HF 3331

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to public safety; adding the definitions of retail property and retail
establishment under theft; creating new penalties for retail theft and possession
or use of shoplifting gear; amending Minnesota Statutes 2006, sections 609.52,
subdivisions 1, 2, by adding a subdivision; 609.521; 609.53, subdivision 1;
Minnesota Statutes 2007 Supplement, section 609.52, subdivision 3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 609.52, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

In this section:

(1) "Property" means all forms of tangible property, whether real or personal,
without limitation including documents of value, electricity, gas, water, corpses, domestic
animals, dogs, pets, fowl, and heat supplied by pipe or conduit by municipalities or public
utility companies and articles, as defined in clause (4), representing trade secrets, which
articles shall be deemed for the purposes of Extra Session Laws 1967, chapter 15 to
include any trade secret represented by the article.

(2) "Movable property" is property whose physical location can be changed,
including without limitation things growing on, affixed to, or found in land.

(3) "Value" means the retail market value at the time of the theft, or if the retail
market value cannot be ascertained, the cost of replacement of the property within a
reasonable time after the theft, or in the case of a theft or the making of a copy of an article
representing a trade secret, where the retail market value or replacement cost cannot be
ascertained, any reasonable value representing the damage to the owner which the owner
has suffered by reason of losing an advantage over those who do not know of or use the
trade secret. For a check, draft, or other order for the payment of money, "value" means
the amount of money promised or ordered to be paid under the terms of the check, draft, or
other order. For a theft committed within the meaning of subdivision 2, clause (5), items
(i) and (ii), if the property has been restored to the owner, "value" means the value of the
use of the property or the damage which it sustained, whichever is greater, while the owner
was deprived of its possession, but not exceeding the value otherwise provided herein. For
a theft committed within the meaning of subdivision 2, clause (9), if the property has been
restored to the owner, "value" means the rental value of the property, determined at the
rental rate contracted by the defendant or, if no rental rate was contracted, the rental rate
customarily charged by the owner for use of the property, plus any damage that occurred
to the property while the owner was deprived of its possession, but not exceeding the total
retail value of the property at the time of rental.

(4) "Article" means any object, material, device or substance, including any
writing, record, recording, drawing, sample specimen, prototype, model, photograph,
microorganism, blueprint or map, or any copy of any of the foregoing.

(5) "Representing" means describing, depicting, containing, constituting, reflecting
or recording.

(6) "Trade secret" means information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:

(i) derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and

(ii) is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.

(7) "Copy" means any facsimile, replica, photograph or other reproduction of an
article, and any note, drawing, or sketch made of or from an article while in the presence
of the article.

(8) "Property of another" includes property in which the actor is co-owner or has
a lien, pledge, bailment, or lease or other subordinate interest, property transferred by
the actor in circumstances which are known to the actor and which make the transfer
fraudulent as defined in section 513.44, property possessed pursuant to a short-term rental
contract, and property of a partnership of which the actor is a member, unless the actor and
the victim are husband and wife. It does not include property in which the actor asserts in
good faith a claim as a collection fee or commission out of property or funds recovered, or
by virtue of a lien, setoff, or counterclaim.

(9) "Services" include but are not limited to labor, professional services,
transportation services, electronic computer services, the supplying of hotel
accommodations, restaurant services, entertainment services, advertising services,
telecommunication services, and the supplying of equipment for use including rental of
personal property or equipment.

(10) "Motor vehicle" means a self-propelled device for moving persons or property
or pulling implements from one place to another, whether the device is operated on land,
rails, water, or in the air.

new text begin (11) "Retail property" means any item or items displayed, held, stored, or offered
for sale in a retail establishment.
new text end

new text begin (12) "Retail establishment" means a place of business open to the general public
for the sale of goods or services.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 2.

Minnesota Statutes 2006, section 609.52, subdivision 2, is amended to read:

Subd. 2.

Acts constituting theft.

Whoever does any of the following commits theft
and may be sentenced as provided in subdivision 3:

(1) intentionally and without claim of right takes, uses, transfers, conceals or retains
possession of movable property of another without the other's consent and with intent to
deprive the owner permanently of possession of the property; or

(2) with or without having a legal interest in movable property, intentionally and
without consent, takes the property out of the possession of a pledgee or other person
having a superior right of possession, with intent thereby to deprive the pledgee or other
person permanently of the possession of the property; or

(3) obtains for the actor or another the possession, custody, or title to property of
or performance of services by a third person by intentionally deceiving the third person
with a false representation which is known to be false, made with intent to defraud, and
which does defraud the person to whom it is made. "False representation" includes
without limitation:

(i) the issuance of a check, draft, or order for the payment of money, except a forged
check as defined in section 609.631, or the delivery of property knowing that the actor is
not entitled to draw upon the drawee therefor or to order the payment or delivery thereof; or

(ii) a promise made with intent not to perform. Failure to perform is not evidence of
intent not to perform unless corroborated by other substantial evidence; or

(iii) the preparation or filing of a claim for reimbursement, a rate application, or a
cost report used to establish a rate or claim for payment for medical care provided to a
recipient of medical assistance under chapter 256B, which intentionally and falsely states
the costs of or actual services provided by a vendor of medical care; or

(iv) the preparation or filing of a claim for reimbursement for providing treatment
or supplies required to be furnished to an employee under section 176.135 which
intentionally and falsely states the costs of or actual treatment or supplies provided; or

(v) the preparation or filing of a claim for reimbursement for providing treatment or
supplies required to be furnished to an employee under section 176.135 for treatment or
supplies that the provider knew were medically unnecessary, inappropriate, or excessive;
or

(4) by swindling, whether by artifice, trick, device, or any other means, obtains
property or services from another person; or

(5) intentionally commits any of the acts listed in this subdivision but with intent
to exercise temporary control only and:

(i) the control exercised manifests an indifference to the rights of the owner or the
restoration of the property to the owner; or

(ii) the actor pledges or otherwise attempts to subject the property to an adverse
claim; or

(iii) the actor intends to restore the property only on condition that the owner pay a
reward or buy back or make other compensation; or

(6) finds lost property and, knowing or having reasonable means of ascertaining the
true owner, appropriates it to the finder's own use or to that of another not entitled thereto
without first having made reasonable effort to find the owner and offer and surrender the
property to the owner; or

(7) intentionally obtains property or services, offered upon the deposit of a sum of
money or tokens in a coin or token operated machine or other receptacle, without making
the required deposit or otherwise obtaining the consent of the owner; or

(8) intentionally and without claim of right converts any article representing a trade
secret, knowing it to be such, to the actor's own use or that of another person or makes a
copy of an article representing a trade secret, knowing it to be such, and intentionally and
without claim of right converts the same to the actor's own use or that of another person.
It shall be a complete defense to any prosecution under this clause for the defendant to
show that information comprising the trade secret was rightfully known or available to the
defendant from a source other than the owner of the trade secret; or

(9) leases or rents personal property under a written instrument and who:

(i) with intent to place the property beyond the control of the lessor conceals or aids
or abets the concealment of the property or any part thereof; or

(ii) sells, conveys, or encumbers the property or any part thereof without the written
consent of the lessor, without informing the person to whom the lessee sells, conveys, or
encumbers that the same is subject to such lease or rental contract with intent to deprive
the lessor of possession thereof; or

(iii) does not return the property to the lessor at the end of the lease or rental term,
plus agreed upon extensions, with intent to wrongfully deprive the lessor of possession
of the property; or

(iv) returns the property to the lessor at the end of the lease or rental term, plus
agreed upon extensions, but does not pay the lease or rental charges agreed upon in the
written instrument, with intent to wrongfully deprive the lessor of the agreed upon charges.

For the purposes of items (iii) and (iv), the value of the property must be at least $100.

Evidence that a lessee used a false, fictitious, or not current name, address, or place of
employment in obtaining the property or fails or refuses to return the property or pay the
rental contract charges to lessor within five days after written demand for the return has
been served personally in the manner provided for service of process of a civil action
or sent by certified mail to the last known address of the lessee, whichever shall occur
later, shall be evidence of intent to violate this clause. Service by certified mail shall be
deemed to be complete upon deposit in the United States mail of such demand, postpaid
and addressed to the person at the address for the person set forth in the lease or rental
agreement, or, in the absence of the address, to the person's last known place of residence;
or

(10) alters, removes, or obliterates numbers or symbols placed on movable property
for purpose of identification by the owner or person who has legal custody or right
to possession thereof with the intent to prevent identification, if the person who alters,
removes, or obliterates the numbers or symbols is not the owner and does not have the
permission of the owner to make the alteration, removal, or obliteration; or

(11) with the intent to prevent the identification of property involved, so as to
deprive the rightful owner of possession thereof, alters or removes any permanent serial
number, permanent distinguishing number or manufacturer's identification number on
personal property or possesses, sells or buys any personal property knowing or having
reason to know that the permanent serial number, permanent distinguishing number or
manufacturer's identification number has been removed or altered; or

(12) intentionally deprives another of a lawful charge for cable television service by:

(i) making or using or attempting to make or use an unauthorized external connection
outside the individual dwelling unit whether physical, electrical, acoustical, inductive, or
other connection; or by

(ii) attaching any unauthorized device to any cable, wire, microwave, or other
component of a licensed cable communications system as defined in chapter 238. Nothing
herein shall be construed to prohibit the electronic video rerecording of program material
transmitted on the cable communications system by a subscriber for fair use as defined by
Public Law 94-553, section 107; or

(13) except as provided in paragraphs (12) and (14), obtains the services of another
with the intention of receiving those services without making the agreed or reasonably
expected payment of money or other consideration; or

(14) intentionally deprives another of a lawful charge for telecommunications
service by:

(i) making, using, or attempting to make or use an unauthorized connection whether
physical, electrical, by wire, microwave, radio, or other means to a component of a local
telecommunication system as provided in chapter 237; or

(ii) attaching an unauthorized device to a cable, wire, microwave, radio, or other
component of a local telecommunication system as provided in chapter 237.

The existence of an unauthorized connection is prima facie evidence that the
occupier of the premises:

(i) made or was aware of the connection; and

(ii) was aware that the connection was unauthorized; or

(15) with intent to defraud, diverts corporate property other than in accordance with
general business purposes or for purposes other than those specified in the corporation's
articles of incorporation; or

(16) with intent to defraud, authorizes or causes a corporation to make a distribution
in violation of section 302A.551, or any other state law in conformity with it; or

(17) takes or drives a motor vehicle without the consent of the owner or an
authorized agent of the owner, knowing or having reason to know that the owner or an
authorized agent of the owner did not give consent new text begin ; or
new text end

new text begin (18) intentionally and without claim of right takes or removes retail property from a
retail establishment with the intent to sell or redistribute the retail property; or
new text end

new text begin (19) with intent to fraudulently obtain retail property from a retail establishment,
affixes a fraudulent product code to the retail property or causes a cash register or other
sales recording device to reflect less than the actual sale price of the retail property new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2006, section 609.52, is amended by adding a subdivision
to read:

new text begin Subd. 2a. new text end

new text begin Proof of intent. new text end

new text begin For acts committed under subdivision 2, clause (18),
proof of intent to sell or redistribute the retail property may be found if the person is
found in possession or control of two or more items of retail property stolen from a retail
establishment or retail establishments on two or more separate occasions.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 4.

Minnesota Statutes 2007 Supplement, section 609.52, subdivision 3, is
amended to read:

Subd. 3.

Sentence.

Whoever commits theft may be sentenced as follows:

(1) to imprisonment for not more than 20 years or to payment of a fine of not more
than $100,000, or both, if the property is a firearm, or the value of the property or services
stolen is more than $35,000 and the conviction is for a violation of subdivision 2, clause
(3), (4), (15), or (16); or

(2) to imprisonment for not more than ten years or to payment of a fine of not more
than $20,000, or both, if new text begin :
new text end

new text begin (a) new text end the value of the property or services stolen exceeds $5,000 deleted text begin , deleted text end new text begin ; new text end or deleted text begin if deleted text end

new text begin (b) new text end the property stolen was an article representing a trade secret, an explosive or
incendiary device, or a controlled substance listed in schedule I or II pursuant to section
152.02 with the exception of marijuana; or

new text begin (c) the person is convicted of a third or subsequent offense under clause (4) within
three years of the first of two or more previous convictions under clause (4); or
new text end

(3) to imprisonment for not more than five years or to payment of a fine of not more
than $10,000, or both, if any of the following circumstances exist:

(a) the value of the property or services stolen is more than $1,000 but not more
than $5,000; or

(b) the property stolen was a controlled substance listed in schedule III, IV, or V
pursuant to section 152.02; or

(c) the value of the property or services stolen is more than $500 but not more
than $1,000 and the person has been convicted within the preceding five years for an
offense under this section, section 256.98; 268.182; 609.24; 609.245; 609.53; 609.582,
subdivision 1, 2, or 3; 609.625; 609.63; 609.631; or 609.821, or a statute from another
state, the United States, or a foreign jurisdiction, in conformity with any of those sections,
and the person received a felony or gross misdemeanor sentence for the offense, or a
sentence that was stayed under section 609.135 if the offense to which a plea was entered
would allow imposition of a felony or gross misdemeanor sentence; or

(d) the value of the property or services stolen is not more than $1,000, and any of
the following circumstances exist:

(i) the property is taken from the person of another or from a corpse, or grave or
coffin containing a corpse; or

(ii) the property is a record of a court or officer, or a writing, instrument or record
kept, filed or deposited according to law with or in the keeping of any public officer or
office; or

(iii) the property is taken from a burning, abandoned, or vacant building or upon its
removal therefrom, or from an area of destruction caused by civil disaster, riot, bombing,
or the proximity of battle; or

(iv) the property consists of public funds belonging to the state or to any political
subdivision or agency thereof; or

(v) the property stolen is a motor vehicle; or

new text begin (e) the person is convicted of a second offense under clause (4) within three years of
a previous conviction under clause (4); or
new text end

new text begin (4) to imprisonment for not more than three years or to payment of a fine of not more
than $8,000, or both, if any of the following circumstances exist:
new text end

new text begin (a) the value of the property stolen is more than $200 and the conviction is for a
violation of subdivision 2, clause (18); or
new text end

new text begin (b) the conviction is for a violation of subdivision 2, clause (19); or
new text end

new text begin (c) the property stolen is retail property with a value of more than $50 and is
removed from a retail establishment by way of a designated emergency exit; or
new text end

deleted text begin (4) deleted text end new text begin (5) new text end to imprisonment for not more than one year or to payment of a fine of not
more than $3,000, or both, if the value of the property or services stolen is more than
$500 but not more than $1,000; or

deleted text begin (5) deleted text end new text begin (6) new text end in all other cases where the value of the property or services stolen is $500
or less, to imprisonment for not more than 90 days or to payment of a fine of not more
than $1,000, or both, provided, however, in any prosecution under subdivision 2, clauses
(1), (2), (3), (4), and (13), the value of the money or property or services received
by the defendant in violation of any one or more of the above provisions within any
six-month period may be aggregated and the defendant charged accordingly in applying
the provisions of this subdivision new text begin , and in any prosecution under subdivision 2, clauses
(18) and (19), the value of the retail property received by the defendant in violation of
these provisions within any one-year period may be aggregated and the defendant charged
accordingly in applying the provisions of this subdivision new text end ; provided that when two or
more offenses are committed by the same person in two or more counties, the accused
may be prosecuted in any county in which one of the offenses was committed for all of the
offenses aggregated under this paragraph.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 5.

Minnesota Statutes 2006, section 609.521, is amended to read:

609.521 POSSESSION new text begin OR USE new text end OF SHOPLIFTING GEAR.

new text begin Subdivision 1. new text end

new text begin Definition. new text end

deleted text begin (a) deleted text end As used in this section, an "electronic article
surveillance system" means any electronic device or devices that are designed to detect the
unauthorized removal of marked merchandise from a store.

new text begin Subd. 2. new text end

new text begin Prohibited acts. new text end

deleted text begin (b) deleted text end new text begin (a) new text end Whoever has in possession any device, gear, or
instrument designed to assist in shoplifting or defeating an electronic article surveillance
system with intent to use the same to shoplift and thereby commit theft may be sentenced
new text begin as provided in subdivision 3 new text end deleted text begin to imprisonment for not more than three years or to payment
of a fine of not more than $5,000, or both deleted text end .

new text begin (b) Whoever removes, destroys, or deactivates a component of an electronic
article surveillance system with intent to commit theft may be sentenced as provided in
subdivision 3.
new text end

new text begin Subd. 3. new text end

new text begin Penalties. new text end

new text begin (a) A person who violates subdivision 2 may be sentenced to
imprisonment for not more than three years or to payment of a fine of not more than
$5,000, or both.
new text end

new text begin (b) A person who violates subdivision 2 within three years of a previous conviction
under subdivision 2 may be sentenced to imprisonment for not more than five years or
to payment of a fine of not more than $10,000, or both.
new text end

new text begin (c) A person who violates subdivision 2 within three years of the first of two or more
previous convictions under subdivision 2 may be sentenced to imprisonment for not more
than ten years or to payment of a fine of not more than $20,000, or both.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 6.

Minnesota Statutes 2006, section 609.53, subdivision 1, is amended to read:

Subdivision 1.

Penalty.

Except as otherwise provided in section 609.526, any
person who receives, possesses, transfers, buys new text begin , new text end or conceals any stolen property or
property obtained by robbery, new text begin or facilitates any of the foregoing, new text end knowing or having reason
to know the property was stolen or obtained by robbery, may be sentenced in accordance
with the provisions of section 609.52, subdivision 3.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2008, and applies to crimes
committed on or after that date.
new text end

Sec. 7. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin In Minnesota Statutes, the revisor of statutes shall correct inaccurate cross-references
resulting from the renumbering of clauses in section 609.52, subdivision 3.
new text end