| A mere infringement on ownership or possession is insufficient to establish the infringement on the legal interest protected by the offense of theft. Like fraud, theft should be conceptualized as an offense against the overall value of the victim’s property, with property loss constituting an implicit yet indispensable element of its definition. In cases where an owner merely reclaims his or her own property without demanding compensation, a creditor takes a debtor’s money to satisfy a debt, or the offender leaves adequate consideration after taking another’s property, it is objectively difficult to demonstrate harm to the protected legal interest and subjectively difficult to establish the requisite intent of unlawful appropriation - more precisely, the intent to gain unlawfully. The offense of theft is consummated not at the moment the victim loses possession or the offender gains control, but at the moment the act results in actual economic harm to the victim. The amount of such harm at the time of the consummation of the act determines the value of the theft. This loss must be assessed holistically based on economic impact, with appropriately limited recognition of “consideration” to avoid overly expansive interpretations, and be restricted with the responsibility doctrines. Rather than excusing theft, the doctrine of necessary overall property loss reinforces both the substantive elements of the offense and its sentencing rationale. |
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