North Dakota Code 12.1-23-09 – Defenses and proof as to theft and related offenses
1. It is a defense to a prosecution under this chapter that:
Terms Used In North Dakota Code 12.1-23-09
- Actor: includes , where relevant, a person guilty of an omission. See North Dakota Code 12.1-01-04
- Conviction: A judgement of guilt against a criminal defendant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Offense: means conduct for which a term of imprisonment or a fine is authorized by statute after conviction. See North Dakota Code 12.1-01-04
- person: includes , where relevant, a corporation, limited liability company, partnership, unincorporated association, or other legal entity. See North Dakota Code 12.1-01-04
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- Public servant: as used in this title and in any statute outside this title which defines an offense means any officer or employee of government, including law enforcement officers, whether elected or appointed, and any person participating in the performance of a governmental function. See North Dakota Code 12.1-01-04
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
a. The actor reasonably believed that the actor had a claim to the property or services involved which the actor was entitled to assert in the manner which forms the basis for the charge against the actor; or
b. The victim is the actor’s spouse, but only when the property involved constitutes household or personal effects or other property normally accessible to both spouses and the parties involved are living together. The term “spouse”, as used in this section, includes persons living together as husband and wife.
2. It does not constitute a defense to a prosecution for conduct constituting an offense in violation of this chapter that:
a. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed; b. A facility or an opportunity to engage in such conduct, including offering for sale property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.
3. a. It is a prima facie case of theft under this chapter if it is shown that a public servant or an officer, director, agent, employee of, or a person connected in any capacity with a financial institution has failed to pay or account upon lawful demand for money or property entrusted to the person as part of that person’s official duties or if an audit reveals a shortage or falsification of the person’s accounts.
b. It is a prima facie case of theft under this chapter if it is shown that a person, having successfully bid on and obtained an item at an auction, removed the item from the auction premises without paying or making provisions to pay for the item.
c. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
d. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
4. The testimony of an accomplice, if believed beyond a reasonable doubt, is sufficient for a conviction for conduct constituting an offense in violation of sections 12.1-23-08.1 through 12.1-23-08.3 when:
a. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed; b. A facility or an opportunity to engage in such conduct including offering for sale property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.