The criminal act element required under consolidated theft statutes is stealing real property, personal property, or services. Real property is land and anything permanently attached to land, like a building. Personal property is any movable item. Personal property can be tangible property, like money, jewelry, vehicles, electronics, cellular telephones, and clothing. Personal property can also be intangible property, which means it has value, but it cannot be touched or held, like stocks and bonds. The Model Penal Code criminalizes theft by unlawful taking of movable property, theft by deception, theft of services, and theft by failure to make required disposition of funds received under one consolidated grading provision (Model Penal Code §§ 223.1, 223.2, 223.3, 223.7, 223.8).
The act of stealing can be carried out in more than one way. When the defendant steals by a physical taking, the theft is generally a larceny theft. The act of taking is twofold. First, the defendant must gain control over the item. Then the defendant must movethe item, which is called asportation, as it is with kidnapping. 1 Although asportation for kidnapping must be a certain distance in many jurisdictions, the asportation for larceny can be any distance—even the slightest motion is sufficient. 2 Control plus asportation can be accomplished by the defendant’s physical act or by deceiving the victim into transferring the property with a false representation of fact. This is called larceny by trick. Because larceny requires a physical taking, it generally only pertains to personal property.
Another way for a defendant to steal property is to convert it to the defendant’s use or ownership. Conversion generally occurs when the victim transfers possessionof the property to the defendant, and the defendant thereafter appropriates the property transferred. When the defendant steals by conversion, the theft is generally an embezzlement theft. 3 Embezzlement could occur when the defendant gains possession of property from a friendship or a family relationship or from a paid relationship such as employer-employee or attorney-client. Embezzlement does not require a physical taking, so it can pertain to real or personal property.
When the defendant steals by a false representation of fact, and the subject of the theft is a service, the theft is generally a false pretenses theft. 4 False pretenses can alsobe used to steal personal or real property and is very similar to larceny by trick in this regard. What differentiates false pretenses from larceny by trick is the status of the property after it is stolen, which is discussed under the harm element of consolidated theft statutes.
To summarize, whether the defendant steals by a physical taking, a conversion, or a false representation of fact, and whether the defendant steals real or personal property or a service, the crime is theft under modern consolidated theft statutes and is graded primarily on the value of the property or service stolen.
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