is no merger of offenses: D may be charged with, convicted of, and sentenced upon multiple offenses.
a. Exception: Merger of attempt and solicitation with a completed crime.
i. No merger between conspiracy and the offense that is the conspiracy=s object. For example, if D conspired to commit murder, D may be charged with, convicted of, and sentenced upon the offenses of both murder and conspiracy to commit murder.
b. Exception: Felony Murder Rule. Some felonies that result in a killing (e.g., the felony of voluntary manslaughter) merge with the killing so that D may be convicted of the felony but not felony murder based upon that felony. See supra III. A.3.a. ii.
c. Limited merger of greater and lesser-included offenses. D may be charged with both a greater and a lesser-included offense. But he may not be convicted of and sentenced upon both a greater and lesser-included offense.
i. Definition. A lesser-included offense typically has some but not all of the elements of the greater offense and has no elements beyond those of the greater offense. See K.S.A. 21-3107(2).

Example: Arson (the lesser) has some but not all of the elements of aggravated arson (the greater). Unlike aggravated arson, it does not require that a human being was present in the building when burned. Additionally, arson has no elements that aggravated arson does not also share.
ii. Kansas Felony Murder Exception. Felony murder requires proof that D committed that felony and that a killing resulted. The felony that is the predicate for felony murder thus fits the definition of a lesser included offense of felony murder. Nonetheless, Kansas cases hold that D may be charged with, convicted of, and sentenced upon both the predicate felony and felony murder in the same proceeding. The lesser included offense doctrine is matter of legislative intent and, according to State v. Sutton, 256 Kan. 913 (1995), the Kansas legislature intends for the predicate felony and any resultant felony murder to be punished separately.
iii. Prosecution and conviction of a lesser included offense in a prior proceeding. K.S.A. 21-3107(4) provides that prior conviction of the lesser included offense bars subsequent prosecution on a greater offense unless “the [greater charge subject of the later proceeding] was not consummated at the time of conviction of the included crime.”
2. General versus Specific Offenses: Permissible Charges and Punishment. D’s conduct may sometimes violate both a generally defined prohibition (e.g., making a false statement to a government official) and a prohibition more specifically addressed to the conduct (e.g., making a false statement to a government official in connection with obtaining a housing loan). The rule of thumb, which may yield to other evidence of legislative intent, is that the specific prohibition controls and that D may be charged, convicted, and punished only under the more specific prohibition. State v. Wilcox, 245 Kan. 76 (1989).

Example: D obtains public assistance from a state agency by making false statements in documents submitted to that agency. One statute, K.S.A. 21-3711, prohibits false writings while another, K.S.A. 39-720, prohibits welfare fraud. Held: The legislature intended that D be charged and punished under the welfare fraud statute, the provision statute more specifically directed to her conduct. State v. Reed, 254 Kan. 52 (1993).

II. REQUIRED ELEMENTS.
A criminal offense generally requires a wrongful act (actus reus), a wrongful intent (mens rea), and a concurrence of the act and intent. In addition, some offenses require the existence of a state of affairs (existent fact element) such as that drugs be sold Awithin 1,000 feet of a school.@ Finally, certain other offenses require a harmful result, such as the death of a human being required by homicide offenses, and a causal link between D’s act and intent, on the one hand, and the proscribed result, on the other.
A. ACT (actus reus). Bad thoughts alone cannot constitute crime; there must be an action, or an omission to act where there is a legal duty to act.
1. Voluntariness. The act must be voluntary. Reflexive actions or acts occurring while D is unconscious or asleep are not considered voluntary.
EXAMPLE: D, who knows himself to be subject to frequent seizures, drives his car. D has a seizure while driving, loses control, and kills a pedestrian. The act of losing control of the car, which is caused by the seizure, is not voluntary. However, the act of getting into the car and beginning to drive is a voluntary act. Given D’s knowledge that he is subject to frequent epileptic seizures, there is a concurrence between this voluntary act and the reckless state of mind required by involuntary manslaughter. There is also a causal link between D’s voluntary act and the proscribed result, i.e., the death of a human being. D may be convicted of involuntary manslaughter.
2. Omission. A person may not be held criminally liable for a failure to act unless the law imposes on that person a duty to act under the circumstances.
a. Sources of a duty to act:

i. Statute. A person has a legal obligation to act when required by statute (e.g., statute requiring reporting of an accident or filing of a tax return).
ii. Contract (e.g., a contract between a doctor and patient for medical treatment).
iii. Fiduciary or other special relationship between D and another (e.g., parent’s duty to care for child).
iv. Voluntary assumption of care (e.g. a Good Samaritan undertakes to help a stranger).
v. Putting another person in a dangerous position from which he/she needs rescue (e.g., pushing a nonswimmer into a pond).

B. EXISTENT FACT ELEMENTS. Some offenses require the existence of a state of affairs in the world.

Example. A statute provides that Ait is a felony to sell any listed narcotic drug within 1,000 feet of a school.@ In addition to the actus reus of selling, the offense requires the existence of a state of affairs, namely that the selling occur Awithin 1,000 feet of a school.@

C. INTENT (mens rea). A criminal offense generally requires that D act with a culpable state of mind with respect to one or more elements of the offense.
1. Model Penal Code Schema. The Model Penal Code outlines a useful and influential classification of degrees of culpability:
a. Purposely. D acts purposely with respect to an element of the offense (e.g., death of a human being) when it is his motive or purpose to bring about the existence of that element.
Example: D sets off a bomb with the hope of killing V, although he is uncertain whether his action will have that effect. V is in fact killed. D has acted purposely with respect to the death of V; V’s death was the motive of D’s action.

b. Knowingly. D acts knowingly with respect to an element of the offense (e.g., death of a human being) when he is practically certain of that element’s existence or is practically certain that his action will bring that element about.
Example: D sets off a bomb in a room with the hope of killing V. D is aware that X is in the room along with V. Although D is indifferent to whether X is killed, D is 99% sure that the bomb will kill X as well as V. X in fact dies. D has not acted purposely with respect to X’s death because X’s death was not the motive of his action. He has, however, acted knowingly with respect to X’s death because he was practically certain that his action would result in X’s death.
c. Recklessly. D acts recklessly with respect to an element of the offense only when both the subjective and objective components of recklessness are present. First, he must be consciously aware of a substantial and unjustifiable risk that the element of the offense exists or will result from his conduct. Second, he must also grossly deviate from the standard of care expected of a reasonable person under the circumstances so as to create a substantial and unjustifiable risk that the offense element exists or will result from his conduct.
Example: D blows up a federal building wis

reasonable mistake of fact will not absolve D of liability for a general intent offense, even if the mistake negates the existence of the intent required by the offense.
iii. Diminished capacity. In many jurisdictions, evidence of diminished capacity (i.e., mental infirmity short of legal insanity) is relevant only insofar as it negates a specific intent required by an offense.
b. Meaning of distinction. The best view is that a general intent is culpability that is required with respect to the actus reus or to an existent fact element. A specific intent is an intent that the offense requires above and beyond any intent required respecting actus reus or existent fact elements. A specific intent Afloats@ because it does not attach itself to any actus reus or existent fact element.
Example: The actus reus of first-degree premeditated murder are the acts that cause the victim=s death. These acts must be intended to kill. The intent to kill is a Ageneral intent@ because it is required with respect to the actus reus of the offense. Voluntary intoxication is not a defense insofar as it negates the required general intent to kill. In addition to the general intent to kill, the offense requires premeditation. Premeditation does not attach to the actus reus or any existent fact elements. Premeditation is a Aspecific intent:@ An intent over and above that required with respect to the actus reus. Voluntary intoxication is a defense insofar as it negates the specific intent of premeditation.
Example: On one common definition, burglary is Abreaking and entering a dwelling with the intent to commit a felony therein.@ The actus reus of the offense is the breaking and entering. The requirement that these acts be done intentionally is a Ageneral intent:@ Intent required respecting the actus reus. In addition to this general intent, burglary requires additional culpability, i.e., an intent to commit a felony in the dwelling. This additional intent, which does not attach itself to any actus reus or existent fact element of the offense, is a Aspecific intent.@ Thus, voluntary intoxication and unreasonable mistake of fact are defenses to burglary when they negate the specific intent of an intent to commit a felony in the dwelling.
c. Specific intent crimes.
i. Solicitation requires the specific intent to have the solicited person commit the crime.
ii. Attempt requires the specific intent to complete the crime.
iii. Conspiracy requires the specific intent to commit the object of the conspiracy.
iv. First degree premeditated murder requires the specific intent to premeditate the murder.
* In Kansas, second degree murder is a specific intent crime. State v. Hill, 242 Kan. 68 (1987).
v. Assault in many jurisdictions requires the specific intent to commit a battery.
vi. Burglary requires the specific intent to commit a felony in the dwelling or structure.
vii. Larceny and robbery require the specific intent to permanently deprive the owner of his property interest in the thing taken.
* In Kansas, robbery is not a specific intent crime.
viii. Embezzlement requires the specific intent to defraud.

5. Transferred intent. When D intends to murder or assault Victim A but accidentally causes similar injury to Victim B, his intent as to A “transfers” to B. See discussion of causation.

C. CONCURRENCE OF ACT AND INTENT. The intent must accompany and prompt the act.

D. CAUSATION. See Homicide.

E. PROSCRIBED RESULT. Some crimes require a proscribed result. For instance, criminal homicide requires the death of a human being; battery, the injury of a person; arson, the burning of property; and false pretenses, the loss of title. Other crimes do not require a proscribed result. For instance, conspiracy and attempt do not require actual commission of the crime agreed upon or attempted.