WPIC 79.20 Value—Definition

Use this instruction whenever value is involved in a theft case or in a possession of stolen property case, using brackets as appropriate.

If a common scheme or plan is alleged for the purpose of aggregating damages and the bracketed second paragraph is used, the existence of a common scheme or plan is a separate element that must be set out separately in the elements instruction. Use the bracketed material relating to degree of theft only if more than one degree of the crime is being submitted to the jury because of a dispute over the value involved.

The bracketed paragraph referring to mercantile establishments is based on RCW 9A.56.010(21)(c) which allows a series of thefts to be aggregated on the basis of a “criminal episode.” For discussion of this statute's applicability, see the Comment.

The words “or services” are bracketed in the first paragraph because some theft statutes apply only to property. See, e.g., RCW 9A.56.340 through 9A.56.360 (offenses relating to theft from mercantile establishments).

Do not use this instruction in connection with the crime of theft of rental, leased, or leased-purchased property. See the Comment below.

RCW 9A.56.010 sets forth the statutory definition of value. The statute includes provisions relating to the value of written instruments that have not been included in this instruction.

Aggregation of multiple acts—Common scheme or plan. Under RCW 9A.56.010(21) and the common law, multiple acts of theft may be aggregated into one count if they are part of a common scheme or plan or a criminal episode. The aggregation cannot be done in an arbitrary fashion. Rather, some factual basis must justify the separate charges. In one case, for example, a worker obtained worker's compensation benefits by falsely reporting that he was not working. His period of work was interrupted by a month when he was recovering from an injury (and therefore entitled to benefits). Under these facts, he was properly charged with two counts of theft, one for each uninterrupted period of work. State v. Farnworth, 192 Wn.2d 468, 430 P.3d 1127 (2018).

The divisions of the Court of Appeals disagree on aggregating thefts that involve different victims. According to Divisions I and II, thefts involving different victims in different places cannot be aggregated as “part of a common scheme or plan” under RCW 9A.56.010. State v. Greathouse, 113 Wn.App. 889, 56 P.3d 569 (2002) (Division I); State v. Atterton, 81 Wn.App. 470, 472–73, 915 P.2d 535 (1996) (Division I); State v. Meyer, 26 Wn.App. 119, 613 P.2d 132 (1980) (Division II). The Atterton court disagreed with State v. Bonefield, 37 Wn.App. 878, 683 P.2d 1129 (1984) (Division III). In Bonefield, a prosecution for unlawful issuance of a bank check, Division III held that the State may aggregate the amounts lost in a series of transactions, involving multiple victims on multiple days, due to a common scheme or plan. For further discussion, see Fine, 13B Washington Practice, Criminal Law and Sentencing section 31:9 (3d ed.).

In a case in which a defendant used forged withdrawal slips on five separate occasions during one month to withdraw a total of $3,000 from a bank account, the five acts of second degree theft constituted one criminal impulse pursuant to a general larcenous scheme and therefore could be charged under the common law rule as one count of first degree theft, even though RCW 9A.56.010, the aggregation statute, applies only to third degree theft. State v. Barton, 28 Wn.App. 690, 626 P.2d 509 (1981).

The phrase “common scheme or plan” need not be defined in the jury instructions. State v. Reid, 74 Wn.App. 281, 292, 872 P.2d 1135 (1994).

Aggregation of thefts—Criminal episode involving mercantile establishments. Multiple thefts that are committed as part of a “criminal episode” may be aggregated into a single count, with the degree of the offense being determined by the sum of the value at issue. RCW 9A.56.010(21)(c). The Legislature defined “criminal episode” as “a series of thefts committed by the same person from one or more mercantile establishments on three or more occasions within a five-day period.” RCW 9A.56.010(21)(c).

Aggregation on the basis of a criminal episode is authorized “except as provided in RCW 9A.56.340(4) [setting forth separate grounds for aggregating multiple thefts in the context of theft with intent to resell] and RCW 9A.56.350(4) [setting forth separate grounds for aggregating multiple thefts in the context of organized retail theft].” RCW 9A.56.010(21)(c).

Date element. The period of time in the date element may extend beyond the statute of limitations when a continuing crime is charged. In such cases, the crime is not completed until the continuing criminal impulse has been terminated and the statute of limitations does not begin to run until the crime is completed. See, e.g., State v. Reeder, 181 Wn.App. 897, 924–25, 330 P.3d 786 (2014), affirmed, 184 Wn.2d 805, 365 P.3d 1243 (2015). Whether the criminal impulse continued into the statute of limitations period is a question of fact for the jury. State v. Reeder, 181 Wn.App. at 924. A format for the special verdict form is included at WPIC 190.22 (Special Verdict Form—Continuing Criminal Impulse).

Value of a forged check. In State v. Skorpen, 57 Wn.App. 144, 787 P.2d 54 (1990), the defendant was convicted of theft in the second degree after attempting to cash a forged check in the amount of $375 that the defendant had found. The trial court ruled that as a matter of law a forged check has a value equal to its face amount. The Court of Appeals reversed the conviction holding that a forged check has no value and that the highest degree of theft of which the defendant could have been convicted was third degree theft. But see State v. Lampley, 136 Wn.App. 836, 842, 151 P.3d 1001 (2006) (holding that a forged endorsement suggests fraudulent transfer of the check but does not alter the genuine nature of the check itself for purposes of establishing value; because the drawer actually signed it, the check itself is genuine and the check's value is its face value).

Market value. When the value of property is an element of the crime charged, the jury should not assess its value on the basis of its appearance alone. For cases addressing the use of price tags to establish market value, see State v. Rainwater, 75 Wn.App. 256, 876 P.2d 979 (1994); State v. Coleman, 19 Wn.App. 549, 576 P.2d 925 (1978); State v. Farrer, 57 Wn.App. 207, 787 P.2d 935 (1990).

Market value is determined by an objective standard; it is not the value to a particular person. State v. Longshore, 97 Wn.App. 144, 148–49, 982 P.2d 1191 (1999), affirmed, 141 Wn.2d 414, 5 P.3d 1256 (2000). Market value is the price that a well-informed buyer would pay to a well-informed seller, when neither is obligated to enter into the transaction. State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (1995); State v. Longshore, 97 Wn.App. at 148.

A judge improperly comments on the evidence by instructing the jury that “[e]vidence of a retail price may be sufficient to establish value.” State v. Hermann, 138 Wn.App. 596, 607, 158 P.3d 96 (2007) (the instruction “improperly invaded the province of the jury by effectively directing it to calculate the jewelry's value based on the purchase price, to the exclusion of other competent evidence of value”).

Value—Exchange of property. When a theft by deception is based on a purchase or exchange of property, “value” is measured solely with regard to the property that the defendant acquired; there is no netting out of the value of the property that the defendant gave in exchange. State v. George, 161 Wn.2d 203, 209, 213, 164 P.3d 506 (2007) (“The Legislature could have defined value in the context of a sale as the difference between what was obtained and what was given up, but it has not.”). The “higher the stakes of the transaction, the more severely our legislature intends the deception to be punished.” State v. George, 161 Wn.2d at 213.

Inapplicability to RCW 9A.56.096. The statute creating the crime of theft of rental, leased, or lease-purchased property specifies that the “replacement value of the property obtained” must be used in determining the value of the property. RCW 9A.56.096(4). It is therefore recommended that this statutory wording, rather than the wording of the instruction above, be used in such cases.