§708-800 - Definitions of terms in this chapter.
PART I.
GENERAL PROVISIONS RELATING TO OFFENSES AGAINST
PROPERTY
RIGHTS
§708-800 Definitions of terms in this
chapter. In this chapter, unless a different meaning plainly is required,
the following definitions apply.
"Agricultural equipment, supplies, or
products" mean any agricultural equipment, supplies, or commercial
agricultural products or commodities raised, grown, or maintained by a
commercial agricultural enterprise or research agency while owned by the
enterprise or agency.
"Apartment building" means any
structure containing one or more dwelling units which is not a hotel or a
single-family residence.
"Aquacultural equipment, supplies, or
products" means any equipment, supplies, products, or commodities used,
raised, grown, or maintained for the production of fish, shellfish, mollusk,
crustacean, algae, or other aquatic plant or animal by an aquaculture
enterprise or research agency while owned by the enterprise or agency.
"Building" includes any structure,
and the term also includes any vehicle, railway car, aircraft, or watercraft
used for lodging of persons therein; each unit of a building consisting of two
or more units separately secured or occupied is a separate building.
"Cable operator" means any person who
provides cable television service by means of a set of closed transmission
paths and associated signal generation, reception, and control equipment
designed to deliver such programming to multiple subscribers.
"Cable television service" means
one-way transmission of programming provided by, or generally considered
comparable to programming provided by, a television broadcast station or other
information made available by a cable operator to all subscribers generally.
"Cable television service device"
means any mechanical or electronic instrument, apparatus, equipment or device
which can be used to obtain cable television services without payment of
applicable charges therefor. A "cable television service device"
does not include any instrument, apparatus, equipment, device, facility or any
component thereof furnished by a cable operator in the ordinary course of its
business.
"Cardholder" means the person or
organization named on the face of a credit card to whom or for whose benefit
the credit card is issued by an issuer.
"Confidential personal information"
means information in which an individual has a significant privacy interest,
including but not limited to a driver's license number, a social security
number, an identifying number of a depository account, a bank account number, a
password or other information that is used for accessing information, or any
other name, number, or code that is used, alone or in conjunction with other
information, to confirm the identity of a person.
"Control over the property" means the
exercise of dominion over the property and includes, but is not limited to,
taking, carrying away, or possessing the property, or selling, conveying, or
transferring title to or an interest in the property.
"Credit card" means any instrument or
device, whether known as a credit card, credit plate, debit card, electronic
benefits transfer card, or by any other name, issued with or without fee by an
issuer for the use of the cardholder in obtaining money, goods, services, or
anything else of value.
"Dealer" means a person in the
business of buying and selling goods.
"Deception" occurs when a person
knowingly:
(1) Creates or confirms another's impression which is
false and which the defendant does not believe to be true;
(2) Fails to correct a false impression which the
person previously has created or confirmed;
(3) Prevents another from acquiring information
pertinent to the disposition of the property involved;
(4) Sells or otherwise transfers or encumbers
property, failing to disclose a lien, adverse claim, or other legal impediment
to the enjoyment of the property, whether that impediment is or is not valid,
or is or is not a matter of official record; or
(5) Promises performance which the person does not
intend to perform or knows will not be performed, but a person's intention not
to perform a promise shall not be inferred from the fact alone that the person
did not subsequently perform the promise.
The term "deception" does not,
however, include falsity as to matters having no pecuniary significance, or puffing
by statements unlikely to deceive ordinary persons in the group addressed.
"Puffing" means an exaggerated commendation of wares or services in
communications addressed to the public or to a class or group.
"Deprive" means:
(1) To withhold property or cause it to be withheld
from a person permanently or for so extended a period or under such
circumstance that a significant portion of its economic value, or of the use
and benefit thereof, is lost to the person; or
(2) To dispose of the property so as to make it
unlikely that the owner will recover it; or
(3) To retain the property with intent to restore it
to the owner only if the owner purchases or leases it back, or pays a reward or
other compensation for its return; or
(4) To sell, give, pledge, or otherwise transfer any
interest in the property; or
(5) To subject the property to the claim of a person
other than the owner.
"Distributes" means to sell,
transfer, give or deliver to another, or to leave, barter, or exchange with
another, or to offer or agree to do the same.
"Dwelling" means a building which is
used or usually used by a person for lodging.
"Encoding" means making, changing,
altering, erasing, adding, creating, or manipulating a credit card number
electronically, or magnetically, or both.
"Enter or remain unlawfully." A
person "enters or remains unlawfully" in or upon premises when the
person is not licensed, invited, or otherwise privileged to do so. A person
who, regardless of the person's intent, enters or remains in or upon premises
which are at the time open to the public does so with license and privilege
unless the person defies a lawful order not to enter or remain, personally
communicated to the person by the owner of the premises or some other
authorized person. A license or privilege to enter or remain in a building
which is only partly open to the public is not a license or privilege to enter
or remain in that part of the building which is not open to the public. A
person who enters or remains upon unimproved and apparently unused land, which
is neither fenced nor otherwise enclosed in a manner designed to exclude
intruders, does so with license and privilege unless notice against trespass is
personally communicated to the person by the owner of the land or some other
authorized person, or unless notice is given by posting in a conspicuous
manner.
"Expired credit card" means a credit
card which is no longer valid because the term shown on the credit card has
elapsed.
"Financial institution" means a bank,
trust company, insurance company, credit union, safety deposit company, savings
and loan association, investment trust, or other organization held out to the
public as a place of deposit of funds or medium of savings or collective
investment.
"Government" means the United States, or any state, county, municipality, or other political unit within territory
belonging to the United States, or any department, agency, or subdivision of
any of the foregoing, or any corporation or other association carrying out the
functions of government, or any corporation or agency formed pursuant to
interstate compact or international treaty. As used in this definition
"state" includes any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
"Hotel" means a structure in which a
majority of the tenants are roomers or boarders.
"Intent to defraud" means:
(1) An intent to use deception to injure another's
interest which has value; or
(2) Knowledge by the defendant that the defendant is
facilitating an injury to another's interest which has value.
"Issuer" means the business
organization or financial institution which issues a credit card or its agent.
"Master key" means a key which will
operate two or more locks to different apartments, offices, hotel rooms, or
motel rooms in a common physical location.
"Obtain" means:
(1) When used in relation to property, to bring about
a transfer of possession or other interest, whether to the obtainer or to
another; and
(2) When used in relation to services, to secure the
performance of services.
"Owner" means a person, other than
the defendant, who has possession of or any other interest in, the property
involved, even though that possession or interest is unlawful; however, a
secured party is not an owner in relation to a defendant who is a debtor with
respect to property in which the secured party has only a security interest.
"Personal information" means
information associated with an actual person or a fictitious person that is a
name, an address, a telephone number, an electronic mail address, a driver's
license number, a social security number, an employer, a place of employment,
information related to employment, an employee identification number, a
mother's maiden name, an identifying number of a depository account, a bank
account number, a password used for accessing information, or any other name,
number, or code that is used, alone or in conjunction with other information,
to confirm the identity of an actual or a fictitious person.
"Premises" includes any building and
any real property.
"Property" means any money, personal
property, real property, thing in action, evidence of debt or contract, or
article of value of any kind. Commodities of a public utility nature such as
gas, electricity, steam, and water constitute property, but the supplying of
such a commodity to premises from an outside source by means of wires, pipes,
conduits, or other equipment shall be deemed a rendition of a service rather
than a sale or delivery of property.
"Property of another" means property
which any person, other than the defendant, has possession of or any other
interest in, even though that possession or interest is unlawful; however, a
security interest is not an interest in property, even if title is in the
secured party pursuant to the security agreement.
"Receives" or "receiving"
includes but is not limited to acquiring possession, control, or title, and
taking a security interest in the property.
"Revoked credit card" means a credit
card which is no longer valid because permission to use the credit card has
been suspended or terminated by the issuer.
"Services" includes but is not
limited to labor, professional services, transportation, telephone or other
public services, accommodation in hotels, restaurants or elsewhere, admission
to exhibitions, and the supplying of equipment for use.
"Stolen" means obtained by theft or
robbery.
"Telecommunication service" means the
offering of transmission between or among points specified by a user, of
information of the user's choosing, including voice, data, image, graphics, and
video without change in the form or content of the information, as sent and
received, by means of electromagnetic transmission, or other similarly capable
means of transmission, with or without benefit of any closed transmission
medium, and does not include cable service as defined in section 440G-3.
"Telecommunication service device"
means any mechanical or electronic instrument, apparatus, equipment, or device
which can be used to obtain telecommunication services without payment of
applicable charges therefor and shall include any such device that is capable
of, or has been altered, modified, programmed, or reprogrammed alone or in
conjunction with another device or other equipment so as to be capable of
acquiring or facilitating the acquisition of any electronic serial number,
mobile identification number, personal identification number, or any
telecommunication service without payment of the applicable charges therefor.
A "telecommunication service device" includes telecommunication
devices altered to obtain service without the consent of the telecommunication
service provider, tumbler phones, counterfeit or clone microchips, scanning
receivers of wireless telecommunication service of a telecommunication service
provider, and other instruments capable of disguising their identity or
location or of gaining access to a communications system operated by a
telecommunication service provider. A "telecommunication service
device" does not include any telephone or telegraph instrument, equipment,
device, facility, or any component thereof furnished by a provider of
telecommunication services in the ordinary course of its business nor any
device operated by a law enforcement agency in the normal course of its
activities.
"Telecommunication service provider"
means any person that owns, operates, manages, or controls any facility used to
furnish telecommunication services for profit to the public, or to classes of
users as to be effectively available to the public, engaged in the provision of
services, such as voice, data, image, graphics, and video services, that make
use of all or part of their transmission facilities, switches, broadcast
equipment, signalling, or control devices.
"Unauthorized control over property"
means control over property of another which is not authorized by the owner.
"Widely dangerous means" includes
explosion, flood, avalanche, collapse of building, poison gas, radioactive
material, or any other material, substance, force, or means capable of causing
potential widespread injury or damage. [L 1972, c 9, pt of §1; am L 1973, c
136, §7(a); am L 1974, c 55, §2 and c 200, §1; am L 1978, c 221, §1; am L 1979,
c 106, §4; am L 1986, c 314, §60; am L 1987, c 268, §1; am L 1992, c 54, §1; am
L 1993, c 218, §2 and c 287, §1; gen ch 1993; am L 1996, c 222, §2; am L 1997,
c 198, §3; am l 2002, c 45, §1 and c 224, §4; am L 2005, c 182, §2; am L 2006,
c 139, §3, c 156, §2, and c 181, §2]
COMMENTARY ON §708-800
Section 708-800 provides definitions of terms used repeatedly
throughout this chapter; it does not specify any penal offense.
As with other statutory definitions provided by this Code, a
discussion of the definitions when needed or appropriate is found in the
commentary on the sections employing the terms defined.
SUPPLEMENTAL COMMENTARY ON §708-800
Act 136, Session Laws 1973, modified the definition of
"building" and Act 200, Session Laws 1974, further clarified it. As
amended in 1974, "building" includes any structure, and the term also
includes any vehicle, railway car, aircraft, or watercraft used for lodging of
persons therein.
In explaining the change in 1974, the Senate Judiciary
Committee in Standing Committee Report No. 1065-74 stated that it was clear the
phrase, "used for lodging of persons therein" was added by Act 136,
Session Laws 1973, "to modify the terms 'vehicle, railway car, aircraft,
or watercraft' and not the word 'structure.' However, it is possible to
interpret the present definition as including 'structures' only when 'used for
lodging of persons therein.' Such an interpretation means that stores,
warehouses, and other commercial buildings not primarily used for the lodging
of persons will not be included in the definition of 'building.' As a further
result, persons breaking into such places cannot be charged with burglary
because the commission of that crime involves breaking into a 'building' as
defined in §708-800(1)."
Act 54, Session Laws 1992, amended this section by adding the
definition of "aquaculture product" for the purpose of protecting
Hawaii's aquaculture industry by deterring theft from aquaculture farms, which
could cause devastating losses to research facilities and businesses. House
Standing Committee Report No. 1184-92, Senate Standing Committee Report No.
1671.
Act 218, Session Laws 1993, amended this section by adding a
definition for "agricultural equipment, supplies, or products". The
legislature sought to prevent the theft of agricultural equipment, supplies, or
products by subjecting violators to a class C felony in §708-831. Conference
Committee Report No. 52.
Act 287, Session Laws 1993, amended this section by adding a
definition for "encoding". The legislature intended to provide
criminal sanctions for the fraudulent encoding of a credit card in
§708-8100.5. Conference Committee Report No. 102.
Act 222, Session Laws 1996, amended this section by adding
the definition of "telecommunication service provider" and by
amending the definitions of "telecommunication service" and
"telecommunication service device". The Act was intended to expand
the scope of the law establishing the offense of telecommunication service
fraud, to include fraud involving cellular telephone devices and services. The
legislature recognized that cellular telephone fraud had become a major problem
in the country, increasing consumer costs, and contributing to increased
drug-related criminal activity, and that current state law did not provide
comprehensive protection for telecommunication services theft. House Standing
Committee Report No. 1521-96, Senate Standing Committee Report No. 2017.
Act 198, Session Laws 1997, expanded the definition of
"credit card" to include electronic benefit transfer cards and debit
cards, in order to criminalize the fraudulent use of debit and electronic
benefit transfer cards under part X of chapter 708. Senate Standing Committee
Report No. 1547.
Act 45, Session Laws 2002, amended the definition of
"hotel" to clarify that the definition in relation to offenses
against property rights means a structure in which a majority of the tenants
are roomers or boarders. The current definition required all tenants to be
roomers or boarders. However, hotel structures will rarely be totally occupied
by roomers or boarders at the exclusion of commercial tenants such as shops and
restaurants. The amended definition would more accurately reflect the current
state of hotel operations. House Standing Committee Report No. 176-02, Senate
Standing Committee Report No. 2461.
Act 224, Session Laws 2002, amended this section by adding
the definition of "personal information". The legislature found that
misappropriation of personal identification information was on the rise. Act
224 addresses the criminal conduct associated with intentional identity theft.
Conference Committee Report No. 25-02.
Act 182, Session Laws 2005, amended the definition of
"agricultural equipment, supplies, or products" by adding
agricultural "commodities" in the definition. Act 182 addressed the
problem of agricultural theft in Hawaii by amending various provisions of Hawaii's theft laws relating to agricultural livestock and products. Conference Committee
Report No. 77, Senate Standing Committee Report No. 1359.
Act 139, Session Laws 2006, amended this section by adding
the definition of "confidential personal information". Act 139 made
it a crime to intentionally or knowingly possess the confidential information
of another without that person's authorization. Hawaii law enforcement has
found it difficult to curb the rise in identity theft-related crimes when
identity thieves in possession of personal information who have not yet caused
a monetary loss to the victim cannot be prosecuted for crimes other than petty
misdemeanor thefts. The legislature found that amending the law to make
intentionally or knowingly possessing the confidential information of another
without authorization a class C felony would help to deter identity theft
crimes. Senate Standing Committee Report No. 2636.
Act 156, Session Laws 2006, amended this section by adding
the definition of "aquacultural equipment, supplies, or products".
Act 156 established intentionally or knowingly damaging the agricultural or
aquacultural equipment, supplies, or products of another as an offense of
criminal property damage. The legislature found that increasing the penalties
for criminal property damage offenses was consistent with the great impact
these crimes have on Hawaii's agricultural and aquacultural industries and the
ability of individual farmers and ranchers to earn a living. Senate Standing
Committee Report Nos. 3021 and 3310.
Act 181, Session Laws 2006, amended the definition of
"widely dangerous means" by excluding "fire" from the
definition. Act 181 included arson as a new class of property damage and
defined four degrees of the offense of arson with appropriate sanctions. The
legislature found that fires that are intentionally set cause extensive damage
to public and private properties and threaten lives. Conference Committee
Report No. 50-06.
Case Notes
Defendant did not intend to permanently deprive car
dealership of vehicle where evidence indicated defendant wanted to have new
vehicle to drive for weekend then return it when defendant's deception was
discovered. 86 H. 207, 948 P.2d 1048.
Where defendant returned new vehicle after 72 hour possession
and prosecution was unable to prove any economic loss to car dealership, no
intent to deprive dealership of significant portion of vehicle's economic
value, use, or benefit. 86 H. 207, 948 P.2d 1048.
Inasmuch as the "intent to defraud" component of
second degree theft by shoplifting, as defined by this section, prescribes two
alternative means of establishing the state of mind requisite to the offense of
second degree theft by shoplifting, trial court plainly erred in failing to
instruct jury as to the alternative states of mind requisite to the charged
offense. 101 H. 389, 69 P.3d 517.
The alternative states of mind potentially requisite to the
charged offense of second degree theft by shoplifting, as prescribed by the
definition of "intent to defraud" set forth in this section, does not
implicate a defendant's constitutional right to a unanimous jury verdict, as
guaranteed by article I, §§5 and 14 of the Hawaii constitution; a proper
elements instruction, which sets forth the alternative states of mind
prescribed by the "intent to defraud" component of second degree
theft by shoplifting, does not violate defendant's constitutional right. 101
H. 389, 69 P.3d 517.
Shambles and temporary absence not abandonment sufficient to
deprive structure of use as a dwelling; a structure, although unoccupied does
not become abandoned unless it is "wholly forsaken or deserted;"
unoccupied house does not cease to be a "dwelling" because of the
temporary absence of the owner. 2 H. App. 581, 637 P.2d 782.
Nightclub owner's bedroom and bath in separately secured area
of club constituted a "building" within the meaning of this section.
9 H. App. 307, 837 P.2d 1308.
Once erected, a tent is a structure, and thus, a building. 9
H. App. 368, 842 P.2d 267.
In prosecution for first degree burglary under §708-810,
prosecution satisfied its burden of proving that storage shed was in a garage
that was part of a building that was a dwelling. 86 H. 143 (App.), 948 P.2d
564.