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.

Act 125, Session Laws 2012, amended 708-831(1) by: (1) making theft of agricultural commodities generally known to be marketed for commercial purposes an offense of theft in the second degree; (2) defining agricultural commodities; (3) specifying the contents of signs to give sufficient notice to exclude intruders from a fenced or enclosed premise containing an aquacultural product or agricultural equipment, supplies, or products; and (4) including theft of agricultural equipment, supplies, or products under the offense of theft in the second degree if, at the point of entry of the premise, a crop is visible. The legislature found that agricultural theft continues to be a significant problem in the State and has resulted in millions of dollars in losses for the agricultural industry. The legislature further found that existing laws were not stringent enough to deter potential thieves. Act 125 would allow prosecutors to develop stronger cases against thieves of agricultural products and commodities. Senate Standing Committee Report No. 2289, Senate Standing Committee Report No. 3322.

 

Case Notes

 

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

Jury instructions on the lesser included offenses of theft in the third degree under 708-832 and theft in the fourth degree under this section should have been given where jury could have found that petitioner committed theft of not only less than $20,000, but less than $300 or less than $100, making the offenses of theft III or theft IV applicable. 122 H. 271, 226 P.3d 441 (2010).

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 (1994).

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 (1999).

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 (2001).

Where jury convicted defendant of robbery in the first degree under 708-840, error by circuit court when it failed to instruct jury on robbery in the second degree under 708-841 and theft in the fourth degree under this section, which were included offenses of robbery in the first degree, was harmless. 123 H. 456 (App.), 235 P.3d 1168 (2010).

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708-830 To 708-833 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.

 

 

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