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.