We've got this burglary, 8 participants and about 20-25k in equipment and such stolen from a tattoo parlor. (yes yes, I know)

Which paragraph from the charging manual would you use as a part of your indictment?

I like 1(a) because it's nice and short. 1(b) appears to be for an inchoate crime. It refers to the overt act with language that states exactly what happened leading up to the arrest assuming there wasn't a burglary.

Am I right on this distinction? We've got the burg occurring, and half the people participating in the loading of the property into the storage shed where we recovered most of the items. So, we believe that we can prove actual participation on each of the 8 defendants without worrying about 'substantial steps' or 'overt acts'. Given that the OCA carried out the crime, am I sufficient in charging a burg paragraph then adding the proposed 71.02 1(a) paragraph?

I think I'm right, but I want a second opinion.

[This message was edited by Philip D Ray on 11-08-05 at .]

I would file it as theft if you can prove value of $20,000 or more. This would make it a third degree felony; use of 71.02 would then make it a second degree.

Well, the estimate is a little shaky. The most 'valuable' items are the guitars and amplifiers that were stolen from the back room. (Yes, a tattoo parlor / rock band studio)

The variance in the estimation of the Randy Rhodes flying 'V' guitars is critical when establishing SJF or 3rd Deg theft amounts. So, we figured to indict without regard to the value of the items by doing Burg with intent to commit theft and OCA.

That leads me to ask the question: Can a defendant challenge the valuation of the theft at some point during the trial by saying that the stuff really is not worth $20,000 or $10,000 or whatever so as to lower their penalty exposure (from 3rd degree to Class A, lets say)?

Can that be done?

of course. ironically, we had a prosecutor overprove a criminal mischief and establish a felony amount of damage as opposed to a misdemeanor amount of damage. i only mention this because the county-court-at-law judge felt that he had to grant a directed verdict on the misdemeanor criminal mischief because we only proved the felony amount, leading to the question of whether we could re-file the case in district court. hey, don't ask me, this ain't my world, i'm only living in it.

Yes Dennis, you can. It's like arguing for a manslaughter conviction instead of murder. It's all about punishment exposure. So, because I don't want to have to stand on the value of the item, I'm indicting the case as a burglary of a building, enhanced by 71.02 to a third degree felony.