What’s a Headdress Worth?

By: Monte E. Hester; Sept 1996

A charge of theft requires that the state prove that the item which was stolen has a particular value.  If the charge is first degree theft, the value proven must exceed $1500.00.  If the charge is second degree theft, it must exceed $250.00, but not exceed $1500.00.  Both first and second degree are felonies.  Third degree theft deals with theft of property or services which does not exceed $250.00 in value.

            Value can become very important to a defendant and the prosecutor in a theft case.  What evidence is sufficient to establish value can be critical to the outcome of the case and may well result in the case being dismissed before it is given to the jury and can result in a not guilty verdict if given to the jury.

            The most recent case in our state which analyzes value as it relates to theft cases is State v. Kleist, 126 Wn.2d 432 (1995).

            RCW 9A56.010(15)(a) defines value.  “Value” means the market value of the property or services at the time and in the approximate area of the criminal act. 

            The court in the Kleist case states that criminal case law has derived a definition for market value from that developed in civil cases.

            “Market value” is defined in this state as the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction.

            The issue of value, or I should say the “element” of value, will always require the state to initially lay a foundation sufficient to establish “market value” as defined by the court.  This burden is not one that is easily overcome.  If the item is unique or if sales haven’t occurred in the approximate area, how can the state provide value?  The legislature seems to require specific detailed evidence.

            Take a case where an Indian headdress was fabricated in New Mexico and gifted to a Washington resident.  It was displayed in a store, not for sale, but for purposes of taking orders for similar headdresses.  Is it a sufficient foundation to establish a value of $500.00 to state that the owner had sold two identical headdresses in Georgia three or four years earlier for $500.00 each – to two different individuals whose knowledge of the value of headdresses was unknown?  I submit the foundation is inadequate and that the witness should not be permitted to give an opinion of value.

            As stated in Kleist, the legislature has unambiguously declared value as market value.  Market value is not based on “the value to any particular person,” but rather on an objective standard.  The critical inquiry is what a well-informed buyer and seller would pay for the goods. 

            Below is a suggested instruction that permits the jury to properly decide the element of value if the court hasn't already dismissed the case.  This instruction is a combination of WPIC 79.20 and State v. Kleist, supra.

            Value means the market value of the property at the time and in the approximate area of the act.

            Market value is defined as the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction.

            If an issue of lack of foundation is anticipated, I would suggest that a hearing be conducted outside the presence of the jury requiring the state to put on it’s proffer.