How Can Simple Shoplifting Become a Felony?
As a felony defense attorney, I have routinely observed the crushing emotional distress a client suffers when he or she has been vindictively overcharged by a zealous prosecutor. Having practiced law for almost three decades, I have seen far too many people commit a relatively minor offense, only to be hauled into court and charged with a major felony. This overcharging seems to be most prevalent in the shoplifting realm.
In Arizona, the general rule is that any theft of less than $1,000.00 is a misdemeanor. There are, however, several important exceptions:
- Theft of a firearm is a felony even if the gun is worth less $1,000.00.
- Being a pickpocket is a felony (the law calls this stealing “from the person of another”).
- Being a repeat offender can be a felony depending on the prior convictions and the methods utilized to carry out the most recent theft.
- Engaging in Organized Retail Theft – This crime requires proof of an intent to trade the stolen merchandise for money (usually seen with a drug addict who is stealing to feed his habit) or, in the alternative, use of an “instrument, container, device or other article to facilitate the removal.” To put the “container” language in simple terms, if you pick up a candy bar and walk out of the store without paying for it, you have committed a misdemeanor theft. Put that same candy bar inside a purse or a backpack to conceal it while you walk out of the store, and you just committed a Class 4 felony.
- Committing a Burglary – clients will often tell me they only intended to steal. They never intended to be a burglar. Yet burglary, by definition, is entering a building with the “intent to commit a theft or a felony.” And just how exactly does a prosecutor prove that a particular shoplifting event was pre-planned and not the result of a fleeting impulse? The following methods seem to be the most common:
- Many individuals will confess their prior planning in the hopes the cops will go easy on them. In this case, they are hoping for mercy but, in reality, they are providing the prosecutor with additional legal ammunition.
- Store video cameras document that the offender was on his or her fourth theft of the day when they finally got caught. Multiple back-to-back offenses can be a highly persuasive indicator of a predetermined intent.
- Police officers routinely ask permission to look through an arrested person’s smart phone. Without permission, the police need a warrant to search a cell phone. Yet, permission (like the confessions above) is routinely given even though the offender has recently sent a text to his best friend bragging about his upcoming intent to steal from a local merchant.
Our felony defense attorneys have vast experience in mitigating overcharged offenses. If you or a loved one has been charged with a felony theft or burglary, please give us a call at (480) 833-2341.
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