Ned Michie
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Larceny / Shoplifting?

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Larceny / Shoplifiting

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Having a Larceny conviction on one's record can be particularly harmful because it is considered a crime of "moral turpitude" -- one that involves "lying, cheating, or stealing." Employers, for example, understandably may worry about hiring or retaining someone who has been proven guilty as a "thief."

Some General Legal Principles in Virginia - Re: Larceny

     The Virginia Supreme Court, in Carter v. Commonwealth, 280 Va. 100, 104-106, 694 S.E.2d 590, ___ (2010)​, stated:

   "In Virginia, larceny is a common law crime. We have defined larceny as " 'the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.’ " Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977) (quoting Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)); see also Payne v. Commonwealth, 222 Va. 485, 487, 281 S.E.2d 873, 874 (1981). Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods.1 Britt v. Commonwealth, 276 Va. 569, 575, 667 S.E.2d 763, 766 (2008); see Bryant v. Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994); Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 (1958). 'The defendant's intent to steal must exist at the time the seized goods are moved.' Britt, 276 Va. at 575, 667 S.E.2d at 766.

     We have stated that '[i]ntent is the purpose formed in a person's mind at the time an act is committed.' Taylor, 256 Va. at 519, 506 S.E.2d at 314; see Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 492 (1998); Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). 'Intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the accused and any statements made by him.' Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Taylor, 256 Va. at 519, 506 S.E.2d at 314; see Guill, 255 Va. at 139, 495 S.E.2d at 492; Ridley, 219 Va. at 836, 252 S.E.2d at 314. 
                                                                                     . . .
     Common law larceny requires a trespassory taking. Maye v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972); Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 907 (1993). 
                                                                                     . . .
    A trespassory taking is a taking or removal of possession of property from the owner with felonious intent; a violation of an owner's possessory right constitutes a trespassory taking. Richards v. Commonwealth, 54 Va. (13 Gratt.) 803, 806 (1856); Overstreet, 17 Va. App. at 236, 435 S.E.2d at 907-08. Because every customer in a self-service store has implied permission to move merchandise, placed on open display, unconcealed about the premises of the store, the trespassory taking and carrying away of the merchandise of another does not usually occur at such a store when the property is moved on the premises. If, however, there is some conduct by the customer which makes the customer's possession clearly adverse to the store, there is a trespassory taking. Freeman v. Meijer, Inc., 291 N.W.2d 87, 89 (Mich. Ct. App. 1980); see Jones v. State, 314 So. 2d 876, 878 (Ala. Crim. App. 1975).

     A trespassory taking is most easily proven by a defendant leaving the store without paying for merchandise. However, removal of the targeted property from the owner's premises is not required for there to be a trespassory taking, and permanent loss by the owner is not a required element of larceny. Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894). 'One may be said to have taken another's property by trespass though he has not removed it from the other's premises or from his presence.' Wayne R. LaFave, Criminal Law § 19.2(i), at 979 (5th ed. 2010). If the defendant does not leave the premises, the evidence must establish that the defendant in some way, within the store, exercised trespassory possession of the goods inconsistent with the owner's rights. See, e.g., Bryant, 248 Va. at 183-84, 445 S.E.2d at 670; Welch v. Commonwealth, 15 Va. App. 518, 523-24, 425 S.E.2d 101, 105 (1992); see also Groomes v. United States, 155 A.2d 73, 75 (D.C. 1959); State v. Grant, 373 A.2d 847, 850 (Vt. 1977)."

Carter v. Commonwealth, 280 Va. 100, 104-106, 694 S.E.2d 590, ___ (2010)

Petit Larceny

Va. Code § 18.2-96 defines petit larceny as follows:

"Any person who:

1. Commits larceny from the person of another of money or other thing of value of less than $5, or

2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.*

​Code 1950, § 18.1-101; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15; 1980, c. 175; 1992, c. 822."

It is important to note that a the law requires the judge to give a person convicted of a second offense at least a 30-day jail sentence, and a third offense petit larceny can be treated as a class 6 felony even if the object taken is, for instance, just a pack of gum.  See Va. Code § 18.2-104. 

​*  The legislature has now finally raised the misdemeanor threshold from $200 to $500.  This change will take effect July 1, 2018.

Shoplifting/Concealment

Va Code ​§ 18.2-103 was designed to make it easier to convict people of shoplifting. This statute states:

      "Whoever, without authority, with the intention of converting goods or merchandise to his own or another's use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny.*

     The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.

Code 1950, § 18.1-126; 1960, c. 358; 1970, c. 652; 1975, cc. 14, 15; 1994, c. 706." (emphasis added)

*  The legislature has now finally raised the misdemeanor threshold from $200 to $500. This change will take effect July 1, 2018.


Va. Code ​§ 18.2-104.1. then provides:

"Any person who has been convicted of violating the provisions of § 18.2-103 shall be civilly liable to the owner for the retail value of any goods and merchandise illegally converted and not recovered by the owner, and for all costs incurred in prosecuting such person under the provisions of § 18.2-103. Such costs shall be limited to actual expenses, including the base wage of one employee acting as a witness for the Commonwealth and suit costs. Provided, however, the total amount of allowable costs granted hereunder shall not exceed $250, excluding the retail value of the goods and merchandise."
1976, c. 577.

In addition to these criminal laws, the Virginia Code also allows merchants to file a civil action to recover damages caused by a theft. Specifically, the law states:

​"A.   A merchant may recover a civil judgment against any adult or emancipated minor who shoplifts from that merchant for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.

B.    A merchant may recover a civil judgment against any person who commits employee theft for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.

C.   The prevailing party in any action brought pursuant to this section shall be entitled to reasonable attorneys' fees and costs not to exceed $150."
. . .

To see the full provisions of the law, see Va. Code § 8.01-44.4.

​See also: Va. Code § 18.2-105.1. Detention of suspected shoplifter.  "A merchant, agent or employee of the merchant, who has probable cause to believe that a person has shoplifted in violation of § 18.2-95 or § 18.2-96 or § 18.2-103, on the premises of the merchant, may detain such person for a period not to exceed one hour pending arrival of a law-enforcement officer.
1976, c. 515."
​

Grand Larceny

Va. Code ​§ 18.2-95 defines Grand larceny as follows: 

"Any person who
 (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both."

Code 1950, § 18.1-100; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15, 603; 1980, c. 175; 1991, c. 710; 1992, c. 822; 1998, c. 821.

It is of course the Commonwealth's burden to prove beyond a reasonable doubt that the goods stolen were indeed worth $200 or more.  See, e.g. Dunn v. Commonwealth, 222 Va. 704 (1981) 

​Receiving Stolen Goods

Va. Code § 18.2-108 states that:
       "If any person buys or receives from another person, or aids in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender is not convicted.
B. If any person buys or receives any goods or other thing, used in the course of a criminal investigation by law enforcement that such person believes to have been stolen, he shall be deemed guilty of larceny thereof.
Code 1950, § 18.1-107; 1960, c. 358; 1975, cc. 14, 15; 2008, c. 578."