§708-801 Valuation of property or services.

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§708-801 Valuation of property or services. Whenever the value of property or services is determinative of the class or grade of an offense, or otherwise relevant to a prosecution, the following shall apply:

(1)Except as otherwise specified in this section, value means the market value of the property or services at the time and place of the offense, or the replacement cost if the market value of the property or services cannot be determined.

(2)Whether or not they have been issued or delivered, certain written instruments, not including those having a readily ascertained market value, shall be evaluated as follows:

(a)The value of an instrument constituting an evidence of debt, such as a check, traveler's check, draft, or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof that has been satisfied;

(b)The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation shall be deemed the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

(3)When property or services have value but that value cannot be ascertained pursuant to the standards set forth above, the value shall be deemed to be an amount not exceeding $100.

(4)When acting intentionally or knowingly with respect to the value of property or services is required to establish an element of an offense, the value of property or services shall be prima facie evidence that the defendant believed or knew the property or services to be of that value. When acting recklessly with respect to the value of property or services is sufficient to establish an element of an offense, the value of the property or services shall be prima facie evidence that the defendant acted in reckless disregard of the value.

(5)When acting intentionally or knowingly with respect to the value of property or services is required to establish an element of an offense, it is a defense, which reduces the class or grade of the offense to a class or grade of offense consistent with the defendant's state of mind, that the defendant believed the valuation of the property or services to be less. When acting recklessly with respect to the value of property or services is required to establish an element of an offense, it is a defense that the defendant did not recklessly disregard a risk that the property was of the specified value.

(6)Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether the property taken be of one person or several persons, may be aggregated in determining the class or grade of the offense. Amounts involved in offenses of criminal property damage committed pursuant to one scheme or course of conduct, whether the property damaged be of one person or several persons, may be aggregated in determining the class or grade of the offense. [L 1972, c 9, pt of §1; am L 1987, c 175, §1; am L 1998, c 49, §1; am L 2006, c 230, §34]

COMMENTARY ON §708-801

Section 708-801 provides rules for determining the value of property and the actor's state of mind with respect to the value of the property when these factors are required to be determined by the definitions of substantive offenses. As in the case of statutory definitions, a discussion of the provisions relating to value is found in the commentary on subsequent sections in this chapter.

SUPPLEMENTAL COMMENTARY ON §708-801

Act 175, Session Laws 1987, provided for the valuation of property or services under this section to be the replacement cost only if the property cannot be found, or where the value of the property or services cannot be ascertained. Senate Conference Committee Report No. 72, House Conference Committee Report No. 54.

Act 49, Session Laws 1998, clarified that the valuation of property taken in the commission of a theft should be determined by the value of the property "taken" rather than the value of the property "damaged." The legislature found that under this section, the law provided that valuation amounts were to be determined by the property "damaged" whereas it should logically be determined by the value of the property "taken." The legislature further found that the law needed to be changed to assure that a victim's losses were fairly assessed and adequately compensated. Senate Standing Committee Report No. 3230.

Act 230, Session Laws 2006, amended this section by making technical nonsubstantive amendments.

Case Notes

Where defendant testified that defendant harbored no belief at all regarding the value of the stolen property, paragraph

(5)could not afford defendant a mitigating defense to second degree theft under §708-831(1)(b). 90 H. 359, 978 P.2d 797 (1999).

Valuation of property as applied to violation of §708-831(1)(b). 1 H. App. 644, 623 P.2d 898 (1981).

Due process right violated where circuit court's instruction to jury regarding the statutory presumption created by paragraph

(4)failed to further instruct jury pursuant to HRE rule 306(a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt. 88 H. 216 (App.), 965 P.2d 149 (1998).

Under §702-206, the term "intentional", as applied to the value-attendant-circumstance element of the insurance fraud offense under §431:10C-307.7, means "believes"; also, paragraph

(4)indicates that either a defendant's "belief" or "knowledge" is sufficient to establish an intentional or knowing state of mind as to the value element; thus, pursuant to §702-204, as a "reckless" state of mind was applicable to the value element of the insurance fraud offense, defendant was not exposed to a conviction based on a state of mind lower than what was required. 117 H. 26 (App.), 175 P.3d 136 (2007).