§708-833  Theft in the fourth degree. 
(1)  A person commits the offense of theft in the fourth degree if the person
commits theft of property or services of any value not in excess of $100.



(2)  Theft in the fourth degree is a petty
misdemeanor. [L 1972, c 9, pt of §1; am L 1986, c 314, §66]



 



COMMENTARY ON §§708-830 TO 833



 



  The Code follows the Model Penal Code and other recent
revisions in consolidating under a single offense the traditionally distinct
common-law crimes of larceny, embezzlement, obtaining by false pretenses,
obtaining by trick or device, fraudulent conversion, cheating, extortion, and
blackmail.  Such consolidation is desirable both from the standpoint of
conceptual simplicity and to eliminate pointless procedural obstacles.[1]  Nonetheless,
the numerous and diverse circumstances involved in individual theft offenses
require that the general offense be differentiated by degrees and that the
severity of the penalties authorized be correlated with the aggravating
circumstances presented by the form and object of the offense.  Accordingly,
§708-830 provides that a person commits theft if the person engages in any of
the modes of conduct specified therein, and §§708-831 through 833 divide theft
into three degrees differentiated by the mode of the conduct involved and the
object of the theft.



  It should be noted that in all theft offenses, the requisite
mental state is intent to deprive the owner of the value of property or
services.  Although in most instances the actor will intend to appropriate the
value of property or services for the actor's own benefit, that is not the
gravamen of the offense.



  Obtaining or exerting unauthorized control.  Section
708-830(1) is concerned with obtaining or exerting control over the property of
another with intent to deprive the other of the property.  A wide range of
behavior is included within this definition, from stealthily and covertly
treating the property of another as one's own to blatantly snatching it from
the person of the owner.  This definition contains elements of the traditional
offenses of larceny, embezzlement, and fraudulent conversion.  And, unlike the
case with traditional embezzlement statutes, the relation in which the actor
stands to the victim is immaterial.  Likewise, there are no limitations with
regard to the trust involved in fraudulent conversion: the coverage includes
property held by the actor in any capacity.  All kinds of property, both real
and personal, movable and immovable, are included within this definition.[2] 
The definition of the phrase "property of another" has previously
been discussed in relation to the criminal property damage offenses of Part
III, and is intended to cover situations in which the actor has an interest in
the property involved.[3]  "Obtain" is broadly defined to mean, when
used in relation to property, "to bring about a transfer of possession or
other interest, whether to the obtainer or to another.[4]  "Control over
the property" is also broadly defined and means any exercise of dominion,
including taking, possession, and sale.[5]



  Deception.  Section 708-830(2) covers the same kind of
deprivation to a property owner as that covered in subsection (1), except that
the deprivation here proscribed is accomplished by deception.  Indeed, the
obtaining or exerting of control may be accomplished with the owner's specific
authorization.  "Deception" includes any false impression for which
the actor is responsible by either act or omission: a detailed definition of
the term is provided by §708-800.  With regard to contractual obligations, a
present intent not to perform would constitute deception, although mere breach
at some future time, without such present intent, would not.  A specific
exception is provided in the definition for matters having no pecuniary
significance and for advertising claims unlikely to deceive ordinary persons.



  Extortion.  Section 708-830(3) covers theft by threat, i.e.,
extortion.  "Extortion" is defined in §708-800 in some detail.  This
mode of theft includes some aspects of separate offenses formerly designated as
extortion and blackmail.  Under the Code, the threat may be either express or
implied.  The threat need not be to do something itself unlawful: it is the
context which renders the conduct unlawful.  However, not all threats made to
obtain property are included.  As the commentary to the Model Penal Code
observes:



A law which
included all threats made for the purpose of obtaining property would embrace a
large portion of accepted economic bargaining.  Examples of menaces which ought
not to be included are: to breach a contract, to persuade others to breach
their contracts, to infringe a patent or trademark, to change a will, to refuse
to do business or to cease doing business, to sue, to vote stock one way or
another.  For the most part these are situations in which a private property
economy must tolerate considerable 'economic coercion' as an incident to free
bargaining.  Civil remedies are usually adequate to deal with the abuse of the
privileges.  Some coercive economic bargaining may call for legal restriction
by anti-trust laws, labor legislation and the like; but theft penalties would
be quite inappropriate.[6]



  Appropriation.  Section 708-830(4) covers property over which
the actor has gained control either by chance or through mistake on the part of
some other person.  The actor must know the property to be lost, mislaid, or
mistakenly delivered.  It is essential here that there be some control over,
and not merely knowledge of the existence or location of, the property
concerned.  The requisite state of mind, intent, requires that the failure to
take measures to restore the property be intentional, so that a negligent or
even reckless failure in this regard would not suffice to establish liability. 
What measures are considered sufficient (i.e., reasonable) toward restoring the
property are to be established from the viewpoint of a reasonable person in the
actor's circumstances.  It should be noted that, unlike the common-law offense
of larceny, the actor's state of mind at the moment of finding the property is
not conclusive to a determination of theft under subsection (4).  The actor
may, at the time of finding, intend to restore the property to its owner,
subsequently decide not to, continue to exert control over the property, and
thus be guilty of theft.



  Obtaining services by deception or extortion.  Section
708-830(5) covers theft of services, rather than property, under circumstances
similar to those specified in §708-830(1) to (3).  To begin with, the actor must
know that the services are available only for compensation rather than
gratuitously.  In order to preclude spurious defenses based on a claim of
intent to pay for services at a later date, a special rule of prima facie
evidence is provided where payment is usually made upon receipt of service. 
Where compensation for services is ordinarily paid immediately upon the
rendering of them, such as in the case of hotels, restaurants, and the like,
absconding without payment or offer to pay is prima facie evidence that the
services were obtained by deception, i.e., obtained with intent not to pay for
them.  The evidentiary rule is not difficult to overcome where the accused has
any evidence to the contrary, but merely allows the prosecutor to get the
prosecutor's case to the jury on an issue where direct proof is difficult, if
not impossible, to obtain.



  Diversion of services.  Subsection (6) covers those cases in
which the actor has authorized control over the services of another to which
the actor is not entitled, and the actor diverts those services to a person not
entitled thereto.  This subsection would, for instance, cover the diversion of
utility services by an employee of a utility company.



  Failure to make required disposition of funds.  Section
708-830(7)(a) makes it theft to obtain property from anyone upon an agreement
or legal obligation to make a specified payment or disposition and then to deal
with the property, its proceeds, or a reserve fund from which payment was to be
made, as the actor's own and to fail to make the required disposition.  It is
not necessary, under the Code, to identify the particular property, proceeds,
or funds which the accused has appropriated and which the accused has in the
accused's possession:  this avoids the common-law necessity of proof of the
victim's continued constructive possession.  Courts have had difficulty in
regarding this type of wrongful appropriation as theft because it arises out of
a breach of a civil contractual obligation.  The evidentiary rule, provided in
this subsection, that financial institutions and government officers and
employees are, prima facie, aware of their legal obligations to make certain
payments and distributions is a statutory crystallization of common
experience.  Concomitantly, failure to pay or account upon lawful demand, or
falsification of accounts, is, prima facie, evidence that the officer or
employee has intentionally dealt with the property as the officer's or the
employee's own.  The burden of proving guilt is not affected; the evidentiary
rule merely allows the prosecution to take the point to the jury.



  Subsection (7)(b) is aimed at the same failure to make an
agreed upon or legally required disposition of funds following receipt of
personal services from an employee.



  Receiving stolen property.  Subsection (8) is based upon the
premise that if the prosecution can demonstrate the requisite intent to deprive
the owner of the owner's property, it makes little difference whether the
defendant engaged in theft directly (e.g., obtained the property directly from
the owner) or did so indirectly through the mediation of another person.  It
should be sufficient to constitute a form of theft that the actor knows that
the property was stolen when the actor has control over it and that the actor
intends to deprive the owner of its value.  The actor may accomplish the
actor's intent through receipt, retention, or disposal, all of which are acts
consistent with an intent to deprive.  If the actor is a dealer in the type of
property received, the fact that the actor acquired the property for grossly
inadequate consideration is made prima facie evidence that the actor knew of
the previous theft.



  Degrees of theft.  The Code is in accord with the Model Penal
Code and other recent revisions in grading the theft offenses according to the
mode of the theft, the object involved, and the value of the property or
services stolen.[7]  The gradation is based on the theory that theft from the
person, or of a firearm, or of property or services of relatively high value
presents greater social harm and that the actor in such cases may require
greater rehabilitation efforts.  Moreover, the ordinary person, insofar as
value of the property or services is concerned, "feels a lesser repugnance
to taking small amounts than large amounts."[8]  Accordingly, the general
offense has been divided into three degrees, according to the aggravations of
the circumstances of the theft.  With respect to value, $200 constitutes the
lower limit for class C felony liability, $50 for misdemeanor liability, and
any value suffices for petty misdemeanor liability.



  Previous Hawaii law exhibited the profusion of theft statutes
which is symptomatic of statutory enactment of the piecemeal common-law
development.  The consolidated theft offenses, presented by these sections, are
to be preferred to the scattered coverage of the prior law.  The type of
conduct dealt with under the consolidated theft offenses was found in previous
chapters dealing with taxes,[9] banks,[10] insurance,[11] embezzlement,[12]
extortion,[13] fraudulent conveyances,[14] gross cheat,[15] larceny,[16] and
receiving stolen goods.[17]  An examination of those chapters, each containing
numerous sections, will indicate that within certain chapters the sections were
not internally consistent and that as between the chapters the provisions were
not comparatively consistent.



  In addition to eliminating the sheer bulk and redundancy of
statutory provisions dealing with various forms of theft, the Code attempts to
bring together for related treatment similar forms of conduct and to eliminate
areas of possible inconsistency.



 



SUPPLEMENTAL COMMENTARY ON §§708-830 TO 833



 



  Act 39, Session Laws 1974, amended §708-830 by adding
paragraph (9).  The new paragraph (9) covers a wide variety of circumstances
involved in the practice of shoplifting.  The Legislature was concerned with
the difficulties involved in the apprehension of shoplifters.  House Standing
Committee Report No. 651-74, Senate Standing Committee Report No. 848-74.



  Act 106, Session Laws 1979, amended §§708-830, 831, and 832
as part of a consolidation of laws pertaining to extortion.



  Act 14, Session Laws 1993, amended §708-830.5 by providing
that theft in the first degree includes theft of services in which the value
exceeds $20,000.  The legislature found that this amendment was necessary to
restore legislative intent and provide consistency within the penal code, in
particular with §708-831, as amended by Act 314, Session Laws 1986.  House
Standing Committee Report No. 186, Senate Standing Committee Report No. 1065.



  Act 289, Session Laws 1992, amended §§708-830.5 and 831 by
upgrading the offense of theft of a firearm, dynamite, or other explosive from
a class C to a class B felony.  The legislature felt that the serious and
hazardous nature of firearm thefts and thefts of dynamite and other explosives
justified the upgrade in the penalty and classification.  Conference Committee
Report No. 52.



  Act 102, Session Laws 1972, amended §708-831 by adding
paragraph (d).  It should also be noted that when the Legislature adopted the
Code in 1972, it changed the Proposed Draft's recommended value amount from
$500 to $200.  The Legislature stated:



  "Your Committee has agreed to decrease the minimum
dollar amount of first degree theft from $500 to $200 because the $500 figure
is unwarranted, especially in light of the present law relating to larceny and
to cover shoplifting and cattle rustling."  Conference Committee Report
No. 2.



  Act 158, Session Laws 1975, amended §708-831 by adding
paragraph (e) to subsection (1).  The intent of the amendment was to aid
ranchers in proceeding against individuals who slaughter livestock upon their
land by making such an act theft in the first degree.  Senate Standing
Committee Report No. 825, House Standing Committee Report No. 423.



  Act 68, Session Laws 1981, broadened the coverage of
§708-831(e).  The subsection formerly made it an offense for a person to
possess carcasses or meat while on fenced or enclosed premises but did not
extend to situations where a person possessed live animals, or carcasses or
meat in other locations.



  Act 54, Session Laws 1992, amended §708-831 by providing for
the offense of theft in the second degree of an aquaculture product from fenced
or enclosed premises to deter pilfering, since thefts from aquaculture farms
may 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 §708-831 to provide that
persons who commit the theft of agricultural equipment, supplies, or products,
under certain conditions, shall be subject to a class C felony.  The
legislature sought to discourage the theft of agricultural equipment, supplies,
or products, finding that many agricultural enterprises i the State are
isolated and subject to theft, and that losses from the island of Hawaii alone exceed $200,000 per year.  Conference Committee Report No. 52.



  Act 201, Session Laws 1974, amended §§708-831 and 708-832,
relating to theft in the first degree and in the second degree respectively. 
The amendments provided that in the case of extortion, the penalty for theft in
the first degree is a class B felony, and the penalty for theft in the second
degree is a class C felony.  The Legislature felt that the nature of the crime
of extortion and the fact that it seems to be one of the principal activities
of organized crime, justify stiffer penalties for cases of theft involving
extortion.  House Standing Committee Report No. 420-74.



  Act 314, Session Laws 1986, amended §§708-831 to 833 by
increasing the dollar amount of the property involved in the theft offenses. 
The previous figures were designated in 1972 when the Code was first codified. 
With the increase, the dollar amount will more accurately reflect current
property values and consequently the offenses will warrant the level of
culpability intended when the offenses were originally drafted.  Senate
Standing Committee Report No. 820-86.



  Act 242, Session Laws 1974, amended §708-832(1).  The
amendment provided that the siphoning or taking of gasoline diesel fuel or
other petroleum products used as propellants constituted theft in the second
degree.  The Legislature provided for a value limit of $200.



  The Senate Judiciary Committee in Standing Committee Report
No. 972-74 declared:



  "Your Committee feels the serious situation in the
community relates to all fuel and not just gasoline....  Your Committee wishes
to further note that theft of more than $200 of gasoline and other related
petroleum products will carry a maximum penalty of 5 years in jail and a $5,000
fine."



  Act 228, Session Laws 1998, amended §708-831 by making the
offense of theft in the second degree of an aquaculture product or of agricultural
equipment, supplies, or products subject to the requirement that the theft
occur on:  (a) premises that are fenced, enclosed, or secured in a manner
designed to exclude intruders; or (b) premises upon which there is displayed
the signage, "Private Property".  The legislature realized that the
costs incurred under current signage requirements pursuant to §708-831 were
onerous and believed that Act 228 would reduce unnecessary costs to farmers and
ranchers.  Conference Committee Report No. 145.



  Act 87, Session Laws 2001, amended §708-830 to allow
photocopies of unaltered price or name tags, or other markings on goods or
merchandise and printed register receipts as prima facie evidence regarding
value and ownership in theft cases.  The legislature found that expanding
§708-830(8) to include photocopies of the price tags or price markings was in
conformity with rule 1003, Hawaii rules of evidence, which permits the
admissibility of duplicate copies to the same extent as an original unless a
genuine question is raised as to the authenticity of the original or under
circumstances that it would be unfair to admit the duplicate in lieu of the
original.  The legislature also found that the statutory requirement for proof
of value in theft cases had not kept pace with the technology of recordkeeping
of merchandise stock prices.  With proper evidentiary foundation, photocopies
of price tags and printed register receipts are reliable evidence of value.  
Senate Standing Committee Report No. 714, House Standing Committee Report No.
1519.



  Act 182, Session Laws 2005, amended §708-831 by providing
that a person commits theft in the second degree if the person commits theft of
agricultural equipment, supplies, or products, valued from over $100 and up to
and including $20,000, or of agricultural products that exceed 25 pounds, from
premises that are fenced, enclosed, or secured in a manner designed to exclude
intruders, or there is prominently displayed on the premises a sign that
provides sufficient notice and reads "Private Property".  The section
was also amended to provide that possession of agricultural products without
ownership and movement certificates is prima facie evidence that the products
are or have been stolen.  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 116, Session Laws 2006, amended §708-830.5, expanding the
offense of theft in the first degree to include theft of property or services
of more than $300, during a civil defense emergency proclaimed by the governor
or during a period of disaster relief. Act 116 penalized the commission of
certain crimes during a time of a civil defense emergency proclaimed by the
governor or during a period of disaster relief.  The legislature found that
Hurricanes Katrina and Rita created situations that highlighted the prevalence
of opportunistic crimes that can occur during these times. When resources are
needed to restore law and order, emergency response aid to victims may be
hampered or delayed, leaving victims at an increased risk of bodily injury or
death.  Stronger measures to control law and order may deter looting and other
crimes.  Senate Standing Committee Report Nos. 2938 and 3302, House Standing
Committee Report No. 757-06, Conference Committee Report No. 64-06.



  Act 156, Session Laws 2006, amended §708-831 by replacing the
word "aquaculture" with "aquacultural" in the phrase
"aquaculture product" as a conforming amendment.



  Act 230, Session Laws 2006, amended §708-830 by adding the
word "unauthorized" in paragraph (1) and by making other technical,
nonsubstantive amendments.



  Act 230, Session Laws 2006, amended §708-832(1) by providing
that theft of gasoline or related petroleum products valued at $300, formerly
$200, constitutes theft in the third degree.  House Standing Committee Report
No. 665-06.



 



Case Notes



 



  Attempt to commit theft, sufficiency of charge.  61 H. 177,
599 P.2d 285.



  Adequacy of evidence for conviction.  1 H. App. 14, 611 P.2d
997.



  Judgment convicting defendant of theft in fourth degree
affirmed, where evidence was sufficient to support a reasonable inference that
defendant intended to promote or facilitate a crime.  10 H. App. 263, 865 P.2d
944.



  Where police had probable cause to arrest defendant without a
warrant for fourth degree theft, a petty misdemeanor under this section, and
simple trespass, a violation under §708-815, and §803-6 authorized them to
cite, rather than arrest, defendant for those offenses if defendant did not
have any outstanding arrest warrants, outstanding warrant check on defendant by
police not unconstitutional.  91 H. 111 (App.), 979 P.2d 1137.



  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.



 



__________



§§708-830 To 833 Commentary:



 



1.  M.P.C., Tentative Draft No. 2, comments at 58 (1954); see
also Tentative Draft No. 1, Appendix at 101-109 (1953).



 



2.  §708-800



 



3.  Cf. §708-800 and supra at 25-26.



 



4.  §708-800.



 



5.  Cf. §708-800.



 



6.  M.P.C., Tentative Draft No. 2, comments at 75 (1954).



 



7.  M.P.C. §223.1(2); Prop. Mich. Rev. Cr. Code §§3206-3208.



 



8.  M.P.C., Tentative Draft No. 2, comments at 109 (1954).



 



9.  H.R.S. §238-6(f).



 



10. Id. §403-143.



 



11. Id. §431-397(b).



 



12. Id. Chapter 739.



 



13. Id. Chapter 741.



 



14. Id. Chapter 745.



 



15. Id. Chapter 747.



 



16. Id. Chapter 750.



 



17. Id. Chapter 761.