Theft or Attempted Theft (or Not Guilty) ?

Question (from an email): Can a person be charged with theft (class b misdemeanor) if merchandise was not found on a person? Or is this considered attempted theft? If so what is the difference and maximum punishment for each?

Reply: Can you give me more details?  (What happened exactly?)

Maybe I can give you a better answer that way...

More Details: (A theft from a place of employment.) actual merchandise was not found on this person, merchandise was found in trash in the back of store and person was going out the front door when this person was arrested and charged with theft. Would this be theft or attempted theft?

So could this person be tried for theft or would the charge have to be reduced to attempted theft?

Answer: Like most interesting questions this one has several layers to it.

First and I don't mean to be hyper-technical, but then again I am a lawyer...

Can they charge the person with theft?  Well, not to split hairs, but 'they,' meaning the state, can charge someone with just about anything.  The next 2 questions then deal with (a) what can they prove, and (b) is the evidence legally/factually sufficient?

What can the State prove based on these facts?

The definition of theft is, essentially, unlawfully appropriating property without the owner’s consent. Is taking merchandise off a shelf and sticking it in the trash proof of “intent to permanently deprive the owner of the property”?

Off the top of my head, I’m going to say that this would be very difficult for the State to prove at trial beyond a reasonable doubt.

As for attempted theft? I think they would have to show that the defendant intended to come back at a later time, or had some accomplice lined up in the wings to take it out of the trash and actually leave the premises with it.

Finally, as to legal sufficiency of the evidence… I would have no problem getting up and arguing to a judge for a directed verdict of not guilty on these facts. Whether it would be granted, or whether an appellate court would overturn a potential guilty verdict on appeal, would have to be determined on a case by case, very fact specific, testimony dependent analysis.

But, generally speaking, shoplifting is going to be very hard to prove and/or factually insufficient if the person doesn’t leave the store, or pass the point of sale without paying.

All in all, given your hypothetical, I think it’s a pretty weak case for the State.  (And if this is not really a hypothetical, tell ‘the person’ to get a lawyer ASAP. Case could even be a negotiated dismissal without the need for a jury trial.)

I’ll get to the penalty range differences in a future post.  The short answer is that an attempted Class B offense is a Class C (traffic ticket level) offense.

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Comments (32) Read through and enter the discussion with the form at the end
george - October 10, 2007 7:59 AM

if one swung a book across a library sensor (the book has to be cleared otherwise the sensor alarm will go off) to get assistance, since the librarian was not in sight could they be charged for attempted theft

sr - March 16, 2008 3:48 PM

was caught leaving store with items not paid for total less than $30.00.
I'm pleading not guilty .first time offense, what can I expect.

l - May 22, 2008 2:28 AM

if person leaves store with unpaid for items, gets caught by store clerks but leave without items, clerks get liecense plate calls police. two days later police try contacting person wanting them to fill out stement but person choice not to do so. What could happen.

Jessica - May 29, 2008 12:35 PM

can someone be put on probation, or charged with theft if they never left or attempted to leave the store?

NunyaBeezwax - June 30, 2008 7:57 AM

Do you recall my messages about a month ago, the wood for the skateboard ramp, Texas?
The charges were (supposedly) dropped because after several messages not returned by the construction company there was no complaintee and our truck was released.
Well, the 16th of this month my husband and I were driving thru that same city to drop off my son @ the skating park when he received a couple of traffic tickets. After that, on the 18th the theft charges were filed, WITH an upgrade! Class "A" now with a price tag of $500.95 In accordance with the stamps on the wood, the Home Depot total would be $104 + tax. What is goin on? Please advise.

Bob little - August 4, 2008 6:46 PM

Hi,
I was caught in shoflifing and the charge was amended from third degree theft to Atempted theft. I was given a 89/90 days of suspended sentence with 1 year NVCL. I am from india and was on work visa.
Now i plan to come back to US soon on the same L1 visa, will i have any immigration problems?

STEPHANIE - October 4, 2008 10:30 AM

YES I GOT CHARGED FOR THEFT A MISDEMEANOR CLASS B WHICH I PLEA GUILTY TOO THEN I GOT ANOTHER CHARGE MISDEMEANOR CLASS A WHICH I PLEA NO CONTEST BUT BECAUSE OF THESE CHARGES I CANT GET A JOB ANYWHERE OR ANYTHING HOW CAN I SEAL THIS OR DO SOMETHING ABOUT IT???

bigbob - October 22, 2008 1:35 PM

ONE AFTERNOON MY FRIENDS AND I RAN OUT OF BEER. WITHOUT ANY MONEY I WALKED INTO A STORE AND LOADED 9 CASES OF BUDWEISER INTO A BUGGY.
I DID MANAGE TO GET TO MY HOUSE WITH THE BEER, BUT 30 MINUTES LATER COPS WERE AT MY DOOR. I ONLY GAVE THEM 2 CASES AND THEY LEFT.
HELL, I WAS SHOCKED THEY DIDNT ARREST ME.
AS TIME WENT ON I CONTINUED TO REPORT TO MY P.O. . LOW AND BEHOLD A YEAR AND HALF LATER I WAS ARRESTED FOR THE CRIME. THIS CASE WAS NOT SUPPOSED TO FILED.
I WAS CHARGED WITH A CLASS B MISDEMEANOR. I WAS ARRIGNED AND GIVEN A 1000 BOND WITCH COST ME $150
TEXAS CRIMINAL JUSTICE SYSTEM "SUCKS"
ALL THEY WANT IS $$$$$$$$$$$.

John Freeman - October 25, 2008 3:09 AM

i have a question.. here's the scenario one of my friends went in to walmart with me in attempt to steal a video game controller and two video games.. the controller package was already half way open and it was taken out.. left in the store but taken out of the case.. the two games were placed in the bathroom.. a suspicious employee followed.. thats when the plan was aborted.. possible video footage may be a variable.. we are unsure.. the employee followed us in the bathroom and we left the games in a stall which he saw me come out of.. we left and they got my plate numbers.. what is the most likely outcome of this? please help me out..

bianca - March 16, 2009 5:51 PM

Can person be charged with attempted theft or anything at all if the item in which person tried to steal was dropped in front of the property and then the owners of stolen item continued chasing person and acted violently with severe damage to the persons car and passenger in the car.

JW Help - March 26, 2009 9:56 AM

I have no record for anything every in my life, no tickets, arrested. but last month I was arrested for a class b misdemeanor for shoplifting at a local mall. I do not know what happen. I was depressed and went to purchase a wedding item for a friend. Which I did purchase over $240.00. I set a small item on top of my pruse and forgot to pay for it, becauese I had the credit card in my pants pocket and did not even look in my purse. The security said they had me on viedo. The police also said it did look as if I took the item. What do I do....I was taken to jail for about 6 hours and paid bail and got out. I do think I ment to take this item...but if the tape looks as if I was shoplifting. I am stuck. If you are a first time shoplifter and have a clean record what will happen. Also the items they said I took had a price tag of $15.00 but had a suggested retail price of $160.00. So they said it cost the store $160.00. I am so scared, I am under treatment for Military, PTSD sexual trama. I am on lots of medication but I feel I can not go thru this Even if I feel I did not take these items..I feel ashame. I am a 59 year old grandmother. I feel I have shamed my family, myself, my God. I just want to end my life, Why didn't I see this on my purse, where was my mind...I am so alone and can not even tell my family what happen...I could not face them every again...

Jeanisha Bell - May 24, 2009 6:05 PM

Is it still considered theft if the person put the items back then walked out the store.

GREG BAUER - November 22, 2009 9:04 AM

I WAS IN A STORE I WAS THINKING ABOUT STEALING THIS ITEM. I TOOK THE SECURITY ITEM OFF. BUT THEN CAME TO MY SENSES AND PUT THE ITEM BACK ON THE SHELVE. NEVER CONSEALED IT. NOR DID I LEAVE THE STORE WITH IT. IS THIS STILL THEFT. IF NOT WHAT IS MY PENALTY OR WILL IT BE DROPPED.

danny - January 10, 2010 10:47 AM

can you be fired from your job if 8 years before your emplyment you was convicted of attempted theft and work with chilldren and has been working at the job for 5 months

cody - February 24, 2010 10:30 PM

hello i am Cody i committed what is being called by the police "shoplifting" and didn't actually take the merchandise form the store. Although i did happen to take it to the back of the store hide it and come back later to unwrap this merchandise and put it in a bag to exit the store with. I had loaded the merchandise into the bag when a manager came to the back of the store saw the empty box and looked at me holding the stuffed bag. So I threw the bag down and left. Three days later. (which would be well i am typing this.) the friend i was with was aproched by the cops and they claim this to be shoplifting would they be correct

Melissa - March 5, 2010 10:31 PM

I got caught outside a store but still on store property with a bag of small items. These items were from the store and I did not have a receipt. They had been placed close to a fence in the outside section of the store and then pulled through from the outside.
Is this theft or attempted theft

Kat - May 20, 2010 9:13 AM

I was in Macys the other day. 57 year old granny with custody of 11 year old grandchild. Way, way too much on mind, daughter just beaten up by boyfriend, in hospital, cps at her door to remove her 3 kids, when I wasn't paying attention, realized I needed to run several other errands and left the store with $179 piece of kitchenware. Was arrrested and bonded myself out 6 hourss later. Had many times over the ammount to pay for item. Am on medication for back injury and I'm disabled. This is just not something I would do. I spend hours weekly volunteering at church. Scared stiff. What now?

Rosalia Ovalle - July 21, 2010 8:55 PM

Okay, me and my friend went HEB and she was caught stealing makeup but i was also charged because i knew is was stealing what should i do now am fixing to grauate from college and i dont know what to plead. someone told not to make a deal until i asked the judge for a adjudication

Luzaine - October 26, 2010 3:42 AM

The person was charge with attempted theft, but found guilty of dishonesty. Can you fire him although this was not the charge?

Luzaine - October 26, 2010 3:44 AM

The person was charge with attempted theft, but found guilty of dishonesty. Can you fire him although this was not the charge?

zergio - November 2, 2010 11:44 PM

my question is: im a permanent resident of the usa. i tryed to use somebodys credit card but it didnt work..i got arrested went to courts and plead guilty.. they gave me 3 years of probation and my charge is a class 6 felony which will become a misdemeanor if i successfully finish my probation.. im attending inmigration courts because i been a resident for less than 5 years and i have to fight my case.. my question is.. if i finish with my probation and my charge becomes a misdemeanor.. will my inmigration courts drop or end even tho it became a misdemeanor? because permanent resident are not supposed to have felonies but misdemeanor are allowed.. please help me with this question.. i need to know if i can still be deported or my charges will drop

nick - January 20, 2011 9:19 AM

Can a store charge an individual with shop liftin if that individual didn't leave with the merchandise

Frank - January 25, 2011 12:54 AM

I was convicted of attempted theft less than a week ago. I was in a store where previously I had been asked not to come back by the manager. I was on the vitamin aisle and didnt have a basket so I put a bottle of Vitamin C in my pocket. Then, I continued to search for vitamins to buy reading the labels very closely. Next thing I knew, the police were searching me and found the bottle of Vitamin C in my pocket. I did not attempt to leave the store or pass the register with the vitamins. I pled guilty of misdemeanor theft(not attempted theft) because my lawyer told me they were the same thing. I received one year of active probation and very intense fines and probation fees. I think that I should not have even been convicted of attempted theft much less theft because I did not attempt to leave the store with the bottle of vitamins because I had money in my pocket. This all took place January 18,2011. I understand that I have 2 years to apply for post-conviction relief and 30 days to appeal the sentence. I would like to get the whole conciction overturned. If thats not possible I believe the sentence was too severe and would like it reduced.

concerned friend - March 3, 2011 11:54 PM

I have a friend that has some pending charges. Attempted theft by deception and obstruction of justice. In regards to the attempted theft by deception, she attempted to pick up money sent via money transfer. The ID she attempted to use to get the money had completely made-up information; it was nobody's, in particular, information. However, she did not receive the money. What is the possible outcome of this?

Melissa - December 13, 2011 9:44 AM

I was covicted of an attempted theft and will have the oppertunity to have it ex-sponged soon. My cocern is that I am a Registered Nurse and cannot find a clear answer on Ohio Senate Bill 160 in regaurs to attempted theft. Is that concidered theft in regaurd to this bill? I want to know if, once the felony is off my record, can a potential employer still see the charge once it is ex-sponged

Justin - January 5, 2013 12:13 PM

Hey me an my friends were charged with attempted theft or theft in not sure yet for trying to scrape a metal grease container that was out side looking like trash next to a dumpster we never actually loaded the container into the pick up truck because it was to heavy we didn't damage or actually steal any of the pizza places property what do you think is going to happen ??

Zainab ibrahim baba - February 12, 2013 1:52 AM

What is d punishment where a peron was caught trying to steal a car

hotel suite - March 2, 2014 10:01 AM

Thanks for finally writiing about >Theft or Attempted Theft (or Nott
Guilty) ? : Austkn Criminal Defense Lawyer

Dawson - April 6, 2014 5:49 PM

my friend is on probation (for drugs) while on probation he has been arrested for attempted theft between $500 and $1500. I am wondering if this is a misdemeanor because its attempted and what are the predicted outcomes for this? He has been incarcerated for 90 or more days now with a probation hold and will be arraigned in 2 weeks.

yusuf - September 15, 2014 3:39 AM

Does the law distinguish between theft and attempted theft?

As roman law did with manifestum and nec manifestum?

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