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Chapter 11: Crimes against Property

Arson is one of the easiest crimes to commit on the spur of the moment…it takes only seconds to light a match to a pile of clothes or a curtain…

—People v. Atkins, cited in Section 11 “Arson Intent”

Kiwi NZ – House in flames – CC BY 2.0.

Chapter 11: Learning Objectives

Define the criminal act element required for consolidated theft statutes.

Define the criminal intent element required for consolidated theft statutes.

Define the attendant circumstances required for consolidated theft statutes.

Define the harm element required for consolidated theft statutes, and distinguish the harm required for larceny theft from the harm required for false pretenses theft.

Analyze consolidated theft grading.

Define the elements required for federal mail fraud, and analyze federal mail fraud grading.

Chapter 11: Learning Objectives

Define the criminal act element required for extortion.

Define the criminal intent element required for extortion.

Identify a potential defense to extortion.

Define the attendant circumstances required for extortion.

Define the harm element required for extortion.

Analyze extortion grading.

Identify the differences between robbery, larceny, and extortion.

Analyze robbery grading.

Define the criminal act element required for receiving stolen property.

Define the criminal intent element required for receiving stolen property.

Identify a failure of proof or affirmative defense to receiving stolen property in some jurisdictions.

Define the attendant circumstances and harm element required for receiving stolen property.

Analyze receiving stolen property grading.

Chapter 11: Learning Objectives

Define the criminal act element required for burglary.

Define the criminal intent element required for burglary.

Define the attendant circumstances required for burglary.

Analyze burglary grading.

Define the elements of criminal trespass, and analyze criminal trespass grading.

Define the criminal act element required for arson.

Define the criminal intent element required for arson.

Define the attendant circumstances required for arson.

Define the harm element required for arson.

Analyze arson grading.

Define the elements of criminal mischief, and analyze criminal mischief grading.

11.2 Extortion, Robbery, and Receiving Stolen Property

1. Define the criminal act element required for extortion.

2. Define the criminal intent element required for extortion.

3. Identify a potential defense to extortion.

4. Define the attendant circumstances required for extortion.

5. Define the harm element required for extortion.

6. Analyze extortion grading.

7. Identify the differences between robbery, larceny, and extortion.

8. Analyze robbery grading.

9. Define the criminal act element required for receiving stolen property.

10. Define the criminal intent element required for receiving stolen property.

11. Identify a failure of proof or affirmative defense to receiving stolen property in some jurisdictions.

12. Define the attendant circumstances and harm element required for receiving stolen property.

13. Analyze receiving stolen property grading.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion

All states and the federal government criminalize extortion, which is also called blackmail (K.S.A. § 21-3428, 2011). As stated previously, the Model Penal Code criminalizes theft by extortion and grades it the same as all other nonforcible theft offenses (Model Penal Code § 223.4). Extortion is typically nonviolent, but the elements of extortion are very similar to robbery, which is considered a forcible theft offense. Robbery is discussed shortly.

Extortion has the elements of

criminal act,

criminal intent,

attendant circumstances,

causation, and

harm

11.1 Nonviolent Theft Crimes – Texas Penal Code Extortion

Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES.

Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

Sec. 31.03. THEFT. (a) A person commits an offense if he

unlawfully appropriates property with intent to deprive the owner of

property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent;

(2) the property is stolen and the actor appropriates the

property knowing it was stolen by another; or

(3) property in the custody of any law enforcement agency

was explicitly represented by any law enforcement agent to the actor

as being stolen and the actor appropriates the property believing it

was stolen by another.

(1) evidence that the actor has previously participated in

recent transactions other than, but similar to, that which the

prosecution is based is admissible for the purpose of showing

knowledge or intent and the issues of knowledge or intent are raised

by the actor's plea of not guilty;

(2) the testimony of an accomplice shall be corroborated by

proof that tends to connect the actor to the crime, but the actor's

knowledge or intent may be established by the uncorroborated

testimony of the accomplice;

(3) an actor engaged in the business of buying and selling

used or secondhand personal property, or lending money on the

security of personal property deposited with the actor, is presumed

to know upon receipt by the actor of stolen property (other than a

motor vehicle subject to Chapter 501, Transportation Code) that the

property has been previously stolen from another if the actor pays

for or loans against the property $25 or more (or consideration of

equivalent value) and the actor knowingly or recklessly:

(A) fails to record the name, address, and physical

description or identification number of the seller or pledgor;

(B) fails to record a complete description of the

property, including the serial number, if reasonably available, or

other identifying characteristics; or

or pledgor that the seller or pledgor has the right to possess the

property. It is the express intent of this provision that the

presumption arises unless the actor complies with each of the

numbered requirements;

(4) for the purposes of Subdivision (3)(A), "identification

number" means driver's license number, military identification

number, identification certificate, or other official number capable

of identifying an individual;

(5) stolen property does not lose its character as stolen

when recovered by any law enforcement agency;

(6) an actor engaged in the business of obtaining abandoned

or wrecked motor vehicles or parts of an abandoned or wrecked motor

vehicle for resale, disposal, scrap, repair, rebuilding, demolition,

or other form of salvage is presumed to know on receipt by the actor

of stolen property that the property has been previously stolen from

another if the actor knowingly or recklessly:

(A) fails to maintain an accurate and legible inventory

of each motor vehicle component part purchased by or delivered to the

actor, including the date of purchase or delivery, the name, age,

address, sex, and driver's license number of the seller or person

making the delivery, the license plate number of the motor vehicle in

which the part was delivered, a complete description of the part, and

the vehicle identification number of the motor vehicle from which the

part was removed, or in lieu of maintaining an inventory, fails to

record the name and certificate of inventory number of the person who

dismantled the motor vehicle from which the part was obtained;

(B) fails on receipt of a motor vehicle to obtain a

certificate of authority, sales receipt, or transfer document as

required by Chapter 683, Transportation Code, or a certificate of

title showing that the motor vehicle is not subject to a lien or that

all recorded liens on the motor vehicle have been released; or

remove an unexpired license plate from the motor vehicle, to keep the

plate in a secure and locked place, or to maintain an inventory, on

forms provided by the Texas Department of Motor Vehicles, of license

plates kept under this paragraph, including for each plate or set of

plates the license plate number and the make, motor number, and

vehicle identification number of the motor vehicle from which the

plate was removed;

(7) an actor who purchases or receives a used or secondhand

motor vehicle is presumed to know on receipt by the actor of the

motor vehicle that the motor vehicle has been previously stolen from

another if the actor knowingly or recklessly:

(A) fails to report to the Texas Department of Motor

Vehicles the failure of the person who sold or delivered the motor

vehicle to the actor to deliver to the actor a properly executed

certificate of title to the motor vehicle at the time the motor

vehicle was delivered; or

(B) fails to file with the county tax assessorcollector

of the county in which the actor received the motor

vehicle, not later than the 20th day after the date the actor

received the motor vehicle, the registration license receipt and

certificate of title or evidence of title delivered to the actor in

accordance with Subchapter D, Chapter 520, Transportation Code, at

the time the motor vehicle was delivered;

(8) an actor who purchases or receives from any source

other than a licensed retailer or distributor of pesticides a

restricted-use pesticide or a state-limited-use pesticide or a

compound, mixture, or preparation containing a restricted-use or

state-limited-use pesticide is presumed to know on receipt by the

actor of the pesticide or compound, mixture, or preparation that the

pesticide or compound, mixture, or preparation has been previously

stolen from another if the actor:

(A) fails to record the name, address, and physical

description of the seller or pledgor;

(B) fails to record a complete description of the

amount and type of pesticide or compound, mixture, or preparation

purchased or received; and

or pledgor that the seller or pledgor has the right to possess the

property; and

(9) an actor who is subject to Section 409, Packers and

Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from a

commission merchant by representing that the actor will make prompt

payment is presumed to have induced the commission merchant's consent

by deception if the actor fails to make full payment in accordance

with Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b).

(d) It is not a defense to prosecution under this section that:

(1) the offense occurred as a result of a deception or

strategy on the part of a law enforcement agency, including the use

of an undercover operative or peace officer;

(2) the actor was provided by a law enforcement agency with

a facility in which to commit the offense or an opportunity to engage

in conduct constituting the offense; or

(3) the actor was solicited to commit the offense by a

peace officer, and the solicitation was of a type that would

encourage a person predisposed to commit the offense to actually

commit the offense, but would not encourage a person not predisposed

to commit the offense to actually commit the offense.

(e) Except as provided by Subsection (f), an offense under this

section is:

(1) a Class C misdemeanor if the value of the property

stolen is less than $100;

(2) a Class B misdemeanor if:

(A) the value of the property stolen is $100 or more

but less than $750;

(B) the value of the property stolen is less than $100

and the defendant has previously been convicted of any grade of

theft; or

commercial driver's license, or personal identification certificate

issued by this state or another state;

(3) a Class A misdemeanor if the value of the property

stolen is $750 or more but less than $2,500;

(4) a state jail felony if:

(A) the value of the property stolen is $2,500 or more

but less than $30,000, or the property is less than 10 head of sheep,

swine, or goats or any part thereof under the value of $30,000;

(B) regardless of value, the property is stolen from

the person of another or from a human corpse or grave, including

property that is a military grave marker;

Section 46.01;

(D) the value of the property stolen is less than

$2,500 and the defendant has been previously convicted two or more

times of any grade of theft;

(E) the property stolen is an official ballot or

official carrier envelope for an election; or

(F) the value of the property stolen is less than

$20,000 and the property stolen is:

(i) aluminum;

(ii) bronze;

(iii) copper; or

(iv) brass;

(5) a felony of the third degree if the value of the

property stolen is $30,000 or more but less than $150,000, or the

property is:

(A) cattle, horses, or exotic livestock or exotic fowl

as defined by Section 142.001, Agriculture Code, stolen during a

single transaction and having an aggregate value of less than

$150,000;

(B) 10 or more head of sheep, swine, or goats stolen

during a single transaction and having an aggregate value of less

than $150,000; or

$150,000, if stolen from:

(i) a commercial building in which a controlled

substance is generally stored, including a pharmacy, clinic,

hospital, nursing facility, or warehouse; or

(ii) a vehicle owned or operated by a wholesale

distributor of prescription drugs;

(6) a felony of the second degree if:

(A) the value of the property stolen is $150,000 or

more but less than $300,000; or

(B) the value of the property stolen is less than

$300,000 and the property stolen is an automated teller machine or

the contents or components of an automated teller machine; or

(7) a felony of the first degree if the value of the

property stolen is $300,000 or more.

(f) An offense described for purposes of punishment by

Subsections (e)(1)-(6) is increased to the next higher category of

offense if it is shown on the trial of the offense that:

(1) the actor was a public servant at the time of the

offense and the property appropriated came into the actor's custody,

possession, or control by virtue of his status as a public servant;

(2) the actor was in a contractual relationship with

government at the time of the offense and the property appropriated

came into the actor's custody, possession, or control by virtue of

the contractual relationship;

(3) the owner of the property appropriated was at the time

of the offense:

(A) an elderly individual; or

(B) a nonprofit organization;

(4) the actor was a Medicare provider in a contractual

relationship with the federal government at the time of the offense

and the property appropriated came into the actor's custody,

possession, or control by virtue of the contractual relationship; or

(5) during the commission of the offense, the actor

intentionally, knowingly, or recklessly:

(A) caused a fire exit alarm to sound or otherwise

become activated;

(B) deactivated or otherwise prevented a fire exit

alarm or retail theft detector from sounding; or

prevent or attempt to prevent detection of the offense by a retail

theft detector.

(g) For the purposes of Subsection (a), a person is the owner

of exotic livestock or exotic fowl as defined by Section 142.001,

Agriculture Code, only if the person qualifies to claim the animal

under Section 142.0021, Agriculture Code, if the animal is an estray.

(h) In this section:

(1) "Restricted-use pesticide" means a pesticide classified

as a restricted-use pesticide by the administrator of the

Environmental Protection Agency under 7 U.S.C. Section 136a, as that

law existed on January 1, 1995, and containing an active ingredient

listed in the federal regulations adopted under that law (40 C.F.R.

Section 152.175) and in effect on that date.

(2) "State-limited-use pesticide" means a pesticide

classified as a state-limited-use pesticide by the Department of

Agriculture under Section 76.003, Agriculture Code, as that section

existed on January 1, 1995, and containing an active ingredient

listed in the rules adopted under that section (4 TAC Section 7.24)

as that section existed on that date.

(3) "Nonprofit organization" means an organization that is

exempt from federal income taxation under Section 501(a), Internal

Revenue Code of 1986, by being described as an exempt organization by

Section 501(c)(3) of that code.

(4) "Automated teller machine" means an unstaffed

electronic information processing device that, at the request of a

user, performs a financial transaction through the direct

transmission of electronic impulses to a financial institution or

through the recording of electronic impulses or other indicia of a

transaction for delayed transmission to a financial institution. The

term includes an automated banking machine.

(5) "Controlled substance" has the meaning assigned by

Section 481.002, Health and Safety Code.

(6) "Wholesale distributor of prescription drugs" means a

wholesale distributor, as defined by Section 431.401, Health and

Safety Code.

(i) For purposes of Subsection (c)(9), "livestock" and

"commission merchant" have the meanings assigned by Section 147.001,

Agriculture Code.

(j) With the consent of the appropriate local county or

district attorney, the attorney general has concurrent jurisdiction

with that consenting local prosecutor to prosecute an offense under

this section that involves the state Medicaid program.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Act

The criminal act element required for extortion is typically the theft of property accomplished by a threat to cause future harm to the victim, including the threat to inflict bodily injury, accuse anyone of committing a crime, or reveal a secret that would expose the victim to hatred, contempt, or ridicule (Ga. Code § 16-8-16, 2011).

The Model Penal Code criminalizes theft by extortion when the defendant obtains property of another by threatening to inflict bodily injury on anyone, commit any criminal offense, accuse anyone of a criminal offense, expose any secret tending to subject any person to hatred, contempt, or ridicule or impair his credit and business repute, take or withhold action as an official, bring about a strike or boycott, testify with respect to another’s legal claim, or inflict any other harm that would not benefit the actor (Model Penal Code § 223.4).

Note that some of these acts could be legal, as long as they are not performed with the unlawful intent to steal.

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Extortion Act

Rodney tells Lindsey that he will report her illegal drug trafficking to local law enforcement if she does not pay him fifteen thousand dollars. Rodney has probably committed the criminal act element required for extortion in most jurisdictions.

Note that Rodney’s threat to expose Lindsey’s illegal activities is actually desirable behavior when performed with the intent to eliminate or reduce crime. However, under these circumstances, Rodney’s act is most likely criminal because it is supported by the intent to steal fifteen thousand dollars from Lindsey.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Intent

The criminal intent element required for extortion is typically the specific intent or purposely to commit the criminal act and to unlawfully deprive the victim of property permanently (Connecticut Criminal Jury Instructions §§53a-119(5), 2011).

This intent requirement is similar to the criminal intent element required for larceny and false pretenses theft, as discussed in Section 11 “Consolidated Theft Intent”.

Some jurisdictions only require general intent or knowingly to perform the criminal act (Ariz. Rev. Stat. § 13-1804).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of a Case Lacking Extortion Intent

Review the example with Rodney and Lindsey in Section 11 “Example of Extortion Act”. Change the example and assume that Rodney asks Lindsey to loan him the fifteen thousand dollars so that he can make a balloon payment due on his mortgage. Lindsey refuses. Rodney thereafter threatens to expose Lindsey’s drug trafficking if she doesn’t loan him the money.

In many jurisdictions, Rodney may not have the criminal intent element required for extortion. Although Rodney performed the criminal act of threatening to report Lindsey for a crime, he did so with the intent to borrow money from Lindsey. Thus Rodney did not act with the specific intent or purposely to permanently deprive Lindsey of property, which could operate as a failure of proof or affirmative defense to extortion in many jurisdictions.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Attendant Circumstance

Extortion is a form of theft, so it has the same attendant circumstance required in consolidated theft statutes—the property stolen belongs to another.

In many jurisdictions, it is an affirmative defense to extortion that the property taken by threat to expose a secret or accuse anyone of a criminal offense is taken honestly, as compensation for property, or restitution or indemnification for harm done by the secret or crime (Ga. Code § 16-8-16, 2011).

The Model Penal Code provides an affirmative defense to extortion by threat of accusation of a criminal offense, exposure of a secret, or threat to take or withhold action as an official if the property obtained was “honestly claimed as restitution or indemnification for harm done in the circumstances to which such accusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful services” (Model Penal Code § 223.4).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Extortion Affirmative Defense

Tara, a real estate broker, hires Trent to be a real estate sales agent in her small realty office. Tara decides she wants to get the property listing of a competitor by using Trent to obtain information. Tara tells Trent to pretend he is a buyer interested in the property. She asks him to make an appointment with the competitor, ask a lot of questions about the owner of the property, and thereafter bring Tara the information. Tara promises to pay Trent one thousand dollars for his time and effort.

Trent spends several hours performing this task and thereafter demands his one thousand dollars payment. Tara tells Trent she is experiencing “tough times” and can’t afford to pay him. Trent threatens to tell Tara’s competitor what she is up to if she doesn’t pay him the one thousand dollars.

Trent has probably not committed extortion in many jurisdictions. Although Trent threatened to expose Tara’s secret if she didn’t pay him one thousand dollars, Trent honestly believed he was owed this money for a job he performed that was directly related to the secret. Thus in many jurisdictions, Trent has an affirmative defense that the money demanded was compensation for services and not the subject of unlawful theft by extortion.

11.2 Extortion, Robbery, and Receiving Stolen Property - Attendant Circumstance of Victim Consent

Extortion also requires the attendant circumstance of victim consent. With extortion, the victim consensually transfers the property based on fear inspired by the defendant’s threat (Oklahoma Uniform Jury Instructions No. CR 5-34, 2011).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Attendant Circumstance of Victim Consent for Extortion

Review the example with Rodney and Lindsey in Section 11 “Example of Extortion Act”. Assume that Lindsey grudgingly gives Rodney the fifteen thousand dollars so that he will not report her drug trafficking. In this example, Lindsey is consensually transferring the money to Rodney to prevent him from making good on his threat.

Thus the attendant circumstance of victim consent based on fear is most likely present, and Rodney could be subject to prosecution for and conviction of extortion in most jurisdictions.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Causation

The criminal act must be the factual and legal cause of extortion harm, which is defined in Section 11 “Extortion Harm”.

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Harm

The defendant must obtain property belonging to another for the completed crime of extortion in most jurisdictions (Oklahoma Uniform Jury Instructions No. CR 5-34, 2011).

If the defendant commits the criminal act of threatening the victim with the appropriate criminal intent, but the victim does not actually transfer the property to the defendant, the defendant can only be charged with attempted extortion (Oklahoma Uniform Jury Instructions No. CR 5-32, 2011).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of a Case Lacking Extortion Harm

Review the example with Rodney and Lindsey in Section 11 “Example of Extortion Act”. Assume that after Rodney threatens to report Lindsey’s drug trafficking to local law enforcement, Lindsey calls local law enforcement, turns herself in for drug trafficking, and also reports Rodney for making the threat. In this case, because Rodney did not “obtain” property by threat, the crime of extortion is not complete, and attempted extortion would be the appropriate charge in most jurisdictions.

11.2 Extortion, Robbery, and Receiving Stolen Property - Figure 11.4 Diagram of Defenses to Extortion

11.2 Extortion, Robbery, and Receiving Stolen Property - Extortion Grading

Extortion is generally graded as a felony in most jurisdictions (Or. Rev. Stat. § 164.075, 2011). As stated previously, the Model Penal Code grades extortion under its consolidated theft offense.

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery

Robbery was the first common-law theft crime. The criminalization of robbery was a natural progression from other common-law crimes against the person because robbery always involves force, violence, or threat and could pose a risk of injury or death to the robbery victim, defendant, or other innocent bystanders.

Recall from Chapter 9 “Criminal Homicide” that robbery is generally a serious felony that is included in most felony murder statutes as a predicate felony for first-degree felony murder. When robbery does not result in death, it is typically graded more severely than theft under a consolidated theft statute.

The elements of robbery are very similar to the elements of larceny and extortion. For the purpose of brevity, only the elements of robbery that are distinguishable from larceny and extortion are analyzed in depth.

Robbery has the elements of

criminal act,

attendant circumstances,

criminal intent, causation, and

harm,

11.2 Extortion, Robbery, and Receiving Stolen Property – Robbery Definitions

Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.

(2) "Property" means:

(A) tangible or intangible personal property including anything severed from land; or

(B) a document, including money, that represents or embodies anything of value.

Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that

occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft.

(2) "Property" means: (A) tangible or intangible personal property including

anything severed from land; or

(B) a document, including money, that represents or

embodies anything of value.

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in

the course of committing theft as defined in Chapter 31 and with

intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily

injury to another; or

(2) intentionally or knowingly threatens or places another

in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second

degree.

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an

offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or

places another person in fear of imminent bodily injury or death, if

the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first

degree.

a mental, physical, or developmental disability who is substantially

unable to protect himself from harm.

11.2 Extortion, Robbery, and Receiving Stolen Property – Robbery

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second degree.

Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that

occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft.

(2) "Property" means: (A) tangible or intangible personal property including

anything severed from land; or

(B) a document, including money, that represents or

embodies anything of value.

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in

the course of committing theft as defined in Chapter 31 and with

intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily

injury to another; or

(2) intentionally or knowingly threatens or places another

in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second

degree.

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an

offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or

places another person in fear of imminent bodily injury or death, if

the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first

degree.

a mental, physical, or developmental disability who is substantially

unable to protect himself from harm.

11.2 Extortion, Robbery, and Receiving Stolen Property – Aggravated Robbery

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first degree.

(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that

occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft.

(2) "Property" means: (A) tangible or intangible personal property including

anything severed from land; or

(B) a document, including money, that represents or

embodies anything of value.

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in

the course of committing theft as defined in Chapter 31 and with

intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily

injury to another; or

(2) intentionally or knowingly threatens or places another

in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second

degree.

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an

offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or

places another person in fear of imminent bodily injury or death, if

the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first

degree.

a mental, physical, or developmental disability who is substantially

unable to protect himself from harm.

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery Act

It is the criminal act element that primarily distinguishes robbery from larceny and extortion.

The criminal act element required for robbery is a taking of personal property by force or threat of force (Ind. Code § 35-42-5-1, 2011).

Force is generally physical force. The force can be slight, but it must be more than what is required to gain control over and move the property (S.W. v. State, 2011).

Many jurisdictions require force during the taking which includes the use of force to prevent the victim from reclaiming the property, or during escape (State v. Handburgh, 2011).

The Model Penal Code requires force or threat “in the course of committing a theft” and defines this as occurring in “an attempt to commit theft or in flight after the attempt or commission” (Model Penal Code § 222.1(1)). Threat for robbery is a threat to inflict imminent force (Ala. Code § 13A-8-43, 2011).

While larceny and extortion also require a taking, the defendant typically accomplishes the larceny taking by stealth, or a false representation of fact. In extortion, the defendant accomplishes the taking by a threat of future harm that may or may not involve force.

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Robbery Act

Review the example given in Section 11 “Example of Extortion Act” with Rodney and Lindsey. In this example, Rodney threatened to expose Lindsey’s drug trafficking if she didn’t pay him fifteen thousand dollars.

Change the example so that Rodney tells Lindsey he will kill her if she doesn’t write him a check for fifteen thousand dollars. Rodney exemplifies his threat by pointing to a bulge in his front jacket pocket that appears to be a weapon.

In this scenario, Rodney has most likely committed the criminal act element required for robbery, not extortion. Rodney’s threat is a threat of immediate force.

Compare this threat to Rodney’s threat to expose Lindsey’s drug trafficking, which is a threat of future harm that relates to Lindsey’s arrest for a crime, rather than force.

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of a Case Lacking Robbery Act

Peter, a jewelry thief, notices that Cheryl is wearing a diamond ring. Peter walks up to Cheryl and asks her if she wants him to read her palm. Cheryl shrugs her shoulders and says, “Sure! What have I got to lose?” While Peter does an elaborate palm reading, he surreptitiously slips Cheryl’s diamond ring off her finger and into his pocket.

Peter has probably not committed the criminal act element required for robbery in this case. Although Peter used a certain amount of physical force to remove Cheryl’s ring, he did not use any force beyond what was required to gain control over Cheryl’s property and move it into his possession.

Thus Peter has probably committed the criminal act element required for larceny theft, not robbery, and is subject to less severe sentencing for this lower-level offense.

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery Attendant Circumstances

Another difference between robbery and larceny or extortion is the attendant circumstances requirement(s). Robbery requires the same attendant circumstance required for both larceny and extortion—that the property taken belongs to another.

It also has the same attendant circumstance as larceny—that the defendant accomplish the taking against the victim’s will and without consent.

However, robbery has one additional attendant circumstance, which is that the property be taken from the victim’s person or presence (Cal. Penal Code § 211). The property does not need to be in the actual physical possession of the victim, as long as it is under the victim’s control (Jones v. State, 2011). Thus if the victim could have prevented the taking if not for the force, violence, or threat posed by the defendant, this attendant circumstance is present (Jones v. State, 2011).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Robbery Attendant Circumstances

Review the example given in Section 11 “Example of Robbery Act” with Rodney and Lindsey. In this example, Rodney tells Lindsey he will kill her if she doesn’t write him a check for fifteen thousand dollars.

Change this example so that Rodney knows Lindsey has recently withdrawn fifteen thousand dollars in cash from the bank. Rodney demands the cash, tells Lindsey he will kill her if she doesn’t give it to him, and gestures toward a bulge in his front jacket pocket that appears to be a weapon. Lindsey tells Rodney, “The money is in my purse, but if you take it, you will be ruining my life!” and points to her purse, which is on the kitchen table a few feet away. Rodney walks over to the table, opens Lindsey’s purse, and removes a large envelope stuffed with bills.

In this scenario, the attendant circumstances for robbery appear to be present. Rodney took the property of another without consent. Although the money was not on Lindsey’s person, it was in her presence and subject to her control. If Rodney had not threatened Lindsey’s life, she could have prevented the taking. Thus Rodney has most likely committed robbery and is subject to prosecution for and conviction of this offense.

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery Intent

The criminal intent element required for robbery is the same as the criminal intent element required for larceny and extortion in many jurisdictions. The defendant must have the specific intent or purposely to commit the criminal act and to deprive the victim of the property permanently (Metheny v. State, 2011).

Some jurisdictions do not require the intent to permanently deprive the victim of property and include temporary takings in the robbery statute (Fla. Stat. Ann. § 812.13, 2011).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Robbery Intent

Review the example with Rodney and Lindsey in Section 11 “Example of a Case Lacking Extortion Intent”. In this example, Rodney demands a loan from Lindsey in the amount of fifteen thousand dollars and threatens to expose her drug trafficking activities if she doesn’t comply.

Change this example so that Rodney tells Lindsey to loan him fifteen thousand dollars or he will kill her, gesturing at a bulge in his front jacket pocket that appears to be a weapon.

In a jurisdiction that requires the criminal intent to permanently deprive the victim of property for robbery, Rodney does not have the appropriate criminal intent.

In a jurisdiction that allows for the intent to temporarily deprive the victim of property for robbery, Rodney has the appropriate criminal intent and may be charged with and convicted of this offense.

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery Causation and Harm

The criminal act supported by the criminal intent must be the factual and legal cause of the robbery harm, which is the same as the harm requirement for larceny and extortion: the property must be transferred to the defendant (Oklahoma Uniform Jury Instructions No. CR 4-141, 2011).

In some jurisdictions, no transfer of property needs to take place, and the crime is complete when the defendant employs the force or threat with the appropriate criminal intent (Williams v. State, 2011).

11.2 Extortion, Robbery, and Receiving Stolen Property - Example of Robbery Harm

Review the example with Rodney and Lindsey in Section 11 “Example of Robbery Attendant Circumstances”. In this example, Rodney threatens to kill Lindsey if she does not give him fifteen thousand dollars out of her purse and gestures to a bulge in his front jacket pocket that appears to be a weapon.

Change this example so that Lindsey leaps off of the couch and tackles Rodney after his threat. She reaches into his pocket and determines that Rodney’s “gun” is a plastic water pistol. Rodney manages to get out from under Lindsey and escapes.

If Rodney and Lindsey are in a jurisdiction that requires a transfer of property for the harm element of robbery, Rodney has probably only committed attempted robbery because Rodney did not get the chance to take the money out of Lindsey’s purse.

If Rodney and Lindsey are in a jurisdiction that does not require a transfer of property for the harm element of robbery, Rodney may be subject to prosecution for and conviction of this offense.

11.2 Extortion, Robbery, and Receiving Stolen Property - Figure 11.5 Diagram of Defenses to Robbery

11.2 Extortion, Robbery, and Receiving Stolen Property - Robbery Grading

As stated previously, robbery is generally graded as a serious felony that can serve as the predicate felony for first-degree felony murder (Cal. Penal Code § 189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011).

Robbery grading is aggravated by the use of a weapon or when the defendant inflicts serious bodily injury (Tex. Penal Code § 29.03, 2011).

The Model Penal Code grades robbery as a felony of the second degree, unless the actor attempts to kill anyone or purposely inflicts or attempts to inflict serious bodily injury, in which case it is graded as a felony of the first degree (Model Penal Code § 222.1(2)).

11.2 Extortion, Robbery, and Receiving Stolen Property - Table 11.2 Comparing Larceny, Extortion, and Robbery

11.2 Extortion, Robbery, and Receiving Stolen Property - Receiving Stolen Property

All jurisdictions criminalize receiving stolen property, to deter theft and to break up organized criminal enterprises that benefit from stealing and selling stolen goods.

Receiving stolen property criminal statutes often are targeted at pawnbrokers or fences who regularly buy and sell property that is the subject of one of the theft crimes discussed in the preceding sections.

As stated, the Model Penal Code includes receiving stolen property in its consolidated theft offense (Model Penal Code §§ 223.1, 223.6). Receiving stolen property has the elements of: