CHAPTER 12-06
THEFT AND RELATED OFFENSES SECTIONS:
12-0601. Consolidated Theft Offenses.
12-0602. Theft of Property.
12-0603. Theft of Services.
12-0604. Theft of Property Lost, Mislaid, or Delivered by Mistake.
12-0605. Thefts Punishable Under City Ordinance.
12-0606. Defenses and Proof As To Theft and Related Offenses.
12-0607. Definitions.
12-0608. Making or Uttering Slugs.
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12-0601. CONSOLIDATED THEFT OFFENSES.
1. Conduct denominated theft in Sections 12-0602 to 12-0604 constitutes a single offense designed to include the separate offenses heretofore known as larceny, stealing, purloining, embezzling, obtaining money or property by false pretense, extorting, blackmailing, fraudulently converting, receiving stolen property, misappropriating public funds, swindling, and the like.
2. A charge of theft under Sections 12-0602 to 12-0604 which fairly apprises the defendant of the nature of the charges against him shall not be deemed insufficient because it fails to specify a particular category of theft. The defendant may be found guilty of theft under such charge if his conduct falls under Section 12-0602 to 12-0604, so long as the conduct proved is sufficiently
related to the conduct charged that the accused is not unfairly surprised by the case he must meet. Any person violating any provision of Sections 12-0602 to 12-0604 is guilty of a class B misdemeanor.
12-0602. THEFT OF PROPERTY. A person is guilty of theft if he:
1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof;
2. Knowingly obtains the property of another by deception with intent to deprive the owner thereof, or intentionally deprives another of his property by deception; or
3. Knowingly receives, retains, or disposes of property of another which has been stolen, with intent to deprive the owner thereof.
12-0603. THEFT OF SERVICES. A person is guilty of theft if:
1. He intentionally obtains services, known by him to be available only for compensation, by deception, false token, or other means to avoid payment for services; or
2. Having control over the disposition of services of another to which he is not entitled, he knowingly diverts those services to his own benefit or to the benefit of another not entitled thereto.
Where compensation for services is ordinarily paid immediately upon their rendition, as in the case of hotels, restaurants, and comparable establishments, absconding without payment or making provision to pay is prima facie evidence that the services were obtained by deception.
12-0604. THEFT OF PROPERTY LOST, MISLAID, OR DELIVERED BY MISTAKE. A person is guilty of theft if he:
1. Retains or disposes of property of another when he knows it has been lost or mislaid; or
2. Retains or disposes of property of another when he knows it has been delivered under a mistake as to the identity of the recipient or as to the nature or amount of the property. and with intent to deprive the owner of it, he fails to take readily available and reasonable measures to restore the property to a person entitled to have it.
12-0605. THEFTS PUNISHABLE UNDER CITY ORDINANCE. Theft under Sections 12-0602 to 12-0604 may be punished as an offense against the city ordinances if the highest value by any reasonable standard, regardless of the actor's knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that he was stealing, or which the actor could reasonably have anticipated to have been the property or services involved, does not exceed $500, and if:
1. The theft was not committed by threat;
2. The theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft;
3. The defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of his official duties;
4. The property stolen is not a firearm, ammunition, explosive or destructive device, or an automobile,\ aircraft, or other motor-propelled vehicle;
5. The property does not consist of any government file, record, document, or other government paper stolen from any government office or from any public servant;
6. The defendant is not in the business of buying or selling stolen property and he does not receive, retain, or dispose of the property in the course of that business;
7. The property stolen does not consist of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document, instrument, or obligation of the State of North Dakota;
8. The property stolen does not consist of livestock taken from the premises of the owner;
9. The property stolen does not consist of a key or other implement uniquely suited to provide access to property the theft of which would be a felony and was not stolen to gain such access;
10. The property stolen is not a card, plate, or other credit= device existing for the purpose of obtaining money, property, labor, or services on credit, or is not a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers; or
11. The property stolen is not a prescription drug as defined in Section 43-15.3-01, NDCC. The provisions of Section 12-0605 shall be amended automatically to conform with any subsequent amendments to Section 12-23-05, North Dakota Cent. Code, dealing with the grading of theft offenses so that Section 12-0605208 shall give the City jurisdiction of all class B misdemeanor theft offenses.
Source: Ord. 2014-17, Sec. 4 (2014)
12-0606. DEFENSES AND PROOF AS TO THEFT AND RELATED OFFENSES.
1. It is a defense to a prosecution under Section 12-0601 to 12-0607 that:
a. The actor honestly believed that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him; or
b. The victim is the actor's spouse, but only when the property involved constitutes household or personal effects or other property normally accessible to both spouses and the parties involved are living together. The term "spouse", as used in this section, includes persons living together as husband and wife.
2.
a. It shall be a prima facie case of theft under this chapter if it is shown that a public servant or an officer, director, agent, or employee of, or a person connected in any capacity with a financial institution has failed to pay or account upon lawful demand for money or property entrusted to him as part of his official duties or if an audit reveals a shortage or falsification of his
accounts.
b. It shall be prima facie evidence that the actor knows that property has been stolen if it is shown that, being a dealer, he acquired it for a consideration which he knew to be far below its
reasonable value. "Dealer" means a person, whether licensed or not, who has repeatedly engaged in transactions in the type of property involved.
12-0607. DEFINITIONS. Applicable to Section 12-0601 to 12-0606.
1. "Deception" means:
a. Creating or reinforcing a false impression, including false impressions as to fact, law, status, value, intention or other state of mind; but deception as to a person's intention to perform
a promise shall not be inferred from the fact alone that he did not substantially perform the promise unless it is part of a continuing scheme to defraud; or
b. Preventing another from acquiring information which would affect his judgment of a transaction; or
c. Failing to correct a false impression which the actor previously created or reinforced, or which he knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or
d. Failing to correct an impression which the actor previously created or reinforced and which the actor knows to have become false due to subsequent events; or
e. Failing to disclose a lien, adverse claim, or other impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained or in order to continue to deprive another of his property, whether such impediment is or is not valid, or is or is not a matter of official record; or
f. Using a credit card, charge plate, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a
designated person or bearer (1) where such instrument has been stolen, forged, revoked, or canceled, or where for any other reason its use by the actor is unauthorized, and (2) where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument; or
g. Any other scheme to defraud. The term "deception" does not, however, include falsifications as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. "Puffing" means an exaggerated commendation of wares in communications addressed to the public or to a class or group.
2. "Deprive" means:
a. To withhold property or to cause it to be withheld either permanently or under such circumstances that a major portion of its economic value, or its use and benefit, has, in fact, been appropriated; or
b. To withhold property or to cause it to be withheld with the intent to restore it only upon the payment of a reward or other compensation; or
c. To dispose of property or use it or transfer any interest in it under circumstances that make its restoration, in fact, unlikely.
3. "Fiduciary" means a trustee, guardian, executor, administrator, receiver, or any other person acting in a fiduciary capacity, or any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.
4. "Financial institution" means a bank, insurance company, credit union, safety deposit company, savings and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
5. "Obtain" means:
a. In relation to property, to bring about a transfer or purported transfer of an interest in the property, whether to the actor or another; or
b. In relation to services, to secure performance thereof.
6. "Property" means any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to, or found in land and documents although the rights represented thereby have no physical location), contract right, chose-in-action, interest in or claim to wealth, credit, or any other article or thing of value of any kind. "Property" also means real property the location of which cannot be moved if the offense involves transfer or attempted transfer of an interest in the property.
7. "Property of another" means property in which a person other than the actor or in which a government has an interest which the actor is not privileged to infringe without consent, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person or government might be precluded from civil recovery because the property was
used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement. "Owner" means any person or a government with an interest in property such that it is "property of another" as far as the actor is concerned.
8. "Receiving" means acquiring possession, control, or title, or lending on the security of the property.
9. "Services" means labor, professional service, transportation, telephone, mail or other public service, gas, electricity and other public utility services, accommodations in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other property.
10. "Stolen" means property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of N.D. Cent. Code § 12.1-23-06.
11. "Threat" means an expressed purp o se, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person; or
b. Cause damage to property; or
c. Subject the person threatened or any other person vto physical confinement or restraint; or
d. Engage in other conduct constituting a crime; or
e. Accuse anyone of a crime; or
f. Expose a secret or publicize an asserted fact, whether true or false, tending to subject a person living or deceased, to hatred, contempt, or ridicule or to impair another's credit or business repute; or
g. Reveal any information sought to be concealed by the person threatened; or
h. Testify or provide information or withhold testimony of information with respect to another's legal claim or defense; or
i. Take or withhold official action as a public servant, or cause a public servant to take or withhold official action; or
j. Bring about or continue a strike, boycott, or other similar collective action to obtain property or deprive another of his property which is not demanded or received for the benefit of the group which the actor purports to represent; or
k. Cause anyone to be dismissed from his employment, unless the property is demanded or obtained for lawful union purposes; or
l. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation, or personal relationship. Upon a charge of theft, the receipt of property in consideration for taking or withholding official action shall be deemed to be theft by threat regardless of whether the owner voluntarily parted with his property or himself initiated the scheme.
12-0610. MAKING OR UTTERING SLUGS.
1. A person is guilty of an offense if he makes or utters a slug or slugs which do not exceed fifty dollars in value with intent to deprive a supplier of property or service sold or offered by means of a coin machine or with knowledge that he is facilitating such a deprivation by another person.
2. In this section:
a. "Slug" means a metal, paper, or other object which by virtue of its size, shape, or any other quality is capable of being inserted, deposited or otherwise used in a coin machine as an improper but effective substitute for a genuine coin, bill, or token;
b. "Coin machine" means a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed (1) to receive a coin or bill of a certain denomination or a token made for the purpose; and (2) in return for the insertion or deposit thereof, automatically to offer, provide, assist in providing, or permit the acquisition of property or a public or private service.
c. "Value" of the slugs means the value of the coins, bills, or tokens for which they are capable of being substituted.