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Criminal Law
West Virginia University School of Law
Ashdown, Gerald G.

Criminal Law I

I. Four Reasons for imposing criminal sanctions
A. Retribution/revenge- eye for an eye- atonement is morally centered
B. Deterrence—punish offenders to prevent others from committing the same or similar crimes because they fear the possible consequences
1. seeks to prevent future crimes
2. Less effective for habitual criminal, more effective for 1st time offender
3. Forward looking in sense of preventing or reducing the incidence of future offensive behavior
C. Incapacitation—get the criminal “off the streets”
1. most persuasive for habitual criminals or for heinous crimes
D. Rehabilitation—assist criminals to reenter society
E. Sometimes these rationales are in conflict with each other

II. Elements of a crime
Generally, there are two elements of every crime: act (actus reus) and mental state (mens rea).

“As always, we must begin with the language of the statute” to determine what specific elements of the crime in question.

A. Act—Actus Reus
1. Voluntary – In order to convict a defendant of any crime, the state must establish beyond a reasonable doubt that the defendant committed the crime voluntarily.

MPC: defines act as a bodily movement whether voluntary or involuntary. Involuntary acts are those taken via reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis.

a.) Defense of Unconsciousness –
Split of Authority regarding whether this is affirmative defense or whether it negates an element of the crime.

In WV, unconsciousness negates an element of the crime and thus the burden of proof is on the state to prove the absence of unconsciousness beyond a reasonable doubt. Involuntary action, such as that which was taken while unconscious, does not satisfy this element of a crime. Defendants who can establish that their potentially criminal acts were committed involuntarily have negated an essential element of the crime thereby placing the burden of proof on the state to establish the absence of involuntary action (ex: unconsciousness) beyond a reasonable doubt. Corroboration is necessary (but not sufficient) to win unconsciousness defense. Instruction is required if there is reasonable evidence of unconsciousness.
State v. Hinkle (WV 1996).
If defendant had reason to know that (s)he would likely become unconscious while driving then unconsciousness is no defense. People v. Decina.

Contrasted with insanity which generally does not negate an element of a crime.
Exception: WV Edwards v. Leverette (1979) Burden of proof is on the state to prove the absence of insanity beyond a reasonable doubt.

In the state of Wyoming (as in most states), unconsciousness is an affirmative defense meaning the burden of proof is on the defendant to establish unconsciousness . Fulcher v. State

2. Possession:

MPC: possession is an act if the possessor either knowingly obtained the object possessed or knew she was in control of it for a sufficient period to have been able to terminate possession.

Court’s interpret possession statutes to require proof that the Δ knowingly procured or received the property in question or that she failed to dispossess herself of the object after she became aware of its presence

Possession can be either “actual” or “constructive”.
a. Actual—item is found on the person of ∆
b. Constructive – item is not found on the person of the defendant.
i.) Constructive Possession requires that the defendant have the both the power and the intent to exercise dominion and control over the items in question. State v. Carlson (Utah)
ii.) In order to establish that a defendant had “dominion and control” over an item, the state must prove that there is a sufficient nexus between the defendant and that item. Mere knowledge of the item’s existence is insufficient. Things like incriminating statements, marijuana growers guide etc. are required to establish a sufficient nexus. State v. Fox

State v. Fox also notes that circumstantial evidence (e.g. there is too much weed for one dude to smoke by himself) is sufficient to establish a conviction of possession with intent to distribute drugs.

3. Inaction/Omissions
a. Generally speaking, there is no legal duty to act.
Policy Rational – American belief in the autonomy of the individual implies that we do not force people to come to the aid of others if they do not wish to do so.
Exceptions to the Rule
1.) Existence of a relationship. (ex) parent/child, spouse/spouse, master/servant
2.) Statutory Duties – stop at the scene of an accident that you caused, file taxes,
Bad Samaritan Laws (make it an offense, usually a misdemeanor, for person not to come to the aid of a stranger in peril under specified circumstances)
3.) Contractual Duties (ex) nanny
4.) Voluntary Assumption of Duty (ex) Person who begins to care for the injury of another is obliged to continue to provide such care. (ex2) Live in boy-friend assumes the role of a father to his girlfriend’s childre

the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
B. IF the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result
c. Recklessness
i. Under the MPC, a person acts recklessly if
A. He or she consciously disregards a substantial and unjustifiable risk
ii. MPC applies a subjective standard- all surrounding circumstances are considered when determining if the risk was substantial and unjustifiable
d. Negligence (Criminal Negligence is generally a gross deviation from the standard of care that an RPP would observe.
i. Under the MPC, a person acts negligently with respect to a material element of an offense if (s)he should have been aware that his/her conduct created a substantial and unjustifiable risk
ii. objective standard- if a reasonable person is aware of the risk, the Δ should be too

2. Transferred Intent
A defendant who intended to commit a crime against a party other than the actual victim may be found guilty of that

“The law, as well as reason, prevents (a defendant) from taking advantage of his own wrongdoing, or excusing himself when the unlawful act . . . strikes down an unintended victim.” Provenzano v. State (Fla 1986)
Fight between two people. In the course of it, Defendant hurls a bottle in the direction of fellow fighter but accidentally nails an innocent bystander.
Court transfers the defendant’s intent to commit a battery against the intended to victim to the actual victim.

However, Transferred Intent cannot be used to elevate a crime b/c the actor did not have the requisite intent to secure a conviction for the elevated crime. B.L.L. v. State (Fla 2000), V.M. v. State (Fla 1999), D.J. v. State (Fla 1999)
(ex) Person intending to attack a civilian cannot be convicted of assault and battery of a police officer if he accidentally strikes the cop.

Self defense transfers V.M. v. State (Fla 2000).