Criminal Law Newsletter

THEFT

A person commits the offense of theft when he or she unlawfully appropriates property with the intent to deprive an owner of the property. The essential element of the offense is depriving the owner of the use, benefit, enjoyment, or value of the property without the owner's consent.

An indictment for theft must allege an appropriation, the unlawful nature of the appropriation, a description of the property, and a defendant's intent to deprive an owner of the property. If the indictment fails to allege any of these elements, the indictment is defective.

For purposes of the offense of theft, the word "appropriate" means bringing about a transfer of title to property, acquiring, or exercising control over the property. It does not mean an act of taking. It means an exercise of control over the property similar to possession. However, a person may exercise control over the property without taking possession of the property.

The appropriation of property is unlawful when it is without an owner's consent or when it is stolen and a defendant knows that it is stolen. Consent may be given by either the owner of the property or by a person who is authorized to act on behalf of the owner. However, a person cannot consent if he or she was deceived or coerced, if he or she was not authorized to act on behalf of the owner, or if he or she was unable to consent as a result of incapacity, mental disease, or intoxication.

When an alleged theft occurs during the course of a business transaction, criminal intent must be proved in order to constitute the offense of theft. The mere failure to perform a contractual obligation does not constitute theft. Also, the payment of a business debt with a bad or worthless check does not constitute theft unless a person knew that the check was worthless at the time he or she issued the check and he or she failed to pay the check within a certain number of days after being notified by a bank of insufficient funds to pay the check.

The term "property" for purposes of the offense of theft means real property, tangible or intangible personal property, or any instrument that represents value, such as money. An indictment for theft must allege the specific property that is the subject of the theft. However, a defendant may be convicted of theft without the introduction of the property into evidence. A description of the property or a photograph of the property may be admitted into evidence if the property has been lost or destroyed.

An indictment for theft must allege that a defendant intended to deprive an owner of property. Although it is not necessary to allege the manner in which the defendant deprived the owner of the property, the indictment must set forth the defendant's intent. The word "deprive" means the permanent withholding of the property, the withholding of the property for an extended time, or the disposal of the property so that recovery by the owner is unlikely.

In order to convict a defendant of theft, the prosecution must prove that an owner had title to or possession of the property. The owner's possession does not need to be exclusive. The prosecution needs only to show that the owner had control of the property.

The offense of theft is punished according to the value of the property that has been appropriated. If the value of the property is less than a certain statutory amount, the offense is punished as a misdemeanor. If the value of the property is greater than a certain statutory amount, the offense is punished as a felony. Value of the property is either the fair market value of the property at the time of the offense or the cost of replacing the property after the offense. If the property does not have an ascertainable market value, its value is the economic loss that an owner would suffer by no longer having the property. The value of the property is normally proven by the testimony of the owner with regard to its purchase price, its age, its condition, and its replacement cost.

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