Report Title:
Theft; State of Mind
Description:
Includes knowledge and reckless disregard as elements in the offenses of theft with regard to the value of the property or services taken. (SD1)
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THE SENATE |
S.B. NO. |
1466 |
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TWENTY-FIRST LEGISLATURE, 2001 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THEFT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that in theft cases, the statute requires that the accused intends to deprive another of property or services. However, the legislature finds that while this state of mind applies to the act of depriving another, this intent need not apply to the value of the property or services stolen. The legislature finds that with respect to the value of the property or services, it is sufficient that the accused was aware of the value or consciously disregarded a substantial and unjustifiable risk that the value of the property or services was of a certain value. This is because when someone steals, the person does not necessarily know the value of the property or services. For example, when one steals a purse or a wallet, the person neither knows the value of the purse or wallet nor the value of its contents. Similarly, when one steals a valuable piece of jewelry, the person does not know the specific value of the jewelry. It is unreasonable to have the person's level of offense be determined by what the person say the amount the person intended to steal although the person had the requisite intent to deprive another of property or services and was aware of the value or consciously disregarded a substantial and unjustifiable risk that the value of the property or services was of a certain amount.
The legislature finds that the state of mind of "intentional" in the definition of theft under section 708-830, Hawaii Revised Statutes, refers to the intent "to deprive another of property or services." The legislature further finds that with respect to the value of the stolen item, it will be sufficient that the defendant acted knowingly, i.e., aware of the value of the item or services, or recklessly, i.e., consciously disregarded a substantial and unjustifiable risk that the value of the property or services was of a certain value. The legislature also intends that the "knowingly" and "recklessly" states of mind apply to other attendant circumstances of theft as well.
SECTION 2. Section 708-830, Hawaii Revised Statutes, is amended to read as follows:
"§708-830 Theft. A person commits theft if the person does any of the following:
(1) Obtains or exerts unauthorized control over property. A person obtains, or exerts control over, the property of another with intent to deprive the other of the property.
(2) Property obtained or control exerted through deception. A person obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property.
(3) Appropriation of property. A person obtains, or exerts control over, the property of another which the person knows to have been lost or mislaid, or to have been delivered under a mistake as to the nature or amount of the property, the identity of the recipient, or other facts, and, with the intent to deprive the owner of the property, the person fails to take reasonable measures to discover and notify the owner.
(4) Obtaining services by deception. A person intentionally obtains services, known by the person to be available only for compensation, by deception, false token, or other means to avoid payment for the services. Where compensation for services is ordinarily paid immediately upon the rendering of them, absconding without payment or offer to pay is prima facie evidence that the services were obtained by deception.
(5) Diversion of services. Having control over the disposition of services of another to which a person is not entitled, the person intentionally diverts those services to the person's own benefit or to the benefit of a person not entitled thereto.
(6) Failure to make required disposition of funds.
(a) A person intentionally obtains property from anyone upon an agreement, or subject to a known legal obligation, to make specified payment or other disposition, whether from the property or its proceeds or from the person's own property reserved in equivalent amount, and deals with the property as the person's own and fails to make the required payment or disposition. It does not matter that it is impossible to identify particular property as belonging to the victim at the time of the defendant's failure to make the required payment or disposition. A person's status as an officer or employee of the government or a financial institution is prima facie evidence that the person knows the person's legal obligations with respect to making payments and other dispositions. If the officer or employee fails to pay or account upon lawful demand, or if an audit reveals a falsification of accounts, it shall be prima facie evidence that the officer or employee has intentionally dealt with the property as the officer's or employee's own.
(b) A person obtains personal services from an employee upon agreement or subject to a known legal obligation to make a payment or other disposition of funds to a third person on account of the employment, and the person intentionally fails to make the payment or disposition at the proper time.
(7) Receiving stolen property. A person intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen, with intent to deprive the owner of the property. It is prima facie evidence that a person knows the property to have been stolen if, being a dealer in property of the sort received, the person acquires the property for a consideration which the person knows is far below its reasonable value.
(8) Shoplifting.
(a) A person conceals or takes possession of the goods or merchandise of any store or retail establishment, with intent to defraud.
(b) A person alters the price tag or other price marking on goods or merchandise of any store or retail establishment, with intent to defraud.
(c) A person transfers the goods or merchandise of any store or retail establishment from one container to another, with intent to defraud.
The unaltered price or name tag or other marking on goods or merchandise, or duly identified photographs thereof, shall be prima facie evidence of value and ownership of such goods or merchandise. Photographs of the goods or merchandise involved, duly identified in writing by the arresting police officer as accurately representing such goods or merchandise, shall be deemed competent evidence of the goods or merchandise involved and shall be admissible in any proceedings, hearings, and trials for shoplifting, to the same extent as the goods or merchandise themselves.
(9) With respect to theft and shoplifting, the reckless state of mind shall apply to all attendant circumstances."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.