4701 Oleander Drive, Suite A
Myrtle Beach, SC 29577
Did you know that you don’t have to leave the store with an item for them to stop you and have you arrested for shoplifting? Or that you can be charged with shoplifting if a store employee thinks that you changed the price tag on an item?
Shoplifting charges can be more complicated than you would think, and it is one area of criminal law where many innocent people are wrongfully charged and caught up in the criminal courts.
How does the state prove shoplifting charges, and what are some possible defenses? Why would police arrest and charge someone who didn’t break the law? What can you do if you were wrongfully arrested for shoplifting in SC?
You might think of shoplifting as a relatively minor offense – you may get arrested and spend a night in jail, and, if you are convicted, you might have to pay a fine instead of serving the maximum 30 days in jail, right?
Shoplifting charges can be more than a magistrate court misdemeanor, though – depending on how it is charged, a shoplifting conviction can result in up to ten years in prison…
Shoplifting means that someone picks up an item in a store, maybe hides it in a pocket, and then leaves the store without paying, right?
That would be shoplifting, but the law includes much more than that. SC Code Section 16-13-110 says that you can be found guilty of shoplifting in SC if you:
If the state can prove any of the above, and the intent to deprive “the merchant of the possession, use, or benefit of the merchandise without paying the full retail value,” you can be found guilty of shoplifting.
The defenses to your shoplifting case will depend on the facts of your case, but there are some common defenses that we can discuss, some obvious and some not so obvious.
Obviously, if you are on video first pocketing an item and then leaving the store with it, if there are witnesses, if you were stopped in the parking lot with the item concealed in your pocket, if the state’s witnesses are available for trial, and if the store makes the videotape available to your attorney, “I didn’t do it” may not be the best defense.
But, in many cases, people are wrongfully arrested for shoplifting.
People put items into their cart with their pocketbook, they put items into their personal grocery bag they brought with them, they walk out of stores – unintentionally – without paying, and, sometimes, overaggressive loss prevention employees just get it wrong…
If you are not on the video, or if they don’t provide the video to your attorney, it may be that they got it wrong. If they nabbed you before you left the store, even though the statute says they can do that, it may be that you intended to pay for the item.
People are arrested when a friend or spouse shoplifted an item without their knowledge, and loss prevention workers may have a person arrested for walking past the registers to get a cart by the door. Elderly persons with dementia sometimes find themselves in jail thanks to aggressive loss prevention policies, as do people with mental illness.
If the state does not have sufficient evidence, or if you have a reasonable explanation for your behavior, the best defense is the most obvious and simple defense. You didn’t do it.
At a minimum, most shoplifting cases are going to involve an incident report, a statement or report from loss prevention personnel or a store manager, and a video. If you are arrested at Walmart, Target, Kohls, or any department store, there is going to be a video.
If the prosecutor does not turn over that video, or if the store refuses to release it, you need to know why. Is it because they are lying about what it shows? If you know that you are not guilty, your best evidence is that videotape – if they don’t turn it over, it is likely to be a Brady violation and the court should order them to produce it or dismiss your case…
If the loss prevention worker who made the call is not at the trial, no one else can testify as to what he or she saw. If the operator of the video equipment is not there, the video can’t be authenticated, and it won’t be admissible as evidence.
If the state doesn’t have their witnesses ready on the trial date, they might get a continuance, or the case might get dismissed.
If you’ve been charged with shoplifting and you receive a letter in the mail from an attorney demanding that you pay money to the store, pay it. First, take it to your attorney. Send the payment, use a money order and keep the receipt, send the letter certified mail, and make sure that your attorney has copies of everything.
The store is authorized to seek a “civil penalty” under SC Code Section 15-75-40, but the statute also says: “A store which utilizes the provisions of this section is prohibited from subsequently filing criminal charges against the individual pursuant to Section 16-13-110.”
Although there is no SC case law interpreting this statute, and despite a SC Attorney General’s opinion concluding that the statute does not prevent a store from filing criminal charges and then asking for the civil penalty (the Attorney General’s opinion is not binding on any court), many prosecutors and lower courts will agree that the intent of the statute was to prevent stores from seeking both criminal and civil liability and that any ambiguity in the statute must be resolved in favor of the defendant…
If you are charged with shoplifting, it’s your first offense, and the value of the items was $2000 or less, then it is a misdemeanor offense, it will be heard in the magistrate or municipal court, and, even if they have a solid case, you may be eligible for pretrial diversion. The maximum penalty is 30 days in jail or a fine.
If the value of the items is more than $2000 but less than $10,000, though, it is a felony and the maximum penalty is five years in prison. If the value of the items is $10,000 or more, it is a felony that carries up to ten years in prison.
SC Code Section 16-1-57 says that a third conviction of any crime “for which the term of imprisonment is contingent upon the value of the property involved,” which includes shoplifting, breach of trust, larcenies, receiving or possessing stolen property, and other property crimes, must be punished as Class E felony, and Class E felonies are punishable by up to ten years in prison.
For example, if you have two prior convictions for any property crime where the punishment is based on the value of the property, you can be sentenced to ten years in prison for shoplifting a piece of gum in a convenience store…
If you were wrongfully arrested for shoplifting in SC, you may have a civil lawsuit against the store, the police, or both. That doesn’t mean that if your case gets dismissed or if you are found not guilty at trial you will have a lawsuit.
It does mean that, if there was no probable cause for your arrest, you may have a lawsuit under the SC Tort Claims Act or 18 USC Section 1983 against the police, and/or you may be able to sue the store for wrongful arrest, false imprisonment, defamation, assault and battery, or other negligence claims based on the facts of your case.
If you have been charged with shoplifting or if you believe that you were wrongfully arrested for shoplifting, call now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense and civil rights lawyer on the Axelrod team today.
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