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REFERENCE TITLE: vulnerable adults;
theft inferences; jurisdiction |
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State of
Arizona Senate Fifty-fourth
Legislature Second Regular
Session 2020 |
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SB 1132 |
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Introduced by Senator Gray: Representative Payne |
AN ACT
amending section
13‑1802, Arizona Revised Statutes, as amended by laws 2013, chapter 163,
section 1; amending section 13‑1802, Arizona Revised Statutes, as amended
by laws 2018, chapter 298, section 1; amending section 21‑422, Arizona
Revised Statutes; relating to crimes against vulnerable adults.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-1802, Arizona Revised Statutes, as amended by Laws 2013, chapter 163, section 1, is amended to read:
13-1802. Theft; classification; definitions
A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property; or
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or
6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so; or
7. Controls the ferrous metal or nonferrous metal of another with the intent to deprive the other person of the metal; or
8. Controls the ferrous metal or nonferrous metal of another knowing or having reason to know that the metal was stolen; or
9. Purchases within the scope of the ordinary course of business the ferrous metal or nonferrous metal of another person knowing that the metal was stolen.
B. A person commits theft if, without lawful
authority, the person knowingly takes control, title, use or management of a
vulnerable adult's property while acting in a position of trust and confidence
and with the intent to deprive the vulnerable adult of the property. Proof that a person took
control, title, use or management of a vulnerable adult's property without
adequate consideration to the vulnerable adult The
following acts may give rise to an inference that the person intended to
deprive the vulnerable adult of the property:
1. Proof that a person took control,
title, use or management of a vulnerable adult's property without adequate
consideration to the vulnerable adult.
2. Any inter vivos transfer of money
or property valued in excess of $10,000 at the time of the transfer, whether in
a single transaction or multiple transactions, by a vulnerable adult to a
nonrelative whom the transferor knew for less than two years before the first
transfer and for which the transferor did not receive the reasonably equivalent
financial value in goods or services.
This paragraph applies regardless of whether the
transfer or transfers are denoted by the parties as a gift or loan. This
paragraph does not apply to either of the following:
(a) A valid
loan evidenced in writing that includes definite repayment dates unless the
repayment of the loan is in default, in whole or in part, for more than sixty‑five
days.
(b) A person
who is in the business of making loans or a bona fide charitable donation to a
nonprofit organization that qualifies for tax exempt status under the internal
revenue code.
C. It is an affirmative defense to any prosecution under subsection B of this section that either:
1. The property was given as a gift consistent with a pattern of gift giving to the person that existed before the adult became vulnerable.
2. The property was given as a gift consistent with a pattern of gift giving to a class of individuals that existed before the adult became vulnerable.
3. The superior court approved the transaction before the transaction occurred.
D. The inferences set forth in section 13‑2305 apply to any prosecution under subsection A, paragraph 5 of this section.
E. At the conclusion of any grand jury proceeding, hearing or trial, the court shall preserve any trade secret that is admitted in evidence or any portion of a transcript that contains information relating to the trade secret pursuant to section 44‑405.
F. Subsection B of this section does not apply to an agent who is acting within the scope of the agent's duties as or on behalf of a health care institution that is licensed pursuant to title 36, chapter 4 and that provides services to the vulnerable adult.
G. Theft of property or services with a value of twenty‑five thousand dollars $25,000 or more is a class 2 felony. Theft of property or services with a value of four thousand dollars $4,000 or more but less than twenty‑five thousand dollars $25,000 is a class 3 felony. Theft of property or services with a value of three thousand dollars $3,000 or more but less than four thousand dollars $4,000 is a class 4 felony, except that theft of any vehicle engine or transmission is a class 4 felony regardless of value. Theft of property or services with a value of two thousand dollars $2,000 or more but less than three thousand dollars $3,000 is a class 5 felony. Theft of property or services with a value of one thousand dollars $1,000 or more but less than two thousand dollars $2,000 is a class 6 felony. Theft of any property or services valued at less than one thousand dollars $1,000 is a class 1 misdemeanor, unless the property is taken from the person of another, is a firearm or is an animal taken for the purpose of animal fighting in violation of section 13‑2910.01, in which case the theft is a class 6 felony.
H. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars $100,000 or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
I. For the purposes of this section, the value of ferrous metal or nonferrous metal includes the amount of any damage to the property of another caused as a result of the theft of the metal.
J. In an action for theft of ferrous metal or nonferrous metal:
1. Unless satisfactorily explained or acquired in the ordinary course of business by an automotive recycler as defined and licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of possession of scrap metal that was recently stolen may give rise to an inference that the person in possession of the scrap metal was aware of the risk that it had been stolen or in some way participated in its theft.
2. Unless satisfactorily explained or sold in the ordinary course of business by an automotive recycler as defined and licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of the sale of stolen scrap metal at a price substantially below its fair market value may give rise to an inference that the person selling the scrap metal was aware of the risk that it had been stolen.
K. For the purposes of this section:
1. "Adequate consideration" means the property was given to the person as payment for bona fide goods or services provided by the person and the payment was at a rate that was customary for similar goods or services in the community that the vulnerable adult resided in at the time of the transaction.
2. "Ferrous metal" and "nonferrous metal" have the same meanings prescribed in section 44‑1641.
3. "Pattern of gift giving" means two or more gifts that are the same or similar in type and monetary value.
4. "Position of trust and confidence" has the same meaning prescribed in section 46‑456.
5. "Property" includes all forms of real property and personal property.
6. "Vulnerable adult" has the same meaning prescribed in section 46‑451.
Sec. 2. Section 13-1802, Arizona Revised Statutes, as amended by Laws 2018, chapter 298, section 1, is amended to read:
13-1802. Theft; classification; definitions
A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property; or
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or
6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so; or
7. Controls the ferrous metal or nonferrous metal of another with the intent to deprive the other person of the metal; or
8. Controls the ferrous metal or nonferrous metal of another knowing or having reason to know that the metal was stolen; or
9. Purchases within the scope of the ordinary course of business the ferrous metal or nonferrous metal of another person knowing that the metal was stolen.
B. A person commits theft if, without lawful
authority, the person knowingly takes control, title, use or management of a
vulnerable adult's property while acting in a position of trust and confidence
and with the intent to deprive the vulnerable adult of the
property. Proof that a person took control, title, use
or management of a vulnerable adult's property without adequate consideration
to the vulnerable adult The following acts may
give rise to an inference that the person intended to deprive the vulnerable
adult of the property:
1. Proof that a person took control,
title, use or management of a vulnerable adult's property without adequate consideration
to the vulnerable adult.
2. Any inter vivos transfer of money
or property valued in excess of $10,000 at the time of the transfer, whether in
a single transaction or multiple transactions, by a vulnerable adult to a
nonrelative whom the transferor knew for less than two years before the first
transfer and for which the transferor did not receive the reasonably equivalent
financial value in goods or services.
This paragraph applies regardless of whether the
transfer or transfers are denoted by the parties as a gift or loan. This
paragraph does not apply to either of the following:
(a) A valid
loan evidenced in writing that includes definite repayment dates unless the
repayment of the loan is in default, in whole or in part, for more than sixty‑five
days.
(b) A person who is in the business of making loans or a bona fide charitable donation to a nonprofit organization that qualifies for tax exempt status under the internal revenue code.
C. It is an affirmative defense to any prosecution under subsection B of this section that either:
1. The property was given as a gift consistent with a pattern of gift giving to the person that existed before the adult became vulnerable.
2. The property was given as a gift consistent with a pattern of gift giving to a class of individuals that existed before the adult became vulnerable.
3. The superior court approved the transaction before the transaction occurred.
D. The inferences set forth in section 13‑2305 apply to any prosecution under subsection A, paragraph 5 of this section.
E. At the conclusion of any grand jury proceeding, hearing or trial, the court shall preserve any trade secret that is admitted in evidence or any portion of a transcript that contains information relating to the trade secret pursuant to section 44‑405.
F. Subsection B of this section does not apply to an agent who is acting within the scope of the agent's duties as or on behalf of a health care institution that is licensed pursuant to title 36, chapter 4 and that provides services to the vulnerable adult.
G. Theft of property or services with a value of twenty‑five thousand dollars $25,000 or more is a class 2 felony. Theft of property or services with a value of four thousand dollars $4,000 or more but less than twenty‑five thousand dollars $25,000 is a class 3 felony. Theft of property or services with a value of three thousand dollars $3,000 or more but less than four thousand dollars $4,000 is a class 4 felony, except that theft of any vehicle engine or transmission is a class 4 felony regardless of value. Theft of property or services with a value of two thousand dollars $2,000 or more but less than three thousand dollars $3,000 is a class 5 felony. Theft of property or services with a value of one thousand dollars $1,000 or more but less than two thousand dollars $2,000 is a class 6 felony. Theft of any property or services valued at less than one thousand dollars $1,000 is a class 1 misdemeanor, unless the property is taken from the person of another, is a firearm or is an animal taken for the purpose of animal fighting in violation of section 13‑2910.01, in which case the theft is a class 6 felony.
H. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars $100,000 or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
I. For the purposes of this section, the value of ferrous metal or nonferrous metal includes the amount of any damage to the property of another caused as a result of the theft of the metal.
J. In an action for theft of ferrous metal or nonferrous metal:
1. Unless satisfactorily explained or acquired in the ordinary course of business by an automotive recycler that is licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of possession of scrap metal that was recently stolen may give rise to an inference that the person in possession of the scrap metal was aware of the risk that it had been stolen or in some way participated in its theft.
2. Unless satisfactorily explained or sold in the ordinary course of business by an automotive recycler that is licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of the sale of stolen scrap metal at a price substantially below its fair market value may give rise to an inference that the person selling the scrap metal was aware of the risk that it had been stolen.
K. For the purposes of this section:
1. "Adequate consideration" means the property was given to the person as payment for bona fide goods or services provided by the person and the payment was at a rate that was customary for similar goods or services in the community that the vulnerable adult resided in at the time of the transaction.
2. "Ferrous metal" has the same meaning prescribed in section 44‑1641.
3. "Pattern of gift giving" means two or more gifts that are the same or similar in type and monetary value.
4. "Position of trust and confidence" has the same meaning prescribed in section 46‑456.
5. "Property" includes all forms of real property and personal property.
6. "Vulnerable adult" has the same meaning prescribed in section 46‑451.
Sec. 3. Section 21-422, Arizona Revised Statutes, is amended to read:
21-422. Powers and duties
A. The law applicable to county grand juries, including their powers, duties and functions, applies to the state grand juries except insofar as it is in conflict with this article. The supreme court shall adopt rules to govern the procedures of state grand juries.
B. The state grand jury shall investigate and return indictments for only those offenses or violations of law arising out of or in connection with:
1. The determination or collection of state taxes, the registration or failure to register securities, the offer or sale of securities, the offer or sale of interests in land, the formation or operation of banks, insurance companies, pension funds, labor unions, professional sports enterprises, corporate enterprises, or business enterprises, the making or collecting of loans, events leading to receivership or declaration of bankruptcy by a business enterprise, the sale or purchase of goods or services by or for the state or political subdivisions, bribery, obstruction of justice, hindering prosecution or any form of intentional, knowing or corrupt misconduct involving any person compensated by public funds.
2. Any fraud, theft or possession, receipt, sale or transportation of stolen property or other contraband, or gambling or prostitution or narcotics, which that occurs in more than one county or which that occurs in one county and affects the residents of another county or which that may be prosecuted by more than one county attorney.
3. Perjury, false swearing, or unsworn falsification, or any violation of title 13, chapter 28 in connection with any state grand jury proceeding, committed by any person testifying before it or in any trial or other proceeding involving any indictment returned by a state grand jury.
4. Any perjury by subornation or attempted perjury by subornation relating to testimony before it or in any trial or other proceeding involving any indictment returned by a state grand jury.
5. Any violation of title 13, chapter 23 or section 38‑421 or 39‑161.
6. Any violation of title 13, chapter 35.1 if committed using a computer or network as defined in section 13‑2301 and if any part of the conduct either:
(a) Occurs in more than one county, state or country.
(b) Affects the residents of another county, state or country.
(c) May be prosecuted by more than one county, state or country.
7. Any violation of title 13 or 46 if
the victim is a vulnerable adult as defined in section 13‑3623 or 46‑451.
7. 8. Any criminal wrongdoing that is referred in writing by a county attorney and that is accepted in writing by the attorney general.
C. If a state grand jury, pursuant to an investigation under subsection B of this section, learns of an offense for which it lacks jurisdiction to indict, the grand jury shall direct the attorney general to inform the appropriate prosecutorial authority.
D. Nothing in This article shall be construed to does not limit the jurisdiction of the county grand juries or county attorneys, nor shall an investigation by a state grand jury be deemed preemptive of a previously instituted investigation by another grand jury or agency having jurisdiction under the same subject matter unless good cause is shown.
Sec. 4. Conditional enactment
Section 13‑1802, Arizona Revised Statutes, as amended by
Laws 2018, chapter 298, section 1 and this act, becomes effective on the date
prescribed by Laws 2018, chapter 298, section 12 but only on the occurrence of
the condition prescribed by Laws 2018, chapter 298, section 12.