*** Chapter Outcome***
List and define the oenses against business.
C. CRIMES AGAINST BUSINESS
In the United States, crimes against business property amount to losses in
the hundreds of billions of dollars each year. In this section, you will learn
about several serious property crimes: (1) larceny, (2) embezzlement, (3)
false pretenses, (4) robbery, (5) burglary, (6) extortion and bribery, (7)
forgery, and (8) bad checks.
Larceny
Embezzlement
Defined as the (a) fraudulent (b) conversion of (c) the property (d) of
another (e) by one who is in lawful possession of it. Conversion is any act
that seriously interferes with the owner’s rights in the property. The key
distinction between larceny and embezzlement is that with embezzlement,
the thief is in lawful possession of the property at the time of the theft.
False Pretenses
Elements: a) a materially false representation of an existing fact b) which
causes the victim c) to pass title to d) his property to the wrongdoer e) who
knows his representation to be false and intends thereby to defraud the
CASE 6-2
STATE OF SOUTH DAKOTA v. MORSE
Supreme Court of South Dakota, 2008
753 N.W.2d 915, 2008 SD 66
http://scholar.google.com/scholar_case?case=4959207354232635251&q=753+N.W.2d+915&hl=en&as_sdt=2,34
Konenkamp, J.
[Janice Heffron orally contracted with her neighbor, Wyatt Morse, to convert her
second-floor bedroom into a bathroom in five weeks for $5,000. According to Janice,
Morse repeatedly stated that he could do it “easy, quick, cheap.” Janice told her mother,
Maxine Heffron, who would finance the project, about Morse’s offer. Maxine and Janice
then went to Morse’s home, where he showed them the bathroom he had restored. Janice
and Maxine were impressed. Morse also told them that he had plumbing experience, that
his work would be above and beyond code, and that the local inspector did not inspect his
work because he was so good. Maxine wanted to pay using personal checks to assure a
paper trail, but Morse convinced her to pay him with cash. According to Janice, he wanted
Morse began work in January 2006. His efforts continued until the second week of
March. He installed plumbing fixtures and he removed the old water heater and installed a
new one. He ran a freeze-proof spigot outside the house. He put in a bathroom vent with an
antique vent cover. He custom built a bathroom cabinet at no extra cost to the Heffrons. He
mounted wainscoting and crafted a surrounding shelf with rope lighting. He put in a faux
tin ceiling, with crown molding and trim. He installed water pipes and a new drain stack.
The project took longer and cost more than originally agreed. Morse ran into difficulties
Maxine paid Morse somewhere between $6,000 and $6,500 cash. In March 2006, Morse
fell and aggravated his already bad back. Before Janice and Maxine hired him, Morse had
told them that he had a back condition. After his fall in March, he came to the job site less
and less. Then, after the second week in March he stopped coming entirely. The Heffrons
tried contacting him through phone calls, personal visits, and certified mail. He never
responded. After Morse abandoned the project, Janice contacted a licensed plumber, who
examined Morse’s work and gave Janice an estimate on the cost of completing the project.
The plumber pointed out several deficiencies in Morse’s work. In particular, Morse
incorrectly installed the water heater, the pipes for the sink, lavatory, and bathtub. He used
On October 12, 2006, Morse was indicted for grand theft by deception in violation of
South Dakota law. A jury returned a guilty verdict. Morse was sentenced to five years in
prison. He appealed asserting that the evidence was insufficient to sustain the verdict.
Morse argues that the State failed to prove he had the requisite intent to defraud the
Heffrons. He does not dispute that the work he did on Janice’s home was faulty and
work and fully intended on completing the project. The State, on the other hand, argues that
Morse “created and reinforced the false impression in the minds of Jan and Maxine Heffron
that he was licensed to, and capable of, installing a second floor bathroom.” More
particularly, the State contends that Morse “deceived” the Heffrons on his ability to do the
work, “misled” them with his statements that his work would be above code, and “took
actions to further reinforce the false impression that he was able to properly install the
bathroom.”
Theft by deception is a specific intent crime. [Citation.] Intent to defraud “‘means to
act willfully and with the specific intent to deceive or cheat, ordinarily for the purpose of
* * *
There are a number of cases involving construction contracts where courts have found
the evidence sufficient to prove deceptive theft, or related criminal conduct. In those cases,
however, there was either circumstantial or direct evidence to establish the requisite intent.
For example, in [citation], an appeals court held that the jury could infer intent when at the
time Cash obtained the money he had no intention to complete the work because he took
Here, Morse was convicted of theft by deception, defined in SDCL 22-30A-3. It states
in part:
[a]ny person who obtains property of another by deception is guilty of theft. A person
deceives if, with intent to defraud, that person:
(1) Creates or reinforces a false impression, including false impressions as to law,
value, intention, or other state of mind. However, as to a person’s intention to perform a
promise, deception may not be inferred from the fact alone that that person did not
subsequently perform the promise; …
(3) Fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom the
that was not “above and beyond code” as promised; (3) lied about obtaining a building
permit; (4) lied about the reasons he could not get the tankless water heater installed and
why the pipes were leaking; (5) returned the water heater and did not give the $186 refund
to Maxine; (6) never provided Janice or Maxine receipts for materials purchased; (7) quit
working on the project prematurely and without explanation; and (8) never responded to
the Heffrons’ attempts to contact him.
These facts do not prove the elements of theft by deception. There is no evidence that
Morse had a purpose to deceive or intended to defraud the Heffrons when he agreed to
remodel Janice’s bathroom. Although his work was not above and beyond code, the State
Moreover, the State never argued or presented evidence that Morse took Maxine’s
money with the intention of never performing under their agreement. * * * The parties
made their agreement in December 2005, and no one disputes that Morse worked regularly
on the project from January 2006 until the second week of March. While Morse failed to
complete the project in five weeks for $5,000 as promised, the State never claimed that he
knew it would take longer and charge more, and tricked the Heffrons into believing him.
Neither Janice nor Maxine claimed that Morse deceived them into paying him more money
when the project took longer than anticipated. * * *
Robbery
Larceny with the added elements that (1) the property is taken directly from
the victim or in the victim’s presence and (2) is accomplished through force
or threat of force. Robbery may be aggravated by (1) use of a deadly
weapon, (2) intent to kill, (3) serious bodily injury, or (4) commission of the
crime by two or more persons
Burglary
Most statutes define as (1) entry (2) into a building (3) with intent to
commit a felony in the building.
Extortion and Bribery
Extortion, also called blackmail, is defined in most cases as the making of
threats for the purpose of obtaining money or property. Bribery, in contrast,
is the oering of money or property to a public o9cial in order to in:uence
that o9cial’s decision.
Forgery
Intentional falsification of a document with intent to defraud.
Bad Checks
Issuing a check with insu9cient funds to cover the check. Most
jurisdictions require defendants to know they do not have enough money to
cover the check.
CASE 6-3
STATE v. KELM
Superior Court of New Jersey, 1996
289 N.J. Super. 55, 672 A.2d 1261, cert. denied, 146 N.J. 68, 679 A.2d 655 (1996)
http://scholar.google.com/scholar_case?case=13514723993330084946&q=672+A.2d+1261&hl=en&as_sdt=2,34
Bilder, J.
Following a jury trial defendant was found guilty of issuing a bad check, N.J.S.A. 2C:21–5.
* * * She was sentenced to concurrent custodial terms of four years consecutive to any
sentence imposed by the State of Delaware for violation of probation. * * *
The State’s evidence depicted the following account. In early February 1991, through a
local attorney, defendant sought a short term loan of a few thousand dollars which she said
she needed to complete an escrow for an absent buyer in a real estate transaction in which
defendant was the broker. Based on information obtained from the attorney, Ms. Joan
bank]. Finally Ms. Williams went to the police and was advised to deposit the check and let
it be dishonored. When it was returned with a notation that it should not be presented
again, that no account was on file, Ms. Williams filed a criminal complaint against
defendant. Records of the bank, testified to at trial, showed that defendant’s account had
negative balances from February 10, 1991 until it was closed on March 8, 1991.
For her part defendant admitted the making and delivery of the check for $6000 but
claimed it was delivered on February 10, 1991 and had been post-dated.
She denied any intention to defraud Ms. Williams.
* * *
1
The principal issue on appeal is whether an intent to defraud the victim is an element of
N.J.S.A. 2C:21–5 [issuing a bad check]. Defendant contends that the issuance of a
post-dated check cannot be found to be a violation of the criminal statute and that proof of
an intent to defraud is required for a conviction. In support of that defendant relies heavily
on a predecessor bad check statute, N.J.S.A. 2A:111–15, and case law interpreting that
former law.
N.J.S.A. 2C:21–5, in pertinent part, reads as follows:
A person who issues or passes a check or similar sight order for the payment of money,
knowing that it will not be honored by the drawee, commits an offense. * * * For the
purposes of this section as well as in any prosecution for theft committed by means of a
bad check, an issuer is presumed to know that the check or money order (other than a
post-dated check or order) would not be paid, if: * * * (b) Payment was refused by the
The State must prove the following elements beyond a reasonable doubt in order to
convict the defendant under this [bad check] count. The State must prove that the
defendant knowingly issued or passed the check for the payment of money and, two,
that the defendant knew at the time that she issued or passed the check that it would
not be honored by the drawee. Two things must occur at the same time: the defendant
knowingly passed the check for the payment of the money and knew at the time she
gave the check over to Mrs. Williams that it would not be honored by the bank.
* * *
There is some argument that has been made that the testimony allows you and compels
you to infer that there was a post-dated check situation. It is for you to determine when this
particular check was issued; was it issued on the 15th, the date it was dated, or was it
issued on the 10th? You should examine the evidence carefully to determine whether or not
*** Chapter Outcome***
Describe the defenses of person or property, duress, mistake of fact, and entrapment.
D. DEFENSES TO CRIMES
Defendants found to have committed criminal acts will not be convicted if
they have a valid defense such as the absence of an element required to
make the act a crime or an excuse that bars criminal liability. Defenses
include the following:
Defense of Person or Property
Individuals may use reasonable force to protect themselves, other
individuals, and their property. Does not include deadly force in the defense
of property without threat of bodily harm.
Duress
Applies when one is threatened with immediate, serious bodily harm to
himself or another person unless he engages in criminal activity; does not
excuse murder.
Mistake of Fact
If a person reasonably believes the facts are such that his conduct would
not be a crime, then the law will treat the facts as he reasonably believed
them to be.
Entrapment
*** Chapter Outcome***
List and explain the constitutional amendments aecting criminal procedure.
E. CRIMINAL PROCEDURE
All states, as well as the federal government, have procedures for initiating
and coordinating criminal prosecutions. The first ten amendments to the
U.S. Constitution (known as the Bill of Rights) also guarantee many
defenses and rights of the accused:
NOTE: See Fig. 6-2: Constitutional Protection for the Criminal Defendant.
Steps in Criminal Prosecution
Suspect is arrested, booked and charged.
Next, a preliminary hearing is held to determine probable cause.
If probable cause exists, the next stage is either indictment or
information. An indictment is issued by a grand jury if it finds evidence
su9cient for a trial. An information is a formal accusation issued by a
prosecuting o9cer. (This sometimes precedes arrest.)
At the arraignment, the defendant is formally charged and he enters a
plea. If he pleas “not guilty,” he must stand trial, either a jury trial or a
bench trial (no jury).
federal government has the right to appeal.
If the verdict is “guilty,” the presiding judge will enter a judgment of
conviction and set a court time for sentencing. At that time, the defendant
may make a motion for a new trial (due to prejudicial error) or appeal to an
appellate review court (alleging error by the trial court).
The Fourth Amendment
Prohibits unreasonable searches and seizures to obtain incriminating
evidence. Evidence obtained in violation of the Fourth Amendment is
generally prohibited from introduction in trial (by the exclusionary rule) in
order to discourage illegal police conduct.
In order to obtain a search warrant to conduct a legal search, police must
demonstrate probable cause to believe the search will reveal evidence of
criminal activity.
The Fifth Amendment
The Sixth Amendment
Requires that the accused receive a speedy and public trial by an impartial
jury, and that he be informed of the accusation’s nature, confronted with
the witnesses who testify against him, allowed to obtain witnesses in his
favor, and allowed the right to competent counsel.