¶1dissenting.
¶2I respectfully dissent.
¶3Section 30-16-20 provides that whether shoplifting amounts to a misdemeanor or a felony turns on the value of the item shoplifted. The term “value” is neither defined in section 30-16-20 nor in the criminal code.
¶4Value, however, is often defined in the context of larceny and shoplifting statutes as “market value.” State v. Richardson, 89 N.M. 30, 546 P.2d 878 (Ct.App.1976). Market value is also defined in the New Mexico Uniform Jury Instructions as “the price at which the property could ordinarily be bought and sold at the time of the alleged [shoplifting].” N.M.U.J.I.Crim. 16.01 N.M. S.A. 1978 (1982 Repl.Pamph.). This proposition is well established in Judge Donnelly’s opinion.
¶5It is at this juncture, however, that I take issue with the majority opinion. I cannot agree that the tenets of criminal law permit us to consider gross receipts tax as a portion of the market value. The principle to be followed is that criminal statutes are to be strictly construed, and doubt is resolved in favor of the accused. Bokum Resources v. N.M. Water Quality Cont., 93 N.M. 546, 603 P.2d 285 (1979).
¶6In the case at bar, the price tag on the merchandise shoplifted was $99.99. I presume this to be the reasonable value, less tax, of the item. This “transaction” being a theft, the merchant did not realize a sale, or undertake to collect any receipts. Yet the tax which the state seeks to include is one levied upon the merchant to extent “of four percent of gross receipts”. “ ‘Gross receipts’ means that total amount of money or the value of other consideration, received from selling property in New Mexico.... ” Section 7-9-3, N.M.S.A.1978 (Emphasis added).
¶7Accordingly, I am compelled to agree with the defendant’s position. Because the gross receipts tax is imposed upon the merchant, and is exacted in relation to the sales made and the receipts collected, I would hold, as a matter of law, that sales or gross receipts taxes cannot be considered in calculating the market value of an item which has been shoplifted.