Criminal Law                                                     M.H. Hoffheimer  
Final Exam                                                         University of Mississippi  
                                                                             Law School  
                                                                             Spring 2000  
General instructions

                This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

                The exam consists of two parts. You will have three hours to complete the exam. Recommended times are indicated for each part. Answer all questions.

                Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

                "On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

                Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent, literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

                1.     Sleezo, a male, wanted to have sexual intercourse with a girl, Vickie, who lived in his apartment building. Sleezo was 17. He believed that Vickie was 13 because she had told him so a week earlier. He did not know that she had meanwhile turned 14. He asked his friend Nate, a former police officer, about statutory rape, and Nate told him that it was statutory rape to have sexual intercourse with a person under thirteen years old.

                Reassured that it would not be illegal to have sex with Vickie, whom he believed was not under thirteen, Sleezo asked her to come visit. After repeatedly refusing, one night Vickie agreed to visit Sleezo's apartment.

                Sleezo gave Vickie several beers (in violation of applicable laws). Vickie allowed Sleezo to kiss her and to remove her shirt. But when he tried to take off her pants she refused. As a result, Sleezo went into the other room and returned with a camera. He took a picture of her with her shirt off and announced, "Unless you give me sex, I am going to give this photograph of you in my apartment to your mother."

                After several minutes of argument, Vickie, who was exhausted and drunk, said, "All right, have it your way. I hope you are proud of your conquest because I am only doing this because you are forcing me to and I do not consent."

                Sleezo proceeded to engage in sexual intercourse with Vickie.

                The next day, Sleezo was arrested. Evaluate his criminal liability for forcible rape at common law.

                2.    Same facts. Discuss Sleezo's liability for sexual battery under Mississippi law.

                3.    What is the difference between an indictment and an arraignment?

                4.     Bruiser and Boxer got into a fist fight at the mall. Bruiser knocked Boxer to the floor and jumped up and down on his head. As a result Boxer was seriously injured and was rushed to the hospital. Bruiser was taken to the local jail.

                At the hospital emergency room, the admitting physician determined that emergency brain surgery was required and called Dr. Dolittle at home. In response Dolittle ran to his car and rushed to the hospital. On the way to the hospital Dr. Dolittle was driving at rates of speed in excess of the legal speed limit. At the intersection of Main and First streets, Dr. Dolittle sped through the intersection at a speed of 67 miles per hour. The speed limit was 35 miles per hour. Though Dr. Dolittle had a green light, Miles Slopperson was making a right turn on red into Dolittle's lane. Dolittle was unable to stop or avoid colliding with Slopperson.

                Dr. Dolittle was immediately killed. Dr. Dolittle's surviving spouse has submitted a claim as beneficiary on the decedent's life insurance policy with Life Insurance Corp. of America. The insurance company has denied coverage, pointing to a provision in the contract that states: "No insurance shall be paid in the event that the decedent was engaged in criminal or unlawful activity at the time of his or her death that in any way contributed to his or her death." The company argues that driving in excess of the speed limit was criminal and unlawful activity.

                Another lawyer is investigating the contract and public policy issues. You have been retained as a specialist in criminal law to evaluate Dr. Dolittle's possible criminal liability. Please identify any authority in the Model Penal Code that may exonerate the doctor from criminal liability so as to remove the condition preventing the surviving spouse's recovery.

                5.     You are having lunch with Fred McGavran, prominent partner of the law firm you have always wanted to work for. He asks, "What is the Pinkerton Doctrine? And do federal or Mississippi courts follow it?" Please answer fully.

                6.     Your client, Peter Gunn, comes to your office and tells you the following story. One night two years ago Gunn heard a banging noise coming from his backyard near his garbage can. He thought it might be raccoons and got a handgun and went to investigate. The yard was poorly lit, and he approached the garbage cans with his gun in hand, finger on the trigger.

                Instead of raccoons, Gunn surprised a person rummaging through his garbage cans. In the dim light, Gunn observed that the person was a large man wearing an old coat and a hat. He also saw that the man was holding a broken bottle in his hand. Gunn told the man to get away, but the man started walking towards Gunn, grunting and waving the broken bottle.

                Gunn tells you that to this day he is not sure exactly what happened. The man may have been drunk or deaf or not understood English. But at the time Gunn feared that the man was about to attack him with the bottle. Although Gunn could easily have run back into his house and locked the door, he did not do so. Instead, he shot the man once in the chest. The man then stumbled out into the street and died. Gunn never reported the event.

                In hindsight, Gunn is very sorry that he killed the man, and he is sure that he violated laws requiring that he report the incident. But he is most concerned about whether he committed a serious homicide offense. He refuses to tell you what jurisdiction the events occurred in because he is afraid you may report him. He asks you for the best general advice you can give him on these facts.

                Please explain whether he has available defenses of self-defense under the common law, Model Penal Code, and Mississippi law.


Instructions. Write coherent, literate essays in the Blue Book that respond to each of the following problems.

                A.     The Case of the Bad Driver (60 minutes)

                One afternoon, after finishing off a six pack of beer, Val asked his friend Dick to drive him to Wal-Mart. When they arrived at the Wal-Mart parking lot, Val got out his wallet and noticed he had no money. He asked Dick for $10.00 so he could get some chewing tobacco. When Dick refused, Val said, "Never mind, I won't need any money. Just wait here and leave the car running."

                Dick asked what Val was going to do, and Val grinned, "I am going to get a deep discount." Then Val laughed and winked.

                Dick replied, "Okay, I'll be waiting."

                Val went into the store. Several minutes later, Val came running out of the store. He was being chased by a security guard. Val ran to the car, got in, and shouted, "Get out of here fast!"

                Dick then drove quickly away from the store. He turned onto the main road and accelerated rapidly until he reached a speed of 85 miles per hour. Val reached into his pocket and triumphantly held up a pouch of Big Chew chewing tobacco. The purchase price and fair market value of the tobacco was $2.00. Val announced, "This is what all the fuss was about."

                Suddenly a dog darted out in the road. Dick slammed on his brakes. He avoided hitting the dog. Unfortunately, Val was not wearing his seatbelt and his head struck the dash board. Val suffered from an unusual medical condition known as eggshell skull syndrome. As a result of the impact, his head suddenly collapsed and he died instantly.

                All the events occurred in Mississippi, and Mississippi law provides:

                If any person shall feloniously take, steal and carry away any personal property of another under the value of Two Hundred Fifty Dollars ($250.00), he shall be guilty of petit larceny and, upon conviction, shall be punished by imprisonment in the county jail not exceeding six (6) months or by fine not exceeding One Thousand Dollars ($1000.00), or both.

                Miss. Code Ann. § 97-17-43(1). Mississippi law also provides:

                        (1)     Any person who shall wilfully and unlawfully take possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant's stated price therefor shall be guilty of the crime of shoplifting and, upon conviction, be punished as provided in this section.

                        5)     A person convicted of shoplifting merchandise for which the merchant's stated price is less than or equal to Two Hundred Fifty Dollars ($250.00) shall be punished as follows:

                                (a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than Seven Hundred Fifty Dollars ($750.00), or punished by imprisonment not to exceed thirty (30) days, or by both such fine and imprisonment.

                        (6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than One Thousand Dollars ($1000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment.

                Miss. Code Ann. 97-23-93.

                Dick has been arrested and charged with murder for the death of Val. You are representing Dick. He tells you that he has pleaded guilty on two prior occasions to shoplifting but had no part in Val's crime other than waiting in the car. Please identify crimes that Dick may have committed; explain to him the prosecutor's best theories for homicide offenses; and identify possible defenses.

                B.     The Case of the Dam Explosion (60 minutes)

                One Saturday night Don and Vic, two high school students, in violation of state and local laws, were drinking beer out on the shore of Model Lake in a Model State that follows the Model Penal Code. After several beers Don said, "It would be cool to blow up Model Dam." He was referring to a dam that created Model Lake.

                Vic replied, "Yeah, cool, let's do it. My old man runs a construction company and I can get some dynamite. Let's go for it."

                Don said, "Right. Let's do it tomorrow night at midnight."

                The next morning Don woke up feeling pretty stupid. He decided not to participate in any scheme to blow up the dam. He tried to call Vic but could not reach him.

                That night Vic blew up the dam while Don was sound asleep. Vic was killed in the explosion.

                The Model Penal Code provides:

                Arson.     A person is guilty of arson, a felony of the second degree, if he starts a fire or
                                   causes an explosion with the purpose of: (a) destroying a building or occupied
                                   structure of another.

                Definitions.     "Occupied structure" means any structure, vehicle or place adopted for
                                            overnight accommodation of persons, or for carrying on business therein,
                                            whether or not a person is actually present.

                Don has been indicted for conspiracy and for the murder of Vic. Please discuss his criminal liability under the Model Penal Code and consider possible defenses.
Criminal Law                                                        M.H. Hoffheimer  
Final Exam                                                            University of Mississippi  
Model Answers                                                      Law School  
                                                                                 Spring 2000 

                1.     Defendant is not guilty of forcible rape at common law because the element of force is not satisfied by threats to embarrass. Sleezo has not inflicted or threatened to inflict serious bodily harm to the victim or a third person.

                2.     Sleezo may be guilty of sexual battery under Mississippi law for two reasons: 1) he engaged in sexual penetration with a 14 or 15-year-old victim and is more than three years older than the victim; and 2) he arguably engaged in sexual penetration without the victim's consent.

                3.     An indictment is a formal criminal charge from a grand jury. An arraignment is a hearing at which the defendant hears the charge and has an opportunity to enter a plea.

                4.     Under the Model Penal Code Dolittle may not have committed crimes related to his speeding because of the justification defense of necessity, provided that he believed speeding was necessary to save the patient's life and that the harms created by speeding are less than those (risks to the patient's health) he sought to avoid.

                5.     Under the Pinkerton doctrine, all conspirators are liable for the acts and crimes committed by other conspirators in furtherance of the conspiracy. It is followed by federal courts but probably not in Mississippi.

                6.     If Gunn's own display of deadly force was justified so he is not the aggressor, he had no duty to retreat under the law of self defense followed by the majority of states and by Mississippi. Under the Model Penal Code and the minority approach he must have retreated if he could do so with complete safety unless his yard is considered part of his "dwelling."

Long essays:

                A.    Case of the Bad Driver

                    A good answer would have to identify and discuss the following issues:

                1.     The problem that accessory liability as aider and abettor requires purpose or specific intent to aid, not just knowledge, in most jurisdictions and probably Mississippi.

                2.     Knowledge plus helping provides evidence of such purpose.

                3.     Consequently, there is a possibility of felony murder resulting from aiding and abetting shoplifting, which is a felony as a result of the defendant's prior convictions.

                4.     But it this predicate felony is not inherently dangerous.

                5.     And it is uncertain whether Mississippi requires a felony to be inherently dangerous.

                6.     Possible misdemeanor manslaughter liability based on causing death while aiding and abetting misdemeanors, petit larceny and nonfelonious shoplifting.

                7.     Manslaughter based on culpable negligence defined as reckless and wanton and of such character as to show utter disregard for the safety of others (difficult to establish when driver subjecting self to similar risks).

                8.     Problem whether co-felon killings are within Mississippi felony murder or misdemeanor manslaughter rules.

                9.     Problem whether felony or misdemeanor are continuing for purposes of felony murder and misdemeanor manslaughter rules in absence of statutory "immediate flight" amendment.

                10.     Liability for operation of vehicle while under the influence and causing death possible but only with showing of negligence, and this raises the issue of whether this requires "culpable negligence."

                B.     Case of the Dam Explosion

                A good answer would have to identify and discuss the following issues:

                1.     There is no effective withdrawal from conspiracy because the Model Penal Code requires the defendant to thwart the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.

                2.     Defendant may be guilty on grounds of complicity for crimes associated with the attempted purposeful destruction of the dam because he may have had the mens rea (purpose of promoting or facilitating). . .

                3    . . . .and actus reus (soliciting another to commit or agreeing to aid the other in committing).

                4.     Arson probably was not committed or attempted because a dam was not a building or occupied structure.

                5.     Because defendant was not guilty of attempt arson, no presumption arises of extreme recklessness.

                6.     Nevertheless, encouraging another to use explosives may itself provide evidence of recklessness (awareness of risk of death and conscious disregard of risk. . .) under circumstances manifesting an extreme disregard for the value of human life. If this mens rea is established, then the defendant may be guilty of murder under the Model Penal Code when coupled with the voluntary acts (of soliciting and agreeing to aid).

                7.     Under the Model Penal Code the defendant cannot be convicted both of conspiracy to destroy the dam and for crimes associated with purposeful destruction of the dam, because a defendant cannot be convicted of more than one offense if one offense consists only of a conspiracy or other form of preparation to commit the other offense.