Proving Theft Without a Witness

Strategy Awareness in Defending Utah Criminal Theft Charges

Many theft cases filed in Utah’s criminal court system do not include any direct eyewitness to the actual theft. Often, the property owner does not see what happened, and only later realizes that something has been taken or is missing.

Prosecutors and police have several options in trying to put the pieces together in presenting their case. But these options generally fall into two main categories: accomplice liability, and variations on a classic theft charge.

Accomplice Liability in Theft Cases

As you develop a defense strategy for theft charges, the principles of “accomplice liability” or “party liability” should always be considered.

Utah Code section 76-2-202 states, “Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.”

“Directly commits the offense” is fairly straightforward – it would apply to the person who actually picked up or took the property in question. But the other language, “solicits, requests, commands, encourages, or intentionally aids another person…” expands criminal potential liability much more broadly. The state can prove their case by showing that someone helped (aided) another person, before- or after-the-fact, in committing or concealing or getting away from committing a theft.

Utah law does not distinguish between the concepts of being an accessory to a crime and being an accessory after-the-fact. A conviction under accomplice liability carries the same level of potential punishment as a conviction for action as a party or principal in the crime.

Theft as an Umbrella Charge

Another strategy available to the prosecution involves the variations on theft available under the Utah statute.

Theft is defined under section 76-6-404 generally, “An actor commits theft if the actor obtains or exercises unauthorized control over another person’s property with a purpose to deprive the person of the person’s property.”

But the “control” exercised over the property is not limited to the control used in initially taking another person’s property. The necessary “control” over the property can be exercised after the initial theft. As long as the exercise of control is accompanied by the required intent (purpose to deprive), the timing of the control is largely irrelevant.

Section 76-6-403 establishes theft as an umbrella charge, that includes “the separate offenses such as those heretofore known as larceny, larceny by trick, larceny by bailees, embezzlement, false pretense…, [or] receiving stolen property.” The statute additionally provides, “An accusation of theft may be supported by evidence that it was committed in any manner specified in this part….” The word “part” here refers to sections 404, 404.5, 405, 406, 407, 408, etc.

The most common of these variations include:

• unauthorized possession of property (404.5);
• theft by deception (405);
• theft by extortion (406)
• theft of lost, mislaid, or mistakenly delivered property (407);
• theft by receiving stolen property (408);
• theft of service (409);
• theft by custodian of property pursuant to repair or rental agreement (410);
• theft of a rental vehicle (410.5)
• release of fur-bearing animal (413); and
• metal or catalytic converter theft (415).

The level of a theft offense is generally determined by the value of the property involved, ranging from a class B misdemeanor up through the second-degree felony level. Exceptions include vehicles and firearms. A theft charge involving either of those types of property can be filed as a felony, regardless of monetary value.

Recently Stolen Property – Evidentiary Presumptions

Keep in mind that a judge will often instruct a jury based on section 76-4-402, which states, “Possession of property recently stolen, when no satisfactory explanation of such possession is made, shall be deemed prima facie evidence that the person in possession stole the property.”

“Prima facie evidence” does not automatically overcome the presumption of innocence or the prosecutor’s burden of proving the case beyond a reasonable doubt. Additional evidence should be required. But evidence that property found in the defendant’s possession was “recently stolen” give the prosecutor an initial advantage.