Shoplifting in Washington, D.C.
by Jamison Koehler on November 23, 2009
In 2001, the actress Winona Ryder was arrested for shoplifting $5,500 worth of goods from a store in Beverly Hills. As captured on the store’s surveillance tape, Ms. Ryder went into a Saks Fifth Avenue store and stuffed a number of garments into empty shopping bags. Ms. Ryder then walked out of the store and was confronted by security officers outside.
Ms. Ryder’s offense typifies what we might normally associate with the crime of shoplifting; that is, a person goes into a store, stuffs items into a bag, and then walks out of the store without paying for the merchandise. Everyone would probably agree that, absent inadvertence or mistake on the part of the person taking the property, shoplifting has been committed in this scenario.
Let’s try some different scenarios. What would have happened had Ms. Ryder been stopped after she put the items into her bag but before she left the store? Would this still have been shoplifting? How about if she had been stopped at the moment she picked up the first item of merchandise from the store shelf?
While I am not familiar with California law, I can tell you that, theoretically, Ms. Ryder could have been convicted of shoplifting in Washington, D.C. in all three scenarios above, including the scenario in which she does nothing but picks up the item from the shelf. Allow me to explain, focusing on this third and most unlikely scenario.
There are three elements to the crime of shoplifting in Washington, D.C. The first element is that the item in question is the “personal property of another.” The prosecution does not need to prove that the property actually belonged to the store. It just needs to prove that the property does not belong to the defendant. While defense lawyers can always be creative in introducing obstacles, the prosecution generally should have no problem proving this element of the offense. It can, for example, introduce the testimony of a witness to identify the item in question as belonging to the store.
Secondly, the prosecution must prove that the defendant either concealed or took possession of the property, removed or altered the price tag or some other identifying mark, or transferred the property from one display container to another. Again, assuming reliable eyewitness testimony, this would be relatively easy for the prosecution to prove. A witness could testify as to what he or she saw the defendant doing on that date.
Where the case gets more complicated is with respect to the third and final element requiring the prosecution to prove criminal intent. Specifically, the prosecution must prove that, at the time the defendant came into contact with the property, he or she had the criminal intent either (1) to “appropriate” the property offered for sale without making complete payment for it or (2) to defraud the owner of the value of the property.
Because neither the judge nor jury can read the defendant’s mind to determine precisely what he or she was thinking at the time of the incident, the prosecution’s case with respect to this element of the crime will necessarily be through circumstantial evidence.
It is easier for the judge or jury to infer criminal intent if the person has already walked out of the store with the items in his or her bag without paying for them. The prosecution’s case is strengthened if the person resists arrest or flees. These actions could suggest “guilty knowledge.”
Less clear but still no major obstacle would be the situation in which the suspect has simply stuffed the merchandise into a bag or hidden the items on his or her person. Most people would agree that concealing an item could suggest an intent to steal. Absent a credible explanation from the defense on some type of inadvertence or mistake, a judge or jury could infer that the person was planning to steal the items from this suspicious behavior.
But how about the situation in which the person does nothing more than pick up the item from the shelf? Could the prosecution prove shoplifting in this scenario? While I am not aware of any case in which this happened in either of the two jurisdictions in which I am licensed to practice law, it is theoretically possible.
How so? The D.C. Code provides that the criminal act required to proving shoplifting can be nothing more than the “taking possession of the property.” In other words, you don’t actually need to conceal the item or walk out of the store with it. Picking up an item from the store shelf would satisfy the criterion of “taking possession.”
The question then becomes: What was the defendant’s intent at the time he or she committed this act? And how does the prosecution prove this intent?
It is unlikely that the person would announce at the time of picking up the property that he or she was planning to steal it. It is also unlikely that the prosecution would be able to locate a witness to testify that, prior to going into the store, the suspect had told him or her that the suspect was planning to shoplift.
More likely would be the situation in which the prosecution would try to prove the criminal intent element of the offense through the defendant’s prior convictions for shoplifting. The admissibility of prior “bad acts” is a complicated issue. As such, it will need to be addressed at greater length in a future posting. For the purposes of this entry, allow me to say that the prosecution could conceivably attempt to have the judge or jury infer criminal intent at the time the suspect picked up the item from the fact that the suspect had committed shoplifting before. The prosecution could not introduce the prior convictions to show that the person was a bad person or had a propensity to commit shoplifting. But, assuming the court granted the prosecution’s motion to introduce the evidence, the prosecution could use the prior conviction to show that the act of picking up the item was part of a pattern of shoplifting or to counter the defense lawyer’s claims that the suspect would “never, ever shoplift.”
In other words, beware Ms. Ryder! While our criminal system seeks to prevent a defendant from being convicted on one offense for his or her unrelated actions on another day, a criminal past can come back to bite her. She should think twice the next time she walks into a store and picks up an item from the shelf, particularly if she is in Washington, D.C.