The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge.
In a recent blog post, my colleague Alyson Grine analyzed some of the evidentiary issues that may arise in felony breaking or entering prosecutions in these kinds of cases. For example, she questioned whether the element of “intent to commit a felony or larceny” would be met if the evidence showed only that a person entered a store from which he or she had previously been barred. Let’s assume those issues aren’t present. Assume the evidence shows the person entered the store, after having been clearly told by an authorized store representative not to come back, with the intent to steal. Applied literally, the requirements for felony breaking or entering—entering a building, without consent, and with the intent to commit a felony or larceny—would seem to fit.
Further, some state courts have upheld convictions on these facts under comparable statutes, although the issues that were raised on appeal differ somewhat from the ones I discuss below. For example, in State v. Acevedo, 315 P.3d 261 (Kan. Ct. App. 2013), the defendant was told by Wal-Mart that he was not allowed to come back to any Wal-Mart store. When he returned about two years later and stole a $2.88 grinder wheel, he was charged with aggravated burglary, was convicted, and received a prison sentence of 114 months. Like North Carolina’s felony breaking or entering statute, the Kansas aggravated burglary statute applies to “knowingly and without authority entering into or remaining within any building . . . with intent to commit a felony [or] theft . . . .” Id. at 266. The Kansas court rejected the defendant’s arguments that Wal-Mart’s revocation notice was legally deficient and upheld the conviction. Other cases, addressing different arguments, have upheld convictions based on similar facts. See State v. Proby, 437 S.W.3d 375 (Mo. Ct. App. 2014); State v. Kutch, 951 P.2d 1139 (Wash. Ct. App. 1998).
Given the above, what’s the problem? Here are four potential concerns.
Entry into a public area alone may not be the kind of invasion protected by breaking or entering laws. The New Mexico Court of Appeals articulated this view in holding that its commercial burglary statute, which is comparable to North Carolina’s felony breaking or entering statute, did not apply in a case in which the defendant entered and shoplifted at a Walgreens store after the company had banned him from its stores. State v. Archuleta, 346 P.3d 390 (N.M. Ct. App. 2014), cert. granted, 350 P.3d 91 (N.M. 2015), cert. quashed, ___ P.3d ___ (N.M., May 11, 2015); see also State v. Mestas, ___ P.3d ___ (N.M. Ct. App., Feb. 11, 2016) (noting that cert. was quashed in Archuleta). The court found that the original purpose of common-law burglary, to protect the security of a person’s home, remains relevant in construing modern statutes criminalizing entries into other structures. Such statutes, the court held, have “a greater purpose than merely protecting property.” Id. at 392. The harm the statutes are designed to prevent is the “invasion of privacy” and “feeling of being personally violated” that occurs when an intruder enters a private space. Id. Although the privacy interest protected by modern burglary and breaking or entering statutes is broader than the security of one’s home, the statutes are still aimed at “protect[ing] against the feeling of violation and vulnerability that occurs when a burglar invades one’s personal space.” The court concluded that entry into an otherwise open shopping area, even after receiving a no-trespass notice from the store, does not constitute the kind of “harmful entry” protected by its burglary statute. Archuleta, 346 P.3d at 392–94.
No North Carolina appellate cases have addressed this issue. Several decisions have held that a person who enters an otherwise public area of a building, and then passes into a private area without consent and with the intent to commit a felony or larceny, is guilty of felony breaking or entering. See State v. Rawlinson, 198 N.C. App. 600 (2009) (defendant passed from public area of video store into private office to commit theft; defendant did not have consent to enter private office); see also State v. Speller, 44 N.C. App. 59 (1979) (defendant entered store during regular business hours and hid in an area not open to public until after store closed to commit theft; defendant’s acts voided consent to enter store). Although these cases initially involved an entry into the public portion of a building, the court was ultimately concerned about entry into private areas. Felony breaking or entering convictions on these facts therefore seems consistent with the views expressed by the New Mexico Court of Appeals about the purpose of modern burglary and breaking or entering statutes—to protect against invasions of private spaces.
The literal elements of a criminal statute do not necessarily reflect the legislature’s intent. In Archuleta, the New Mexico Court of Appeals recognized that the literal terms of the state’s commercial burglary statute covered the defendant’s entry and shoplifting at the store after the company had banned him. The court expressed concerns, however, that the statute had been expanded beyond its purpose. The court therefore determined that, as part of its statutory interpretation analysis, it needed to consider whether the legislature intended this result. The court concluded that the terms of the commercial burglary statute did not apply to the defendant’s conduct, overruling a prior decision that had taken a purely literal approach. Archuleta, 346 P.3d 390, 394 & n.3.
North Carolina courts have likewise curbed overly-expansive applications of criminal statutes. For example, in State v. Jones, 353 N.C. 159 (2000), the State prosecuted the defendant for felony murder based on an incident in which the defendant was driving while impaired, struck and killed one person, and seriously injured another person. The State sought to use the injury to the second person, which constituted the offense of assault with a deadly weapon inflicting serious injury, as the basis for felony murder for the killing of the first person. The literal terms of the felony murder statute, which treat a killing as felony murder if committed in the perpetration of a felony with the use of a deadly weapon, supported the State’s theory. See G.S. 14-17(a). The Supreme Court found, however, that the North Carolina General Assembly did not intend for the felony murder statute to apply unless the underlying felony involved a level of intentional conduct greater than the culpable negligence involved in driving while impaired. The Court reached this conclusion even though the statute did not explicitly require a greater intent. See also State v. Boone, 297 N.C. 652 (1979) (holding that although the literal terms of the felony breaking or entering statute require only that the defendant break or enter with the intent to commit a felony or larceny, lack of consent to enter is an essential element of the crime).
Other statutes address habitual shoplifting and habitual larceny. North Carolina has long had a statute on habitual shoplifting. A first conviction of shoplifting is a Class 3 misdemeanor, a second conviction within three years is a Class 2 misdemeanor, and a third and subsequent conviction within five years is a Class 1 misdemeanor. See G.S. 14-72.1(e). In 2012, the General Assembly added a statute on habitual larceny, making a fifth conviction of a larceny a Class H felony. See G.S. 14-72(b)(6).
The presence of alternative offenses with lesser punishments does not necessarily bar prosecution of a more serious offense. The determinative question remains whether the more serious offense fits the defendant’s conduct within the meaning of the statute. For example, in State v. Rogers, 346 N.C. 262 (1997), the North Carolina Supreme Court held that conduct that constituted obtaining property in exchange for a worthless check, a misdemeanor, could be prosecuted as obtaining property by false pretenses, a felony, because the conduct satisfied the elements of the felony offense. The Court has found lesser punishment schemes relevant, however, in construing the elements of a more serious offense and determining whether they apply to a person’s conduct. Thus, in Jones, the felony murder case discussed above, the Court held that the General Assembly’s enactment of death by vehicle statutes, with “substantially less draconian sanctions,” reinforced its interpretation that the General Assembly never “contemplated, no less intended” for the felony murder statute to apply to a killing caused by impaired driving. 353 N.C. at 169–70.
The General Assembly decides public policy. A private company certainly has the right to protect its merchandise by, among other things, banning people from the premises. If the person returns, the person is guilty of trespassing. If the person steals, he or she is guilty of shoplifting or larceny. Ultimately, however, it is for the General Assembly to decide whether misdemeanor trespasses and misdemeanor thefts should be elevated to felonies. Felony prosecutions expend more public resources. Felony convictions have a greater impact on the populations convicted. It is also for the General Assembly to determine the circumstances in which repeat conduct should be a felony. For example, is a private notice from a company not to return a sufficient predicate to elevate an offense to a higher level, or must the defendant have been convicted of certain conduct a certain number of times, as under the habitual shoplifting and habitual larceny statutes?
The Florida legislature has chosen, through explicit statutory language, to exclude premises open to the public from its definition of burglary-like offenses. See, e.g., State v. Byars, 823 So. 2d 740, 744 (Fla. 2002) (reviewing Florida statute and observing that businesses accessible to the general public may not facilitate burglary prosecutions by simply posting notices forbidding shoplifters and vandals from entering). The absence of limiting language in North Carolina’s statute could be construed as indicating that the General Assembly has chosen to allow prosecution of felony breaking or entering. More likely, the General Assembly never contemplated this application of the statute. Without a clearer expression of legislative intent, I have reservations about whether the law supports this charge.