Darvin and Zoluff, respectively wife and husband, are eating dinner with their 16-year-old daughter Prozake. Darvin is agitated by the news that a family-planning clinic has just opened its doors one block down the street in their neighborhood. Zoluff says, “Remember, your psychiatrist said you were a little crazy on the subject of unborn babies, but if you’re so bothered why don’t you actually do something about it?” Darvin replies, “All you do when I get upset is sit back and taunt me!” Zoluff ventures, “Okay, whatever you want to do I’ll help.” Darvin responds, “I’d like to give one of those baby killers a taste of her own medicine!” “Killing’s no solution for killing,” responds Zoluff, “but I’m sure God would smile on some other disruptions. For instance, a good fire when nobody’s inside the clinic would send a strong biblical signal.” “Yes!” shouts Darvin. She turns to Prozake: “You in with us?” “Sure, whatever,” shrugs Prozake.
Next morning Darvin hides in thick bushes outside the clinic. When a two-month’s pregnant teenager approaches the clinic’s door, Darvin jumps out, points a revolver at her, and ties the woman’s hands behind her back with plastic rope. While tying her Darvin unintentionally makes a slight cut on the teenager’s wrist with the rope. Darvin drives her three miles to the edge of town, unties her, and lets her out. As a result of Darvin’s actions the teenager miscarries her fetus.
The following day Zoluff sees an assembly of demonstrators outside the clinic quietly parading in front of the clinic door. They carry signs supporting the clinic and protesting treatment of the teenager mentioned above. Zoluff grabs one of the demonstrator’s signs, throws it to the ground, and yells, “Why don’t you baby killers take on a grown man?” They oblige, shouting, throwing signs, and pummeling him until adjacent neighbors call the police to restore order.
Next Sunday an hour after sunset the clinic appears to Darvin to be empty of people. Intending to smash surgical equipment inside the clinic with a five-pound hammer, she pries up a rear window, drops inside, and locates an oxygen tank. When she hits the tank’s valves with her hammer, inadvertently a spark ignites the oxygen, setting fire to a nearby curtain. Darvin steps back in surprise, murmurs, “Yes, God, let it burn!” and races home. She learns on the eleven o’clock news that a janitor had been asleep in the clinic’s back room and died of smoke inhalation despite the fire’s being extinguished by firefighters after only one of its four rooms burned.
Monday morning Prozake calls the district attorney and discloses her parents’ dinner table conversation at the top of this page.
QUESTION: ASSUMING ALL THE ABOVE CAN BE PROVED, WHAT CRIMES OF DARVIN DOES THE EVIDENCE SUPPORT, AND WHY?
HIGHEST GRADED STUDENT’S CRIMINAL LAW ESSAY ANSWER. NOT A MODEL!
The issue is of what crimes Darvin (“D”) can be validly convicted. Darvin could be validly convicted of conspiracy, kidnapping, assault, battery, attempted murder of the teen, disruption of public assembly, burglary, malicious mischief, malicious trespass, arson and murder.
Conspiracy is the unlawful agreement between two or more persons to commit an unlawful act. There must be the specific intent to agree to commit the target offense. In addition, some modern law jurisdictions require an overt act done In furtherance of the conspiracy.
Here, an agreement to commit arson and “other disruptions” can be found between D, Zoluff (“Z”) and Prozake. The prosecution (“P”) will argue that when Z offered to do whatever D wanted him to do to help and D responded that she would “like to give one of those baby killers a taste of her own medicine,” there was an agreement to commit unlawful acts. (Particularly if this language refers to murder). Further, when Z responded that “God would smile on some other disruptions” including a good fire in the clinic, and D responded “Yes”, her agreement is to commit at least arson (if not murder).
D might argue that there was no agreement between her and Z to commit any unlawful acts, and that her response of “yes” to Z’s suggestion was not an acceptance to enter into the agreement. However, the prosecution could argue to the contrary, that all that is needed is an assent. In addition the P will argue that D’s presence at the clinic on the day she kidnapped the teenager, and again on the evening of the fire, is adequate to show the overt act in furtherance of the target offense (“t.o.”) required under modern law jurisdictions. Thus, the evidence supports a conviction of Darvin for conspiracy.
Unlawful assembly is the gathering of three or more persons with the specific intent to: 1) commit crime by force or violence; or 2) commit an act, lawful or unlawful, which would result in a courageous person to apprehend a breach of the peace. As discussed above, there was an agreement shown between D and Z to commit arson and “other disruptions” at the clinic. The P will want to argue that Prozake was the third person of the gathering in order to convict for unlawful assembly. The P will argue that when D asked Prozake if she "was with us” and Prozake responded “Sure, whatever”, that there was a gathering of three persons and they had the intent to commit arson and other crimes against the person.
D might want to argue that Prozake was not in on the crime, and therefore, D would not be guilty of unlawful assembly.To do this, D might try to argue that D was a minor and therefore unable to be part of the unlawful assembly. The P will counter this by stating that children over the age of 13 are presumed to know their action and can be held liable for crimes. D might then attempt to argue that a shrug of the shoulder and “sure, whatever” is not an agreement. However, it appears the evidence supports Prozake was in on it.
D might also want to argue that Prozake was in on the crime. That is because if there were three or more persons in on the crime, then Wharton’s Rule applies. Wharton’s Rule states that if there are more than one person required to commit an offense (such as unlawful assembly which requires 3), then they cannot be convicted of conspiracy to commit that offense as well. Therefore, the prosecution must decide whether to prosecute for Conspiracy or Unlawful Assembly. However, there is sufficient evidence to convict D of unlawful assembly.
Kidnapping at common law was the unlawful confinement of a person without their consent whereupon they were sent out of the country. At modern law kidnapping is the unlawful confinement and movement of another without their consent by force or fear. Some jurisdictions require substantial movement, while others require only the slightest movement. Kidnapping is an inherently dangerous felony and requires the specific intent to confine. Here, when D jumped out of the bushes and pointed a revolver at the teenager, she confined the teenager by force or fear. Even stronger, when D tied the woman’s hands behind her back with plastic rope, she further confined her and showed the teen did not consent to being taken. To satisfy those jurisdictions which require substantial movement (and slightest, for that matter), when D drove the teen three miles to the edge of town, there was movement of the victim. Thus, D there is sufficient evidence to convict D for kidnapping. There would also be sufficient evidence to show aggravated kidnapping, as a deadly weapon was used by D in its commission.
Assault & Battery of the Teen?
Battery is the unlawful application of force to another person which results in an offensive touching or a personal injury. Battery is a general intent crime, so specific intent here is irrelevant. Here, when D tied up the teen, she caused an offensive touching. Even stronger, because there was a cut inflicted on the teen while D was tying her up, there was a personal injury inflicted. Thus, the D is guilty of battery. Assault can be found in either of two ways: on an attempted-battery basis or on an apprehension basis. Assault can be found by attempted battery when there is a specific intent to commit a battery and when there is a substantial step taken toward committing that battery. Here the intent to commit an unlawful touching can be shown when D was lying in wait in the bushes for a victim and jumped out of the bushes pointing a revolver at her. In addition, when D tied up the victim, her specific intent to commit a touching was present. The substantial step (overt act taken towards the commission of the crime) toward the battery can also be shown by D tying the victim’s hands with rope. Thus, D can be found guilty of assault of the attempted-battery type based on the evidence.
Assault on the apprehension basis is shown when there is 1) the specific intent to commit a battery; 2) the perp commits acts which are proximately and directly likely to result in personal injury or an offensive touching; and 3) actual apprehension. D’s specific intent to commit a battery is discussed above. When the D went to the clinic and jumped out of the bushes with the revolver, D committed acts which would directly result in an offensive touching or injury to the teen. Further, when the revolver was pointed at the teen, the teen was likely to apprehend the infliction of injury or an offensive touching on her, and actual apprehension would be present.
D may argue, however, for the crime of assault, that she did not have the specific intent to commit a battery. If the D did not have the specific intent, she could not be found guilty of assault on either basis. However, it appears from the evidence presented that there would be sufficient evidence to convict D of assault on either the attempted battery or apprehension basis.
Mayhem at common law was the malicious dismemberment of another’s body part. At common law, mayhem is the malicious maiming or disfigurement of another person. Some jurisdictions require the specific intent to maim or disfigure.
Here, the P will argue that when D tied up the teen and cut her wrist with the rope, she maimed or possibly disfigured her. The malice can be inferred from the act which she was attempting to do, kidnapping. Because kidnapping Is an inherently dangerous felony, all actions done in order to accomplish the kidnapping created a life indangering state of mind. Therefore, malice can be inferred.
D might argue her actions of tying the victim up and the cut on her wrist which occurred is mere negligence, as opposed to the reckless disregard required for malice. (Malice requires intent to kill; Solo Build It; RD; or felony). D might argue that because the cut was slight, that her actions were not enough to show malice. In addition, D might also argue that, as the facts show, she unintentionally made the slight cut to the teen’s wrist, and therefore, she would not be guilty of mayhem (no specific intent), but only battery.
In light of the D’s arguments, it appears that the evidence is not sufficient to prove mayhem, only battery.
Murder of the Fetus?
Murder is the unlawful killing of another with malice aforethought. Unfortunately for the teen (and the baby), D cannot be found guilty of the fetus, because murder only applies to human beings. A child in the womb does not become a human being until the birthing process begins. Therefore, D would successfully argue that there is not sufficient evidence to show she is guilty of murder.
The P has one shot, however, and that is if they are in a state like CA which allows the conviction for murder if the D had the specific intent to kill the fetus. This is based on recent legislation (prompted by the Keeler case in CA). However, D could counter this argument by showing that she did not have the specific intent to kill the fetus, only to kidnap the victim. It does not appear from the evidence that D had the specific intent to kill the fetus. Therefore, there is not sufficient evidence to prove murder of the fetus.
Attempted murder is the specific intent to kill and a substantial step taken toward the crime. The P might argue that because D had the intent to cause at least Solo Build It (shown by the use of the deadly weapon and lying in wait); went to the place the victim would be (the clinic); at the time required, she would be guilty of attempted murder.
However, D would counter that she did not have the specific intent to kill or cause Solo Build It, only to scare the victim or to kidnap the victim. If the evidence of D’s statement that “I’d like to give one of those baby killers a taste of her own medicine” meant that she wanted to kill, the evidence would show D’s intent to kill, a substantial step taken in that direction, with the crime being possible by D’s means and any means. However, D might argue that if she wanted to kill the teen, she would have, and there was no intervening factor to the teen escaping death because D let her go. However, based on the evidence, there would be enough to support a conviction of attempted murder.
If a valid conspiracy is found between D and Z, which is possible as mentioned above, D can be convicted of all the crimes in furtherance of the conspiracy, including Z’s actions of disruption of public assembly and inciting a riot. When Z saw the public demonstrators quietly parading in front of the clinic door, approached them, threw their signs to the ground and said “why don’t you baby killers take on a grown man,” he caused the assemblers to react in a way which created an apprehension of surrounding neighbors, who were then forced to call the police to restore order. Because these are general intent crimes, we need not look at Z’s intent, and therefore, Z would be guilty. Because of the conspiracy between Z and D, D would then be liable for Z’s acts because it could be seen that the disturbance was In furtherance of the conspiracy to cause “some other disruptions.”
Burglary at common law is the breaking and entering of a dwelling place of another at night with the specific intent to commit a felony therein. At modern law, burglary does not require that the building be a dwelling place, occur at night, or even that there be a breaking--some ML jurisdictions require only the unlawful entry into a building.
When D pried up the rear window of the clinic and dropped inside, there was the requisite breaking and entry. D will try to argue that she did not have the specific intent to commit a felony therein, as she only planned on smashing surgical equipment and not to steal it. However, the P could counter this argument by stating that the smashing of the surgical equipment creates a serious risk of loss to the clinic, and thus, the intent to deprive the owner permanently can be shown.
In addition, P will argue that because surgical equipment is expensive, the chance of causing a substantial loss to the clinic is great. Thus, the loss would amount to a significant sum of money caused by D and D would be guilty. Thus, it appears that at ML, there is sufficient evidence to convict D of burglary. (Even stronger, as discussed below, when the arson ensued, D developed the intent to burn the building, and thus commit an inherently dangerous felony.)
Malicious mischief is the malicious destruction of another’s property. The P will argue that when D located the oxygen tank while in the clinic and hit the tanks valve with the hammer, she caused destruction to another’s property.
In addition, when D hit the valves and the sparks set fire to the nearby curtain, there was also destruction of property. Thus, there is sufficient evidence to show the malicious destruction to the equipment and the curtain.2
Malicious trespass is when a trespassor causes substantial damage to the property of another with malice. When D broke into the clinic and caused damage to both the oxygen by hitting it with a hammer, and the curtain, by causing the sparks that ignited it, D was guilty of malicious trespass.
D might argue that malicious trespass requires specific intent and she did not have the specific intent to start the fire of the curtain. However, the P might counter by saying that any RPP would realize that hitting an oxygen tank with a five-pound hammer would cause it to ignite. In addition, the P might argue that most oxygen tanks have labels on them warning of the danger of puncturing and the danger of them exploding if this happens. It appears that there is sufficient evidence to convict D of malicious trespass.
Arson of the Clinic?
Arson at CL was the malicious burning of the dwelling place of another. At ML, it is not required that the place be a dwelling, or that it be of another. There only needs to be the slightest charring in order to find arson. Here, the P will argue that when the D broke into the clinic and caused the fire, there was a malicious burning.
The D might argue that she is not guilty because she did not have the specific intent to burn the clinic when she broke in, only intended to smash surgical equipment. However, the evidence shows (and the prosecution could prove) that although she did not have the intent at the time she broke in, after the fire started, when D said “Yes, God, let it burn!” and raced home without attempting to extinguish the fire or calling the firefighters, she formed the requisite intent to burn. The intent for arson need not be formed prior to the starting of the fire, but after it has begun also. Therefore, there is sufficient evidence to convict D of arson of the clinic.
Murder of the Janitor?
Felony Murder? First degree murder by way of felony murder can be found when a homicide occurs during the commission of an inherently dangerous felony, the death was foreseeable, and the felony is the causation of the death. The evidence shows that the arson was the cause of the janitor’s death. The prosecutor will argue and the evidence shows that when the D caused the fire and formed the intent to let it burn, D committed an inherently dangerous felony causing the death. Because arson is the inherently dangerous felony, D would be found guilty of felony murder.
D might argue, however, that the felony she initially sought to commit was burglary and the burglary itself was not the cause of the janitor’s death. If this argument fails and the felony murder is found on the basis of arson, D could argue that she did not know anyone was in the building and It was not foreseeable that anyone would be killed because of the fire. However, the P would argue that it is foreseeable that only one hour after sunset, there may be cleaning staff which comes into the clinic to clean, and therefore, it was reasonably foreseeable that someone would be killed. The evidence seems to support the view that the death was reasonably foreseeable as a result of arson, an inherently dangerous felony, and thus D would be guilty of first degree felony murder to the janitor.
Does D have any defenses?
Diminished Capacity. In those jurisdictions which use ALI, D might have a defense based on her psychiatrist (Shrink) saying she is a little crazy on the subject of unborn babies. Diminished capacity can be found when a person suffers from a mental defect short of insanity which precludes the D from forming the requisite specific intent for the crimes. The majority of jurisdictions allow the D to knock out all specific intent crimes. A minority allows the D to knock out all malice, reducing murder to manslaughter. Here, because D has a Shrink who says she is a little crazy on the subject of unborn babies, D might argue that the clinic so close to home has provoked her such that she does the crimes without the specific intent to commit them. She would then try to use this defense to prove that she would not be liable for the specific intent crimes: namely, conspiracy, kidnapping, assault, murder, burglary, and arson. However, there does not appear to be sufficient evidence to support Dim Cap, as provocation is not usually the cause of such a defense.
Irresistible Impulse. A minority of jurisdictions which follow the M’Naghten test also allow the irresistible impulse test. This states that the defendant suffering from a mental defect short of insanity is unable to control his/her actions and therefore, is not responsible for the acts. D might try to argue that she was so upset about the clinic and her illness caused her to react by committing these crimes. However, the evidence does not show that D had any reactions or has acted this way in the past. Therefore, D should not be able to use the irresistible impulse test to escape liability for the crimes.
Any other insanity-type defenses. Not likely. Because D is not suffering from a mental disease or defect, does not seem to be suffering from any delusions, etc. there are no other defenses available to her. Thus, the crimes above will stand as analyzed, without any successful insanity-type defenses by D.
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