July 2015 Fourth Example Ten-point Answers to Virginia Essay Questions
July 2015 - QUESTION 6 – VIRGINIA BAR EXAMINATION
Tom and Jerry lived in Norfolk, Virginia, where they had grown up together. They were unemployed, broke, and unable to find work. Jerry suggested that they rob a bank. After some discussion, they decided that the best plan would be for each of them to rob a bank on the opposite sides of the city at the same time. They believed this would confuse the police, delay response time, and improve their chances of getting away. They agreed that Jerry would rob the A&S Bank on the east side of town and that Tom would rob the Bluewater Bank on the west side, both at 10:00 a.m. on April 1.
At 9:00 a.m. on April 1, Tom and Jerry set out on their mission in Jerry's car. Jerry drove Tom to the Bluewater Bank. En route, Jerry handed Tom a toy pistol and told him to enter the bank at precisely 10:00 a.m. and that he (Jerry) would enter the A&S Bank simultaneously. They coordinated their watches and, as Jerry dropped Tom off in front of the Bluewater Bank, Jerry said, "OK, let's do it. I'll pick you up where we talked about.".
At 10:00 a.m., Jerry entered A&S Bank, and saw no one present but a teller. He brandished a real handgun and handed the teller a note and a cloth bag. The note stated, "Put all the money in your cash drawer in the bag and give it to me. Don't make a sound, and nobody will get hurt." Seeing the handgun, the teller emptied the cash drawer into the bag. At the same time on the other side of town, Tom entered the Bluewater Bank and, with the toy gun concealed in his coat pocket, walked to a teller window. He was so nervous that all he could do was whisper to the teller, "This is a robbery." The teller said, "I'm sorry. I didn't hear what you said." At that point, Tom turned, rushed back outside, took out his cell phone, and sent Jerry a text message saying, "I can't do it. I'm outta here.".
Back at the A&S Bank, Jerry received the text message and quickly responded, "Stick to the plan." Tom saw Jerry's message, went straight to the bus terminal, and boarded a bus for Richmond. Meanwhile, Jerry took the money-filled bag from the A&S teller. At gunpoint, he told the teller to come out from behind the counter, forced her to lie face down on the floor about 15 feet from the counter, and told her not to move or make a sound for the next 15 minutes..
Unbeknownst to Jerry, the teller had activated a silent alarm, and the police were waiting for him as he ran out of the bank. Jerry later confessed and told the police about everything that had happened between him and Tom from the time they first talked about robbing the banks up to and including Tom's text message. Tom subsequently was arrested in Richmond..
The Commonwealth's Attorney charged Tom with the following crimes: (i) conspiracy; (ii) attempted robbery of the Bluewater Bank; and (iii) robbery of the A&S bank..
The Commonwealth's Attorney charged Jerry with abduction.
|(a)||Do the facts support a prima facie case against Tom on each of the three crimes with which he is charged, what defenses might Tom assert, and what is the likely outcome on each defense? Explain fully.|
|(b)||Do the facts support a prima facie case against Jerry on the crime of abduction, what defenses might he assert, and what is the likely outcome on each defense? Explain fully.|
July 2015 - QUESTION 6 – EXAMPLE ANSWER #1
6(a) The facts support a prima facie case against Tom for conspiracy; (ii) attempted robbery of the Bluewater Bank; and (iii) robbery of the A&S Bank.
Conspiracy requires an agreement between two minds to commit a criminal offense and some act signifying the creation of the conspiracy. In this case, Tom and Jerry clearly agreed to rob the two banks. Further, they planned how they were going to commit those robberies. At that point, Tom was guilty of conspiracy. As conspiracy does not merge, the prima facie case of conspiracy is complete. Two guilty minds (Tom and Jerry) made an agreement to commit a crime and there was an overt act (planning) that signified the creation of the conspiracy.
Robbery is the use of force or threat of use of force to permanently deprive someone of their property. As was stated earlier, a prima facie case of conspiracy can be made out against Tom. As a result of being part of a conspiracy, Tom can be held accountable for any crimes committed by his co-conspirators that are done to further the conspiracy. This includes those crimes which Tom may not have even committed himself. In addition, it is not necessary that Jerry be convicted or even tried for the robbery for Tom to be found guilty of robbery due to his part in the conspiracy. The prosecution must prove in Tom's trial beyond a reasonable doubt that the elements of robbery were committed by Tom's co-conspirator, that Tom was part of the conspiracy, and the acts were done in futherance of the conspiracy. Jerry threatened violent force with the intent to take away permanent possession of the banks money. Jerry was acting in order to complete his and Tom's conspiracy to rob two banks at the same time. Tom had agreed and planned with Jerry how the acts would take place. There is a prima facie case against Tom for the robbery of the A&S Bank.
Attempt is a specific intent crime. Attempt requires that a person intend to commit the specifc crime and that there be some act reasonably related to completing the attempt. Traditional common law requires a substantial step, which is generally a higher standard than the current Virginia law. In this case, Tom walked into Bluewater Bank intending to rob Bluewater Bank. He was nervous, but his intention was clear based upon his words "This is a robbery." His planning, accepting the toy gun from Terry, walking into the bank, and threatening the Teller are sufficient acts to constitute making an attempt. There is a prima facie case against Tom for attempted robbery of the Bluewater Bank.
Tom's Defenses are (i) that he withdrew from the conspiracy; (ii) he did not have the intent necessary for attempted robbery; and (iii) he did not commit enough acts in futherance of the crime to constitute an attempt.
All of these defenses will fail.
The standard for withdrawing from a conspiracy is very high in Virginia. It requires that a person clearly state to the other co-conspirators the person's withdrawal from the conspiracy and requires the person to do all that he/she can do stop the crime. This can include physically stopping the crime from happening, convincing the other conspirators not to go through with the crime, or simply informing the authorities.
Tom will argue that he withdrew from the conspiracy when he texted Jerry. He clearly stated his intention to leave the conspiracy and promptly stopped all of his own actions towards the conspiracy's goal.
However, this is not enough to constitue withdrawal. He did nothing to stop fifty percent of the conspiracy's goal, namely the robbery of A&S Bank. Further, it is unclear that he even managed to withdraw in time, considering he only texted Jerry after Jerry had already completed his robbery, even if he had not left the Bank yet. A conspirator is liable for all crimes committed in futherance of the conspiracy while he is in the conspiracy. Even if Tom's actions were enough to constitute withdrawal, Tom did not withdraw quick enough to escape liability for Jerry's robbery.
As was previously stated, attempt is a specific intent crime. As such, Tom must have intended to rob Bluewater Bank in order to be guilty of attempted robbery. Tom will argue that subjectively, he did not intend to rob Bluewater Bank. This is evidenced by his toy gun that he only put in his pocket, his inability to do more than whisper at the Teller, and his immediate withdrawal before the Teller even noticed something was wrong.
However, intent is judged during the attempt. Tom (i) helped Jerry plan, (ii) synchronized his watch, (iii) accepted the toy gun, (iv) entered the bank at precisely the right moment, and (v) stood face to face with the teller and stated it was a robbery. While it seems that Tom lost his nerve, when he entered the Bank, the moment reasonable people would assume the attempted robbery began, Tom subjectively and objectively intended to rob Bluewater Bank.
Finally, Tom's argument that he did not do enough to qualify for attempted robbery also fails for the same reasons. It is not necessary that an action in support of an attempted crime be criminal itself. Thus, even though Tom will argue that there is no criminality in walking into the bank with a toy gun in his pocket, these acts in combination with his planning with Jerry and words to the Teller (even if the Teller did not hear them) are enough to be considered an attempt.
6(b) There is a prima facia case of abduction against Jerry. He will defend by arguing that the movement and time were not enough to constitute abduction and this defense will fail.
Abduction requires three elements. First, that the abductor use force, threat of force, or other serious threat (force to another for example) to make the victim comply. Second, the restraint of the victim to a partiuclar place, the movement of the victim to a particular place, or keeping the victim from those who are legally responsible (i.e. non-custodial parent from other parent). Finally, said abduction must be for a period of time. If the victim had a reasonable method of escape, then there is no abduction.
In this case, Jerry pointed a gun at the Teller. He then forced her to move 15 feet, lay down, and remain in that position for 15 minutes. This constitutes the force, restraint, and time necessary for a prima facie case of abduction.
Jerry will argue that moving fifteen feet and staying in a place for fifteen minutes is not enough to constitute abduction, paricularly considering that she remained in the Bank and as a Teller, would have been in the Bank for those fifteen minutes any ways.
However, it is not necessary that the victim move at all. The focus is on restraint. Further, any length of time is acceptable so long as the victim had reason to know of the abduction. The Teller was restrained by threat of force for fifteen moments of which the Teller was very aware. As such, Jerry's defense will fail.
July 2015 - QUESTION 6 – EXAMPLE ANSWER #2
The facts support a prima facie case against Tom for conspiracy; he might argue that he withdrew from the crime, but a conspiracy is complete once the agreement is made.
Conspiracy is an inchoate crime. It is an agreement between two people to commit a felony. It does not matter if the crime is ultimately committed because crime of conspiracy is committed once the agreement is formed. In Virginia, a conspiracy can only be formed between two guilty minds. Additionally, in Virginia, a conspiracy does not require an overt act.
In this case Jerry and Tom conspired to commit bank robbery, a felony. Both of them initially intended to commit the crime, and thus both had the requisite guilty mind. Although an overt act is not required, an overt act was completed by both of them when they set off to commit the bank robberies. Although Tom will likely argue that he ultimately decided not to commit the crime, this defense will fail because the crime of conspiracy had already been completed when he agreed to the plan.
Because there was a conspiracy between Tom and Jerry to commit bank robbery, and the crime was completed once they agreed to the crime, there is a prima facie case against Tom for conspiracy.
The facts support a prima facie case against Tom for attempted robbery of the Bluewater Bank; he might argue that the teller did not hear him and that he left therefore withdrawing, but an attempt only needs a direct act that falls short of the completed crime.
Attempt in an inchoate crime. By definition, the crime of attempt is not completed. In the Commonwealth, an attempt occurs when someone has the specific intent to commit a crime and takes a direct act that falls short of committing the ultimate crime.
In this case, Tom entered the bank with the specific intent to rob the bank. Although he spoke quietly and the bank teller could not hear him, he made a direct act by going into the bank and actually stating the words "This is a robbery." He may argue that because he was not heard and instead decided to withdraw and not commit the crime, he had already committed the crime of attempt by the time he had gone into the bank, and particularly once he told the teller that he was robbing the bank. One cannot withdraw from an attempt.
Because Tom took a direct act that fell short of the completed crime of robbery, and he specifically intended to rob the bank, there is a prima facie case against Tom for attempted robbery.
The facts support a prima facie case against Tom for robbery of the A&S Bank; he might argue that he was not present at the scene of the crime and that he withdrew. These arguments should fail because he was an accessory before the fact and he did not effectively withdraw.
A co-conspirator is guilty for all reasonably anticipated crimes that occur during the commission of the agreed upon crime. This is true both under the conspiracy, but also because they are accessories before the fact or principals in the second degree, depending on whether they were present at the scene of the crime or not. An accessory before the fact encourages, aids, or counsels the principal in the first degree in the commission of the crime, but is not physically present during the crime. A principal in the second degree encourages, aids, or counsels the principal in the first degree, but is present at the scene. Both accesssories before the fact and principals in the second degree are liable as though they were the principal actor.
In the Commonwealth, a co-conspirator can withdraw from the crime before it is committed if he communicates the withdrawal to the other conspirators and does whatever he can to stop the commission of the crime, including alerting the police. If he does not do whatever he can to stop the crime, he will still be held liable for the actions taken by the non-withdrawing conspirators.
In this case, Tom will likely argue that he was not present at the scene and cannot be found guilty. His lack of presence does not matter because Tom was an accessory before the fact of the bank robbery. He encouraged Jerry and they worked out a plan together for how to accomplish the crime and get away with it. He was not present at the scene of the crime, but he can be found guilty of the crime just as if it were him who had committed the bank robbery and not Jerry.
Additionally, he will likely argue that he withdrew. This defense will also fail. Although he alerted Jerry that he was not going to engage in the robbery anymore, this withdrawal is insufficient for several reasons. One, he only withdrew from the completion of the robbery he was supposed to commit. He could not withdraw from the other robbery because he was not taking direct part it in. Two, it appears the crime was already underway when he alerted Jerry and therfore he did not withdraw early enough. Three, all he did was alert Jerry that he was not going to commit his own bank robbery. He did not attempt to do anything to stop Jerry from robbing the A&S Bank. Therefore, he did not effectively withdraw from the crime.
Because Tom was an accessory before the fact and did not effectively withdraw from the crime, there is a prima facie case against him for the robbery of the A&S Bank.
There is a prima facie case against Jerry for abduction; he will likely argue that he did not force the teller to leave the bank and thus there was insufficient action for abduction, and furthermore that he lacked the intent to abduct. These arguments should fail because he forced the bank teller to go somewhere she did not wish to go and remain there, and abduction is a general intent crime.
In Virginia, abduction is committed when the defendant has control over the victim and forces them into a place against their will. The Commonwealth unlike many jurisdictions does not require asorpation. Abduction is a general intent crime. It only matters that the defendant commit the crime with some awareness that the acts are taking place, regardless of whether or not he intends to commit the crime.
In this case, Jerry will likely argue that he did not force the teller to go anywhere other than out from behind the counter, and thus that there was no asorpation. She never left the place she was beforehand. This argument will fail because it it not necessary that she have been moved somewhere else. He forced her into a place she did not want to be.
He will also likely argue that he did not have the intent to abduct her. He merely wanted her to be unable to call for the police while he escaped. This argument should also fail because it does not matter what his intent was, so long as he was aware he had control and was forcing her to go to a specific place.
Because asorpation and specific intent are not required and Jerry did control the teller's movements and location knowingly, there is a prima facie case against him for abduction.