Property Rights, Offenses

Makes abuse of position of trust or special skill a crime.

THE SENATE                              S.B. NO.           1399
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 708-800, Hawaii Revised Statutes, is
 2 amended by adding four new definitions to be appropriately
 3 inserted and to read as follows:
 4      ""Mentally defective" means a person suffering from a
 5 disease, disorder, or a defect which renders the person incapable
 6 of understanding the nature of the person's conduct.
 7      "Public or private trust" refers to a position of public or
 8 private trust characterized by professional or managerial
 9 discretion (i.e., substantial discretionary judgement that is
10 ordinarily given considerable deference).  Persons holding such
11 positions ordinarily are subject to significantly less
12 supervision than employees whose responsibilities are primarily
13 nondiscretionary in nature.
14      "Substantial education" refers to professional training, or
15 certification with a college degree in a person's field of
16 profession that requires licensing by the various counties or
17 state agencies in order to practice or work.
18      "Special skill" refers to a skill not possessed by members
19 of the general public and usually requiring substantial

Page 2                                                     
                                     S.B. NO.           1399

 1 education, training or licensing."
 2      SECTION 2.  Section 708-830, Hawaii Revised Statutes, is
 3 amended to read as follows:
 4      "708-830  Theft.  A person commits theft if the person does
 5 any of the following:
 6      (1)  Obtains or exerts unauthorized control over property.
 7           A person obtains, or exerts control over, the property
 8           of another with intent to deprive the other of the
 9           property.
10      (2)  Property obtained or control exerted through deception.
11           A person obtains, or exerts control over, the property
12           of another by deception with intent to deprive the
13           other of the property.
14      (3)  Appropriation of property.  A person obtains, or exerts
15           control over, the property of another which the person
16           knows to have been lost or mislaid, or to have been
17           delivered under a mistake as to the nature or amount of
18           the property, the identity of the recipient, or other
19           facts, and, with the intent to deprive the owner of the
20           property, the person fails to take reasonable measures
21           to discover and notify the owner.
22      (4)  Obtaining services by deception.  A person
23           intentionally obtains services, known by the person to

Page 3                                                     
                                     S.B. NO.           1399

 1           be available only for compensation, by deception, false
 2           token, or other means to avoid payment for the
 3           services.  Where compensation for services is
 4           ordinarily paid immediately upon the rendering of them,
 5           absconding without payment or offer to pay is prima
 6           facie evidence that the services were obtained by
 7           deception.
 8      (5)  Diversion of services.  Having control over the
 9           disposition of services of another to which a person is
10           not entitled, the person intentionally diverts those
11           services to the person's own benefit or to the benefit
12           of a person not entitled thereto.
13      (6)  Failure to make required disposition of funds.
14           (a)  A person intentionally obtains property from
15                anyone upon an agreement, or subject to a known
16                legal obligation, to make specified payment or
17                other disposition, whether from the property or
18                its proceeds or from the person's own property
19                reserved in equivalent amount, and deals with the
20                property as the person's own and fails to make the
21                required payment or disposition.  It does not
22                matter that it is impossible to identify
23                particular property as belonging to the victim at

Page 4                                                     
                                     S.B. NO.           1399

 1                the time of the defendant's failure to make the
 2                required payment or disposition.  A person's
 3                status as an officer or employee of the government
 4                or a financial institution is prima facie evidence
 5                that the person knows the person's legal
 6                obligations with respect to making payments and
 7                other dispositions.  If the officer or employee
 8                fails to pay or account upon lawful demand, or if
 9                an audit reveals a falsification of accounts, it
10                shall be prima facie evidence that the officer or
11                employee has intentionally dealt with the property
12                as the officer's or employee's own.
13           (b)  A person obtains personal services from an
14                employee upon agreement or subject to a known
15                legal obligation to make a payment or other
16                disposition of funds to a third person on account
17                of the employment, and the person intentionally
18                fails to make the payment or disposition at the
19                proper time.
20      (7)  Receiving stolen property.  A person intentionally
21           receives, retains, or disposes of the property of
22           another, knowing that it has been stolen, with intent
23           to deprive the owner of the property.  It is prima

Page 5                                                     
                                     S.B. NO.           1399

 1           facie evidence that a person knows the property to have
 2           been stolen if, being a dealer in property of the sort
 3           received, the person acquires the property for a
 4           consideration which the person knows is far below its
 5           reasonable value.
 6      (8)  Shoplifting.
 7           (a)  A person conceals or takes possession of the goods
 8                or merchandise of any store or retail
 9                establishment, with intent to defraud.
10           (b)  A person alters the price tag or other price
11                marking on goods or merchandise of any store or
12                retail establishment, with intent to defraud.
13           (c)  A person transfers the goods or merchandise of any
14                store or retail establishment from one container
15                to another, with intent to defraud.
16                The unaltered price or name tag or other marking
17           on goods or merchandise, or duly identified photographs
18           thereof, shall be prima facie evidence of value and
19           ownership of such goods or merchandise.  Photographs of
20           the goods or merchandise involved, duly identified in
21           writing by the arresting police officer as accurately
22           representing such goods or merchandise, shall be deemed
23           competent evidence of the goods or merchandise involved

Page 6                                                     
                                     S.B. NO.           1399

 1           and shall be admissible in any proceedings, hearings,
 2           and trials for shoplifting, to the same extent as the
 3           goods or merchandise themselves.
 4      (9)  Abuse of position of trust or use of special skill.
 5           (a)  If a person abused a position of public or private
 6                trust, or used a special skill, in a manner that
 7                significantly facilitated the commission or
 8                concealment of the offense and that the position
 9                of trust contributed in some significant way to
10                facilitating the commission or concealment of the
11                offense (e.g., by making the detection of the
12                offense more difficult), that person committed the
13                offense by the abuse of position of trust or use
14                of special skill.  Persons holding these types of
15                positions ordinarily are subject to significantly
16                less supervision than employees whose
17                responsibilities are primarily nondiscretionary in
18                nature.  The position of trust must have
19                contributed in some substantial way to
20                facilitating the crime and not merely have
21                provided an opportunity that could as easily have
22                been afforded to other persons.
23           (b)  Examples of this type of violation would be in

Page 7                                                     
                                     S.B. NO.           1399

 1                scenarios such as, but not limited to, a case of
 2                embezzlement of a client's funds by an attorney
 3                serving as a guardian, or a bank executive's
 4                fraudulent loan scheme.
 5           (c)  It is prima facie evidence that a person who
 6                abuses a position of trust or use of special skill
 7                in the person's field of expertise does so
 8                knowingly."
 9      SECTION 4.  New statutory material is underscored.
10      SECTION 5.  This Act shall take effect upon its approval.
12                           INTRODUCED BY:  _______________________