9 13 12 0204 063341 email to goodnight fw for tomorrows resumption of the trial 063341 detailing...

7/28/2019 9 13 12 0204 063341 Email to Goodnight Fw for Tomorrows Resumption of the Trial 063341 Detailing Leslie Malfeasance

http://slidepdf.com/reader/full/9-13-12-0204-063341-email-to-goodnight-fw-for-tomorrows-resumption-of-the-trial 1/53

FW: for tomorrow's resumption of the Trial in rcr2011-

63341

rom: Zach Coughlin ([email protected])

ent: Thu 9/13/12 5:40 AMo: [email protected]

11 attachments

am jur plain feel terry doctrine.pdf (1221.6 KB) , result terry frisk pat downewewe.pdf (660.3 KB) , terry stop suppress.pdf (556.5 KB) , plain feel terrystop.pdf (312.3 KB) , am jur pat down terry searches.pdf (17.1 KB) , ajmjur terry stop pat down searches.pdf (17.1 KB) , Habeas Corpus andPostconviction Remedies summary amjur and receiving stolen property.pdf

(1422.0 KB) , receiving stolen goods weight and Weight and sufficiency ingeneral. nv misd.pdf (123.8 KB) , receiving stolen goods nv larceny propertymisd.pdf (21.1 KB) , video authen foundation fifth amendment.pdf (165.4 KB) ,video evidence authent foundation research.pdf (2.3 MB)

ar Joe,

ch Young wanted me to ask you if your pants are back from the dry cleaners from when you wet yourself at the

ough of going to Trial against "ZY" (its one thing to go third person, but it really says something when a guy will go

rd person initials on you) and had to have Uncle Jeremy come cut your steak up for you into little bite size pieces

d put your bib on. What should I tell him? He wanted me to pass on a message to Kimberly, but then he just

ortled "ahh...never mind, I'll just tell her myself later...." You believe this guy?

ch Coughlin

BOX 3961

no, NV 89505

775 338 8118

x 949 667 7402

[email protected]



uring the Motion to Supress Mr. Leslie did a number of things that may tend to indicate hpurposefully trying to weaken any appeal Coughlin might have incident to these

oceedings while also managing to prevent anything being introduced into the record thatight tend to upset Leslie's, the WCPD, et al's political and professional allies:

eslie did the following:

efused to pursue a line of questioning despite Coughlin's express desire that he do so thaddress:

hether the DA granted immunity from prosecution to any of the witnesses. This is

articularly pertinent with respect to Goble, whom assaulted and battered Coughlin,nprovoked on June 5th, 2012 in an incident that was caught on videotape by Coughlin, anhich he reported immediately to the RPD, whom failed to investigate or otherwise applye law to Goble in any manner commensurate with that which the DA and RPD are now

pplying the law to Coughlin. Further, Coughlin reported to the RPD sometime in mid-Ma012 that he had located the red Gary Fisher Mountain Bike that he previously reported asolen incident to a NV Energy worker going behind the latched-closed backyard gate atoughlin's former home law office on October 4th, 2011 and, unnoticed upon Coughlin,

uddenly turning off Coughlin's power (incident to a bad faith crack "inspection" just hourter by Casey Baker, Esq. and Richard G. Hill, Esq. on behalf of neurosurgeon landlord

Merliss in RJC summary eviction proceeding REV2011-001708, on or on about the dayat Coughlin's Tenant's Affidavit was due in the RJC incident to a 5 day unlawful detaineotice for a No Cause Eviction being posted on Coughlin's door-important because,oughlin, as a commercial tenant, should not have been subject to such a summary evictiooceeding where Merliss failed to serve a Non-Payment of Rent Evictionotice....however, Judge Sferrazza (and it feels unfair to be overly critical of Judge

ferrazza's approach in that matter given the vast scope of subject matter that all Justiceourt Judges in Nevada must have a mastery) allowed the summary eviction to proceed,beit noticing it as a "Trial", impermissibly requiring Coughlin deposit $2,275 in "rentcrow"). Upon Coughlin reporting to the RPD that he had spotted the red Gary Fisher

Mountain Bike that was stolen from his office's back yard to the RPD (the bike was lockep at the Grand Sierra Resort at a bike rack), RPD Officer Look (whom applied excessiverce to Coughlin's wrist on January 12th, 2012 while arresting Coughlin for "jaywalking"cident to Coughlin peacefully filming Richard G. Hill, Esq.'s contractor, Phil Stewart'sew loading the remainder of the personal property Coughlin was unable to remove from

e former home law office during the scant time he was afforded to do so under the RJC



rder) arrived with another officer and latched onto the first convenient excuse for whyey were choosing to refuse to respond to Coughlin's report or otherwise aid Coughlin in

aving the lock from his bike removed and possession of the bike returned to Coughlin.mug commentary abounded from both RPD Officers. The RPD has failed to respond toumerous other reports by Coughlin this year concerning violations of criminal lawommitted upon Coughlin. The police responded with extreme fervor to Wal-Mart's reporf Coughlin allegedly consuming a "candy bar and cough drops" incident ot the September2011 petit larceny arrest for which Coughlin's law license was suspended on June 6th,

012 (in response to a conviction following the November 30th, 2011 Trial before RMCudge Howard, whom denied Coughlin counsel under the Sixth Amendment, despiteingersinger being included in Howard's Bench Book, and whom continued to findoughlin guilty of summary contempt and sentence Coughlin to three days in jail for suchontempt, despite Judge Howard previously assuring Coughlin that he would face no jailme in connection with the trail in RMC 11 CR 22176 in light of Howard's ruling denyingoughlin his Sixth Amendment right to counsel.

ross examine Goble as to the inaccuracies in Goble's testifmony at trial that he bought thhone himself about 3 years ago versus that attributed to Goble in Duralde's Narrativeherein Goble is quoted as saying his brother bought it for him as a Christmas gift threeears ago).

ross examine Zarate as to whether Zarate was amongst the group of three youths topproach Coughlin demanding the phone (this group included 17 year old Austin Lichty,oble, and a seemingly unidentified man that Goble claims to not even really know).

mpeach the testimony of Zarate, Goble, and Duralde via use of the exculpatory videosom the arrest and period immediately prior to it provided to the WCPD and the WCDA.oble is clearly seen grabbing at Coughlin in a video, with Zarate watching on, whichearly contradicts Zarate's testimony that the physicial aggressive he witnessed Coughlin

ubject to was a "joking" attempt by Lichty to reach into Coughlin's pocket (in one video,chty is seen gleefully announcing that, because he is a minor, he can do things like thatithout facing repercussions, whereupon Coughlin reminds the group that the 13 year oldcomplice in the then recent murder of 25 year old Stephen Gale, which occurred justveral blocks away two months prior, likely would not be immune from prosecution unde

uch a theory and that everyone involved in the then occurring incident should remain calm

nd peaceful).



in mind of perpetrator, at time of taking, specific intent permanently to deprive owner os property, and taking with intention to return property, or taking without intentionermanently to deprive owner of his property will not amount to larceny, even thougherpetrator, after gaining possession of property, formed that intent.

a charging instrument alleges that the accused "took" the property of another, proof of erely receiving the stolen property might not support a theft conviction. J.B. v. State, 748

.E.2d 914 (Ind. Ct. App. 2001).

148. Allegations as to property stolen—Ownership and possession West's Key Number igest West's Key Number Digest, Larceny k40(9), 40(10) The ownership or possession e property stolen must be proved as alleged in the indictment, and if the proof shows thae property was owned by another, there is a fatal variance.[FN1] The allegation as toho was the owner is material, since the consent of the owner can be a defense.[FN2] If adictment for larceny fails to allege the existence of a person with title or a special

operty interest in the stolen property, then the indictment contains a fatal variance.[FN3N1] Cartwright v. U.S., 146 F.2d 133 (C.C.A. 5th Cir. 1944); State v. Weinstein, 224.C. 645, 31 S.E.2d 920, 156 A.L.R. 625 (1944). No fatal variance existed between andictment and the proof offered at trial for the felony offense of aggregate theft of morean $200,000, as although the defendant argued a fatal variance existed since she was

harged with stealing money from the owner of the companies in the indictment and theate presented evidence at trial that some stolen money was the property of differentntities, testimony established that the owner owned all the entities that were involved ine alleged variance and that the defendant did not own any interest in the companies, andus, the owner, for purposes of the trial, was considered the owner of the money. Reuter vate, 2006 WL 348146 (Tex. App. Houston 1st Dist. 2006). [FN2] Peek v. State, 39 Ala.pp. 198, 96 So. 2d 706 (1957). [FN3] State v. Craycraft, 152 N.C. App. 211, 567 S.E.206 (2002).

s to receiving stolen property, generally, see Am. Jur. 2d, Receiving and Transportingolen Property.

West's Key Number Digest, Larceny k27



m,

s not Goble's iPhone. In Duralde's Narrative Goble is quoted saying his brother bought itr him three years ago. In his sworn testimony in court on 8 29 12, Goble testified that he

ought it himself. So, if Coughlin did have some duty to return it to the true owner, theniling to return it to Goble would not evince a larcenous intent. Coughlin has request for

WCPD Lelsie to subpoena records from the carrier intended to evidence ownership of thehone for the last five years and to subpoena Goble's "brother" for impeachment purposes

lso, Goble testified as to this apparent stranger to he and his friends (one of the initialree to approach Coughlin in a hostile group accosting. Somehow, one gets the impressiooble is protecting this person or hiding something. It is not clear that his name was evenvealed in the testimony, yet Goble identified him as the one being the most aggressiveith Coughlin (ie, trying to pull Coughlin's bike and or dog away from him and perhapsore). Yet, Goble expects the listener to believe he pretty much just met the guy, and the

uy is that ardent in support of Goble? Huh?

N2] Model Penal Code §§ 223.2 to 223.9.

the possession of property, as distinguished from its custody, is lawfully obtained for a

wful purpose, there can usually be no larceny.[FN13] Under some theft statutes, howeve

wful possession followed by unlawful withholding or appropriation is theft.[FN14]rictly

eaking, a possession is not acquired lawfully when it is induced by fraud or falsepresentations,

with the intent to steal the property.[FN15][FN12] As to the effect of the owner'sonconsent to the taking, see §§ 22 to 33.

s to a taking by the finder of lost or mislaid property, see §§ 86 to 88.

s to the distinction between possession and mere custody, see § 81.

N13] §§ 80 to 85.

N14] Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981).



N15] § 32.

s to a taking against the will of the owner or without his or her real consent, see §§

2 to 33.

N16] Stecher v. State, 202 Wis. 25, 231 N.W. 168, 70 A.L.R. 203 (1930).

N17]

98. Generally; receiving property from finder

West's Key Number Digest


he mere fact that a person converts to his or her own use goods found by him or her doesot, as a matter of law, make that person guilty of theft, but the question must be determineom the attending circumstances.[FN1] One who receives property from the finder thereosumes, in legal contemplation, by voluntary substitution, as to the property and the ownee relation occupied by the finder.[FN2] In such a case, whether or not the person takinge property is guilty must be determined on the same principles that govern in the case of e actual finder.[FN3]

N1] Atkinson v. Birmingham, 44 R.I. 123, 116 A. 205, 36 A.L.R. 366 (1922).

N2] State v. Levine, 79 Conn. 714, 66 A. 529 (1907); Williams v. State, 165 Ind. 472,5 N.E. 875 (1905); Mills v. Erie R. Co., 63 Misc. 278, 113 N.Y.S. 641 (App. Term908).

N3] State v. Levine, 79 Conn. 714, 66 A. 529 (1907); Williams v. State, 165 Ind. 472,

5 N.E. 875 (1905); Mills v. Erie R. Co., 63 Misc. 278, 113 N.Y.S. 641 (App. Term908).



98. Generally; receiving property from finder



he mere fact that a person converts to his or her own use goods found by him or her doesot, as a matter of law, make that person guilty of theft, but the question must be determine

om the attending circumstances.[FN1] One who receives property from the finder thereosumes, in legal contemplation, by voluntary substitution, as to the property and the ownee relation occupied by the finder.[FN2] In such a case, whether or not the person takinge property is guilty must be determined on the same principles that govern in the case of e actual finder.[FN3]

N1] Atkinson v. Birmingham, 44 R.I. 123, 116 A. 205, 36 A.L.R. 366 (1922).

N2] State v. Levine, 79 Conn. 714, 66 A. 529 (1907); Williams v. State, 165 Ind. 472,

5 N.E. 875 (1905); Mills v. Erie R. Co., 63 Misc. 278, 113 N.Y.S. 641 (App. Term908).

N3] State v. Levine, 79 Conn. 714, 66 A. 529 (1907); Williams v. State, 165 Ind. 472,5 N.E. 875 (1905); Mills v. Erie R. Co., 63 Misc. 278, 113 N.Y.S. 641 (App. Term908).

100. Lost property



ost property may be the subject of larceny.[FN1] For a person to be guilty of the commonw offense of misappropriation of lost property, two elements must coexist at the time thender discovers the lost property: the finder must intend to convert the property absolutelyhis or her own use, and the circumstances surrounding the finding must afford someasonable clues for determining the identity of the rightful owner.[FN2] In the absence ofe coincidental existence of these two elements at the time of the finding, there is norceny.[FN3] The Model Penal Code provides that a person who comes into control of operty of another that the person knows to have been lost, mislaid, or delivered under aistake as to the nature or amount of the property or the identity of the recipient is guilty oeft if, with purpose to deprive the owner thereof, the person fails to take reasonable



easures to restore the property to a person entitled to have it.[FN4]

bservation:

he rules governing the larceny of lost or mislaid property apply with equal force wheree property lost or mislaid is found concealed in another article which the finder hadquired legitimately.[FN5]

he general rule is that an intent on the part of the finder to convert the property to his or er own use or to deprive the true owner thereof must coexist with the act of finding and thduction to possession in order to make out the offense, and that if it does not, as wheree finder's intent at that time is an innocent one, such as the restoration of the property tos owner, he or she is not guilty of larceny,[FN6] even though he or she later changes his

her mind, determines to convert the property, or fraudulently conceals or appropriates iN7] The finder of lost goods may lawfully take them into his or her possession, and if hshe does so without any felonious intent at that time, a subsequent conversion of them, b

hatever intent that conversion is accompanied, will not constitute larceny.[FN8] AMJURARCENY § 100 Page 2 50 Am. Jur. 2d Larceny § 100

bservation:

larcenous intent may be inferred from the fact that the finder, knowing or having themmediate means of ascertaining the owner, concealed the finding instead of making

asonable efforts to restore the property to him or her.[FN9]

N1] Long v. State, 33 Ala. App. 334, 33 So. 2d 382 (1948).

N2] State v. Campbell, 536 P.2d 105 (Alaska 1975) (overruled on other grounds by,imoktoak v. State, 584 P.2d 25 (Alaska 1978)). It is larceny where defendants picked upe wallet of another, knowing it was hers,

nd failed to return it to her although having the opportunity to do so. Hunt v. U.S.,

16 F.2d 652 (D.C. Cir. 1963). [FN3] People v. Betts, 367 Ill. 499, 11 N.E.2d 942 (1937alhoun v. State, 191 Miss. 82, 2 So. 2d 802 (1941); Atkinson v. Birmingham, 44 R.I. 123

16 A. 205, 36 A.L.R. 366 (1922).

N4] Model Penal Code § 223.5 (2001). As to larceny of mislaid property, see § 87.N5] People v. Hoban, 240 Ill. 303, 88 N.E. 806 (1909); State v. Hayes, 98 Iowa 619,

7 N.W. 673 (1896); Robinson v. State, 11 Tex. App. 403, 1882 WL 9161 (Ct. App.

882). [FN6] Long v. State, 33 Ala. App. 334, 33 So. 2d 382 (1948); State v. Courtsol, 89onn. 564, 94 A. 973 (1915).



N7] Calhoun v. State, 191 Miss. 82, 2 So. 2d 802 (1941).

N8] Long v. State, 33 Ala. App. 334, 33 So. 2d 382 (1948); Lawson v. State, 257 Ind.39, 276 N.E.2d 514 (1971). [FN9] Griggs v. State, 58 Ala. 425, 1877 WL 1397 (1877);ate v. Briscoe, 19 Del. 7,

Penne. 7, 50 A. 271 (Gen. Sess. 1900); Berry v. State, 1910 OK CR 178, 4 Okla.

rim. 202, 111 P. 676 (1910).

II. Defenses

opic Summary Correlation Table References

102. Claim of right



good-faith belief in one's right to property is a defense to the charge of theft.[FN1] Aaim-of-right defense to a larceny charge arises when there is a dispute regarding a

efendant's felonious intent at the time of the taking.[FN2] The defense that a theftefendant took property under a good-faith claim of title negates the essential element of e intent to steal,[FN3] and it says a defendant cannot be guilty of theft if he or she takesoperty under a good-faith subjective belief that he or she has the rights of ownership or

ntitled to possession of the property.[FN4] The claim-of-right defense applies in a larcenosecution even if the defendant's good-faith belief in his or her legal right to take theoperty at issue is mistaken or unreasonable.[FN5]

ractice Guide:

ursuant to a statute governing claim of right, to inject the issue of a claim-of-right defensee defendant has the burden of adducing evidence that would demonstrate that he or she

ad an honest belief that he or she had a right to take the property that was allegedly stolenN6]

he Model Penal Code provides that it is an affirmative defense to prosecution for theftat the actor: (1) was unaware that the property or service was that of another; (2) acted

nder an honest claim of right to the property or service involved or that he or she had a



onsent to take property and that the defendant had the intent to permanently deprive ownef his or her property, at least when the indictment meets the underlying purpose of andictment, which is to ensure that the defendant may adequately prepare his or her defens

nd be able to plead double jeopardy if he or she is again tried for same offense.[FN3]

enerally, grand larceny is an infamous offense within the meaning of constitutionalovisions requiring such offenses to be prosecuted by indictment, while petit larceny is

ot, except pursuant to particular statutes.[FN4] However, it is not a violation of the

deral constitutional rights of an accused to prosecute a felony larceny charge byformation rather than by indictment pursuant to state statute.[FN5]

When a statute states the elements of a crime, it is generally sufficient in an information ordictment to describe such crime in the language of the statute.[FN6] However, where a

efendant is charged with larceny under a statute, he or she cannot be convicted of ommon-law larceny when the two offenses are wholly separate offenses, each requiringfferent evidentiary showings.[FN7] On the other hand, it may be that an indictment that

harges grand larceny in violation of a statute also sufficiently alleges common-lawrceny.[FN8]

n indictment charging theft of property of the United States constitutes full notice of aharge of theft of a thing of value of the United States and is sufficient for purposes of osecution under the statute penalizing theft of government property.[FN9] Use of theord "property" in an indictment encompasses the term "thing of value" used in theatute[FN10] as a

ategory of objects which if stolen constitute violation.[FN11] An indictment charging aefendant with theft from a program receiving federal funds is not required to allege aexus between the theft and the federal funds.[FN12]

UMULATIVE SUPPLEMENT

ases:

formation charging defendant with retail theft of property having a retail value exceedinollar;150 did not apprise defendant of the precise offense charged with sufficientecificity to prepare his defense, resulting in prejudice to defendant; information failed tolege the essential element that defendant's mental state was to act in furtherance of angle intention and design. People v. Rowell, 229 Ill. 2d 82, 321 Ill. Dec. 765, 890.E.2d 487 (2008).

END OF SUPPLEMENT]

N1] U.S. v. Hastings, 296 U.S. 188, 56 S. Ct. 218, 80 L. Ed. 148 (1935); Davidson



State, 351 So. 2d 683 (Ala. Crim. App. 1977).

s to essential elements, see §§ 11 to 15

N2] Cross v. State, 237 So. 2d 324 (Fla. Dist. Ct. App. 2d Dist. 1970).

N3] State v. Osborne, 149 N.C. App. 235, 562 S.E.2d 528 (2002), aff'd, 356 N.C.

24, 571 S.E.2d 584 (2002).

N4] Ex parte McClusky, 40 F. 71 (C.C.D. Ark. 1889).

s to grades of larceny, see §§ 40 to 43

s to what constitutes felony or infamous crime within the meaning of constitutional

ovisions requiring such offenses to be prosecuted by indictment, see Am. Jur. 2d,

dictments

nd Informations §§ 6, 7.

N5] State v. Gyuro, 156 Conn. 391, 242 A.2d 734 (1968).

N6] State v. Robson, 397 So. 2d 768 (Fla. Dist. Ct. App. 1st Dist. 1981); People v.

leveland, 104 Ill. App. 2d 415, 244 N.E.2d 212 (2d Dist. 1969); State v. Campos, 79

.M. 611, 447 P.2d 20 (1968).

N7] State v. Daniels, 43 N.C. App. 556, 259 S.E.2d 396 (1979).

N8] Hunt v. Com., 46 Va. App. 25, 614 S.E.2d 668 (2005).

N9] U.S. v. Gordon, 638 F.2d 886 (5th Cir. 1981) (applying 18 U.S.C.A. § 641).

N10] 18 U.S.C.A. § 641.

N11] U.S. v. Kroesser, 731 F.2d 1509 (11th Cir. 1984).

N12] U.S. v. Cabrera, 328 F.3d 506 (9th Cir. 2003), cert. denied, 541 U.S. 1064, 124

Ct. 2386, 158 L. Ed. 2d 965 (2004) (applying 18 U.S.C.A. § 666).



Div. 3 2002). [FN5] People v. Cain, 238 Mich. App. 95, 605 N.W.2d 28 (1999). [FN6]ate

110. Charging particular mode of commission


West's Key Number Digest, Larceny k28(1), 34, 35 to 39

general rule of criminal pleading is that if an offense may be committed in variousodes, the party charged is entitled to have that mode stated in the indictment which is to

e proved on the trial,[FN1] and this rule has been applied in larceny prosecutions.[FN2]he Model Penal Code states that an accusation of theft may be supported by evidence tha

was committed in any manner that would be theft under the Code Article on theft,otwithstanding the specification of a different manner in the indictment or information,ubject only to the power of the court to ensure fair trial by granting a continuance or otherppropriate relief where the conduct of the defense would be prejudiced by lack of fair otice or by surprise.[FN3]

Where an act which was not larceny at common law is made larceny by statute, it is notufficient to charge the commission of larceny merely; rather, the indictment should state

e particular act specified by statute as constituting the crime.[FN4] Similarly, andictment in the common-law form is generally insufficient in a prosecution for the larcennder a statute.[FN5]

n the other hand, it has been held that in a prosecution for larceny it is not necessary thate manner in which stolen property was taken and carried away be alleged, and the word

by trick" are not required in an indictment charging larceny when property was obtainedy trick or fraud.[FN6] A statute may expressly remove the requirement that a larcenydictment specify that the defendant committed larceny in any particular manner, except in

rtain stated cases.[FN7]

ractice Guide:

When the manner of theft is not an element of the offense, and the information does not soecify, the information and discovery materials presented to the defendant may adequatel

ace him or her on notice of the manner of theft.[FN8]



he rule that, when a statute characterizes an offense in generic terms merely, anformation charging the offense must state the specific acts on which the charge is based

pplies to larceny prosecutions.[FN9] However, in prosecutions under such a statute, therno necessity of a detailed specification in charging an ordinary theft of property.[FN10]

N1] Am. Jur. 2d, Indictments and Informations § 113.

N2] Miller v. State, 654 S.W.2d 741 (Tex. App. Houston 14th Dist. 1983).

N3] Model Penal Code § 223.1(1) (2001).

N4] U.S. v. Northway, 120 U.S. 327, 7 S. Ct. 580, 30 L. Ed. 664 (1887).

N5] State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143 (1940).

N6] State v. Barbour, 153 N.C. App. 500, 570 S.E.2d 126 (2002).

N7] People v. Norman, 6 Misc. 3d 317, 789 N.Y.S.2d 613 (Sup 2004).

N8] Com. v. Shamberger, 2001 PA Super 351, 788 A.2d 408 (2001).

N9] State v. Kesterson, 403 S.W.2d 606 (Mo. 1966).

N10] State v. Miles, 412 S.W.2d 473 (Mo. 1967). v. January, 176 S.W.3d 187 (Mo. Ct

pp. W.D. 2005). [FN7] Model Penal Code § 223.1(3) (2001).

111. Joinder of other offenses; election


West's Key Number Digest, Larceny k28(1), 28(4)

.L.R. Library

articipation in larceny or theft as precluding conviction for receiving or concealing theolen property, 29 A.L.R.5th 59

wo offenses committed by the same person may be included in the same indictment, infferent courts, where they are of the same general nature and belong to the same family oimes and where the mode of trial and nature of the punishment are also the same, althougey may be punished with different degrees of severity.[FN1] Thus, indictments charging

ne count of grand larceny in the second degree and multiple counts of commercial bribe-ceiving,[FN2] or the offenses of larceny and of receiving stolen goods,[FN3] may beoper.



aution:

nce the crimes of larceny, receiving, and possession of stolen property are separate andstinct offenses, generally legislatures do not intend to punish a defendant for receiving o

ossessing the same goods that he or she stole. Therefore, though a defendant may bedicted and tried on charges of larceny, receiving, and possession of the same property,e defendant may be convicted of only one of those offenses.[FN4]

N1] Am. Jur. 2d, Indictments and Informations §§ 200 to 204. [FN2] People v.

lverman, 106 Misc. 2d 468, 434 N.Y.S.2d 319 (Sup 1980). [FN3] Logan v. Com., 319

W.2d 465 (Ky. 1958).

N4] State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982).

Indictment, Information, or Complaint

Particular Allegations

In General


113. Generally



n indictment for theft must disclose that property alleged to have been stolen was subjectheft; the indictment is defective if it shows on its face that thing alleged to have been

olen was property not subject to theft.[FN1]



n indictment that insufficiently alleges the identity of the victim in a charge for larceny istally defective and cannot support a conviction of either a misdemeanor or a felony.N2]

N1] Bourland v. State, 133 Tex. Crim. 544, 112 S.W.2d 720 (1937). As to theufficiency of an indictment in common-law form where prosecution is for

rceny of a thing which is the subject of larceny only by virtue of a statute, and not at

ommon law, see § 96. [FN2] State v. Norman, 149 N.C. App. 588, 562 S.E.2d 453002).

114. Felonious taking; intent


West's Key Number Digest, Larceny k29, 34

ailure to allege that the property was appropriated without the owner's effective consentoes not render an indictment for theft fundamentally defective.[FN1] Similarly, the factat an indictment or information does not allege specific intent to permanently deprive the

wner of use of the property is not necessarily fatally defective.[FN2] Where there is noquired culpability in the offense of theft under the state statute beyond that of a specifictent to deprive the owner of property, none need be stated.[FN3]

bservation:

has been said that the word "theft" as used in larceny statutes is a word of art and that it,y definition, includes the meaning of the criminal intent requisite in larceny.[FN4]milarly, the word "steal" as used in a larceny indictment encompasses and is synonymouith "felonious intent."[FN5]

defendant's conduct in attending an electrician's licensing examination on four occasionoupled with both his unauthorized removal of pages from the test booklet and theoncealment of same before exiting the examination location, evinced an intent to stealoperty from the owner, and thus supported an inference of the requisite intent sufficient tablish the facial sufficiency of an information charging petit larceny.[FN6]

a theft prosecution in which the state relies upon a defendant's act or omission to negateonsent, the indictment must allege which of the statutory negatives vitiated consent, or the

dictment will be subject to a timely motion to quash for lack of notice.[FN7] However,ne who simply snatches an item takes without the effective consent of the owner, and



nder such circumstances, the term "effective consent" need not be pleaded moreecifically because all else is purely evidentiary.[FN8]


ases:

formation that charged defendant with felony vending machine theft, based on defendant'ior conviction for vending machine theft, but which omitted the element of intent to

ommit larceny was not fundamentally defective, and thus defendant's failure to move tosmiss the vending machine theft count waived the defect; designation of the offense as alony made clear that the charged offense was vending machine theft rather than vendingachine tampering, and information recited the appropriate statute alleged to have beenolated. West'S F.S.A. § 877.08(3, 4). Ingraham v. State, 32 So. 3d 761 (Fla. Dist. Ct.pp. 2d Dist. 2010).

END OF SUPPLEMENT]

N1] Ex parte Luna, 784 S.W.2d 369 (Tex. Crim. App. 1990).

N2] People v. MacFarland, 189 Colo. 363, 540 P.2d 1073 (1975).

N3] Ex parte Smith, 645 S.W.2d 310 (Tex. Crim. App. 1983).

N4] State v. Byles, 13 Or. App. 222, 508 P.2d 480 (1973).

N5] State v. Miller, 42 N.C. App. 342, 256 S.E.2d 512 (1979).

N6] People v. Martinez, 191 Misc. 2d 505, 743 N.Y.S.2d 821 (City Ct. 2002).

N7] Geter v. State, 779 S.W.2d 403 (Tex. Crim. App. 1989).

N8] Geter v. State, 779 S.W.2d 403 (Tex. Crim. App. 1989).



III. Practice and Procedure

Indictment, Information, or Complaint

Particular Allegations

Ownership or possession of stolen property


118. Generally


West's Key Number Digest, Larceny k32(1) to 32(9)

nce larceny is a crime against possession, an allegation of ownership of property allegehave been stolen is a necessary requisite in a larceny indictment.[FN1] Allegations of

wnership in a larceny information should be sufficient enough to establish that theoperty was not that of the accused, to protect the accused against a second prosecutionr the same crime, and to avoid misleading or embarrassing the accused in the preparatio

f his or her defense.[FN2] The ownership must, in the absence of a statute modifying thele, be alleged with the same accuracy as is required by the common law.[FN3] The nam

f the owner, if known, must be set forth in the indictment.[FN4] However, the particular

wnership of the property is charged in the indictment not to give character to the act of king but merely by way of description of the particular offense.[FN5] The names of thewners of stolen property constitute no part of the offense and are stated in the informationimarily as a matter of description for the purpose of identification and to show

wnership in a person or persons other than the accused.[FN6]

ractice Guide:

n allegation which fails directly to allege ownership in the person from whom it isharged the property was taken may be amended, by leave of court, according to theactice in some jurisdictions, and the accused may be brought to trial on the amendedformation at a reasonable time thereafter.[FN7]

many jurisdictions the strict accuracy in the allegation of ownership required by theommon law has been relaxed by modern statutes, such as those broadly defining the termowner"[FN8] or providing that ownership, or the name of the owner of property taken,eed not be alleged in an indictment where not essential to the offense.[FN9] It has been

id that a failure to name the owner of allegedly stolen property in an information chargin



e defend

nt with theft by taking does not invalidate the information or render it constitutionallysufficient, although the easiest and clearest way to protect the accused against a secondosecution for the same crime, and to avoid misleading or embarrassing the accused ineparation of his or her defense, would be to name the owner or victim in the information

N10]

s between a lessee and lessor under a contract whereby the lessee is obliged to keep theoperty in repair, the ownership of fixtures should be laid in the lessee.[FN11]

N1] People v. Berndt, 101 Ill. App. 2d 29, 242 N.E.2d 273 (5th Dist. 1968); Prior v.ate, 10 Md. App. 161, 268 A.2d 563 (1970); State v. Price, 170 N.C. App. 672, 613E.2d 60 (2005).

he necessity of alleging ownership in a person or persons other than the accused is notmoved by a statute providing that there is no variance where it is proved that the actualconstructive possession of, or general or special property in, real or personal estate orany part thereof was in the person or community alleged in the indictment to be the

wner. State v. Small, 156 Me. 10, 157 A.2d 874 (1960).

s to the necessity and sufficiency of allegations of ownership, generally, see Am. Jur. 2ddictments and Informations §§ 146, 147.

N2] Clark v. State, 293 So. 2d 768 (Fla. Dist. Ct. App. 3d Dist. 1974). [FN3] People v

ohen, 352 Ill. 380, 185 N.E. 608, 88 A.L.R. 481 (1933); State v. Cut-lip, 78 W. Va. 239

8 S.E. 829 (1916).

N4] State v. Small, 156 Me. 10, 157 A.2d 874 (1960). [FN5] Hearn v. State, 55 So. 2d59, 28 A.L.R.2d 1179 (Fla. 1951). [FN6] Hearn v. State, 55 So. 2d 559, 28 A.L.R.2d179 (Fla. 1951). [FN7] State v. Jensen, 83 Utah 452, 30 P.2d 203 (1934). [FN8] People

Dell, 77 Ill. App. 2d 318, 222 N.E.2d 357 (2d Dist. 1966). [FN9] State v. Andrus, 250a. 765, 199 So. 2d 867 (1967). [FN10] State v. Greathouse, 113 Wash. App. 889, 56 P.369 (Div. 1 2002). [FN11] McKee v. State, 200 Ga. 563, 37 S.E.2d 700 (1946); State v.mall, 156 Me.



ractice Guide:

an indictment for larceny, if the property alleged to have been stolen is the property of aorporation, the name of the corporation should be given, and the fact that it is aorporation stated, unless the name itself imports a corporation.[FN3]

has been held that the ownership of property stolen from a partnership is sufficiently laione of the members of the firm.[FN4]

n indictment sufficiently alleged delivery in trust, such that the defendant was adequatelyformed of the actions constituting larceny charges against her, as the indictments statedat money was delivered to the defendant for use of her employer, and the indictmentsovided the defendant sufficient notice of charges against her to protect her from doubleopardy, to enable her to prepare her defense, and to inform the court of charges.[FN5]

N1] State v. Cave, 621 S.E.2d 299 (N.C. Ct. App. 2005). [FN2] Lewis v. State, 2006

WL 648714 (Tex. App. Houston 1st Dist. 2006).

N3] State v. Cave, 621 S.E.2d 299 (N.C. Ct. App. 2005). [FN4] Smith v. State, 133 Ala

45, 31 So. 806 (1902). This result has been reached where the term "owner" is defined b

atute as a person,

her than the offender, who has possession of or any other interest in the property takennd without whose consent the offender has no authority to exert control over the propertyeople v. Dell, 77 Ill. App. 2d 318, 222 N.E.2d 357 (2d Dist. 1966).

N5] State v. Morris, 156 N.C. App. 335, 576 S.E.2d 391 (2003).

III. Practice and Procedure

Evidence

Burden of Proof and Presumptions



122. Burden and degree of proof—Of corpus delicti



he corpus delicti in larceny consists of two elements: (1) that the property was lost by thwner; and (2) that it was lost by a felonious taking.[FN1] It is, of course, necessary thate corpus delicti be established, since no one may be adjudged guilty until it is shown tha

larceny has been committed.[FN2] Unless the state has shown, prima facie, that a larcenas been committed, the defendant is not put on proof.[FN3]

N1] Pate v. State, 36 Ala. App. 688, 63 So. 2d 223 (1953); Lee v. People, 138 Colo.

21, 332 P.2d 992 (1958); State v. Lewis, 248 Or. 217, 433 P.2d 617 (1967). As to the

urden of proving corpus delicti in criminal cases, generally, see Am. Jur. 2d, Evidence §

74.

N2] Lee v. People, 138 Colo. 321, 332 P.2d 992 (1958). [FN3] Lee v. People, 138olo. 321, 332 P.2d 992 (1958).

125. Inferences



he recent possession of stolen goods permits the reasonable inference that the personossessing them stole them.[FN1] Further, in a larceny prosecution, the jury may infer fromudden-wealth evidence that the defendant's expenditures immediately after the larcenyere funded by stolen money.[FN2]

heft is a specific intent crime, and specific intent may be inferred from the circumstances

nd actions of the defendant.[FN3] Intent can be inferred in a larceny prosecution both froe defendant's conduct and his or her statements at the time of the crime[FN4] and from th



urrounding circumstances.[FN5] Because the intent to commit theft usually cannot beoven by direct evidence, the intent may be inferred from the circumstances surroundinge illegal act, although the circumstantial evidence must exclude every reasonableypothesis but that of guilt.[FN6]

aution:

heft requires the specific intention to deprive which cannot be inferred from the mere

aked fact of non-payment of a debt.[FN7]

he intent to shoplift is presumed when merchandise is either concealed, removed, or aused to be removed.[FN8] The intent or purpose of a defendant in failing to return lease

rented property may be inferred from circumstances which include the failure to return ehicle.[FN9]

tent to deprive another permanently of the use or benefit of a thing of value may beferred from the defendant's conduct and the circumstances of the case, and such an intent

sufficiently established if the prosecution proves a knowing use by the defendantconsistent with the owner's permanent use and benefit.[FN10]


ases:

t a trial for breaking and entering with the intent to commit larceny, a trier of fact may noasonably infer the specific intent to commit larceny merely from the absence of evidenc

howing a different intent; instead, the specific intent with which an unlawful entry is maday be inferred from the surrounding facts and circumstances. Vincent v. Com., 276 Va.

48, 668 S.E.2d 137 (2008).

END OF SUPPLEMENT]

N1] In re D.D, 775 A.2d 1096 (D.C. 2001); Allen v. State, 743 N.E.2d 1222 (Ind. Ct.

pp. 2001); State v. Pickard, 143 N.C. App. 485, 547 S.E.2d 102 (2001).

s to presumption spawned by possession of recently stolen property, see § 99.

N2] U.S. v. Marshall, 248 F.3d 525, 2001 FED App. 0135P (6th Cir. 2001).

N3] State v. Coleman, 829 So. 2d 468 (La. Ct. App. 5th Cir. 2002).

N4] State v. Calonico, 256 Conn. 135, 770 A.2d 454 (2001); State v. Robertson, 2005

T App 419, 122 P.3d 895 (Utah Ct. App. 2005); Tarpley v. Com., 261 Va. 251, 542



E.2d 761 (2001).

he evidence warranted the inference that the defendant, with intent to wrongfully withholuch money, withdrew more than $11,000 from his credit union account by means of utomated teller machines, at a time when he knew that he had no money in his account andnew that his credit union was unable to verify account balances during such transactionsecause of disruptions in communications resulting from terrorist attacks, supporting aand larceny conviction. People v. Grant, 18 A.D.3d 235, 794 N.Y.S.2d 357 (1st Dep't

005), leave to appeal denied, 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267 (2005

N5] In re M.A.L., 2005 WL 442164 (Tex. App. El Paso 2005).

vidence of larcenous intent was sufficient to support a conviction of grand larceny basedpon the defendant's retaining mistakenly delivered funds without taking reasonableeasures to return them, where larcenous intent could be inferred from the surroundingrcumstances. People v. Fagan, 12 A.D.3d 1080, 784 N.Y.S.2d 774 (4th Dep't 2004).

N6] Sewall v. State, 783 So. 2d 1171 (Fla. Dist. Ct. App. 5th Dist. 2001).

N7] West v. Bruno's, Inc., 837 So. 2d 303 (Ala. Civ. App. 2002).

N8] Williams v. Jitney Jungle, Inc., 910 So. 2d 39 (Miss. Ct. App. 2005).

N9] State v. Smith, 81 S.W.3d 657 (Mo. Ct. App. S.D. 2002).

N10] People v. Sharp, 104 P.3d 252 (Colo. Ct. App. 2004), cert. denied, 2004 WL925996 (Colo. 2004). The fact finder determines intent to deprive, as required to supporconviction for

eft, from the words and acts of the defendant. Winkley v. State, 123 S.W.3d 707

Tex. App. Austin 2003).

Evidence

Admissibility, Competency, and Relevancy




126. Generally


West's Key Number Digest, Larceny k42 to 53

vidence relevant to a prosecution for larceny is admissible,[FN1] while evidence that isrelevant and cumulative is not admissible,[FN2] nor is evidence that is unrelated to theosecution in time, intent, and legal effect.[FN3] In various larceny prosecutions

articular evidence has been found to be relevant[FN4] or irrelevant.[FN5] Further, certavidence has been found irrelevant to the defense put forth by the defendant.[FN6]

vidence is admissible to show possession by the accused, shortly after the allegedrceny, of the property stolen.[FN7]

N1] Holsapple v. Com., 38 Va. App. 480, 566 S.E.2d 210 (2002), on reh'g en banc, 39a. App. 522, 574 S.E.2d 756 (2003), judgment aff'd, 266 Va. 593, 587 S.E.2d 561003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

N2] Cummings v. State, 846 A.2d 238 (Del. 2004).

Whether the bank was subsequently repaid by a third party was irrelevant to whether theefendant committed the ongoing criminal conduct and theft, and thus, proposed testimonyf a witness who had purchased promissory notes of the defendant's auto dealership frome bank properly was excluded. State v. Friedley, 669 N.W.2d 262 (Iowa Ct. App. 2003)

N3] Willis v. State, 2002 WY 79, 46 P.3d 890 (Wyo. 2002).

N4] State v. Mahoney, 376 N.J. Super. 63, 868 A.2d 1171 (App. Div. 2005),rtification granted, (July 11, 2005) and judgment aff'd in part, rev'd in part on other ounds, 2006 WL 1063691 (N.J. 2006); Roper v. State, 2003 WL 1561295 (Tex. App.

orpus Christi 2003).

N5] State v. Froiland, 910 So. 2d 956 (La. Ct. App. 5th Cir. 2005); Com. v. Cacchiotti,5 Mass. App. Ct. 499, 772 N.E.2d 591 (2002); People v. Keyes, 298 A.D.2d 234, 748.Y.S.2d 557 (1st Dep't 2002).

N6] People v. Flynn, 341 Ill. App. 3d 813, 275 Ill. Dec. 296, 792 N.E.2d 527 (2d Dist.003); State v. Mills, 112 Wash. App. 1030, 2002 WL 1402561 (Div. 1 2002).



129. To prove intent



.L.R. Library

dmissibility of evidence of accused's drug addiction or use to show motive for theft of operty other than drugs, 2 A.L.R.4th 1298

ny competent evidence reasonably tending to prove the presence or absence of thequisite felonious intent may be received.[FN1] Of course, a trial court does not abuse it

scretion in a theft prosecution in disallowing irrelevant evidence on the issue of whethere defendant intended to permanently deprive the victim of the property stolen.[FN2]

a prosecution for larceny by trick, the range of relevant evidence is wide, especially asbears on the essential element of an intent to defraud, which involves a state of mind and

an generally be proved only by circumstantial evidence.[FN3]

vidence of a similar theft committed by the accused is admissible to prove felonioustent, knowledge, and other similar states of mind.[FN4] Evidence of repetitious similar iminal conduct with respect to other victims is admissible to show the intent of the

efendant or "a common scheme or plan."[FN5]

estimony regarding a defendant's proficiency in English was relevant in a prosecution foird-degree theft of services, as the defendant's level of proficiency was relevant to the

efendant's motive, or lack of motive, to steal English-language cable televisionogramming.[FN6]

vidence that a bar had not paid the defendant his winnings on illegal gambling machinesas admissible, in a prosecution for larceny by fraudulent schemes relating to allegationsat the defendant cashed post-dated checks at the bar and that the defendant's bank accoun

ad

onsufficient funds before and after the dates on the checks, as such circumstantial evidencould allow the jury to find that the defendant's issuance of and failure to make good on th

hecks were not done with criminal or fraudulent intent.[FN7]



N1] Hurley v. State, 22 Ariz. 211, 196 P. 159 (1921); Commonwealth v. Althause, 207Mass. 32, 93 N.E. 202 (1910).

n attorney's violation of a court rule setting forth an attorney's bookkeepingsponsibilities related to the practice of law, in and of itself, is insufficient, as a matter ow, to sustain a finding of criminal culpability, in a prosecution for theft by a failure toake the required disposition of the property, although, together with any other evidence ie case, a jury may consider a violation of the rule's requirements as evidence of

urposeful conduct, and the more egregious the violation, the greater its probative value isassisting the jury in this determination. State v. Mahoney, 376 N.J. Super. 63, 868 A.2d

171 (App. Div. 2005), certification granted, (July 11, 2005) and judgment aff'd in part,v'd in part on other grounds, 2006 WL 1063691 (N.J. 2006).

N2] Monardes v. State, 2002 WL 31430551 (Tex. App. El Paso 2002).

N3] State v. Vars, 154 Conn. 255, 224 A.2d 744 (1966).

N4] Warren v. State, 223 Ind. 552, 62 N.E.2d 624 (1945); Plante v. State, 692 S.W.2d87 (Tex. Crim. App. 1985).

N5] People v. DeMuirier, 106 A.D.2d 266, 482 N.Y.S.2d 281 (1st Dep't 1984).

N6] Cruz-Reyes v. State, 74 P.3d 219 (Alaska Ct. App. 2003).

N7] State v. Braham, 211 W. Va. 614, 567 S.E.2d 624 (2002).

132. Res gestae


West's Key Number Digest, Larceny k43, 50

larceny prosecutions, as in criminal cases generally,[FN1] the res gestae exception to thle barring the admission of hearsay evidence[FN2] is applicable.[FN3] Moreover,

eclarations or acts of the defendant are admissible in his or her behalf if they constitute

art of the res gestae.[FN4]



N1] Am. Jur. 2d, Evidence §§ 860, 861. [FN2] Am. Jur. 2d, Evidence §§ 860 to 862.

N3] Commonwealth v. Althause, 207 Mass. 32, 93 N.E. 202 (1910); State v. Wil

rd, 346 Mo. 773, 142 S.W.2d 1046 (1940); State v. Mayer, 154 Wash. 667, 283 P. 195929).

N4] People v. Heape, 72 Cal. App. 226, 237 P. 66 (2d Dist. 1925).

133. Proof of other offenses


West's Key Number Digest, Criminal Law 369.5 West's Key Number Digest, Larceny k430

he general rule is that on the trial of a person for a particular larceny, evidence to proveat he or she had committed another distinct offense is incompetent and generallyejudicial,[FN1] since it does not tend to prove the accused guilty of the crime charged.N2] This is true although it is offered on the theory of a single scheme or conspiracy

onnecting the two offenses, where there is no evidence tending to establish suchonnection.[FN3] The mere fact that certain larcenies were committed on the same night, o

uring the same expedition, does not entitle the prosecution to show all in proof of one.N4] There are exceptions to the general rule, and evidence of other offenses and of priomilar schemes is admissible in a proper case to identify the accused as the person whoommitted the larceny charged,[FN5] to make out the res gestae,[FN6] or to make out ahain of circumstantial evidence of guilt in respect of the act charged.[FN7]

ractice Guide:

vidence which legitimately tends to support the charge is not to be excluded on the grounat it will show other offenses.[FN8]

some jurisdictions, the rule may be modified by statute, and requires that the other crimot be remote in time and that evidence of the other crime is not admissible to prove theharacter of a person in order to show that he or she acted in conformity with suchharacter but may be admissible for other purposes, such as proof of motive, opportunity,tent, preparation, plan, knowledge, identity, or absence of mistake or accident.[FN9]lso, although relevant, evidence may be excluded if its probative value is substantially

utweighed by the danger of unfair prejudice, confusion of the issues, misleading of the



ry, considerations of undue delay, waste of time, or needless presentation of cumulativevidence.[FN10] Furthermore, evidence of other offenses may be admitted to show aommon plan or scheme,[FN11]

where it tends to establish a general course of criminal conduct, and it is well settledat general evidence of a combination to defraud others in the same way in which the

osecuting witness was defrauded may be shown to illustrate the animus and intention ofe parties in the particular case.[FN12]

he rule that evidence of prior offenses committed by a defendant, not resulting in aonviction, is generally inadmissible either for impeachment purposes or as a part of theate's case in chief applies in a larceny prosecution.[FN13] Further, the admission of vidence of an uncharged crime on the issue of identity on less than clear and convincingoof of a unique modus operandi is not proper, and is error requiring reversal unless theroverwhelming proof of guilt.[FN14]

N1] People v. Connolly, 186 Ill. App. 3d 429, 134 Ill. Dec. 338, 542 N.E.2d 517 (4th

ist. 1989); State v. Hudson, 736 S.W.2d 56 (Mo. Ct. App. E.D. 1987); Brown v. Com.,22 Va. 571, 282 S.E.2d 18 (1981).

he general rule is that evidence of prior acts or crimes cannot be received unlessubstantially relevant for some purpose other than to show a probability that a defendantommitted a crime charged because he or she acted in conformity with his or her past

ehavior. State v. Micko, 393 N.W.2d 741 (N.D. 1986).

s to admissibility of past crimes evidence, see Am. Jur. 2d, Evidence §§ 404 to 412.N2] People v. Goldman, 318 Ill. 77, 148 N.E. 873, 41 A.L.R. 461 (1925). [FN3] State venslow, 209 Iowa 982, 229 N.W. 225 (1930). [FN4] State v. Kelley, 65 Vt. 531, 27 A.03 (1893). [FN5] Jackson v. State, 18 Ala. App. 259, 89 So. 892 (1921); People v.quilante, 208

al. App. 2d 530, 25 Cal. Rptr. 344 (4th Dist. 1962). [FN6] Jackson v. State, 18 Ala. App

59, 89 So. 892 (1921). [FN7] Jackson v. State, 18 Ala. App. 259, 89 So. 892 (1921).N8] St. Clair v. State, 103 Neb. 125, 169 N.W. 554 (1919); Beckman v. State, 122

hio St. 443, 8 Ohio L. Abs. 353, 5 N.E.2d 482 (1930); Richey v. State, 28 Wyo. 117,

01 P. 154 (1921). [FN9] State v. Wells, 252 Mont. 121, 827 P.2d 801 (1992); State v.Micko, 393 N.W.2d 741 (N.D. 1986).

N10] State v. Wells, 252 Mont. 121, 827 P.2d 801 (1992).



N11] People v. Cox, 286 N.Y. 137, 36 N.E.2d 84, 136 A.L.R. 943 (1941). [FN12] StatRenslow, 209 Iowa 982, 229 N.W. 225 (1930); Clark v. State, 102

eb. 728, 169 N.W. 271 (1918); Beckman v. State, 122 Ohio St. 443, 8 Ohio L. Abs. 353

N.E.2d 482 (1930). [FN13] Rose v. State, 556 So. 2d 728 (Miss. 1990). Proof of two

ncharged larcenies was not probative of any element of the crimes

harged and served only to establish the defendant's predisposition to commit the crimesharged. People v. Miguel, 146 A.D.2d 808, 537 N.Y.S.2d 286 (2d Dep't 1989).

N14] People v. Miguel, 146 A.D.2d 808, 537 N.Y.S.2d 286 (2d Dep't 1989).

Evidence

Weight and Sufficiency

In General


134. Generally


West's Key Number Digest, Larceny k54 to 66

rial Strategy

roof of Theft Within Property Insurance Coverage, 37 Am. Jur. Proof of Facts 3d 91

ll the elements of larceny must be established by sufficient competent evidence,[FN1] ane guilt of the accused and every material allegation of the indictment upon which it

epends must be proved to the satisfaction of the jury beyond a reasonable doubt. Inarious larceny prosecutions the evidence has been found either sufficient[FN2] or sufficient[FN3] to support a conviction. Further, the evidence in particular cases has

een found to be either sufficient to prove the element of taking or of asportation in arceny prosecution.[FN4] Evidence has also been found to be sufficient to show that the



king was unauthorized[FN5] and that the defendant exercised unauthorized control of thectim's property.[FN6] A victim's nonconsent to a transfer of property can be proven in arceny prosecution by circumstantial evidence, which may include evidence that theefendant knew the victim lacked the mental capacity to consent to the taking of his or her operty.[FN7]

bservation:

he evidence may be sufficient to support a larceny conviction even though some of thevidence is conflicting.[FN8]

When larceny can be established by evidence that would have warranted a conviction upony one of the three formerly separate charges of larceny, embezzlement, or obtaining bylse pretenses, proof of "stealing" can be used to support any of the theories of larceny

ven though the state does not elect its theory of the manner in which the alleged larceniesere committed by the defendant.[FN9]


ases:

vidence was sufficient to support conviction for shoplifting; loss prevention supervisor aore testified that he saw defendant open two sealed boxes of wheel covers, remove atention wire from one box, and then place it in the other box, and he further testified thate price of a box of four wheel covers and four retention wires was $11.66 and that thecluded items were sold as a set. Gen.Laws 1956, § 11–41–20(b)(3). State v. Cardin, 98

.2d 248

R.I. 2010).

END OF SUPPLEMENT]

N1] State v. Willard, 346 Mo. 773, 142 S.W.2d 1046 (1940).

s to weight and sufficiency of evidence, generally, see Am. Jur. 2d, Evidence §§ 1430 to

499.

N2] U.S. v. Oliver, 238 F.3d 471 (3d Cir. 2001); Johnson v. State, 275 Ga. App. 161,20 S.E.2d 433 (2005) (theft by taking); Forrest v. State, 782 So. 2d 1260 (Miss. Ct. App001) (larceny of livestock).

N3] Reyes v. State, 883 So. 2d 390 (Fla. Dist. Ct. App. 4th Dist. 2004) (grand theft);untin v. State, 838 N.E.2d 1187 (Ind. Ct. App. 2005) (auto theft); McClendon v. State,52 So. 2d 43 (Miss. Ct. App. 2002).




ases:

When reviewing the sufficiency of circumstantial evidence, in assessing the inferencesawn from the circumstances proved, the inquiry is not simply whether the inferencesading to guilt are reasonable; although that must be true in order to convict, it must alsoe true that there are no other reasonable, rational inferences that are inconsistent with guiecause if any

ne or more circumstances found proved are inconsistent with guilt, or consistent withnocence, then a reasonable doubt as to guilt arises. State v. Al-Naseer, 788 N.W.2d 469

Minn. 2010).

identifying the circumstances proved, as required in a review of the sufficiency of rcumstantial evidence, the Supreme Court defers, consistent with its standard of review,the jury's acceptance of the proof of these circumstances and rejection of evidence in th

cord that conflicted with the circumstances proved by the State. State v. Andersen, 784.W.2d 320 (Minn. 2010).

END OF SUPPLEMENT]

N1] Hayworth v. State, 798 N.E.2d 503 (Ind. Ct. App. 2003); Cates v. State, 823 So. 2d229 (Miss. Ct. App. 2002).

ircumstantial evidence that the defendant was observed entering a store with an empty

hite bag and leaving the store with a full white bag, that she did not purchase anything ine store, and that a white bag found near the defendant in another store containederchandise from the first store supported her shoplifting conviction. Lewis

State, 247 Ga. App. 808, 545 S.E.2d 381 (2001).

N2] State v. Fairbanks, 140 Mont. 243, 370 P.2d 497 (1962) (overruled in part on otherounds by, State v. Proctor, 153 Mont. 90, 454 P.2d 616 (1969)).

N3] State v. Ohler, 178 Neb. 596, 134 N.W.2d 265 (1965).

N4] Murdock v. State, 351 P.2d 674 (Wyo. 1960).

N5] U.S. v. Marshall, 248 F.3d 525, 2001 FED App. 0135P (6th Cir. 2001); Graham

State, 269 Ga. App. 590, 604 S.E.2d 651 (2004); Brink v. State, 837 N.E.2d 192 (Ind.t. App. 2005), transfer denied, 841 N.E.2d 193 (Ind. 2005); Leigh v. State, 2002 WL1306645 (Tex. App. Texarkana 2002), petition for discretionary review refused, (Jan. 1

003).



N6] Freeman v. Com., 2002 WL 927609 (Va. Ct. App. 2002).

136. Proof of corpus delicti



here is no invariable rule as to the quantum of proof necessary to establish the corpuselicti, and some courts say that each case must depend in a measure upon its ownrcumstances,[FN1] but in order to warrant a conviction for larceny it is essential that thery should be convinced beyond a reasonable doubt that the goods alleged to have beenolen were feloniously taken and carried away.[FN2] It is not essential that the corpuselicti should be established by evidence independent of that which tends to connect thecused with the perpetration of the offense, and the same evidence which tends to prove

ne may also tend to prove the other, so that the existence of the crime and the guilt of theefendant may stand together inseparably on one foundation of circumstantial evidence.N3] The corpus delicti, like any other fact, may be established by circumstantial

vidence,[FN4] provided such circumstantial evidence is sufficiently clear to exclude anyasonable hypothesis of innocence.[FN5] However, when circumstantial evidence islied on to prove the corpus delicti, the essential fact or facts must be established beyondreasonable doubt by evidence of the most cogent and irresistible kind.[FN6]

N1] People v. Goodwin, 263 Ill. 99, 104 N.E. 1018 (1914).

N2] Roberts v. State, 61 Ala. 401, 1878 WL 1065 (1878).

he prosecution adequately established the corpus delicti of the crime of larceny of vestock, as both the owners of the stolen cattle testified they were victims of theft, thewners were able to identify how the cattle were stolen and were able to identify thedividual cows that were stolen, and testimony of an investigator indicated a crime hadtually occurred. Forrest v. State, 782 So. 2d 1260 (Miss. Ct. App. 2001).

N3] Bosley v. State, 182 Ark. 1184, 33 S.W.2d 53 (1930); Stoutamire v. State, 133 Fla57, 183 So. 316 (1938); Hilyard v. State, 90 Okla. Crim. 435, 214 P.2d 953, 28 A.L.R.261 (1950). [FN4] Winn v. Com., 303 S.W.2d 275 (Ky. 1957); Hilyard v. State, 90 Okla.rim. 435, 214 P.2d 953, 28 A.L.R.2d 961 (1950). [FN5] Woods v. People, 111 Colo.48, 142 P.2d 386 (1943). [FN6] State v. Elmore, 126 Mont. 232, 247 P.2d 488 (1952).



138. Proof of intent



conviction of larceny requires proof beyond a reasonable doubt of the defendant's intensteal, which must accompany his or her taking of the property.[FN1] Intent, being a statef mind, is generally established by circumstantial evidence in theft prosecutions.[FN2] Inarious cases the evidence has been found to be sufficient to prove larcenous intent,[FN3]iminal intent,[FN4] or specific intent,[FN5] and conversely, insufficient to prove intent,N6] felonious intent,[FN7] or criminal intent.[FN8]

arceny is a specific intent crime for which the state bears the burden of proving beyond aasonable doubt that the defendant intended to deprive an owner permanently of his or he

operty.[FN9] Like the other elements of theft, the intent to deprive may be established brcumstantial evidence.[FN10] In various cases the evidence has been found to be

ufficient[FN11] or insufficient[FN12] to prove the defendant intended to permanentlyeprive the victim of property.

a retail theft case, intent may be proved absent a suspect's actually leaving the store,here the suspect removes the merchandise beyond the last known station for receivingayments.[FN13]

s a general rule, where there is some evidence that the taking was under claim of right one part of the accused, evidence that the property was taken openly, without any

oncealment or subsequent effort to conceal the taking, is evidence of good faith in theaim of right thereto and is frequently stated by the courts to be strong evidence or veryowerful evidence thereof.[FN14]


ases:

When a taking was in the open, with no subsequent attempt to conceal it, and there was nooncealment nor denial of such taking, but on the other hand, an express avowal thereof, arong presumption arises that the defendant had no felonious intent, and thus did notommit grand theft. Ginn v. State, 26 So. 3d 706 (Fla. Dist. Ct. App. 2d Dist. 2010).

ufficient evidence that defendant had the specific intent to commit grand theft when he

ithheld homeowner's deposit for solar panel work despite being asked to refund itupported conviction for grand theft; defendant had no legal claim to the deposit money



nce he was an unlicensed contractor. West's F.S.A. §§ 489.128(1), 812.014(1)(a). HebeState, 25 So. 3d 612 (Fla. Dist. Ct. App. 1st Dist. 2009).

ufficient evidence that, while in lawful possession of victim's pick-up truck, defendantnlawfully appropriated truck with the intention of depriving victim of the truck supportedonviction for theft by taking; defendant kept truck for more than a year after completingpairs on it and was using the truck as his residence despite victim's repeated attempts to

ontact defendant about getting the truck back. West's Ga.Code Ann. § 16–8–2. Thornton vate, 301 Ga. App. 784, 689 S.E.2d 361 (2009).

vidence was insufficient to show that defendant had a specific intent to commit larcenyhen he broke into and entered a retail department store, as required for conviction for eaking and entering with intent to commit larceny; evidence proved only that defendantrcibly broke into and entered store by breaking glass in entrance door, that he walkedound in store for approximately four minutes, that he shoved a shopping cart into a rack

f clothing, and that he exited store without touching or tampering with cash registers andithout removing any merchandise. Vincent v. Com., 276 Va. 648, 668 S.E.2d 137 (2008)

END OF SUPPLEMENT]

N1] Tarpley v. Com., 261 Va. 251, 542 S.E.2d 761 (2001). [FN2] Underwood v. State,62 So. 2d 800 (Fla. Dist. Ct. App. 4th Dist. 2003). [FN3] People v. Lane, 25 A.D.3d 51708 N.Y.S.2d 225 (1st Dep't 2006). [FN4] Netherly v. State, 804 So. 2d 433 (Fla. Dist. Cpp. 2d Dist. 2001); Matth

ssen v. State, 277 Ga. App. 54, 625 S.E.2d 422 (2005), cert. denied, (Apr. 25, 2006);

hisolm v. State, 856 So. 2d 681 (Miss. Ct. App. 2003). [FN5] State v. Bean, 899 So. 2d02 (La. Ct. App. 1st Cir. 2005), writ granted, 925 So. 2d 489 (La. 2006).

N6] Benitez v. State, 852 So. 2d 386 (Fla. Dist. Ct. App. 3d Dist. 2003). [FN7] Rowe v

ate, 782 So. 2d 949 (Fla. Dist. Ct. App. 2d Dist. 2001). [FN8] State v. Braham, 211 W.

a. 614, 567 S.E.2d 624 (2002).

N9] State v. Calonico, 256 Conn. 135, 770 A.2d 454 (2001); State v. Fisher, 82 Conn.pp. 412, 844 A.2d 903 (2004), certification denied, 269 Conn. 911, 852 A.2d 741004).

N10] People ex rel. B.J.T., 2005 SD 123, 707 N.W.2d 489 (S.D. 2005).

N11] State v. Solway, 139 Idaho 965, 88 P.3d 784 (Ct. App. 2004); State v. Mc-Carty,

83 N.W.2d 127 (Iowa Ct. App. 2004); State v. Kuipers, 2005 MT 156, 327 Mont. 431,14 P.3d 1033 (2005); State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005); Ledet v.



ate, 177 S.W.3d 213 (Tex. App. Houston 1st Dist. 2005), petition for discretionaryview refused, (Sept. 14, 2005).

N12] State v. Ellis, 671 N.W.2d 532 (Iowa Ct. App. 2003).

N13] People v. Hart, 338 Ill. App. 3d 983, 273 Ill. Dec. 731, 789 N.E.2d 905 (2d Dist.003).

vidence was sufficient to support a defendant's conviction for theft of goods valued atetween $100.00 and $500.00, despite the defendant's contention that the state failed totablish intent, as it was possible to infer the requisite intent to commit theft from the factat the defendant put merchandise in a bag and exited the store without paying for it. StateWeidenbacker, 782 So. 2d 1040 (La. Ct. App. 5th Cir. 2001).

N14] Black v. State, 83 Ala. 81, 3 So. 814 (1888); Dean v. State, 41 Fla. 291, 26 So.38 (1899); Causey v. State, 79 Ga. 564, 5 S.E. 121 (1888); State v. Powell, 103 N.C.24, 9 S.E. 627 (1889); Whitlow v. Com., 184 Va. 910, 37 S.E.2d 18 (1946).

jury has been held justified in finding either that the defendant acted with, or that he acteithout, the requisite criminal intent in taking used bomb casings from a governmentombing range, allegedly in the belief that they were abandoned, where, on the one hand,e defendant was aware that the casings were taken on government property and he failedseek any permission for their removal, and, on the other hand, heaps of spent casings lerust away presented an appearance of unwanted and abandoned junk, and lack of any

onscious deprivation of property or intentional injury was indicated by defendant's good

haracter, the openness of the taking, handling, and transporting of the casings, and theandor with which all the facts were admitted by defendant. Morissette v. U.S., 342 U.S.46, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

Weight and Sufficiency

Possession of Stolen Goods


141. Generally


West's Key Number Digest, Larceny k64 to 64(8)

he doctrine of recent possession of stolen property is a rule of law that, upon andictment for larceny, possession of recently stolen property raises a presumption of the



ossessor's guilt of the larceny of such property.[FN1] For the doctrine of recentossession to apply, the state must prove beyond a reasonable doubt that: (1) the propertyas stolen; (2) the defendant had possession of this same property; and (3) the defendantad possession of this property so soon after it was stolen and under such circumstances amake it unlikely that he or she obtained possession honestly.[FN2]

While the unexplained possession of recently stolen property is sufficient evidence fromhich the trier of fact may infer the actual theft,[FN3] the recent possession of stolen good

ill not automatically support a guilty verdict for theft, as instead, recent possession is toe viewed as probative evidence of the crime and is reviewed along with the other vidence in the case to determine whether any rational juror could find the defendant guilteyond a reasonable doubt.[FN4] The inference derived from the defendant's recentossession of stolen property is to be considered by the jury merely as an evidentiary factong with other evidence in the case in determining whether the state has carried theurden of satisfying the jury beyond a reasonable doubt of the defendant's guilt of larceny.N5]

ractice Guide:

he possession of recently stolen property is a strong circumstance tending to show guilt,nd only slight corroborative evidence of other inculpatory circumstances is required.N6]

nce that permissible inference arises, the sufficiency of the evidence to sustain aonviction for theft must still be examined according to applicable evidentiary standards o

ppellate review, since the inference is not conclusive.[FN7] It does not in any case raise esumption

f law that the defendant committed the alleged larceny,[FN8] but raises only a permissibference that the possessor of recently stolen property is the thief.[FN9]


ases:

he insufficiency of uncorroborated possession of recently stolen property to establish thecused's guilt of a theft-related offense does not derive from an extrinsic legal rule but,ther, is apparent from the general rule governing the jury's consideration of circumstanti

vidence. People v. Najera, 43 Cal. 4th 1132, 77 Cal. Rptr. 3d 605, 184 P.3d 732 (2008)

order to invoke the presumption that a defendant is guilty of larceny under the doctrine o

cent possession, the state must prove that (1) the property described in the indictmentas stolen; (2) the stolen goods were found in defendant's custody and subject to his



ontrol and disposition to the exclusion of others; and (3) the possession was recently aftee larceny. State v. Lee, 713 S.E.2d 174 (N.C. Ct. App. 2011).

END OF SUPPLEMENT]

N1] State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d 325 (2005), aff'd, 360 N.C. 359,25 S.E.2d 777 (2006).

N2] State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707 (2003).

N3] Brown v. State, 827 N.E.2d 149 (Ind. Ct. App. 2005); Myers v. State, 165 Md. App02, 885 A.2d 920 (2005), cert. granted, 391 Md. 577, 894 A.2d 545 (2006); Harris v.om., 38 Va. App. 680, 568 S.E.2d 385 (2002), judgment rev'd on other grounds, 266 Va8, 581 S.E.2d 206 (2003).

he unexplained and exclusive possession of stolen property shortly after the theft justifien inference that the possessor is the thief. State v. Pierro, 355 N.J. Super. 109, 809 A.2d

04 (App. Div. 2002).

N4] Cothran v. State, 269 Ga. App. 256, 603 S.E.2d 762 (2004).

ossession of recently stolen property when joined with attempts at concealment, evasivefalse statements, or an unusual manner of acquisition may be sufficient evidence of

nowledge that the property was stolen. Purifoy v. State, 821 N.E.2d 409 (Ind. Ct. App.005), transfer denied, 831 N.E.2d 741 (Ind. 2005).

vidence of possession of stolen property, standing alone, may be as consistent withnocence as with guilt for theft. State v. Kelley, 2005 MT 200, 328 Mont. 187, 119 P.3d

7 (2005).

N5] State v. Pickard, 143 N.C. App. 485, 547 S.E.2d 102 (2001).

resumption that a defendant in possession of recently stolen property is guilty of itsrongful taking and of the unlawful entry associated with that taking is strong or weak epending upon the circumstances of the case and the length of time intervening betweene larceny of the goods and the discovery of them in the defendant's possession. State v.

McQueen, 165 N.C. App. 454, 598 S.E.2d 672 (2004), review denied, 359 N.C. 285, 610E.2d 385 (2005).

N6] Brown v. State, 2004 WY 57, 90 P.3d 98 (Wyo. 2004).

N7] Hardesty v. State, 656 S.W.2d 73 (Tex. Crim. App. 1983).



N8] Puntasecca v. State, 172 So. 2d 885 (Fla. Dist. Ct. App. 3d Dist. 1965); Boswell

State, 5 Md. App. 571, 249 A.2d 490 (1968); Bush v. State, 541 S.W.2d 391 (Tenn.976); Barnes v. Com., 190 Va. 732, 58 S.E.2d 12 (1950).

N9] State v. Hargett, 148 N.C. App. 688, 559 S.E.2d 282 (2002), review allowed, writlowed, 355 N.C. 351, 562 S.E.2d 426 (2002).

148. Allegations as to property stolen—Ownership and possession



he ownership or possession of the property stolen must be proved as alleged in thedictment, and if the proof shows that the property was owned by another, there is a fatal

ariance.[FN1] The allegation as to who was the owner is material, since the consent of e owner can be a defense.[FN2] If an indictment for larceny fails to allege the existencef a person with title or a special property interest in the stolen property, then thedictment contains a fatal variance.[FN3] Most courts hold, however, that an indictment formation alleging ownership in a certain person is sustained by proof of possession inat person, as by proof that the person was agent or bailee of the true owner, or had, in

ehalf of the owner, the control, care, and management of the property stolen at the time itas taken; in such case there is no material variance between the indictment or informatio

nd the proof.[FN4] Thus, where an indictment lays the ownership of stolen property in onho is its lawful custodian and entitled to its possession, it is not a fatal variance if theoof shows that the legal title to the property was in someone other than the person inhose possession it was and who had the care and management of it.[FN5]

fatal variance existed between an indictment charging a defendant with felonious

rceny, which required proof of a taking by trespass, and the evidence presented at trialat the defendant held a leasehold interest in real property, and therefore, was in lawful

ossession of the property from where money buried in a yard was taken.[FN6]

N1] Cartwright v. U.S., 146 F.2d 133 (C.C.A. 5th Cir. 1944); State v. Weinstein, 224

.C. 645, 31 S.E.2d 920, 156 A.L.R. 625 (1944).

o fatal variance existed between an indictment and the proof offered at trial for the felon

ffense of aggregate theft of more than $200,000, as although the defendant ar



ued a fatal variance existed since she was charged with stealing money from the owner oe companies in the indictment and the state presented evidence at trial that some stolenoney was the property of different entities, testimony established that the owner ownedl the entities that were involved in the alleged variance and that the defendant did notwn any interest in the companies, and thus, the owner, for purposes of the trial, wasonsidered the owner of the money. Reuter v. State, 2006 WL 348146 (Tex. App. Houston

t Dist. 2006).

N2] Peek v. State, 39 Ala. App. 198, 96 So. 2d 706 (1957).

N3] State v. Craycraft, 152 N.C. App. 211, 567 S.E.2d 206 (2002).

N4] State v. Graham, 47 N.C. App. 303, 267 S.E.2d 56 (1980); State v. Holley, 35

.C. App. 64, 239 S.E.2d 853 (1978); State v. Robinette, 33 N.C. App. 42, 234 S.E.2d 28

977). As to the weight and sufficiency of evidence as to ownership, see § 116. [FN5]ate v. Davis, 61 N.J. Super. 536, 161 A.2d 552 (App. Div. 1960).

N6] State v. Jones, 628 S.E.2d 436 (N.C. Ct. App. 2006).

149. Province of court and jury


West's Key Number Digest, Larceny k68(1) to 68(3)

ny power of the court to direct or advise a verdict of acquittal or order the discharge of e prisoner for a failure of the prosecution to make out its case is, as a rule, confined to

ases where evidence tending to prove, or from which the jury may infer, the existence of me essential element of the offense is totally lacking, or where the only evidence upone point is incompatible with the existence of such element; but if such is the case, the dutsts on the court to direct or advise an acquittal.[FN1] Thus, a defendant is not entitled toperemptory instruction for a verdict of acquittal in a prosecution for larceny when there

ufficient evidence that the defendant committed the charged offenses so as to create auestion of fact for the jury to resolve.[FN2]

ractice Guide:



two-pronged test determines whether the evidence adduced at a grand theft trial to prove value of stolen property is sufficient to withstand a motion for judgment of acquittal:rst, the court must ascertain whether the person testifying is competent to testify as to thealue of the property, and second, if the person is competent, the court must ascertainhether the evidence adduced at trial is sufficient to prove that the property was worthver the statutory minimum amount at the time of the theft.[FN3]

N1] State v. Willard, 346 Mo. 773, 142 S.W.2d 1046 (1940); Otts v. State, 135 Tex.

rim. 28, 116 S.W.2d 1084, 116 A.L.R. 1454 (1938).

defendant's explanation for his possession of stolen stereo equipment was only arguablyasonable and not patently reasonable, and thus the defendant was not entitled to adgment of acquittal in a circumstantial evidence case for grand theft and dealing in stoleoperty, as the defendant's credibility was undermined by a conflict between

s testimony and a detective's testimony as to whether the defendant's roommate, wholegedly gave the stereo equipment to the defendant and claimed that it was his, was

pprehended after the defendant identified the roommate to the police. Wilson v. State, 88o. 2d 74 (Fla. Dist. Ct. App. 2d Dist. 2004).

N2] Jones v. State, 819 So. 2d 558 (Miss. Ct. App. 2002).

N3] Sellers v. State, 838 So. 2d 661 (Fla. Dist. Ct. App. 1st Dist. 2003).

he evidence presented at a grand theft trial was insufficient to prove that the value of theolen property was greater than $300; thus, the trial court erred in denying the defendant'sotion for a judgment of acquittal, where the victim provided only an estimate, and theate failed to elicit testimony regarding the condition of the property at the time of the thefellers v. State, 838 So. 2d 661 (Fla. Dist. Ct. App. 1st Dist. 2003).

RS 173.075. Nature and contents generally

1.The indictment or the information must be a plain, concise and definite written

atement of the essential facts constituting the offense charged. It must be signed by

e Attorney General acting pursuant to a specific statute or the district attorney. Iteed not contain a formal commencement, a formal conclusion or any other matter n



ecessary to the statement.

Allegations made in one count may be incorporated by reference in another count. I

ay be alleged in a single count that the means by which the defendant committed th

ffense are unknown or that the defendant committed it by one or more specified

eans.

The indictment or information must state for each count the official or customary

tation of the statute, rule, regulation or other provision of law which the defendant leged therein to have violated. Error in the citation or its omission is not a ground

r dismissal of the indictment or information or for reversal of a conviction if the

rror or omission did not mislead the defendant to the defendant’s prejudice."

7 ALR 3rd 1181, Comment Note.--Power of Court to Make or Permit Amendment of

dictment.

Am. Jur. Trials 27, Pretrial Procedures and Motions in Criminal Cases.

OTES OF DECISIONS

general 2

ct or omission constituting offense 11

cts constituting offense, certainty and particularity 5

mendment 16

ertainty and particularity 3-6

ertainty and particularity -In general 3

ertainty and particularity -Acts constituting offense 5

ertainty and particularity -Particular allegations and offenses 6

ertainty and particularity -Purpose of requirement 4

ouble jeopardy 2.5



ue process of law 1

uplicity 15:

ECEIVING STOLEN GOODS. § 1. In general. Place of trial of indictment for, seeriminal Procedure, q 2. Joinder of count for, with one for larceny, see Indictment, q 16. q

(Sup. 1916)

he larceny of the goods is not an element in the crime of receiving stolen property, thetter being a complete substantive offense. People v. Zimmer, 174 App. Div. 470, 100 N.. Supp. 459, affirmed in 220 N. Y. 597, 115 N. E. 1047. q 2. (Sup. Sp. T. 1917)

he crime of receiving stolen property is not supported by evidence that the property

stolen by anyone, was stolen by the accused himself, and he cannot be convicted of

riminally receiving stolen property from himself . People v. Brenneauer, 101 Misc. 15662, 166 N.Y. Supp. 801 (1917).

II. MOTION TO QUASH OR DIS- MISS, AND DEMURRER. ©=137(4) (N.Y.Sup.)Where competent evidence before grand jury is insufficient to establish crime charged,

dictment should be dis- missed—People v. Brenneauer, 166 N. i. S>. S01. . , Charge foriminally receiving stolen property held not supported by evidence before grand jury.—. . Evidence before grand jury held sufficient to show that blueprints charged to have

een stolen by defendant had element of value essential to crime of grand larceny.—Id.vidence before grand jury held sufficient to warrant it in finding indictment for grandrceny in first degree.—Id.

I. JOINDER OF PARTIES, OFFENS- ES, AND COUNTS, DUPLICITY, ANDLECTION. ©=130 (N.Y.Sup.) Indictment, first count of which charged burglary, the

cond larcenv. and the third receiving stolen property, held de- murrable, because

harging more than one crime —People v. May, 106 N. Y. S. 351.

arceny and receiving. Joinder of count*, see post, § 416. fa] (Ind. 1S89) The two offense

f receiving stolen goods and of the larceny of the goods are properly joined in the sameformation.— Kennegar v. State, 120 Ind. 176, 21 N. E. 917. [b] (Ind. 1805) It is proper



nder Rev. St. 1JS04, S 1817 (Rev. St 1881, § 1748), to include in the same indictment aharge of theft and also of receiving stolen property.—Goodman v. State. 141 Ind. 35, 39. E. 939.

n the English case of Seymour,238 Lord Goddard CJ set out a strategy to deal with casehere it may not be clear whether the accused was the receiver or the thief. He said: “In

ases where the evidence is as consistent with stealing as with receiving, the indictmentught to contain a count for stealing and a count for receiving. The jury should then berected that it is for them to come to the conclusion whether the prisoner was the thief or hether he received the property from the thief, and should be reminded that a man cannotceive from himself. Then ... if the jury come to the conclusion that it is a case of ceiving, they should be discharged from giving a verdict on the count of stealing. Equallthey come to the conclusion that it is a case of stealing, they should be discharged fromving a verdict on the count of receiving. Sometimes a difficulty has arisen. We have had

quash a conviction, say, for receiving and the court has come to the conclusion that thevidence showed stealing and not receiving. If a verdict has been returned on the count ofealing, this court cannot substitute for the verdict of receiving a verdict of stealing. If,owever, the jury are discharged from giving a verdict on the count of stealing, and if thisourt comes to the conclusion that the proper verdict is stealing and not receiving, they cater the verdict under the Criminal Appeal Act, 1907, Sect. 5(2) ... It is much better to puto an indictment, as a rule, both counts, although it very often happens that, as the case

evelops, it becomes a case either of stealing or receiving only ... Therefore, while it isesirable that the two counts should be included in the indictment, the jury should be told,

cases where the evidence is equally consistent with stealing or receiving, that it is for em to come to the conclusion which is the right verdict, and if they find a verdict of guilt

n one count, they should be discharged from giving a verdict on the other count.” Samuelates that: “[W]here, in pursuance of a common plan, A steals goods and immediatelyands them over to B, waiting outside the premises, B cannot be convicted of receivingecause he was a principal in the second degree to the larceny;239 whereas if B weremply an accessory before the fact to the larceny and not a principal in the second degreee can be convicted of receiving240.”241238 [1951] 1 All E.R. 1006, at 1007 (C.C.A.).

ee also Christ, 35 C.A.R. 76, at 79(C.C.A., per Devlin J, for the Court, 1951). 239 Citinoggins, 12 Cox C.C. 517, at 521 (C.C.A. per Blackburn J, 1873). 240 Citing Hughes, 8ox C.C. 278 (1860), Goodspeed, 6 C.A.R. 133, 27 T.L.R. 255 (C.C.A., 1911). 241amuels, op. cit., at 26."tp://www.lawreform.ie/_fileupload/Reports/rStolenProperty.htm



xceptions and provisos, use of language of the statute 14

orgery, particular offenses 19

omicide, particular offenses 20

Multiplicity 23

articular allegations and offenses, certainty and particularity 6

articular offenses 17-21

articular offenses -In general 17

articular offenses -Burglary 18

articular offenses -Forgery 19

articular offenses -Homicide 20

articular offenses -Robbery, larceny, or theft 21

ace of offense 9

rincipals 7

urpose of requirement, certainty and particularity 4

eference to or recital of statute 12

eview 22

obbery, larceny, or theft, particular offenses 21

me of offense 10

se of language of the statute 13, 14

se of language of the statute -In general 13

se of language of the statute -Exceptions and provisos 14



as not clear, definite, and concise; it did not clearly specify which portion of thecketeering statute defendants conspired to violate, did not specify which defendant madehich untrue statements or material omissions to which victims, and State had beenpeatedly told its charging documents were defective or vague. N.R.S. 173.075, 207.400ate v. Hancock, 1998, 955 P.2d 183, 114 Nev. 161. Indictment And Information 144.2

ge enhancement was inappropriately tacked onto racketeering and securities fraud countf indictment of defendants in connection with gold recovery investment offering; age

nhancement did not apply to racketeering, and at time of alleged criminal activity in 1991nd 1992, age enhancement did not apply to securities fraud offenses. N.R.S. 90.570(2),07.400; N.R.S.

93.167 (1992). State v. Hancock, 1998, 955 P.2d 183, 114 Nev. 161. Indictment Andformation 113

rial court did not abuse its discretion in denying State's motion to amend indictment to serth alternatively pleaded crimes in separate counts, as amended indictment contained 16

ounts whereas original indictment contained only ten, and thus, if motion had been granteefendants would have been denied due process because it could not be said that grandry found probable cause on each and every amended count. U.S.C.A. Const.Amend. 14;.R.S. 173.075(2), 173.095(1). State v. Hancock, 1998, 955 P.2d 183, 114 Nev. 161.dictment And Information 159(2)

dictment containing introductory paragraph naming all of various defendants, each counteginning with statement that “the said defendants” committed charged offense gave

dequate notice that each and every defendant was included in each count of the indictmenane v. Torvinen, 1981, 624 P.2d 1385, 97 Nev. 121. Indictment And Information 81(1)

nless accused is able to affirmatively demonstrate that information is so defective that itsults in miscarriage of justice or actually prejudices him in respect to a substantial right,

o relief will be afforded him, even when challenge is made before trial. N.R.S. 173.075.Watkins

Sheriff, Clark County, 1971, 484 P.2d 1086, 87 Nev. 233. Indictment And Information

93

udgment will not be set aside or new trial granted in criminal case unless accused is ableaffirmatively demonstrate that information is so insufficient that it results in miscarriage

f justice or actually prejudices him in respect to a substantial right. N.R.S. 173.075. LaneState, 1970, 466 P.2d 666, 86 Nev. 173. Criminal Law 915; Criminal Law 1167(1)

efendant charged with carrying a concealed weapon was not denied a fair trial onounds that information contained allegations of three prior convictions and that trial judg



as prejudiced by admitting certain exhibits where jury had never been advised of prior onvictions, trial judge would have no discretion in rendering sentence on primary offensend admissibility of exhibits was a question of law which was a subject of review. N.R.S02, 350, 207.010, subd. 3. Dotson v. State, 1964, 389 P.2d 77, 80 Nev. 42. Indictmentnd Information 113 ; Judges 49(1); Sentencing And Punishment 1364

nder statute to effect that when offense is described with sufficient certainty to identify tht, an erroneous allegation as to person injured shall not be deemed to be material, failur

allege identity of civic organization as a legal entity was immaterial and did not go toufficiency of information charging that defendant had unlawfully appropriated moneysntrusted to him by the civic organization. N.R.S. 173.280, 174.310, 175.560. Wood v.ate, 1960, 353 P.2d 270, 76 Nev. 312. Indictment And Information 101

omp. Laws, §§ 4325-4327 (Cr. Prac. Act, §§ 360-362), provides that where two or moreefendants are jointly indicted they shall be jointly tried, unless for good cause shown theourt shall otherwise direct, and the court may at any time before defendant has gone into

s defense, on the application of the district attorney, direct any defendant to be dischargeom the indictment, etc. Two persons jointly indicted were jointly tried. After the state hasted defendant rested, and moved that the case be given to the jury at that time, before anstimony was offered on behalf of the codefendant. Held, that the motion was properlyenied, for, if granted, it would have given the defendant a separate trial, which could onlye granted on application made before the commencement of the formation of the jury. StaJohnny, 1906, 87 P. 3, 29 Nev. 203. Criminal Law 622.8(3)

he sufficiency of an indictment is to be determined from the provisions of the statutes in

lation to the form and requisites of an indictment, and not by the common law. State v.ovelace, 1906, 83 P. 330, 29 Nev. 43. Indictment And Information 17

riking out a count of an indictment on demurrer thereto by defendant does not amount to aterial amendment of the indictment. State v. McKiernan, 1882, 30 P. 831, 17 Nev. 224.dictment And Information 153

n indictment for larceny which did not expressly state that the conversion of the property

ken was without authority of law, but which charged that the accused “did feloniouslyeal, take, and lead away” such property, held sufficient; the fact that the taking wasontrary to

w being clearly indicated. State v. Jones, 1872, 7 Nev. 408. Indictment And Information1(3)

n indictment should charge a statutory offense in the language of the statute creating it, orwords of similar import. People v. Logan, 1865, 1 Nev. 110. Indictment And Informatio

10(1)

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