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RATIONALE: Without a special instruction, the jury may not understand that fair market value should be determined at the time and locality of the theft.

POINTS AND AUTHORITIES: "The most widely accepted test is the 'fair market value' test. This test provides that the value to be proved is the fair market value at the time and place of the theft." (State v. Jacquith (SD 1978) 272 NW2d 90, 92; see also Stern v. United States (6th Cir. 1953) 204 F2d 647, 649; Kowalchuk v. United States (6th Cir. 1949) 176 F2d 873, 876; Spencer v. State (FL 1968) 217 So2d 331, 332; State v. Owens (KS 1991) 807 P2d 101, 109 [value of stolen property is determined at its fair market value at the time of the theft]; State v. Logan (UT 1977) 563 P2d 811, 813.)

    Thus, the jury should be instructed to determine the value of stolen property is that property’s fair market value at the time and locality of the theft.  (See State v. Stegora (8th Cir. 1988) 849 F2d 291, 292; State v. Randle (AZ 1966) 410 P2d 687, 689; State v. Thomas (KS 1998) 953 P2d 1043, 1045; State v. Robinson (KS 1980) 608 P2d 1014, 1017; State v. Disbrow (SD 1988) 417 NW2d 873, 874; see also Wharton’s Criminal Law (West, 15th ed. 1993) § 345; Criminal Procedure (West, 13th ed. 1989) § 508.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5].

CAVEAT:  Value should not be defined in terms of the "highest price" that would be paid for it.  See FORECITE National™ 57.4 [Valuation: Improper To Limit Value To "Highest Price" On The Open Market] for challenge to the "highest price" limitation.

    For the purposes of these instructions, property value is determined by the reasonable and fair market value of the property at the time and in the area of the [alleged] ____________________ (name of alleged crime).

    Fair market value is  the price the property would have sold for in the open market at that time and in that place of the [alleged] __________________ (name of alleged crime) under the following circumstances:

    1.    The owner of the property wanted to sell it but [didn't have to] [was under no urgent necessity to do so] [was not compelled to sell].

    2.    The buyer wanted to buy it but [didn't have to] [was under no urgent necessity to do so] [was not compelled to buy].

    3.    The owner had a reasonable time to find a buyer.

    4.    The buyer [knew what the property was worth] [had knowledge of the character of the property] [what it could be used for].

[See People v. Johnson (MI 1984) 348 NW2d 716, 718; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 22.1 [Fair Market Value Test] (ICLE, 2nd ed. 1999); see also ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 46.980(a) [Determination Of Value--Property] (Alaska Bar Association, 1987); GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Value; Defined] p.155 (G) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

    "Value" means the fair market value of the property at the time and place of the offense.

[See Spencer v. State (FL 1968) 217 So2d 331, 332; see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 812.014 [Theft] p. 213 (Florida Bar, 1992).]

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RATIONALE: When the value of the property at issue cannot be determined it would be futile to instruct the jury on fair market value. Instead, the jury should be instructed to determine the replacement cost less depreciation.

POINTS AND AUTHORITIES: It is well settled that the test for determining the value of stolen property is the fair market value at the time and locality of the theft.  (See FORECITE National™ 57.1 [Fair Market Value: Value At Time And Locality Of Theft].) However, when the market value cannot be determined, the jury may have to make a determination based upon the replacement value of the stolen property less depreciation. (See State v. Jacquith (SD 1978) 272 NW2d 90, 93 [citing Shaffer v. Honeywell Inc. (SD 1976) 249 NW2d 251, 258].)  However, it is the prosecution's burden to affirmatively establish that there is no market for the item. (Jacquith, 272 NW2d at 93.)

NOTE: "While the original purchase price of an item may be admitted as evidence of its current value, there must also be ‘due allowance for elements of depreciation.’ [Citation.]" (Dunn v. Commonwealth (VA 1981) 284 SE2d 792.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5].

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PRACTICE NOTE: Sales tax is not a part of the 'value' of unsold retail merchandise stolen from a store. (State v. Alexander (KS 1987) 732 P2d 814, 817; but see State v. Gilbert (WA 1995) 902 P2d 182 [damages for malicious mischief include the reasonable cost of repairs to restore the injured property to its former condition including any sales tax imposed].)

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PRACTICE NOTE:  Absent a statutory definition of fair market value in terms of the "highest price" the property would bring on the open market, such a definition of value should not be given to the jury because it could mislead jury into believing that it would have to accept the highest figure in evidence. (See State v. Salazar (AZ 1989) 774 P2d 1360, 1362.) Where there is any evidence from which the jury could rationally find a value below the statutory limit the defendant is entitled to have the jury make that finding. (Ibid.) An instruction which focuses on the "highest price" leaves no room for the jury to exercise its discretion to determine an element of the offense and thus relieves the state of its burden of proof. (Ibid.; see also FORECITE National™ 57.6 [Jury Not Bound To Accept Opinion As To Value].)

    Hence, it is fundamental error to define fair market value as the highest price an item will bring. 

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PRACTICE NOTE: Depending on the statutory language, value may or may not be an element of the charge. However, even if value is only a sentencing factor which increases the potential range of punishment, it must be plead and proven in the same manner as an element of the charge. (See FORECITE National™ 300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment]; see also FORECITE National™ 57.4 [Valuation: Improper To Limit Value To "Highest Price" On The Open Market]; see also FORECITE National™ 57.6 [Valuation: Jury Not Bound To Accept Opinion As To Value].)

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RATIONALE: Without explicit instruction, the jurors may assume that they are bound by the expert's opinion as to value.

POINTS AND AUTHORITIES: As with any expert opinion the jury is not bound to accept an opinion as to value. (See generally, FORECITE National™ 29.2.8 [Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.1].

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RATIONALE: When the valuation of services is at issue, an explanatory instruction may be necessary so the jury understands how service are to be valued.

POINTS AND AUTHORITIES: "In determining the value of the property obtained, for the purposes of [the California theft statute], the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern." (Gomez v. Superior Court (CA 1958) 50 C2d 640, 642 [328 P2d 976].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5].

PRACTICE NOTE: While the contract price is an appropriate valuation where the crime is larceny, if the fraud was intended to procure a contract the valuation may be different. As the court explained in U.S. v. Schneider (7th Cir. 1991) 930 F2d 555, 558, "[it] is necessary to distinguish between two types of fraud. One is where the offender--a true con artist (as in Davis [(9th Cir. 1991) 922 F2d 1385])--does not intend to perform his undertaking, the contract or whatever; he means to pocket the entire contract price without rendering any service in return. In such a case, the contract price is a reasonable estimate of what we are calling the expected loss, and we repeat that no more than a reasonable estimate is required. The other type of fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract (and is able to do so) and to pocket, as the profit from the fraud, only the difference between the contract price and his costs." (930 F2d 558; see also U.S. v. Moored (6th Cir. 1994) 38 F3d 1419, 1424-25.)

SAMPLE INSTRUCTION # 2:

    Use the contract price in deciding the value of services received.  If there is no contract price, then use the reasonable and going wage for the service.

[See Gomez v. Superior Court (CA 1958) 50 C2d 640, 642 [328 P2d 976]; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-15-18 [Theft-How Value Determined] ¶ 2 (State Bar of South Dakota, 2000).]

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RATIONALE: When a larceny involves multiple items of property the prosecution may seek to aggregate those items into a single offense to meet the statutory limit necessary to obtain a felony conviction or increased punishment. In such cases, the instructions should explain that the jury must find a single intent and design before aggregation is permissible.

POINTS AND AUTHORITIES:  When the defendant has received multiple stolen articles there may be an issue as to the total value of those articles. It has generally been held that multiple articles may not be lumped together for purposes of valuation if they were not received at one time. (State v. Spraggin (WI 1976) 239 NW2d 297, 305-06; but see Peters v. State (IN 1921) 132 NE 256 ["where stolen goods are received at several times in pursuance of a conspiracy as to the particular goods, the values of the receptions may be aggregated in fixing the grade of the offense"].) Hence, it may be necessary to instruct the jury on the single intent requirement when defining valuation in a vandalism case. 

    NOTE:  The jury should decide whether or not there was a single scheme or course of conduct.  (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.4(b), fn. 29.) 

    The same reasoning applies to criminal damage for vandalism to multiple items of property. 

    See also FORECITE National™ 57.17 [Vandalism/Intentional Damage To Property: Valuation].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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PRACTICE NOTE: A price tag affixed to the property is not admissible as evidence of value unless a proper foundation is laid by offering the testimony of a witness with independent knowledge about the value of the property. (See State v. Farrer (WA 1990) 787 P2d 935; State v. Coleman (WA 1978) 576 P2d 925, 927-28.)

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PRACTICE NOTE: See Tussey v. Commonwealth (KY 1979) 589 SW2d 215.

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PRACTICE NOTE: "While the original purchase price of an item may be admitted as evidence of its current value, there must also be 'due allowance for elements of depreciation.' [Citation.]" (Dunn v. Commonwealth (VA 1981) 284 SE2d 792.)

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    57.12    Valuation: Theft Of Credit Card

PRACTICE NOTE: Where the defendant is charged with theft of a credit card but not goods or cash obtained with the card, it has been held that it is "the card itself, not the line of credit it represented," which determines the value. (See Owolabi v. Commonwealth (VA 1993) 428 SE2d 14, 15-16.) However, it has been observed that it is "absurd" to contend that credit cards have no value beyond the cost of printing them. (Miller v. People (CO 1977) 566 P2d 1059, 1061) Hence, it has been suggested that the dollar amount which may be purchased by using the credit card without card company approval provides an objective means of evaluating the illegitimate market value of credit cards. (Ibid.)

    Another objective measure of the value of a credit card is its price on the "street," i.e., in the course of unlawful or illegal trade with a view to its criminal abuse. (See U. S. v. Ciongoli (3rd Cir. 1966) 358 F2d 439, 441-42; see also Jalbert v. U. S. (5th Cir. 1967) 375 F2d 125, 126 ) This price represents the value to a person willing to buy the card for the unlawful purpose of purchasing goods, without payment, on the credit of the legitimate card holder. "Street" value is a reflection of the purchasing power of a particular credit card. Accordingly, the authorized line of credit on the card or its 'floor limit', (i.e., the value of a purchase that could be completed without the necessity of obtaining express authorization from the credit card company), is also an objective measure of a card's value. (Cf. U.S. v. Kramer (2nd Cir. 1961) 289 F2d 909, 920-22; U.S. v. Devall (5th Cir. 1972) 462 F2d 137, 143.)

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PRACTICE NOTE: Retail and wholesale prices are admissible to fix the range of fair market value. The jury should determine fair market value from all the evidence presented.

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PRACTICE NOTE: Where there is no legal market, evidence of the illegal market price and other objective evidence may be considered. (U.S. v. Tyers (2nd Cir. 1973) 487 F2d 828, 831; U.S. v. Kramer (2nd Cir. 1961) 289 F2d 909, 920-22; U.S. v. Ciongoli (3rd Cir. 1966) 358 F2d 439, 441-42; U.S. v. Devall (5th Cir. 1972) 462 F2d 137, 143; Jalbert v. U.S. (5th Cir. 1967) 375 F2d 125, 126; U.S. v. Ditata (7th Cir. 1972) 469 F2d 1270, 1273; Churder v. U.S. (8th Cir. 1968) 387 F2d 825, 833; Mance v. State (GA 1908) 62 SE 1053; People v. Colasanti (NY 1974) 322 NE2d 269.)

    In Mance v. State, supra, intoxicating liquor which could not be sold lawfully in Georgia was held to have a value. Similarly, in People v. Colasanti, supra, six hundred thousand tablets of an experimental drug were stolen. The drugs were provided free to hospitals and physicians and had no legal market price. The New York Court of Appeals held that illegitimate, as well as legitimate, market value could be shown.

    In United States v. Ditata, supra, evidence of illegitimate market value was held admissible where blank stock certificates, having no legitimate market value, were stolen. The remaining federal cases cited above have allowed evidence of the "thieves' market" value for blank, stolen money orders.

    Similarly, in People v. Brown (MI 1989) 445 NW2d 801, 803, it was held that, where no legal market exists for the stolen item, value may be determined based on the price it would return on the "illegal market."

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PRACTICE NOTE: See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th d 13.41 [Definition Of Value- Commercial Or Written Instrument] [market value if instrument is negotiable and has market value; actual value if instrument is not negotiable or otherwise without market value] (West, 4th ed. 2000).

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PRACTICE NOTE: Ordinarily the damage value is measured by cost of repair, but it has been held not to be a fair measure where the property value does not exceed the cost of repair. (See e.g., ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th d 13.41B, note [Definition Of Value- Damage] (West, 4th ed. 2000).) In those cases, the fair cash market value rather than the cost of the damage may be used to determines value. (Ibid; see also People v. Carraro (IL 1979) 384 NE2d 581, 586-87.)

    See also FORECITE National™ 57.17 [Vandalism/Intentional Damage To Property: Valuation].

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RATIONALE: When the amount of damage from vandalism is at issue special instruction may be appropriate depending on whether or not the amount of damage exceeds the value of the property.

POINTS AND AUTHORITIES: "...[I]n a case of malicious destruction of property, the prosecutor may establish the amount of 'damage resulting from [an] injury' by showing either (a) the difference in the market value of the property immediately before and after the injury, or (b) the reasonable cost of repairing or restoring the property." (People v. Hamblin (MI 1997) 568 NW2d 339, 344.)

    Hence, in State v. Crace (OR 1976) 554 P2d 628, the Oregon Court of Appeals, in a criminal mischief case, found: "[A]lthough damage to personal property is generally measured by the difference between its value immediately before and after the injury, an alternative measure is the reasonable cost of repairs to put the property in substantially the same condition it was in prior to the injury." Similarly, in People v. Dunoyair (CO 1983) 660 P2d 890, 894-895, the Colorado Supreme Court stated: "[T]he damage element in criminal mischief relates to economic loss caused by the knowing infliction of damage to the real or personal property of another. Value is relevant to the damage element because an offender cannot cause an economic loss that surpasses the actual value of the property damaged. Thus, where the cost of repair or restoration exceeds the actual value of an object, the victim's economic loss will be limited to the actual value of the object. Actual value will generally be determined by market value, that is, the price a willing buyer would pay for the object in the open market... In cases of partial damage, the appropriate measure of economic loss will generally be the reasonable cost of repair or restoration. [Citations omitted]"; see also Willett v. State (AL 1992) 826 P2d 1142, 1144-45 [amount of damage caused by an act of criminal mischief may be established through evidence showing either diminution in value, i.e., subtracting post damage value from predamage value, or the reasonable cost of repair]; State v. Gilbert (WA 1995) 902 P2d 182 [damages in a prosecution for criminal mischief include any diminution in the value of any property or the reasonable cost of repairs to restore injured property to its former condition]; People v. Simpson (NY 1987) 518 NYS2d 453 [it is sufficient to define value in terms of the cost of repairing the property as long as the property is repairable].)

    The value of the damage to the property in question is the cost of reasonable repairs necessary to restore the property to substantially the same condition as it was immediately prior to the damage.

[See generally Willett v. State (AL 1992) 826 P2d 1142; People v. Hamblin (MI 1997) 568 NW2d 339; State v. Gilbert (WA 1995) 902 P2d 182; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-25-4 [Intentional Damage To Property-Determining Amount] (State Bar of South Dakota, 2000).]

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PRACTICE NOTE: "[J]urisdictions uniformly hold the value of a stolen check, in absence of an applicable statute, is the amount for which it is drawn." (State v. Harris (LA 1998) 708 So2d 387, 389; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.4(b) p. 353, fn. 24.)

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RESEARCH NOTES:

See generally, FORECITE National™ 305.5.3 [Enhancements].

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PRACTICE NOTE: In People v. Crow (CA 1993) 6 C4th 952 [26 CR2d 1], the defendant fraudulently obtained $33,000 in AFDC benefits and food stamps. However, the defendant was legitimately entitled to benefits of over $13,000 and, thus, there was a "net overpayment of $19,705." The California Supreme Court held that under the great taking enhancement, the loss to a county resulting from the defendant's welfare fraud should be calculated by subtracting the amount the county would have paid had no acts of fraud occurred from the amount it actually paid. Any money that the county would have been obligated to pay had the fraud not occurred is not attributable to the fraud, and thus is not a "loss" arising out of the criminal offense. (Crow, 6 C4th at 961-62.)