REPORT TITLE:
Property Rights, Offenses


DESCRIPTION:
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

RELATING TO OFFENSES AGAINST PROPERTY RIGHTS.
 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 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
 

 
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 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
 

 
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 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
 

 
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 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
 

 
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 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
 

 
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 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
 

 
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 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.
 
11 
 
12                           INTRODUCED BY:  _______________________