Can I Be Convicted of Shoplifting When I Never Left the Store with the Merchandise?

Proving that the defendant intended to keep the item can be done by showing that he left without paying for it—but that's not the only way.

Answer: Yes, a defendant can commit the crime of shoplifting without actually leaving the store. All he needs to is to move the property and exercise control over it in a way that is inconsistent with the shop owner's reasonable expectations as to how shoppers will handle merchandise.

For example, shopkeepers know that people will handle an item to examine it, purchase it, try it on, show it to a companion, and so on. Shoppers might even move the item to another department to compare it with other merchandise. The critical question is how that movement and carrying is accomplished.

Let's say a woman places several blouses over her arm, takes them to her husband in another part of the store, and shows them to him. Under these circumstances, the woman probably does not have the intent to steal the blouses. But if she takes those items and places them in her backpack or under her coat, a prosecutor might be able to convince the jury that these actions indicate an intent to leave without paying for them. Accordingly, guards or salespeople may approach and detain someone who has taken these steps, even before the person leaves the store.

Many clerks and security personnel will not, however, apprehend a suspected thief until that person has actually left the store. The reason is not that they lack justification to detain the person before that moment. Instead, they simply want an open-and-shut case. It will be difficult to argue that one intended to pay for the goods when one has walked out without doing so; on the other hand, defendants who are apprehended pre-exit might convince the jury that their actions were consistent with an intent to eventually pay for the merchandise before leaving the store.

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