Electricity Theft-Delaware

[Taxing Matters]

The onus is on the person who received the benefit of the theft of service to prove that they didn't commit the crime.

No it is not. The state always carries the burden to prove each element of the crime beyond a reasonable doubt. The defendant does not have to prove anything. There is no automatic presumption of guilt that applies to the owner of the home getting the stolen utility service. The state has to present evidence that would show the defendant committed the crime. It can do that with direct or circumstantial evidence.

However, if what the state has presented is enough to convince a jury of guilt the defendant had better be able to counter with a compelling defense if he wants to avoid conviction.

 

[Zigner]

No it is not. The state always carries the burden to prove each element of the crime beyond a reasonable doubt. The defendant does not have to prove anything. There is no automatic presumption of guilt that applies to the owner of the home getting the stolen utility service. The state has to present evidence that would show the defendant committed the crime. It can do that with direct or circumstantial evidence.

However, if what the state has presented is enough to convince a jury of guilt the defendant had better be able to counter with a compelling defense if he wants to avoid conviction.

The state merely has to prove that it has happened. The defendant then has the burden to rebut the presumption that s/he is the party who "did it".

[SUB]http://delcode.delaware.gov/title11/c005/sc03/index.shtml[/SUB]

§ 845 Theft of services.

(a) A person commits theft when, with the intent specified in § 841 of this title, the person obtains services which the person knows are available only for compensation by deception, threat, false token, false representation or statement or by installing, rearranging or tampering with any facility or equipment or by any other trick, contrivance or any other device to avoid payment for the services.

(b) In any prosecution for theft of services where services have been obtained from a public utility by the installation of, rearrangement of or tampering with any facility or equipment owned or used by the public utility to provide such services, without the consent or permission of the public utility, or by any other trick or contrivance, it shall be a rebuttable presumption that the person to whom the services are being furnished has created, caused or knows of the condition which is a violation of this section.

(c) A person who has obtained services from a public utility by installing, rearranging or tampering with any facility or equipment owned or used by the public utility to provide such services, or by any other trick or contrivance, is presumed to have done so with an intent to avoid, or to enable others to avoid, payment for the services involved.

(d) The rebuttable presumptions referred to in subsections (b) and (c) of this section shall not apply to any person to whom such services have been furnished for less than 31 days or until there has been at least 1 meter reading.

11 Del. C. 1953, § 845; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 227, §§ 1, 2; 70 Del. Laws, c. 186, § 1.;

 

[Taxing Matters]

The state merely has to prove that it has happened. The defendant then has the burden to rebut the presumption that s/he is the party who "did it".

The problem I have with that statute, however, is that the presumption in (b) is poorly worded. It does not literally create a presumption that the owner committed the theft. It creates a presumption that the defendant “created, caused or knows of the condition which is a violation of this section.” (Underlining added.) The word “or” in that sentence means that it creates a presumption of just one of those things, not necessarily all of them, and simply knowing of the condition, without more, does not prove that the defendant obtained the services by “deception, threat, false token, false representation or statement or by installing, rearranging or tampering with any facility or equipment or by any other trick, contrivance or any other device to avoid payment for the services.” In short, the statute in subsection (a) requires that defendant had taken some affirmative act to obtain the services without paying for them and the presumption in (b) is not enough to establish that the defendant had undertaken that affirmative act. At best it establishes (unless rebutted) that he knew of the condition, not that he caused it. Thus, in my view, the state still needs to prove with evidence that the owner actually took some action to cause the theft. Simply knowing about it would not be enough. Sloppy drafting of a criminal statute works against the state, not the defendant.

Similarly, you see in subsection (c ) that the presumption of the intent to avoid paying for the service only applies if the defendant has been shown have to “obtained services from a public utility by installing, rearranging or tampering with any facility or equipment owned or used by the public utility to provide such services, or by any other trick or contrivance.” Again, som affirmative action on the part of the defendant has to be shown, not merely knowledge.

Bottom line is that if I were the defendant's attorney I would argue that the state needs to prove the defendant actually did some act to obtain the services without paying for them as the presumption in (b) is not effective to do that.

 

[Zigner]

Fair enough

 

[quincy]

It is a rebuttable presumption but "someone" reported the illegal hookup. I suspect EandJjunk's friend will have a difficult time against (what could be) a neighbor's eyewitness report.