Another legal q: charged with larceny when it is shoplifting

In My Humble Opinion
1

Ok, another hypo for you legal geniuses. My state has the following two laws:

[QUOTE=The Larceny Statute]
If a person commits simple larceny of goods or chattels of the value of less than one thousand dollars, such person is guilty of a misdemeanor, designated petit larceny, and, upon conviction thereof, shall be confined in jail for a term not to exceed one year or fined not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
[/QUOTE]

and

[QUOTE=The Shoplifting Statute]
§61-3A-3. Penalties.
A person convicted of shoplifting shall be punished as follows:

(a) First offense conviction. – Upon a first shoplifting conviction:

(1) When the value of the merchandise is less than or equal to five hundred dollars, the person is guilty of a misdemeanor and shall be fined not more than two hundred fifty dollars.

(2) When the value of the merchandise exceeds five hundred dollars, the person is guilty of a misdemeanor and shall be fined not less than one hundred dollars nor more than five hundred dollars, and such fine shall not be suspended, or the person shall be confined in jail not more than sixty days, or both.
[/QUOTE]

I’ve omitted the definitions of shoplifting because they are pretty standard. So, here we go: Our lovable criminal pockets a package of chewing gum and walks out of the store with it and intends to deprive the owner of the gum permanently.

He is caught, arrested and reads the law and while upset, is comfortable with the fact that the maximum punishment he will get is a $250 fine.

But wait, our friend the prosecutor wants to make an example out of this guy. The prosecution ignores the shoplifting statute and charges him with larceny of the gum and wants him to serve one year in the county jail.

Question: Is this permissible? Is there case law that says basically “Hey, the legislature outlined the penalties for shoplifting and in doing so took shoplifting outside of the general larceny statute.” Or can our defendant be charged with either crime, or both?

2

In some states, theft under a certain value must be charged as shoplifting, and thefts over a certain value but overlapping both definitions can be charged as either shoplifting or larceny. Obviously it’s difficult to say exactly what the rules are in your state, since I have no idea what your state is.

3

Are these two offenses the same offense, and/or is one a lesser-included offense of the other?

In addition to the classic “same elements” test, some states have a “charging documents” test, which asks if the two offenses constitute a lesser-included situation as charged, even though the elements are that not every instance of offense A is also one of B.

If there’s some thing similar, then you can request an instruction on the “lesser” charge. But we have here the odd situation that by the elements, the lesser-included charge has the greater penalty. This came up several years ago here, where solicitation to commit prostitution (sodomy for money) was a misdemeanor, but solicitation to commit sodomy (sodomy for free) was a felony, and the Commonwealth was charging felonies for gay cruising offenses when proving the additional element of money actually reduced the offense.

What are your state’s rules on instructions for lesser-included? Absent that, i think this is prosecutorial discretion. The legislature establishes the offenses. The prosecutor can charge conduct that fits.

4

It would seem that larceny is a lesser included of shoplifting. We use the common law so larceny is (as you know) the trespassery taking of an item with the intent to permanently deprive the rightful owner of it. It seems that shoplifting has that plus the extra element that it must be done in a mercantile establishment.

But, like with your sodomy example, it seems that the “greater” crime has the smaller punishment. I’m just spitballing here, but isn’t there a rule of statutory construction where when you have specific language on point versus general language which could apply, one should look at the specific language? Also, there is the other rule that the legislature didn’t mean to write a statute for no purpose.

It would seem that the entire shoplifting statute would be meaningless surplusage if each instance of it simply devolved into common law larceny.

5

If it helps, here is the full definition of shoplifting:

[QUOTE=W.Va. Code]
§61-3A-1. Shoplifting defined.
(a) A person commits the offense of shoplifting if, with intent to appropriate merchandise without paying the merchant’s stated price for the merchandise, such person, alone or in concert with another person, knowingly:

(1) Conceals the merchandise upon his or her person or in another manner; or

(2) Removes or causes the removal of merchandise from the mercantile establishment or beyond the last station for payment; or

(3) Alters, transfers or removes any price marking affixed to the merchandise; or

(4) Transfers the merchandise from one container to another; or

(5) Causes the cash register or other sales recording device to reflect less than the merchant’s stated price for the merchandise; or

(6) Removes a shopping cart from the premises of the mercantile establishment; or

(7) Repudiates a card-not-present credit or debit transaction after having taken delivery of merchandise ordered from the merchant and does not return the merchandise or attempt to make other arrangements with the vendor.

(b) A person also commits the offense of shoplifting if such person, alone or in concert with another person, knowingly and with intent obtains an exchange or refund or attempts to obtain an exchange or refund for merchandise which has not been purchased from the mercantile establishment.
[/QUOTE]

6

IANAL, but it definitely isn’t entirely surplusage because shoplifting a pack of gum could lead to a ten year sentence–for a third conviction–which is more than what the larceny statute allows.

The rules of statutory construction aren’t worth much more than for purposes of spitballing. :slight_smile: If they’ll help you win an argument, great, but I don’t think that the rules of construction are codified in any meaningful sense. My impression is that rules of construction are only mandatory for a judge’s reasoning in each specific area of the law, which of course would require going to the case law itself to find the rules of the road.

I’d say that there’s a slight chance of the definition of “larceny” developing a common-law exception in cases of shoplifting. The best way to find out would be to head to a WV law library and look up larceny in the subject index, then review those opinions that were issued after the shoplifting statute took effect.

The most probable outcome–coming from my armchair’s worth of expertise based on your version of the facts–is that the judge would treat the sentencing like it was for shoplifting even if the conviction were for larceny, and would probably treat that prosecutor’s future charges with an extra degree of skepticism, which alone would probably make the prosecutor charge shoplifting in the first place.

An interesting twist is that, if the accused already has shoplifting convictions, but the prosecutor doesn’t think that throwing the book at them is appropriate, charging petit larceny might actually reduce the sentence imposed upon the convict. Petit larceny will always be up to 1 year/$2500, while a third count of shoplifting will be 1-10 years/$500-5000. Similarly, if our friend the criminal knows that they’ll be returning to the life of petty crime and occasionally being caught, each count of larceny is preferable to each count of shoplifting due to the minimums imposed by shoplifting but not larceny.

7

Well, question answered:

[QUOTE=State ex rel. Chadwell v. Duncil, 474 S.E.2d 573, 196 W.Va. 643 (W.Va., 1996)]
Mr. Chadwell also maintains that because the items were taken from mercantile establishments, he should have been indicted for shoplifting rather than grand larceny. In this case, because the allegations against Mr. Chadwell met the statutory definition of either shoplifting 6 or grand larceny, 7 he could have been charged with either crime.

     In State ex rel. Skinner v. Dostert, 166 W.Va. 743, 752, 278 S.E.2d 624, 631 (1981), we noted that:

    The duty to prosecute is qualified, however, in that the prosecuting attorney is vested with discretion in the control of criminal causes, which is committed to him for the public good and for the vindication of the public interest. (Citations omitted.)

    In State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 137, 313 S.E.2d 409, 414 (1984), we held that a prosecuting attorney's "discretion extends to the determination of what type of indictment will be sought in a particular case." See also State ex rel. Skinner v. Dostert, 166 W.Va. at 752, 278 S.E.2d at 631 ("prosecutor in his discretion may decide which of several possible charges he will bring against an accused"); In Interest of H.J.D., 180 W.Va. 105, 108 n. 4, 375 S.E.2d 576, 579 n. 4 (1988) (claims of selective or discriminatory prosecution bear "a heavy burden of establishing that he or she has been selectively or distinctly treated among others similarly situated and that the selectivity is based upon some impermissible consideration such as race, religion or an attempt to prevent the exercise of constitutional rights. (Citations omitted.)").

[/QUOTE]

So it is prosecutorial discretion. Still, something doesn’t seem right about it.

8

I have been under the same impressions. Maybe one of the attorneys here can confirm. But it makes sense that if the legislature went to the trouble of making larceny illegal and then also passed a law covering a specific subset of larceny, then it intended that specific subset to be treated differently or otherwise the legislature wouldn’t have thought it necessary to have the more specific statute.

To extend, I believe in general, when two statutes apparently contradict or overlap, there are two general rules:

  1. More specific statutes override more general statutes when the specific case arises.
  2. Statutes passed more recently override older statutes to the extent that they contradict.