Ala. Pattern Jury Instr. (Criminal) 13A-8-4.1_CTOPIIIDECEPTION-CC

THEFT OF PROPERTY THIRD DEGREE

(Deception - Credit Card or Debit Card)

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

A person commits the crime of theft of property in the third degree if

he/she knowingly obtains by deception control over a credit card or debit

card, the property of another, 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 third degree:

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

credit card or a debit card, [Insert description of property], the

property of another, [Insert name of owner]; (AND)

(2) 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)]

Value is not an element of the crime.[13A-8-3(b)]

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)]

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 third

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

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 third degree, then you

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

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

on those offenses at this point.]