Editor’s note: This story has been updated as it contained incorrect information. The conviction was reversed not because of a store promotion that would have lowered the cost of the items enough to change the charge from a felony to a misdemeanor, but because the trial judge did not provide the jury with an instruction defining “market value.” The store discount was used by the defense as an example of how market value might be different than the sticker price of the items, and the example was cited in the Court of Appeals decision. The Court of Appeals found that the trial judge’s failure to instruct the jury on the definition of market value deprived the accused of a fair trial and granted a new trial.
Donald Lynn Henson was convicted of stealing fishing equipment and motor oil from the Fred Meyer store in Soldotna in 2011. He was sentenced to three years in prison.
Henson took $510.46 worth of merchandise. The minimum amount for a felony second-degree theft charge is $500. Less than that is a misdemeanor.
The judge handling the case was wrong to not instruct the jury on the definition of market value, the opinion said. During the trial, Henson’s attorney disputed the value of the merchandise.
“To support this claim, Henson (through his lawyer) elicited testimony that anybody who had a Fred Meyer ‘rewards card,’ including Henson, was eligible for a special coupon and could have purchased the items at a discounted price for less than $500,” the opinion said. “He also elicited testimony that comparable items might be available for less at other stores in the area or online.”
The appeals court explained in the opinion that the value of property is “the amount at which the property would change hands between a willing buyer and a willing seller.”
Henson’s case goes back to Superior Court in Kenai for a new trial, at the discretion of the district attorney.
