Shoplifting and Larceny

I recently had occasion to think about the relationship between shoplifting and larceny.

The two offenses in a nutshell. Larceny is normally a Class 1 misdemeanor. It requires proof that a defendant has (1) taken (2) personal property that is (3) in the possession of another, and (4) has carried it away (5) without consent and (6) with the intent to deprive the possessor of it permanently, while (7) knowing that he or she was not entitled to it. See generally G.S. 14-72.

Shoplifting is normally a Class 3 misdemeanor. It requires proof that a defendant has (1) willfully concealed (2) merchandise of a store (3) without authority, (4) without having purchased the merchandise, and (5) while still on the premises of the store. G.S. 14-72.1.

Shoplifting may be charged when a person is apprehended within a store after concealing merchandise, while larceny is typically charged when the person is apprehended after leaving the store. The general thinking seems to be that the departure from the store cements the elements of carrying away and intent to deprive.

Charging both offenses. Suppose that a person conceals an item and then walks out of a store with the item without paying. May the person properly be charged with both shoplifting and larceny? May the defendant properly be convicted of both crimes? Double jeopardy would not prohibit it. The two offenses are separate for purposes of double jeopardy analysis, as each offense “requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299 (1932). Larceny requires proof of intent to deprive, while shoplifting requires proof of concealment. As an aside, other states may define shoplifting differently and so may reach different double jeopardy results. See, e.g., Wright v. State, 549 S.W.2d 682 (Tenn. 1977) (ruling that shoplifting, as defined in Tennessee, “is a lesser included offense within petit larceny”).

Double jeopardy notwithstanding, perhaps one could argue that the General Assembly did not intend for a defendant to be charged with, or convicted of, both offenses. The argument would be similar to the one adopted in State v. Perry, 52 N.C. App. 48 (1981), where the court ruled in part that the legislature did not intend that a single defendant could “be convicted both of the larceny of property and of the possession of the same stolen property which was the subject of the larceny.” This argument may be bolstered by the fact that shoplifting is, in some sense, akin to an attempted or inchoate larceny.

I couldn’t locate a North Carolina appellate case addressing this issue. Cf. Jessica Smith, North Carolina Crimes 327 (7th ed. 2012) (stating that “[i[t is unclear whether a person may be convicted and punished for both larceny and shoplifting . . . based on the same incident”); Randy R. Koenders, Validity, Construction, and Effect of Statutes Establishing Shoplifting of Its Equivalent as Separate Criminal Offense, 64 A.L.R.4th 1088 (discussing the relationship between the two offenses generally but not noting a case directly on point). The apparent absence of such a case makes me think that when a larceny has been completed, shoplifting is not normally charged. But I would be very interested to hear from readers about the accuracy of that belief.

The last point of sale rule. Law enforcement officers and magistrates often apply what I call the “last point of sale rule.” The idea is that if a person has carried unpaid merchandise past the last point of sale – normally, the cash registers at the front of the store –that fact supports an inference that the person intended to steal the merchandise and so supports a larceny charge.

I’m not aware of a North Carolina appellate case that expressly endorses the rule. The closest I could come was State v. Call, 230 N.C. App. 45 (2013), a larceny case where the court noted in passing that “the Wal–Mart in-store camera recording of the alleged larceny . . . showed defendant and other individuals taking cans of baby formula from the store past the point of sale without paying for the items.”

Still, the rule it strikes me as a sound rule of thumb, and several out-of-state cases refer to the passing of the last point of sale as a significant indicator of intent to steal. See, e.g., Anderson v. State, 653 N.E.2d 1058 (Ind. Ct. App. 1995) (finding ample evidence of the defendant’s intent to steal a drill from Wal-Mart in part because a loss prevention officer “observed [the defendant] conceal the drill in his coat, pass all points of sale, and exit the store without paying for the drill”); State v. Flowers, 129 A.3d 157 (App. Ct. Conn. 2015) (affirming the defendant’s larceny conviction where a loss prevention officer testified that the defendant took expensive items past the last point of sale and into the store’s vestibule without paying for them; “[o]n the basis of this evidence . . . the jury reasonably could find that the area in which the defendant was stopped supported a finding that she had acted with a larcenous intent”).

I don’t think the rule is necessarily iron-clad. For example, a customer may enter a grocery store intending to purchase only one or two items, realize thereafter that he or she wishes to purchase additional merchandise, and return to the vestibule to obtain a shopping cart. In that scenario, the shopper might be past the last point of sale with a few items of unpaid merchandise, yet without wrongful intent. But I assume that such circumstances are the exception rather than the rule.