20.2 Theft Offenses, Receiving Stolen Property, Robbery & Burglary

20.2 Theft Offenses, Receiving Stolen Property, Robbery & Burglary

Property crimes are distinguished less by what the defendant took than by how the defendant got it and what the victim intended to give up. Ask whether the defendant had any lawful possession before the wrongful act, whether the victim meant to transfer possession or title, and whether force or a threat was used.

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Property Crimes: The Custody vs. Possession vs. Title Matrix

Property offenses on the MBE hinge entirely on the legal relationship the defendant had with the property prior to the unlawful act:

• Custody: Mere physical control over property with very limited authority (e.g., an employee handling an employer's tools, a customer inspecting merchandise in a retail store, or a bailee holding property for an instantaneous task).
• Possession: Broad physical control and discretionary authority over the property.
• Title: Legal ownership of the property.

                      PROPERTY OFFENSES: POSSESSION VS. TITLE

                              ┌────────────────────────┐
                              │  ACQUISITION OF GOODS  │
                              └───────────┬────────────┘
                                          │
                   ┌──────────────────────┴──────────────────────┐
                   ▼                                             ▼
       ┌─────────────────────────┐                   ┌─────────────────────────┐
       │   INITIAL LAWFUL        │                   │    INITIAL WRONGFUL     │
       │     POSSESSION          │                   │   TAKING (TRESPASSORY)  │
       └───────────┬─────────────┘                   └───────────┬─────────────┘
                   │                                             │
                   ▼                                             ▼
        ┌─────────────────────┐                     ┌─────────────────────────┐
        │Fraudulent conversion│                     │   How was property      │
        │of property held in  │                     │       obtained?         │
        │trust/custody?       │                     └────────────┬────────────┘
        ├─────────────────────┤                                  │
        │    EMBEZZLEMENT     │         ┌────────────────────────┼────────────────────────┐
        └─────────────────────┘         ▼                        ▼                        ▼
                               ┌─────────────────┐      ┌─────────────────┐      ┌─────────────────┐
                               │ Taking without  │      │ Consent obtained│      │ Consent to pass │
                               │ consent from    │      │ through deceit; │      │ TITLE obtained  │
                               │ another's poss. │      │ POSSESSION only │      │ through fraud   │
                               ├─────────────────┤      ├─────────────────┤      ├─────────────────┤
                               │    LARCENY      │      │   LARCENY BY    │      │      FALSE      │
                               │ (+ Force/Fear = │      │     TRICK       │      │    PRETENSES    │
                               │    ROBBERY)     │      │ (No Title Trans)│      │  (Title Passes) │
                               └─────────────────┘      └─────────────────┘      └─────────────────┘

1. Larceny

• Elements: (1) A trespassory (wrongful); (2) taking (caption); (3) and carrying away (asportation); (4) of personal property of another; (5) with the specific intent to permanently deprive the owner thereof.
• Asportation: The slightest movement of the property from its original position satisfies the carrying-away requirement.
• Continuing Trespass Doctrine: If property is taken without felonious intent, but the initial taking was wrongful (trespassory), and the defendant later forms the intent to permanently keep the property, the initial trespass 'continues' to satisfy the concurrence requirement for larceny.
• Claim of Right: An honest, subjective belief that the property belongs to the defendant (or that the defendant has a legal right to possess it) completely negates the specific intent to steal, even if that belief is unreasonable.

2. Embezzlement

• Definition: The fraudulent conversion of personal property of another by a person who was already in lawful possession of that property.
• Key Distinction: Unlike larceny (where the initial taking is trespassory), the embezzler's initial possession is entirely lawful (e.g., a corporate treasurer, bank teller, or trustee holding funds in a fiduciary capacity).

3. False Pretenses vs. Larceny by Trick

• False Pretenses: The defendant obtains legal title to the property of another by an intentional false statement of past or existing fact, with the intent to defraud.
• Larceny by Trick: The defendant obtains mere custody or possession (but NOT title) to the property of another by means of fraud, deceit, or misrepresentation, with the intent to steal.
• Classic Distinction: If the victim intends to transfer ownership (e.g., selling a car and handing over the title in exchange for a counterfeit check), the crime is False Pretenses. If the victim intends to transfer only temporary possession or custody (e.g., renting a car with a stolen identity intending to steal it), the crime is Larceny by Trick.

4. Robbery

• Definition: Larceny from the person or immediate presence of the victim by means of force or intimidation (threat of immediate serious bodily harm).
• Timing: Force or threat must be used prior to or contemporaneously with the taking. If a pickpocket lifts a wallet without force, it is larceny. If the victim discovers the pickpocket and the thief uses force to escape immediately with the wallet, modern statutes treat this as robbery.

5. Burglary

• Common Law Elements: (1) Breaking; (2) and entering; (3) the dwelling house; (4) of another; (5) at night; (6) with the specific intent to commit a felony therein.
• Breaking: Can be actual (opening a closed door or window, pushing open an unlatched door) or constructive (entry gained by fraud, threat, or collusion). Walking through an already wide-open front door is NOT a breaking at common law.
• Concurrence Requirement: The specific intent to commit a felony inside must exist at the very moment of breaking and entering. If a defendant breaks and enters a home solely to escape a rainstorm, and once inside decides to steal a television, common law burglary was not committed (though larceny was).

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Property Crimes: Custody vs. Possession vs. Title

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More Property Crime Rules

Larceny Details

• Lost and mislaid property: A finder who takes lost or mislaid property intending to keep it, while knowing or having reason to know how to find the owner, commits larceny. If the intent to keep the property forms only later, the common-law concurrence requirement is not met, though modern theft statutes often reach the conduct.
• Employees: An employee who takes the employer's property from the workplace usually has only custody and commits larceny. An employee who receives property from a third party for the employer has possession, so converting it is embezzlement.
• Intent to permanently deprive: Taking a car for a joyride intending to return it is not larceny (though statutes punish unauthorized use of vehicles). Taking property intending to sell it back to the owner, to pledge it, or to abandon it where the owner is unlikely to recover it satisfies the intent requirement.

Embezzlement and False Pretenses Details

• Embezzlement: Intending to return the exact property taken is a defense; intending to repay its value with other money is not. An honest claim of right is a defense, and the defendant need not personally benefit.
• False pretenses: The misrepresentation must be of a past or existing fact and must actually induce the victim to transfer title. At common law, a false promise to perform in the future was not enough, but many modern statutes, including the MPC, treat a promise the defendant does not intend to keep as a deception.
• Consolidated theft statutes: Many states, following MPC § 223.1, combine larceny, embezzlement, false pretenses, and receiving stolen property into a single offense of theft, so a conviction does not fail merely because the prosecution charged the wrong common-law label.

Receiving Stolen Property

• Elements: (1) receiving or exercising control over (2) stolen property (3) knowing that it is stolen (4) with intent to permanently deprive the owner.
• Control: Physical possession is not required; arranging a sale or directing where the goods are stored is enough.
• Knowledge: Knowledge may be inferred from circumstances such as a very low price, removed serial numbers, or a secretive transaction.
• Recovered property: If the police recover stolen property and use it in a sting operation, it is no longer stolen when received. Modern courts and the MPC convict the recipient of attempted receipt.

Robbery and Extortion

• Force: The force must be more than what is needed simply to take the property; a simple purse snatching without resistance is often larceny, while struggling with the victim makes it robbery.
• Threats: A threat of immediate harm to the victim, a family member, or another person present suffices. The value of the property does not matter.
• Presence: Property is in the victim's presence if it is within the victim's control—for example, taking money from a cash register while holding the clerk at gunpoint in the back room.
• Extortion (blackmail): Obtaining property by threats of future physical harm, damage to property, accusing someone of a crime, or exposing a secret. Under some modern statutes, the crime is complete when the threat is made.

Burglary Details

• Breaking: Creating or enlarging an opening, however slight—such as opening a closed but unlocked door or window—or gaining entry by fraud or threat (constructive breaking). Entering through an open door is not a breaking.
• Entry: Placing any part of the body, or an instrument used to commit the intended felony, inside the structure.
• Dwelling: A structure regularly used for sleeping, even if the occupants are temporarily away.
• Intent at entry: The intent to commit a felony inside must exist at the time of entry; the intended felony need not be completed, and burglary does not merge with it.
• Modern statutes: Most statutes cover any building or structure, daytime entries, and entering or remaining unlawfully with intent to commit any crime inside.

Forgery

Forgery is making or altering a writing with apparent legal significance so that it is false, with intent to defraud. Uttering is knowingly offering a forged writing as genuine.