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102 Cards in this Set

  • Front
  • Back
Differences Criminal v. Civil
- Parties:
Criminal -> Prosecutor/"The State" and Defendant
Civil -> Plaintiff and Defendant
- Burden of Proof:
Criminal -> beyond reasonable doubt
Civil -> Preponderance of evidence
- Who brings the case:
Criminal -> State
Civil -> Private Party
- Verdict:
Criminal -> Guilty/Not guilty
Civil -> Liable/Not liable
- Result/Disposition:
Criminal -> Jail, prison, fine, death
Civil -> Money damages, injunction
Charging Instruments (2 types)
2 types:
1) Felony -> Grand Jury Indictment
2) Misdemeanor -> Information

- Must contain elements of the crime alleged
Purpose of Charing Instruments
1) Vests trial court with jurisdiction
2) Gives Defendant notice of charges
Burdens of Proof
1) Preponderance of the Evidence
2) Clear and Convincing
3) Beyond a Reasonable Doubt (TPC 2.01)
Theories of Punishment
1) Retribution
2) Utilitarianism
What is Utilitarianism?
- The harm inherent in the infliction of punishment is justified only if it will be outweighed by the good achieved by society
- i.e. the pain of punishment is undersireable unless its infliction is likely to prevent a greater amount of pain in the form of future crime
- COMPONENTS:
1) DETERENCE: the treat of punishment prevents criminal conduct
- General Deterrence
- Specific Deterrence
2) Rehabilitation: alter the character of the offender as to prevent future offenses
What is Retribution?
- The notion of "Just Deserts"
- The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing
- COMPONENTS:
1) Free Will
2) Proportionate Punishment
- The punishment is BECAUSE of the wrongdoing (i.e. the criminal gets his "just deserts")
Compoents of Utilitarianism
1) DETERENCE: the treat of punishment prevents criminal conduct
- General Deterrence
- Specific Deterrence
2) REHABILITATION: alter the character of the offender as to prevent future offenses
8th Amendment
Prohibits grossly disproportional punishment
TPC 1.02(3)
objective is to prescribe proportionate penalties
Coker v. Georgia
- Guy sentenced to death for rape

- The sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is, therefore, forbidden by the 8th Amendment as cruel and unusuual punishment
Procedural Due Process
- The rights you have before you can be deprived of something:
1) Notice
2) A hearing
3) Before a tribunal with jurisdiction
To be Criminally Liable must have?
- Must have a Culpable Mental State

Actus Reus + Mens Rea = Crime
Lambert v. California
- Ex-con is in California and then is charged with violation of ordinance that says that if you are a convicted felon then you have to register

- Where a person did not know of the duty to register AND where there was no proof of the probability of such knowledge, the D may not be convicted consistently with due process

- Statute was unconstitutional because did not require a culpable mental state (i.e. Knowledge)
Trop v. Dulles
- Military person was discharged and then his citzenship was revoked
- While the state has the power to punish, the 8th Amendment stands to assure that this power be exercised within the limits of civilized standards
- 8th Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society
- Fines, imprisonment and even execution may be imposed as punishment for crime depending upon the normality of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect.
Burden of Production
- the burden of producing evidence
- Prosecutor files charges (information or indictment)
- D is sometimes required to give notice of affirmative defenses (ex. Insanity)
- At trial, the parties introduce evidence supporting their allegations
- The Prosecutor has the burden of production regarding EACH ELEMENT to the crime charged
- The Prosecutor MUST produce enough evidence that a "rational trier of fact" can determine the elements have been proved BEYOND A REASONABLE DOUBT
Burden of Persuasion
the duty to convince the jury on a particular issue
In re Winship
- The prosecution must PERSUADE the factfinder beyond a reasonable doubt of "every fact necessary to constitute the crime charged"
TPC 2.01 - Proof Beyond Reasonable Doubt
- All persons are presumed to be innocent and no person may be convicted of an offense unless each element of hte offense is proved beyond a reasonable doubt
- The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trail
Mullaney v. Wilbur
- Due process is denied in a murder prosecution if the jury is told that the malice aforethought required for murder is "presumed" from the killing of the victim by the D, and that the D must prove that he acted in the heat of passion on sudden provocation so as to reduce the crime from murder to voluntary manslaughter
- mens rea cannot be presumed, so that Δ must disprove it.
TPC 2.02 - Exception
- Negates the offense for a certain reason (State)
- An exception must be disproved by the state in the indictment
TPC 2.03 - Defense
- Defendant Has the burden of production to raise evidence that provides the defense
- State has the burden of persuasion beyond a reasonable doubt to negate that defense
TPC 2.04
AFFIRMATIVE DEFENSE
- Defendant have the burden to raise it and prove it
- Done by a preponderance of the evidence
Actus Reus
The Act
Mens Rea
The Culpable Mental State
Components of a Crime
1) the act of omission
2) the result
3) the attendant circumstance
(Ex. The use of a firearm, the age of the victim)
Rule of Lenity
Requires that if the legislative intent is not clear, the ambiguity will be resolved in favor of the Δ
- PURPSE: If a statute is ambiguous, then the D fails to have proper notice of the forbidden conduct
Merger
- Occurs in those situtations where the conduct meeting the requirement for several crimes will not be found to constitute several convictable crimes
- PURPOSE: is to avoid the multiple punishment provision of the jeopardy clause
Malum in se
- A crime in itself; an act that is inherently evil; an act that is illegal by its very nature
Malum prohibitum
- A crime becuase society specifically condems the conduct
- An act expressly prohibited by positive law.
2 Types of Burdens in Criminal Law
1) Burden of Production

2) Burden of Persuasion
Elements of the offense (TPC 1.07(a)(22))
1) forbidden conduct
2) required culpability
3) any required result; and
4) the negation of any exception to the offense
To determine if SAME OFFENSE
- Look at the charged offense - what is alleged in the indictment
- Look for:
1) Different Victim
2) Different Location
3) Different Time

- If it does, then you can have multiple units of prosecution
Voluntary Act
- GENERAL RULE: A person is not guilty of a crime unless she commits a voluntary act
- To CANNOT be Voluntary if:
1) Refelexive
2) Performed while unconcious
3) Convulsive
4) Otherwise involuntary
Legal Duties to Act
1) by Statute
2) by Contract
3) Based upon a relationship
4) Where D created victim's peril (same as tort)
5) Where a voluntary undertaing has begun
Robinson v. California
- A state law, which imprisons a person who suffers from a drug addiction, even though he has never touched any drugs within the state or been guilty of any irregular behavior there, inflicts cruel and unusual punishment.
- A law making a disease a criminal offense violates cruel and unusual punishment
- Can not punish for a status, there must be an act
Powell v. Texas
- Δ’s situation is not like Robinson’s.
- The state did not punish him for being an alcoholic (a status) but for being drunk in a public place (an act).
- Court defined Robinson and its holding about cruel and unusual punishment: criminal penalties can only be inflicted if there is an act-actus reus.
- Robinson’s holding is limited to no conduct of any kind involved, and it does not deal with the question of if certain conduct cannot constitutionally be punished because it is involuntary.
PUBLIC INTOXICATION
- TPC 49.02
- A person commits an offense if hte person appears in a public place while intoxicated to the degree that the person may endanger the person or another
CULPABLE MENTAL STATES
- Degrees from highest to lowest:
1) Intentional
2) Knowing
3) Reckless
4) Criminal Negligence
Intentional Culpable Mental State
- Conscious objective or desire to engage in teh conduct or cause the result
Knowingly Culpable Mental State
- When he is aware of the nature of his conduct or that the circumstances exist.
- When he is aware that his conduct is reasonable certain to cause the result
Reckless Culpable Mental State
- Aware of but consciously disreards a substantial and unjustifiable risk that the circumstances exist of the result will occur
- Gross deviation from the standard of care of any ordinary person in same circumstances
Criminal Negligence Culpable Mental State
- When HE SHOULD BE AWARE of a substantial and unjustifiable risk that the circumstances exist or the result will occur
- Risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person woudl exercise under all the circumstances as viewed from teh actor's standpoint
- OBJECTIVE STANDARD - should have been aware
- Negligence has no MENS REA
If no Culpable Mental State is Described
- If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the defintion plainly dispense with any mental element (i.e. unless it is a strict liability offense)
- Thus, if it is a non-strict liability offense, but the definition doesn't prescribe the mental state, intent, knowledge, or reckless suffices to establish criminal responsibility
General Intent
- Any offense that requires proof of a culpable mental state, but does not contain a "specific intent"
- Ex. Common law Battery
Specific Intent
- Offense that explicitly contains a mens rea requiremetn in its definiton:
- the intent to commit some act over and beyond the actus reus of the offense
- a special motive for committing the actus reus of the offense
- Awareness of a particular attendant circumstance
- EX. Common law Burglary

- Good to have both General and Specific intent becuaes it puts a bigger burden on prosecutor becuaes they have to prove another thing
Strict Liability Offenses
- If the commision of the ACT, without the MENS REA, is sufficient to convict the D
Ignorance or Mistake of Fact
- Mistake of Fact is a defense where it negates any existence of the mental state required to establish an element of the crime

- A D is not guilty of a crime if her mistake of fact negates the mens rea of the offense
Ignorance/Mistake of Fact for Specific Intent Crimes
- To negate existence of a specific intent, a mistake of fact need not be reasonable.
- It may be unreasonable (a reaosnable person would not make the mistake) as long as it is honest)
- Ex. bought cocaine off someone and thought it was heorin
Ignorance/Mistake of Fact for General Intent Crimes
- To negate the existence of general intent, a mistake of fact must be REASONABLE to the extent that under the circumstances a reasonable person would have made that type of mistake
- FACT FINDER determines if it is reasonable
- EX. driving freinds car w/out friends consent, claim that you thought you had the friends consent would be reasonable, if stole the keys then not reasonable
Ignorance/Mistake of Fact for Strict Liability Crimes
- Is no defense to a strict liability crime which itself requires NO mental state
- EX. Statutory Rape
TPC 8.02 - Ignorance/Mistake of Fact
- It is a defense to prosecution that the actor through mistake formed a REASONABLE belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense
When Ignorance/Mistake of Law is allowed
- Where a statute proscribing D's conduct has not been reaosnably made available
- Where D has reaosnably relied on a statute or judicial decision which is later overruled/declared unconstitutional
- D relies in good faith upon an erroneous official statement of law contained in administrative order or official interpretation by a public officer
CLAIM OF RIGHT DOCTRINE
- Applies when a person has a bona fide belief he has a right to the property in questoin
- In theft or larceny cases this negates the MENS REA becuaes they believed that they had the right to the property
HOMICIDE (*****KNOW THIS ONE *****)
- Unlawful killing of a human being with malice aforethought
- Act could be voluntary or involuntary or an omission
- NO DEGREES OF MUDER AT COMMON LAW
TPC 19.04 - MANSLAUGHTER
- A person commits an offense if he recklessly causes the death of an individual
- Voluntary is higher punishment than involuntary
An offense under this section is a felony of the 2nd degree
YEAR AND A DAY RULE
- at common law, a homicide prosecution may only be brought if the victim dies within one year and a day of the injury inflicted by the D
- Rule has been elimited becaues there is no statute of limitations on murder now
In Re Davis
- Arersted for operating 3 seperate marijuana growing places
- Sine intent to manufacture at each place seperately then different crimes
Kuntz v. MT
- Got in fight with husband and stabbed him then ran out and came back later
- Generally, there is no criminal laibility on failure to act
- Sometimes there are duties to act
- The duty to summon aid for the aggressor placed in peril by the act of self-defense may be revived; but only after the victim of the aggressor has fully exercised her right to seek and secure safety from personal harm
- Whether inflicted in self-defense or accidentally, a wound that causes a loss of blood undoubtedly places a person in some degree of peril, and therefore gives rise to a legal duty to either (1) personally provide assitance of (2) summon medical assistance
- Before liability, the failure to summon medical aid must be the cause in fact of the aggressor's death, not hte justified use of force
- When a person justifiably uses force to fend off an aggressor, that person has no duty to assist her aggressor in any manner that may conceivably create the risk of bodily injury or death to herself or other persons
AMERICAN BYSTANDARDER RULE
- Imposes no legal duty on a person to rescue or summon aid for another person who is at risk or in danger, even though society recognizes that a mroal obligation exists. This is true even "ehen the aid can be rendered wihtout danger or incovenience to" the potential rescuer
7 Common law excetions to American Bystandarder rule
1) duty based on a personal relationship as a parent-child or husband-wife
- EXCEPTIONS:
a) does not require a person to jeopradize his own life
b) duety does not arise unless the sppouse unintentionally entered a helpless state, or was otherwise incompentent to summon medical aid on his or her own behalf
2) duty based on statute (based on omission)
3) duty based on contract (nurse)
4) duty based upon voluntary assumption of care (babysitter)
5) duty based on creation of the peril (you hurt the person)
6) duty to control the conduct of others (teachers at school)
7) duty based on being a landowner (if you know there is a danger on your property)
GOOD SAMARITAN DOCTRINE
- Imposes a legal duty to render or summon aid for imperiled strangers, do not required that the would-be resuer risk bodily injury or death
- If you are trying to save someone and you hurt them in the process if not unreasonable then will not be held liable
State v. Cross
- Act has to be defined
- Guy drunk hanging out of car whether he was operating the vehicle
- Yes becuaes he started the car
LARCENY (Common Law)
- a trespassory taking and carrying away of the property of another with intent to steal it.

- Intent meant the intent to permanently deprive the owner of the owner's interest in property
animus furandi
- the intention to steal
ELEMENTS OF LARCENY
1) something specific was taken
2) the item stolen was the property of another
3) the D took it with the specific intent to permanently deprive the victim of his property
King v. Pear
- Larceny by Trick
- a. Δ who had lied about his address and ultimate destination when renting a horse was found guilty of larceny for later converting the horse. Because of the fraudulent misrepresentation, the court reasoned, the Δ had never obtained legal possession.
WELCH v. Commonwealth
- Guy took 2 tv's put them in basket and tried to go out through garden area
- THEFT/LARCENY REQUIRES TAKING
- to be charged with larceny there at least has to be a taking
- The mere removal of merchandise from a display shelf to a shopping car, and the subsequent movement of the shopping cart to other areas of the store, is not larceny unless the evidence otherwise shows that the taking was with the intent to steal
- Retailers implicitly grant bona fide customers the privilege to move goods offered for sale, in order for customers to accumulate all the goods desired and to transport them to a designated area for payment
- Where there is evidence that an individual has acted in a manner that is inconsistent with that of a prospective purchaser, and has exercised immediate dominion and control over the property, despite his continued presence within the owner’s store, such conduct establishes sufficient possession to satisfy that element of larceny
- Removal of target property from the owner’s premises is not required. “One may be said to have taken another’s property by a trespass though he has not removed it from the other’s premises.”
- The specific intent in the person’s mind may, and often must, be inferred from that person’s conduct and statements.
ASPORTATION
- The removal of one thing form one place to another
State v. MARTIN
- The criminal act occurred when Martin told the sales associate that the shirts had been given to her sons. By claiming she had ownership of the shirts, she exercised control over the shirts in a manner which was contrary to the store’s ownership. In effect, there was a verbal concealment and exertion of control by appellant
Commonwealth v. RESKE
- Car dealer taking advantage of person
- LARCENY BY FALSE PRETENSES REQUIRES MAKING A FALSE STATEMENT
- The finder of fact may infer a false statement as to the value of the 6 trucks from the inordinate profit margin, from the manifestly unrealistic trade-in allowances, and from the inflation over sticker prices
- False Pretence may consist of an act, symbol, or token calculated to deceive, such as grossly off-market prices or credits stated on forms of an established automobile agency selling a respected line of automobiles.
- A false pretence may be made by implication as well as by verbal declaration
LARCENY BY FALSE PRETENSES (RESKE)
1) a false statement of fact was made
2) the D know or believed the statemnet to be false when he made it
3) the D intended that the person to whom made the false statement would rely on it; and
4) The person to whom the false statement was made did rely on it and consequently parted with property


- HOT CHECKS ARE NOT LARCENY BY FALSE PRETENSES (when you tell someone not to cash a check until a certain time and then on that time you try to cash it and there are insufficient funds)
EMBEZZLEMENT
must prove that Δ “unlawfully, and with intent to steal or embezzle, converted the property.
- Theft by embezzlement must be an intentional and fraudulent appropriation and for conviction ‘it must be beyond a reasonable doubt that the Δ had a criminal intent to defraud.’ “

NOT A CRIME AT COMMON LAW
Commonwealth v. MORETON
- Person caught fish then gave it to person to auction
- It was NOT Larceny by embezzlement
- EMBEZZLEMENT REQUIRES CONVERTING THE PROPERTY
- The mere failure to make good on a commercial transaction, whether a consignment or a transaction by another name, particularly in the context of bankruptcy, does not establish the criminal intent required for an embezzlement conviction
- Souza had an option under bankruptcy law to avoid lining up with the Δ’s other creditors. He could have filed a complaint in the bankruptcy court for a determination under the civil preponderance of the evidence standard that the Δ’s debt to him was nondischargeable on the grounds that the Δ embezzled the proceeds, or converted them willfully and maliciously
People v. REDONDO
- Officer used car to steal lawnmower
- Officers taking of the sherriff car to steal lawnmower was made with the intent to permanently deprive the owner of the property for at least an extended period of time
- Although Δ’s journey was brief, his use was without the authorization and was clearly inconsistent with the owner’s rights and inconsistent with the nature of the trust reposed in Δ.
People v. HARBY
- Council person used city car for 4000 mile pleasure trip
- Such a journey without authorization required a use of the car that was inconsistent with its owner’s right and inconsistent with eh nature of the trust reposed in appellant and therefore it was embezzlement.
People v. Dolbeer
- Δ enlisted the aid of a phone company employee to provide him with a daily list of new phone company subscribers. After Δ was given the list, he quickly copied and retuned them to the employee
- Appellate Court found the lists were property because they were physical goods and had a value. They also found that even though the lists were returned promptly, an embezzlement had occurred and the Δ appropriated the lists with the intent to defraud.
United States v. CLARK
- Guy had checks drawn in incriments less than 75k so wouldnt be reported
- Applying the basic concept of ejusdem generic it is evident that to constitute “misapplication” within the meaning of the statute the bank officer’s conduct must involve some risk of pecuniary loss to the bank, not simply the violation of a rule or policy not designed to protect the bank’s assets against loss.
- Has been read as requiring for misapplication of funds more than a showing that the accused used those funds in violation of a bank rule or policy not designed to protect the bank against monetary risk. But using funds in violation of bank rules aimed at protecting the bank’s assets can constitute misapplication.
People v. BROWN
- Guy and car and drives into pole that shares with GF
- CRIMINAL MISCHIEF REQUIRES DAMAGING THE PROPERTY
- A Δ who deliberately destroys shared property – and thereby deliberately inflicts economic injury upon his co-owners – ordinarily must know that he is acting wrongfully. Moreover, once such property is destroyed, it cannot be returned to the co-owner. Thus it makes sense that the Criminal Mischief statute – unlike the larceny statute – does NOT exempt co-owners from criminal liability
- Court holds that Δ may reasonably have belived that he had a right to use the car. Thus he is not guilty of Unauthorized Use. But Δ did not believe and could not reasonably have believed he had a right to destroy the car. He destroyed the car because he was angry at Ms. Lindo for denying him the use of the car. That is “criminal mischief” in both the ordinary and legal sense of that phrase. Accordingly, Δ is found guilty of Criminal Mischief
Owner for Larceny
- owner is defined as anyone with right of possession superior to that of the taker and provides that a joint or common owner shall not be deemed to have a right of possession superior to that of any other common owner
- if property owned by two or more people is taken by one owner, he or she cannot be convicted of larceny
TPC 28.03 - CRIMINAL MISCHIEF in 2nd Degree
- If without effective consent of the owner:
1) intentionally or knowingly damages or destroys the tangible property of the owner
2) intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a 3rd person; or
3) intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner
TPC 28.04 - RECKLESS DAMAGE OR DESTRUCTION
1) Person commits an offense if, without the effective consent of hte owner, he recklessly damages or destroys property of the owner
2) An offense under this section is a Class C misdemeanor
TPC 28.05 - ACTOR'S INTEREST IN PROEPRTY
- It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destryed if another person also has an interest that the actor is not entitled to infringe
TPC 29.02 - ROBBERY
1. A person commits an offense if, in the course of committing theft as defined in Chp. 31 and with intent to obtain or maintain control of the property, he:
a. Intentionally, knowingly, or recklessly cause bodily injury to another, or
b. Intentionally or knowingly threatens or places another in fear of imminent bodily injury or death
c. An offense under this section is a felony of the 2nd degree
State v. PRESTON
- Charged with robbery while trying to steal cigarettes
- Difference between robbery and larceny is that robbery has the use of threaned immediate use of physical force as an element
- b. Robbery statute proscribes the use of physical force for:
i. Preventing or overcoming resistance to the taking of the property or the retention thereof immediately after the taking; or
ii. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny
Voir Doir
- To speak the truth; questions to see whether person is qualified to give testimony
WELCH v. State
- Conviction of robbery requires an objective standard of review
State v. HARRINGTON
- Trying to get person to give money to get settlement from attorney
- A demand for settlement of a civil action accompanied by a malicious threat to expose the wrongdoer’s criminal conduct, if made with intent to extort payment, against his will, constitutes extortion
BURGLARY
- COMMON LAW ELEMENTS:
1) a break, and
2) entering, of
3) the dwelling of,
4) another,
5) at night,
6) with the intent to commit a felony within

- Things no longer needed are a break and it to be at night

- TPC 30.02
- 1. A person who commits an offense if, without the effective consent of the owner, the person:
a. Enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
b. Remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
c. Enters a building or habitation and commits or attempts to commit a felony, theft, or an assault

- cannot burglerize own home
- if one of several occupants invites 3rd party to enter jointly occupied premises to commit a crime against one of hte other occupants, the consent is most likely not effective for purpose of burglary
- Cannot commit separate burglary from going room to room unless that other room is suppose to be for private use, like hotel room
People v. DAVIS
- Guy goes to check cashing place and tries to cash forged check, does check through chute constitute entry
- No did not constitute entry
- Burglary may be committed by using an instrument to enter a building – whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well
ARSON
- TPC 28.2
1. A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage:
a. Any vegetation, fence, or structure on open-space land; or
b. Any building, habitation, or vehicle:
i. Knowing that it is within the limits of an incorporated city or town;
ii. Knowing that it is insured against damage or destruction;
iii. Knowing that it is subject to a mortgage or other security interest
iv. Knowing that it is located on property belonging to another;
v. Knowing that it has located within it property belong to another; or
vi. When the person is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another

- Can only be 1 arson (if put house on fire and kill 6 people still 1 arson)
- CAN commit arson of a house that you own
- ownership interest in the property you harm does not matter
- Reason is because the act of committing arson is dangerous per se
ASSAULT
COMMON LAW: battery was the application of force to the person of another that resulted in injury or offensive touching. Assault was an attempted or failed battery
- Majority view -> Present ability is not required for a charge of assault
- Minority view -> an assault of the attempted battery type requires that the Δ have had “present ability” to commit the battery.

- i. A person commits an offense if the person:
1. Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
2. Intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse;
3. Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive.
ii. See statute for grading of offense.
AGGRAVATED ASSAULT
- TPC 22.02
- i. A person commits an offense if the person commits assault and the person:
1. Causes serious bodily injury to another, including the person’s spouse; or
2. Uses or exhibits a deadly weapon during the commission of the assault.
United States v. MCKINNEY
- Both people own stuff in stable and person has threatened by trying to run over person before
- The “threat to kill” is not in itself sufficient to support a conviction under the 2nd “concept” of “assault” and that the facts and circumstances must be such as to show that Straight’s subjective apprehension of bodily harm was “reasonable”
ACT REQUIRED FOR KIDNAPPING
- COMMON LAW: the forcible asportation - carrying away - of a person from their country to another
- MODERN LAW: now been codified along with similar offenses of False Imprisonment and can "techincally" be committed in connection with a murder of other offenses
ABDUCT
- means to restrain a person with intent to prevent his liberation by : (1) secreting or holding him in a place where he is not likely to be found; or (2) using or threatening to use deadly force.
UNLAWFUL RESTRAINT
- TPC 20.02

i. A person commits an offense if he intentionally or knowingly restrains another person.
ii. It is an affirmative defense if:
1. the person restrained was a child younger than 14
2. the actor was a relative of the child; and
3. the actor’s sole intent was to assume lawful control of the child.
iii. See statute for grading of offense
KIDNAPPING
- TPC 20.03

i. A person commits an offense if he intentionally or knowingly abducts another person
ii. It is an affirmative defense to prosecution in this section that:
1. The abduction was not coupled with intent to use or threaten to use deadly force;
2. The actor was a relative of the person abducted; and
3. The actor’s sol intent was to assume lawful control of the victim.
iii. 3rd degree felony
AGGRAVATED KIDNAPPING
- TPC 20.04

i. A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
1. Hold him for ransom or reward;
a. Use him as a shield or hostage;
b. Facilitate the commission of a felony or the flight after the attempt or commission of a felony;
c. Inflict bodily injury on him or violate or abuse him sexually;
d. Terrorize him or a third person; or
e. Interfere with the performance of any governmental or political function.
ii. A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
iii. 1st degree felony
iv. Except: the Δ may raise the issue as to whether he voluntarily released the victim in a safe place.
1. Will drop it down to a 2nd degree instead of 1st (policy consideration)


- It is the purose of the removal or confienment and not the distance or duration that supples a necessary element of aggrevated kidnapping
UNLAWFUL TRANSPORT
- TPC 20.05

i. A person commits an offense if the person for pecuniary benefit transports an individual in a manner that:
1. Is designed to conceal the individual from local, state, or federal law enforcement authorities; and
2. Creates a substantial likelihood that the individual will suffer serious bodily injury or death.
ii. State jail felony.
State v. DIXON
- D drug chick some distance into parking lot and then bush where raped her. Convicted of agravated kidnapping, aggravated assault, and attempted sexual battery

- Court has recognized that separate kidnapping convictions may violate due process when kidnapping is essentially incidental to other offenses for which a Δ has been convicted
- Had Dixon confined and attempted to sexually penetrate the victim where he initially physically assaulted her, the confinement would have been merely incidental to the attempted sexual battery
- To determine whether the movement or confinement was beyond that necessary to consummate the act of attempted sexual battery look at: whether the additional movement or confinement:
a. prevented the victim from summoning help
b. lessened the Δ’s risk of detection
c. created a significant danger or increased the victim’s risk of harm

- The brutal beatings were not necessary for the commission of either the kidnapping or the attempted sexual battery. Likewise, the movement to the back to the vacant lot was not necessary for commission of the aggravated assault.
a. Accordingly, the aggravated assault was an act independent of both the kidnapping and the attempted sexual battery and should not have been reversed
When Kidnapping is essentially incidental
1) The removal or confinement did not substantially increase the risk of harm to the victims
2) The victim's movement was slight
3) the confinement was brief
4) The victimes "were not harmed in any way"