PART IV. 
THEFT AND RELATED OFFENSES



 



§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 unauthorized 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 that 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.  When 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 that 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, duly identified
photographs or photocopies thereof, or printed register receipts 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. [L 1972,
c 9, pt of §1 and c 102, §2; am L 1974, c 39, §1; am L 1979, c 106, §5; gen ch
1993; am L 2001, c 87, §1; am L 2006, c 230, §37]



 



Cross References



 



  Civil liability for shoplifting, see §663A-2.



 



Case Notes



 



  There was material difference between this section and theft
indictment.  796 F.2d 261.



  Evidence of recent and exclusive possession of stolen
property if unexplained will sustain finding of guilt.  62 H. 83, 611 P.2d 595.



  Particular ownership of property in question not essential
element in proving crime.  65 H. 217, 649 P.2d 1138.



  Receiving stolen property is a continuing offense.  65 H.
261, 650 P.2d 1358.



  Section merely provides an alternate but not exclusive method
establishing sufficient foundation for admissibility of photographs of stolen
goods in shoplifting cases.  66 H. 97, 657 P.2d 1023.



  Paragraph (6)(a) is not unconstitutionally vague or overbroad. 
78 H. 127, 890 P.2d 1167.



  In order to convict a defendant of theft in the second
degree, in violation of §708-831(1)(b) and paragraph (8)(a), the prosecution
must prove beyond a reasonable doubt that the accused intended to steal
property or services valued in excess of $300.  90 H. 359, 978 P.2d 797.



  For purposes of paragraph (8)(a), "any store or retail
establishment" constitutes a circumstance attendant to the charged
conduct, and as such, the prosecution has the burden of proving that the defendant
acted with the requisite state of mind as to that element.  101 H. 389, 69 P.3d
517.



  Inasmuch as the "intent to defraud" component of
second degree theft by shoplifting, as defined by §708-800, 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 §708-800, 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.



  For purposes of the tolling provisions of §701-108(3)(a), the
fraudulent component of subsection (2) is the use of deception in the taking of
property.  111 H. 17, 137 P.3d 331.



  When the charged offense is theft by deception, as defined by
paragraph (2), and the prosecution is relying on the tolling provision of
§701-108(3)(a), relating to "any offense an element of which is
fraud", the prosecution must not only allege the timely date or dates of
commission of the offense in the indictment, but also the earliest date of the
"discovery of the offense by an aggrieved party or a person who has a
legal duty to represent the aggrieved party"; where indictment failed to
aver the date of the earliest discovery of the alleged offenses, trial court
order dismissing the indictment with prejudice affirmed.  111 H. 17, 137 P.3d
331.



  Phrase "whether from the property or its proceeds or
from [the person's] own property reserved in equivalent amount" in
paragraph (6)(a) limits application of paragraph to one of three situations
specified in paragraph.  86 H. 183 (App.), 948 P.2d 604.



  The law does not permit the conviction of a defendant of two
counts of theft for, first, having obtained or taken an item of property and,
second, for having disposed of or sold the same item of property; the taking
and/or selling of one item of property is only one theft.  93 H. 22 (App.), 995
P.2d 323.



  Where store security manager's testimony regarding the
price/value of items, based on a universal price code with the price on the
item that the manager verified through the store register system, was
inadmissible hearsay, State failed to introduce substantial evidence of the
value of the items necessary to support the charged offense of second or third
degree theft; however, evidence was sufficient to support conviction of lesser
included offense of fourth degree theft.  95 H. 169 (App.), 19 P.3d 752.



  Trial court erred harmfully in excluding, pursuant to HRE
rules 401 and 403, defendant's exhibit with respect to defendant's
theft-by-deception charges under subsection (2), on the grounds that
defendant's analysis of the tax laws was irrelevant and that evidence of
defendant's legal theories would confuse the jury, where evidence that defendant,
based on defendant's understanding of the tax laws, had a good faith belief
that defendant did not owe taxes on defendant's wages was relevant to whether
defendant acted by deception and whether defendant had a defense under
§708-834(1).  119 H. 60 (App.), 193 P.3d 1260.