SAMPLE DISCUSSION SECTION OF TEDDY WASHBURNS GUN Discussion Snare Drum Bennett probably will not be convicted of robbery,

because she did not intend to steal Teddy Washburns gun at the time she picked it up off the ground. A robbery conviction requires proof beyond a reasonable doubt that the defendant took property belonging to another, from the property owners person or in his presence, with violence or intimidation, and with the intent to permanently deprive the rightful owner of the property. Criminal Code 10, 302. The prosecution can probably establish that Bennett took the property of another, in his presence, through intimidation. A taking requires absolute control over the property, even if only for a moment. Green v. State. Bennett had absolute control over the gun when she picked it up and placed it in her pocket, and she cannot dispute Washburns ownership because he purchased it and had a license to own it. The person or presence component of the statute is satisfied because Bennett picked the gun up in front of Washburn. Also, because Bennett pointed the gun at Washburn within seconds after picking it up, she likely continued her taking through intimidation. Even though she did not initially point the gun at anyone, she maintained absolute control by pointing it at Washburn when he approached her.

Bennett probably did not intend to steal the gun at the time she picked it up, however. The intent to steal must be formed at the time the property is taken. 302. Additionally, the intent must be to permanently deprive the owner of his property. Butts (holding no intent to steal when defendant had a good faith belief that he was entitled to the property). Intent also may be satisfied if the stealing occurs under circumstances suggesting the defendant is totally indifferent to the owners rights, such as putting the property beyond the owners ability to retrieve it. State v. Smith (finding intent to steal when defendants took station attendants knife while robbing a gas station and later threw the knife on the side of the road). If Bennett intended to hold the gun only temporarily, either to prevent a violent fight or as leverage for payment of Washburns debt, she did not have the requisite intent to permanently deprive Washburn of his property. Nothing Bennett said at the time of picking up the gun indicated that she intended to either keep it forever or put it beyond Washburns ability to retrieve it. Even after Bennett tossed the gun in the dumpster, she knew exactly where to retrieve it and may have intended to do so. On the other hand, Bennett knew she was not the rightful owner of the gun and also knew the dumpster was full. Throwing the gun into a large trash container suggests that Bennett was at least somewhat indifferent to Washburns ownership rights. By throwing the gun in a full dumpster, she had to know it was

unlikely that Washburn would recover it, because the dumpster would soon be, and was, emptied before Bennett or anyone else could retrieve the gun. Like the defendants in Smith who made recovery of property unlikely by tossing the knife on the side of the road, Bennetts decision to throw the gun in the dumpster suggests indifference to Washburns ownership rights. However, given Bennetts statements to Washburn at the moment she picked it up, her later actions in disposing of the gun do not manifest a total indifference to his ownership rights at the time of taking and probably do not establish an intent to steal. Conclusion Bennett probably will not be convicted of robbery, because the prosecution is unlikely to prove, beyond a reasonable doubt, that she had the intent to steal the gun when she picked it up and put it in her pocket.
Termini v. U.S. (9th Cir 1992) 963 F.2d 1264 reversed a court trial judgment for defendant. There, plaintiff was driving on a Forest Service road in a national forest, mistook a spur that forked off the road for the road itself, and plunged over a cliff. Noting that constructive knowledge is measured by an objective standard, the Court of Appeals had no doubt that a reasonable person standing in the shoes of the United States would have recognized the probability of an accident eventually occurring on the spur as a result of the fact that it leads directly and without warning to a cliffs edge. . . . Further the USFS [(United States Forestry Service)] has bladed and maintained the spur in such a way that a driver can easily mistake it for the main road and venture unwarily down it. . . . [T]he cliff is not visible from the beginning of the spur. (Id. at p. 1268.) The court found support for its conclusion in in the fact that the USFS failed to observe its own safety standards in its maintenance of the spur. . . . [T]he record clearly indicates that the USFS failed to observe established regulations governing its conduct. The United States principal expert at trial noted that the Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation and incorporated into the USFS handbook, provides that warning signs should be erected wherever hazards are not self-evident and wherever it is deemed necessary to warn
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18 traffic of existing or potentially hazardous conditions. A cliff at the end of a dirt road that is not visible from the beginning of the road would certainly seem to qualify for a warning sign under these guidelines. (Termini v. U.S., supra, 963 F.2d at pp. 1268-1269.)