DEFENSE TO THEFT

DEFENSE TO THEFT It is a defense to a charge of theft 1) that the defendant believed that he/she was entitled to the property or service involved under a claim of right, or 2) that the defendant believed that he/she was authorized by the owner or by law to obtain or exert control as he/she did. It does not matter if the defendant’s belief was mistaken, as long as the defendant held the belief genuinely and in good faith at the time of the alleged offense. However, the interest which the defendant asserts under a claim of right 1) must be to the specific property or the specific service involved, and 2) must be a complete interest, not an interest shared with the alleged victim. The prosecution has the burden of proving beyond a reasonable doubt that 1) the defendant was aware that the property or service belonged to another, 2) the defendant did not genuinely and in good faith believe he/she was entitled to the property or service under a claim of right, and 3) the defendant did not genuinely and in good faith believe that he/she was authorized by the owner or by law to obtain or exert control as he/she did. Commentary This instruction combines HRS §§ 702-218 and 708-834(1)(b). HRS § 702-218 ("Ignorance or Mistake as a Defense") provides that "it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact" if "the ignorance or mistake negatives the state of mind" or "the law defining the offense" provides that "the state of mind established by such ignorance or mistake constitutes a defense." HRS § 708-834(1)(b) provides that "[i]t is a defense to a prosecution for theft that the defendant . . . [b]elieved that he was entitled to the property or services under a claim of right or that he was authorized, by the owner or by law, to obtain and exert control as he did." While unauthorized control of propelled vehicle (UCPV) is a form of theft, the legislature has chosen to treat UCPV differently from other varieties of theft and did not intend that HRS § 708-834 defenses to theft would apply to UCPV. State v. Palmeira, 10 Haw.App. 200, 862 P.2d 1073 (1993). The HRS § 708-834 claim of right defense to theft does not apply in a prosecution for robbery. State v. McMillen, 83 Hawai`i 264, 925 P.2d 1088 (1996) (the legislature has expressed a policy discouraging assertion of self-help to recover property through the use of force).