Chapter 8.04 Definitions

"Appropriate lost or misdelivered property or services" means obtaining or exerting control over the property or services of another which the actor knows to have been lost or mislaid, or to have been delivered under a mistake as to identity of the recipient or as to the nature or amount of the property. (Ord. 1204 §10(2), 1984).

8.04.040 Benefit.

"Benefit" is any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary. (Ord. 1204 §10(3), 1984).

8.04.050 Bodily injury or physical injury.

"Bodily injury" or "physical injury" means physical pain, illness, or an impairment of physical condition. (Ord. 1204 §10(4), 1984).

8.04.060 Building.

"Building," in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building. (Ord. 1204 §10(5), 1984).

8.04.070 By color or aid of deception.

"By color or aid of deception" means that the deception operated to bring about the obtaining of the property or services; it is not necessary that deception be the sole means of obtaining the property or services. (Ord. 1204 §10(6), 1984).

8.04.080 Credit card.

"Credit card" means any instrument or device, whether incomplete, revoked, or expired, whether known as a credit card, credit plate, charge plate, courtesy card, or by any other name, issued with or without fee for the use of the cardholder in obtaining money, goods, services or anything else of value, including satisfaction of a debt of the payment of a check drawn by a cardholder, either on credit or in consideration of an undertaking or guarantee by the issuer. (Ord. 1204 §10(7), 1984).

8.04.090 Criminal negligence.

"Criminal negligence" means when a person fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation. (Ord. 1204 §10(8), 1984).

8.04.100 Criminal possession of leased or rented machinery, equipment or motor vehicle.

(a) "Criminal possession of leased or rented machinery, equipment, personal property or motor vehicle" means possession of leased or rented machinery, equipment, personal property, or motor vehicle if the value thereof exceeds ten dollars and if he:

(1) After renting machinery, equipment, personal property or a motor vehicle under an agreement in writing which provides for the return of the item to a particular place at a particular time, fails to return the item to the place within the time specified, is thereafter served by registered or certified mail addressed to him at such address as may have been given by him at the time of rental as being the appropriate mailing address or, if no such address was given, at his last known place of residence or business with a written demand to return the item within seventy-two hours from the time of service of such demand, and he wilfully neglects to return the item to any place of business of the lessor within five full business days from the date of service of the notice;

(2) After leasing machinery, equipment, personal property, or a motor vehicle under an agreement in writing which provides for periodic rental or lease payments for a period greater than six months duration, fails to pay the lessor of the item the periodic payments when due for a period of ninety days, is thereafter served by registered mail or certified mail addressed to him at such address as may have been given by him at the time of rental as being the appropriate mailing address or, if no such address was given, at his last known place of residence or business with a written demand to return the item to any place of business of the lessor within seventy-two hours from the time of the service of the demand and he wilfully neglects to return the item to any place of business of the lessor within five full. business days from the date of service of the notice.

(3) Any notice required pursuant to subdivisions (1) and (2) of this subsection shall be deemed to have been properly given if, in lieu of service mail, the notice is served personally upon the person to be charged.

(b) It shall be a defense to any civil action arising out of or involving the arrest or detention of any person who rents or leases machinery, equipment, personal property or a motor vehicle that he failed to return the item to any place of business of the lessor within five full business days after receiving written demand therefor. (Ord. 1228 §1, 1985: Ord. 1204 §10(9), 1984).

8.04.110 Damages.

"Damages," in addition to its ordinary meaning, includes any charring, scorching, burning or breaking or agricultural or industrial sabotage, and shall include any diminution on the value of any property as a consequence of an act. (Ord. 1204 §10(10), 1984).

8.04.120 Deception.

"Deception" occurs when an actor knowingly:

(1) Creates or confirms another's false impression which the actor knows to be false; or

(2) Fails to correct another's impression which the actor previously has created or confirmed; or

(3) Prevents another from acquiring information material to the disposition of the property involved; or

(4) Transfers or encumbers property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether that impediment is or is not valid, or is or is not a matter of official record; or

(5) Promises performance which the actor does not intend to perform or knows will not be performed. (Ord. 1204 §10(11), 1984).

8.04.130 Deprive.

"Deprive" in addition to its common meaning means to make unauthorized use or an unauthorized copy of records, information, data, trade secrets, or computer programs; provided, that the aforementioned are of a private proprietary nature. (Ord. 1204 §10(12), 1984).

8.04.140 Dwelling.

"Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging. (Ord. 1204 §10(13), 1984).

8.04.150 Government.

"Government" includes any branch, subdivision, or agency of the government of this state and any county, city, district or other local governmental unit. (Ord. 1204 §10(14), 1984).

8.04.160 Governmental function.

"Governmental function" includes any activity which a public servant is legally authorized or permitted to undertake on behalf of a government. (Ord. 1204 §10(15), 1984).

8.04.170 Intent.

"Intent" shall be when a person acts with the presence of will to accomplish a result which consummates a crime. (Ord. 1204 §10(16), 1984).

8.04.180 Knowledge.

"Knowledge" means when a person knows or acts knowingly or with knowledge when:

(1) He is aware of a fact, facts or circumstances or result described by a statute defining an offense; or

(2) He has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense. (Ord. 1204 §10(17), 1984).

8.04.190 Malice and maliciously.

"Malice" and "maliciously" shall import an evil intent, wish or design to vex, annoy or injure another person, malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty. (Ord. 1204 §10(18), 1984).

8.04.200 Obscuring.

"Obscuring" means to remove, deface, cover, alter, destroy, or otherwise render unidentifiable. (Ord. 1204 §10(19), 1984).

8.04.210 Obscuring the identity of a machine.

"Obscuring the identity of a machine," means a person is guilty of obscuring the identity of a machine if he knowingly:

(1) Obscures the manufacturer's serial number or any other distinguishing identification number or mark upon any vehicle, machine, engine, apparatus, appliance or other device with intent to render it unidentifiable; or

(2) Possesses a vehicle, machine, engine, apparatus, appliance or other device held for sale knowing that the serial number or other identification number or mark has been obscured. (Ord. 1204 §10(20), 1984).

8.04.220 Obtain control over.

"Obtain control over" in addition to its common meaning, means:

(1) In relation to property, to bring about a transfer or purported transfer to the obtainer or another of a legally recognized interest in the property;

(2) In relation to labor or service, to secure performance thereof for the benefit of the obtainer or another. (Ord. 1204 §10(21), 1984).

8.04.230 Officer and public officer.

"Officer" and "public officer" means a person holding office under a city, county or state government who performs a public function and in so doing is vested with the exercise of some sovereign power of government, and includes all assistants, deputies, clerks and employees of any public officer and all persons lawfully exercising or assuming to exercise any of the powers or functions of a public officer. (Ord. 1204 §10(22), 1984).

8.04.240 Owner.

"Owner" means a person, other than the actor, who has possession of or any other interest in the property or services involved, and without whose consent the actor has no authority to exert control over the property or services. (Ord. 1204 §10(23), 1984).

8.04.250 Person, he and actor.

"Person," "he," and "actor" include any natural person and, where relevant, a corporation, joint stock association, or an unincorporated association. (Ord. 1204 §10(25), 1984).

8.04.260 Police officer.

"Police officer" means a duly appointed city, county or state law enforcement officer. (Ord. 1204 §10(24), 1984).

8.04.270 Possessing stolen property.

"Possessing stolen property" means knowingly to receive, retain, possess, conceal or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto. The fact that the person who stole the property has not been convicted, apprehended or identified is not a defense to a charge of possessing stolen property. When a person not an issuer or agent thereof has in his possession or under his control stolen credit cards issued in the names of two or more persons, he shall be presumed to know that they are stolen. This presumption may be rebutted by evidence which raises a reasonable inference that the possession of such credit cards was without knowledge that they were stolen. (Ord. 1204 §10(26), 1984).

8.04.280 Property.

"Property" means anything of value, whether tangible or intangible, real or personal. (Ord. 1204 §10(27), 1984).

8.04.290 Public servant.

"Public servant" means any person other than a witness who presently occupies the position of or has been elected, appointed or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror and any person participating as an advisor, consultant, or otherwise in performing a governmental function. (Ord. 1204 §10(28), 1984).

8.04.300 Receive.

"Receive" includes, but is not limited to, acquiring title, possession, control or a security interest, or any other interest in property. (Ord. 1204 §10 (29), 1984).

8.04.310 Reckless.

A person is "reckless" or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation. (Ord. 1204 §10(30), 1984).

8.04.320 Services.

"Services" includes, but is not necessarily limited to, labor, professional services, transportation services, electronic computer services, the supplying of hotel accommodations, restaurant services, entertainment, the supplying of equipment for use, and the supplying of commodities of a public utility nature such as gas, electricity, steam and water. (Ord. 1204 §10(31), 1984).

8.04.330 Stolen.

"Stolen" means obtained by theft, robbery or extortion. (Ord. 1204 §10(32), 1984).

8.04.340 Theft.

(a) Theft means:

(1) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services; or

(2) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him of such property or services; or

(3) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him of such property or services.

(b) In any prosecution for theft, it shall be sufficient defense that the property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable. (Ord. 1204 §10(34), 1984).

8.04.350 Theft and larceny.

All offenses defined as larcenies outside of this chapter shall be treated as thefts as provided in this title. (Ord. 1204 §10(35), 1984).

8.04.360 Theft of livestock.

Every person who, without lawful authority and with intent to deprive or defraud the owner thereof, wilfully takes, leads, or transports away, conceals, withholds, slaughters or otherwise appropriates to his own use any horse, mule, cow, heifer, bull, steer, swine or sheep shall be guilty of theft of livestock. (Ord. 1204 §10(36), 1984).

8.04.370 Threat.

"Threat" means to communicate, directly or indirectly, the intent:

(1) To cause bodily injury in the future to the person threatened or to any other person; or

(2) To cause physical damage to the property of a person other than the actor; or

(3) To subject the person threatened or any other person to physical confinement or restraint; or

(4) To accuse any person of a crime or cause criminal charges to be instituted against any persons; or

(5) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule; or

(6) To reveal any information sought to be concealed by the person threatened; or

(7) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(8) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action or cause such action or withholding; or

(9) To bring about or continue to strike, boycott or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

(10) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition or personal relationships. (Ord. 1204 §10(37), 1984).

8.04.380 Unlawful issuance of checks or drafts.

Any person who shall with intent to defraud, make or draw or utter or deliver to another person any check or draft on a bank or other depository for the payment of money, knowing at the time of such drawing or delivery that he has not sufficient funds in or credit with said bank or other depository to meet said check or draft in full upon its presentation shall be guilty of unlawful issuance of bank check. The word "credit" as used herein means an arrangement or understanding with the bank or other depository for the payment of such check or draft and the uttering or delivery of such a check or draft to another person without such fund or credit to meet the same shall be prima facie evidence of an intent to defraud. Any person who shall with intent to defraud, make or draw, or utter, or deliver to another person any check or draft on a bank or other depository for the payment of moneys and who issues a stop-payment order directing the bank or depository on which the check is drawn not to honor the check and who fails to make payment of money in the amount of the check or draft or otherwise arrange a settlement agreed upon by the holder of the check within thirty days of issuing the check or draft shall be guilty of unlawful issuance of a bank check. (Ord. 1204 §10(38), 1984).

8.04.390 Value.

(a) "Value" means the market value of the property or services at the time and in the approximate area of the criminal act. Whether or not they have been issued or delivered, written instruments, except those having a readily ascertained market value, shall be evaluated as follows:

(1) The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied;

(2) The value of a ticket or equivalent instrument which evidences a right to receive transportation, entertainment or other service shall be deemed the price stated thereon, if any; and if no price is stated thereon, the value shall be deemed the price of such ticket or equivalent instrument which the issuer charged the general public;

(3) The value of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument;

(b) Whenever any series of transactions which constitute theft, would, when considered separately constitute theft in the third degree because of value, and the series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all transactions shall be the value considered in determining the degree of theft involved.

(c) Whenever any person is charged with possessing stolen property and such person has unlawfully in his possession at the same time the stolen property of more than one person, then the stolen property possessed may be aggregated in one count and the sum of the value of all said stolen property shall be the value considered in determining the degree of theft involved.

(d) Property or services having value that cannot be ascertained pursuant to the standards set forth above shall be deemed to be of a value not exceeding two hundred and fifty dollars. (Ord. 1204 §10(39), 1984).

8.04.400 Vehicle.

"Vehicle" means a "motor vehicle" as defined in vehicle and traffic laws, any aircraft or any vessel equipped for propulsion by mechanical means or sail. (Ord. 1204 §10(40), 1984).

8.04.410 Wilfully neglects.

"Wilfully neglects," as used in this section, means omits, fails or forebears with intent to deprive the owner of or exert unauthorized control over the property, and specifically excludes the failure to return the item because of a bona fide contract dispute with the owner. (Ord. 1204 §10(41), 1984).

8.04.420 Wrongfully obtains or exerts unauthorized control.

"Wrongfully obtains" or "exerts unauthorized control" means:

(1) To take the property or services of another; or

(2) Having any property or services in one's possession, custody or control as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association, or corporation or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody or control, to secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto. (Ord. 1204 §10(42), 1984).

8.04.430 Rules of construction.

Words in the present tense shall include the future tense, and in the masculine shall include feminine and neuter genders, and in the singular shall include the plural, and in the plural shall include the singular. (Ord. 1204 §10(43), 1984).