January 13, 2015
“Fifty Shades of Grey,” based on the best-selling novel, opens next month in theaters. A fantasy, right? Three degrees of theft, on the other hand, is a fact.
A theft occurs when someone, without permission, takes something that does not belong to him or her, intending to permanently deprive the owner of the property. Theft levels and punishments vary by state. In California, for example, “grand” theft involves property worth more than $1,000, while “petty” theft covers items worth less. No matter what the grade or degree, a theft charge won’t stick unless the stolen item is worth something. The state must prove, among other things, that the defendant took items that had “value.”
Under Oregon law, a person commits theft in the third degree if he takes property valued less than $100. At about 3:00 a.m., Sunie Shawn Waterhouse entered a commercial business and took several metal items from its recycling drop box, including a chair, a shelving unit and some gutters. The police tracked him down and arrested him. At the trial, an employee of the victimized company testified that the business contracts with a recycling company to haul away the drop box and its contents. The recycler pays for the metal in the box, which amount varies depending on the volume and nature of the metal. The employee, however, was unable to say how much the recycling company would have paid for the items taken by Waterhouse. No other evidence was presented as to the value of the items.
After the state rested its case, Waterhouse’s lawyer moved for a judgment of acquittal. “All we have is speculative testimony,” he argued. “[The company witness] said that the property was metal, they have a service that collects … only … full dumpsters … * * * He didn’t indicate that they would be willing to … pick up and pay for ... this specific chair and bookcase, not did he indicate that they would have found the material was valuable at all.”
The trial judge denied the motion, and the defendant was convicted of third-degree theft. On appeal, Waterhouse argued that the state failed to produce evidence that the scrap metal had value. A three-judge panel upheld the verdict.
Even when the value of stolen property cannot be reasonably ascertained, “the state must prove that the items taken have some monetary value,” the panel said. If value is difficult to measure, the state criminal code helpfully says: “it shall be presumed to be an amount less than $50,” which effectively makes it unnecessary for the state to prove the “precise value,” the judges noted.
“[E]vidence showing that a stolen item has some market value ... is sufficient to prove that the item has the requisite value to support a conviction for theft in the third degree, whether or not the specific market value of the item is proved,” the opinion continued. The key is an established market for the item. Otherwise, “its market value, if any, becomes speculative and ... speculative worth is not enough.”
The appeals court did not need to speculate about the existence of a willing seller and a willing buyer, which defines an actual market where an item has value in trade. “The victim had an active ... contract to sell the contents of the drop box to ... the recycling company [which] paid ... for metal left in the drop box,” the opinion said. According to the testimony, what the company pays depends on the weight and type of metal. Thus, “some amount is always paid for metal items ... even if the precise amount may vary.”
Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.