Ala. Pattern Jury Instr. (Criminal) 13A-8-3ATOPI_DECEPTION

THEFT OF PROPERTY FIRST DEGREE

(Deception - Value Exceeds $2,500)

The defendant is charged with theft of property in the first degree.

A person commits the crime of theft of property in the first degree if he/

she knowingly obtains by deception control over the property of another, the

value of which exceeds $2500, with intent to deprive the owner of his/her

property.

To convict, the State must prove beyond a reasonable doubt each of the

following elements of theft of property in the first degree:

(1) The defendant knowingly obtained by deception control over the

property, [Insert description of property], of another, [Insert

name of owner];

(2) The property exceeded $2,500 in value; (AND)

(3) The defendant acted with intent to deprive the owner of his/her

property.

The term obtains or exerts control over property includes, but is not

necessarily limited to, the taking, carrying away, or the sale, conveyance, or

transfer of title to or interest in, or possession of, property. [13A-8-1(8)]

[Read as appropriate] The term includes, but is not necessarily

limited to, conduct heretofore defined or known as common law larceny by

trespassory taking, common law larceny by trick, larceny by conversion,

embezzlement, extortion, or obtaining property by false pretenses

[13A-8-1(8)]

Obtains means:

a. In relation to property, to bring about a transfer or purported transfer of a

legally recognized interest in the property, whether to the obtainer or another;

(OR)

b. In relation to labor or service, to secure performance thereof.

[13A-8-1(7)]

Deception occurs when a person knowingly: [Read as appropriate]

a. Creates or confirms another's impression which is false and which

the defendant does not believe to be true;

b. Fails to correct a false impression which the defendant previously

has created or confirmed;

c. Fails to correct a false impression when the defendant is under a duty

to do so;

d. Prevents another from acquiring information pertinent to the

disposition of the property involved;

e. Sells or otherwise transfers or encumbers property, failing to disclose

a lien, adverse claim, or other legal impediment to the enjoyment of the

property when the defendant is under a duty to do so, whether that

impediment is or is not valid, or is not a matter of official record; (OR)

f. Promises performance which the defendant does not intend to

perform or knows will not be performed. Failure to perform, standing

alone, however, is not proof that the defendant did not intend to

perform. [13A-8-1(1)]

[Read as appropriate] The term deception does not, however, include

falsity as to matters having no pecuniary significance, or puffing by statements

unlikely to deceive ordinary persons. "Puffing" means an exaggerated

commendation of wares or services.[13A-8-1(1)]

Property is any money, tangible or intangible personal property, property

(whether real or personal) the location of which can be changed (including

things growing on, affixed to, or found in land and documents, although the

rights represented hereby have no physical location), contract right, chose-inaction, interest in a claim to wealth, credit, or any other article or thing of value

of any kind. [13A-8-1(11)]

[Read as appropriate] Commodities of a public utility nature, such as

gas, electricity, steam, and water, constitute property, but the supplying of such

a commodity to premises from an outside source by means of wires, pipes,

conduits, or other equipment shall be deemed a rendition of a service rather

than a sale or delivery of property. [13A-8-1(11)]

An owner is a person, other than the defendant, who has possession

of or any other interest in the property involved, even though that interest or

possession is unlawful, and without whose consent the defendant has no

authority to exert control over the property. [13A-8-1(9)]

[Read as appropriate] A secured party, as defined in Section

7-9A-102(a)(72), is not an owner in relation to a defendant who is a debtor,

as defined in Section 7-9A-102(a)(28), in respect of property in which the

secured party has a security interest, as defined in Section 7-1-201(37).

[13A-8-1(9)]

Value is the market value of the property at the time and place of the

criminal act. [13A-8-1(15)]

[Read as appropriate] Whether or not they have been issued or

delivered, certain written instruments, not including those having a readily

ascertainable market value such as some public and corporate bonds and

securities shall be evaluated as follows:

a. The value of an instrument constituting an evidence of debt, such as a

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 which 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 which the owner of the

instrument might reasonably suffer by virtue of the loss of the instrument.

When the value of property cannot be ascertained pursuant to the standards

set forth above, its value shall be deemed to be an amount not exceeding five

hundred dollars ($500). [13A-8-1(15)]

[Read as appropriate] Amounts involved in thefts committed pursuant

to one scheme or course of conduct, whether from the same person or several

persons, may be aggregated in determining the grade of the offense; provided,

that only one conviction may be had and only one sentence enforced for all

thefts included in such aggregate. [13A-8-1(15)]

Deprive means: [Read as appropriate]

a. To withhold property or cause it to be withheld from a person permanently or

for such period or under such circumstances that all or a portion of its use or

benefit would be lost to him or her;

b. To dispose of the property so as to make it unlikely that the owner would

recover it;

c. To retain the property with intent to restore it to the owner only if the owner

purchases or leases it back, or pays a reward or other compensation for its

return;

d. To sell, give, pledge, or otherwise transfer any interest in the property;

(OR)

e. To subject the property to the claim of a person other than the owner.

[13A-8-1(2)]

A person acts knowingly with respect to conduct or to a circumstance

when he/she is aware that his/her conduct is of that nature or that the

circumstance exists. [13A-2-2(2)]

A person acts with intent to deprive another of his/her property when

he/she acts with the purpose of causing that result. [13A-2-2(1)]

[Read as appropriate] It is a defense to a prosecution for this offense

that the defendant honestly believed that he/she had a claim to the property or

services involved which he/she was entitled to assert in the manner which

forms the basis of the charge against him/her. [13A-8-12(a)]

If you find from the evidence that the State has proved beyond a

reasonable doubt each of the above elements of theft of property in the first

degree, then you shall find the defendant guilty of theft of property in the first

degree.

If you find that the State has failed to prove any one or more of the

elements of the offense of theft of property in the first degree, then you

cannot find the defendant guilty of theft of property in the first degree.

[If lesser-included offenses are included, the Court should instruct

on those offenses at this point.]