Articles Posted in Shoplifting & Theft

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

“A poor girl wants to marry, and a rich girl wants to flirt P1020591

A rich man goes to college, and a poor man goes to work” – Charlie Daniels Band

Let’s face it, the deck is stacked against the poor.  If you’re poor and black, it’s even worse.  Yes, what I’m about to say is 10 years past cliche, so it’s almost coming around again, and that makes it ok, maybe even cutting edge (ever hang out with teenagers who think the latest new band is cutting edge, and then deflate them with some NIN or Violent Femmes or anything from the 80’s or 90’s that today’s bands are ripping off–yes, it’s all been done before….except for the stuff I like, that’s all original and fresh).

Here’s an actual quote from a recent police report asking a judge to issue a home search warrant in a poor neighborhood:

Officer to Judge: “Your Affiant received a tip from a confidential informant advising drugs were being sold out of the target residence.”  Ok, that’s his job, so far, we taxpayers are getting our money’s worth.

Officer to Judge: “During the investigation while conducting surveillance of the target residence, Your Affiant on multiple occasions, observed several black males hanging out in the front yard sitting in a chair traveling back and forth inside the residence.  On at least three occasions, several individuals could be seen loitering or congregating outside the target residence.  Based on my training and experience, I know this to be common among drug deals and sales.” Continue Reading

basketball court.JPGI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche “where there’s smoke, there’s fire”. The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché’s avoid substantive arguments–and I’m in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here’s the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you’re thinking, why run away if you’ve done nothing wrong, right? Well, remember, its kids we’re dealing with, that’s why we can’t use the defendant’s actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer “I can’t believe I am going down for this alone”. Id. at 648. Now, even if you believe what the officer says A.B. said (I often don’t, unless it’s recorded–every officer carries a recorder/cell phone), this statement isn’t quite a confession. It may be admission that he knows who did it, but it’s not quite a confession. The juvenile further explained that his friend issued the following command: “When I run, you run”. Assuming A.B’s friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe’s way of telling you “some shit is about to go down”. Again, we’re dealing with kids here, and this statement probably resulted in a response like “uh, ok, huh” (think Beavis & Butthead).
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shirts.jpgSometimes, the heat of the moment transforms something stupid into something tragic. I’ve seen road rage transform into a prison term, and I’ve seen shoplifting upgraded to robbery. Now, it should come as no surprise that law enforcement’s creative juices are often peaking when they sit down at their laptop to type up the list of charges and “facts” (imagine a Nat Geo slow-mo shot of a butterfly emerging from his cocoon, except this isn’t such a beautiful thing).

It would be unfair to single out shoplifting and robbery charges for police exaggeration. Just sit outside a nightclub in downtown Orlando and you’ll see plenty of misdemeanor disorderly intoxication charges blossom into felony battery on a LEO charges. Or, how about the classic misdemeanor urinating in public? You can’t have a decent club scene like Orlando’s, without a steady stream of urinating charges just after the bars shut down. So, it should come as no surprise to you that law enforcement manage to find 16 year old kids who happened to see you relieve yourself. Congratulations, this urinating in public charge is now a lewd or lascivious exhibition; a second degree felony carrying a lifetime of sex offender registrations (‘Shake it once, that’s fine. Shake it twice, that’s okay. Shake it three times, you’re playing with yourself…’). Ok, back to shoplifting and robbery.

The case for today is Rockmore v. State. 140 So. 3d 979 (Fla. 2014) Rockmore was found guilty of robbery from a Walmart after a shoplifting incident. To understand why this case is important to our discussion of misdemeanors upgrading to felonies, keep in mind that a robbery is simply a theft that includes force either during, or after, the taking. To get a robbery, you need a continuous thieving event. To throw a wrench in this, what happens when the thief abandons the taking and uses force after abandoning the theft? Let’s find out.
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jewelry.jpgEvery theft case needs intent. Unfortunately, most loss prevention officers in retail stores just assume someone intends to steal an item simply because they’ve forgotten to pay for it. I’ve seen more than my fair share of shoplifting cases in which the petit theft was based on a few unpaid items at the bottom of a shopping cart. It happens.

But intent isn’t just about shoplifting versus forgetfulness. Conceptually, if you can’t pay your bills, are you stealing from the people you owe? Is it stealing to rack up credit card debt that you know you can’t pay, right before filing for bankruptcy? What about companies, can they borrow money from creditors with the hopes that things will turn around, only to go out of business soon after borrowing the money? What we’re going to review today is a grand theft case under the heading “business deal gone bad”. As you know, everybody who is owed money wants to transform theses debts into some sort of criminal act on the part of the person not able to pay. Of course, if this were really the case, there would be no need for bankruptcy courts, we’d just prosecute everybody who can’t afford to pay their bills. One of my favorite ‘business deal gone bad’ cases is Szilagyi v. State, 564 So. 2d 644 (Fla. 4th DCA 1990).

In Szilagyi, the defendants were convicted of fourteen counts of first degree grand theft, allegedly stealing over $190,000. The defendant’s owned a jewelry manufacturing business, and they fell behind in their payments to 10 creditors. These creditors sent the defendants products to resell that were never paid for, and never returned. Rather than simply sue the company (defendant) for the debt owed, the creditors prompted the Fort Lauderdale Police Department to initiate a criminal investigation. As usual, the police department and criminal justice system was just being used as a collection agency, rather than fighting real crime. Yes, your taxpayer dollars hard at work, fighting for large companies that extend credit to businesses. Anyway, the detective investigating this case decided that the defendants were running a ‘bust out’ operation. Now, there are several different types of bust out operations, but the basic principle is that the company’s intent is not really to be a company at all, but rather, to use their credit to obtain as much revenue and merchandise from creditors as possible–then skip town. The defendants were in business for over a year, possibly two.
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storage lot.jpgLet’s say you’ve just robbed a home, and you need to unload some merchandise. Where do you go? A pawn shop, maybe? Well, a pawn shop will take your fingerprints and ID, eventually convicting you of stealing the goods. No, you need Craigslist or Backpage, or, maybe just a few friends willing to buy this stuff.

A jury convicted Mr. Yudin of burglary of a dwelling and grand theft in the case of Yudin v. State, 117 So. 3d 457 (2d DCA 2013). Yudin was convicted of taking a couple of televisions, a few laptops, a watch, jewelry, and personal items from a home (personal items like a passport, credit cards, etc). State witness David Cavanaugh testified at trial that he has bought used goods from Jerry Costa in the past, and Costa called him the day of the burglary claiming to have some stuff for sale. So, Costa arrives at Cavanaugh’s house with an overstuffed car that looked so suspicious Cavanaugh’s grandson called the police in broad daylight. How bad do you have to look for the police to get a suspicious person call during the day? Safe to say, this car full of stolen stuff could have been featured in an episode of World’s Dumbest Criminals.

Anyway, Yudin drove Costa to Cavanaugh’s home and assisted him in carrying several items from the car. Cavanaugh testified that Yudin took the lead on negotiations, but no prices were firmed up because the police arrived. When the police arrived, they noticed a “large disheveled pile of items in the back seat of Yudin’s car. Poking out of the pile was a dresser drawer containing a variety of the victim’s personal documents including his passport, social security card, and work identification card.” Id. I’m torn as to whether or not I should believe the cop’s story of stolen stuff sticking out of Yudin’s car. It’s just too convenient. Police reports are often remind me of that friend that is caught cheating on his wife, only to claim he accidentally tripped and fell into a willing woman’s vagina. Sure, it could happen, in the middle of some sort of Cirque Du Soleil Zumanity rehearsals. Same goes for police reports. Cops never violate the constitution. They never break into a car without a warrant, never need to, because there’s always some piece of incriminating evidence “poking out” which gives them probable cause to search without a warrant. Yep, pretty convenient. But in this case you should mark your calendars because I actually believe the police, given the fact that Cavanaugh’s grandson thought the car looked so suspicious he called the police. If the car looked that bad, these guys were dumb enough to leave incriminating evidence “poking out”.
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cat and laptop.jpgHave you shopped on Ebay lately? Why is it that one seller has something listed for $100, and that same product is listed for $300 by a few other sellers? What idiot is going to buy the same thing for more than twice the price? For valuation purposes, which price constitutes the actual “value” of the item, $100 or $300? Is it wrong to even use websites like Ebay to make a determination as to what something is worth?

As a general rule, victims in criminal cases are only entitled to be paid back “fair market value” of the items stolen or damaged. Sometimes, fair market value does not adequately reflect the measure of loss, and courts may deviate from this rule when necessary. In criminal cases like grand theft or petit theft, the fair market value must be used to determine the severity of the crime. Steal something worth more than $100,000, and that’s a first degree felony grand theft which will score mandatory prison. Steal an item worth $90,000, and that’s only a second degree grand theft with no mandatory prison time. [for more details on how valuation effects theft charges, check out my article “Grand Theft vs. Petit Theft“] So, how does a court determine fair market value?

I know what you’re thinking–isn’t the current price of an item its fair market value? No, because the current price of an item doesn’t tell us what the stolen item was worth, it only tells us what a newer version of that item would be worth. Ever been to Neiman Marcus? They have some great mens ties, many priced in the $275-$500 range (yes, for a tie). Is the $375.00 price tag on a mens tie the final say as to its “fair market value?” To see how this works, let’s take a look at the recent case of T.D.C. v. State, 117 So.3d 809 (Fla. 4th DCA 2013).
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purse.jpgAfter practicing criminal defense for over 20 years, I’m prone to telling a few war stories here and there. With that warning in hand, here’s what happened.

My client kept getting into trouble with lewd acts. His preferred act was to masturbate in public bathrooms, out in the open. As you/he might expect, a young boy walked in while this was going on, and my client ended up with a felony conviction. Actually, this was his second lewd act conviction for the same behavior. Ouch.

This very same client–with two priors–decided it would be a good idea to (again) masturbate in public, across the street from a high school here in Orlando. Now, I suppose masturbating at midnight, in the dark, wouldn’t be the end of the world, but he was pleasuring himself, to completion, in front of several cheerleaders after a hard afternoon of practice (for legal purposes, I had to disclose the extent of the lewdness involved by informing you the act was ‘completed’, but as a favor, I just deleted several crude jokes that fit nicely here). Several cheerleaders witnessed my client’s lewd act, and my investigation discovered that some of them were underage–yet the cops only interviewed a couple of the 18 years old cheerleaders! As such, the cop arrested him on four misdemeanor charges (no felonies, yet).

It doesn’t take a rocket scientist to figure out that this case had the potential to be upgraded into a nasty prison felony, given the age of a few of the cheerleaders. So, my strategy was to plea to the misdemeanors at arraignment. The prosecutor objected to our plea (to the bench), claiming that the case was going to be upgraded to felony court as soon as the sex crimes division had the opportunity to review it. However, the freshly minted prosecutor didn’t drop the charges to prevent our plea, and I’m glad he didn’t because the plea on the misdemeanors caused the future felony to be dismissed. Now, with that lead in, let’s delve into our case of the day, Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013).
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construction.jpgHave you ever paid for a car repair, or home repair, only to find that it wasn’t done right? With folks living paycheck to paycheck, having to pay twice for a repair can be devastating. The question for today is one we’ve asked before–where is the line between a broken promise and a criminal act? The recent case of Frazier v. State gets us closer to answering that question. 114 So. 3d 461 (Fla. 2d DCA 2013).

Frazier was convicted of grand theft after he failed to remodel a duplex. Mohamed Nazir hired Frazier to remodel his duplex for $20,000, with $8,000 paid up front. Frazier received the down payment on October 21. He then submitted an application with the city for a building permit on October 22nd, and worked on the duplex on October 23rd, 24th, and 25th. Subsequently, the city denied a permit to continue working because Nazir’s duplex required more structural rehabbing to bring it up to code. To address this issue, a meeting was held in November between Frazier, Nazir, the city, and an architect. All parties agreed to have the architectural designer draw up some new plans for the duplex, and pursuant to that agreement Nazir gave Frazier an additional $2,000 to pay for the plans. Of this $2,000, Frazier paid the architect $500 down, but Frazier never picked up the completed plans from the architect and thus he owed the architect $1,500.

Do the above facts constitute a crime? Sure, anyone in Nazir’s spot would be pissed off that $10G was flushed down the drain–but does that make it criminal? Let’s start with the basics. The definition of theft is: “A person commits theft when he knowingly obtains the property of another person with the intent to permanently or temporarily deprive the other person of a right to the property” Fla. Statute 812.014(1)(a) (2008), and “obtaining property by fraud, willful misrepresentation of a future act, or false promise” is also considered theft, according to Florida Statute 812.012(3)(c). Id.
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shoplifting.jpgRetail theft just isn’t what it used to be. Back in the day of smaller retail stores, thieves were forced to get creative with their attempts to leave a store with merchandise. Ever seen the Jane’s Addiction video for “Been Caught Stealin’“? Or, how about Mike D, MCA, and Ad-Rock’s thievery discussion in the Beastie Boy’s classic “She’s Crafty?” That’s what I’m talking about–but those days are over. Today, there’s no suspicious shop owner watching over the goods. No owner on premises. Today, the stores are far bigger than in the past, and thus easier to rip off. Did we have Super Wal-Mart’s fifty years ago? I think not. So, thieves have gotten lazy.

This lack of criminal creativity is reflected by the fact that, now, one of the most common retail theft schemes involves folks merely walking out of a large box store without paying for the goods in their cart. Sure, stealing is wrong, but this new way of stealing is even worse, as it lacks all sense of style and creativity. Our question for the day is, at what point is a citizen guilty of a crime? Obviously, when a shopper puts something in his shopping cart–at that point–there’s no theft. Now, as the shopper approaches the exit doors–and passes all the registers–we’re getting closer to theft, right? What about exiting the store with a cart full of goods you simply forgot to pay for, are we there yet? Let’s find out.

Our real life case for today is McClover v. State, 2013 Fla. App. LEXIS 7870 (Fla. 4th DCA 2013). McClover was convicted of felony retail theft (shoplifting goods valued at over $300.00). A felony retail theft is different from a simple felony grand theft charge, and we’ll touch upon that later. As for the facts in McClover’s case, the situation began with a Wal-Mart loss prevention officer using his video surveillance cameras to follow McClover putting items in her cart from the electronics department, and then proceeding out to garden center exit–without paying, of course. The problem was, the garden center didn’t have a cash register open at that time, the exit was closed, so McClover simply left the cart full of electronics within the garden center, and left the store via the main exit.
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