Can Shoplifting Happen by Accident?

shopliftingAn 81 year old Chicago man was recently arrested in Arlington Heights and charged with the criminal offense of Retail Theft (also known as shoplifting). Whereas a “regular” theft involves taking something of value from another person without permission or authority, a retail theft involves taking something of value from a retail establishment. That place might be a big store with many locations such as Macy’s, Target, Jewel, or Home Depot, or it might be a small family owned store with only one location. But, as long as the store sells things to the public, it’s considered to be a retail establishment.

What Type of Crime is a Retail Theft in Chicago?

Whether a person is a charged with this crime in Chicago, Arlington Heights or anywhere else in Illinois, the potential effects on that person’s future may be affected. If the defendant doesn’t have full citizenship status as a US citizen, a plea of guilty or finding of guilty to such a charge may affect their immigration status or depending upon the circumstances, may even result in deportation or removal. That’s because retail theft is considered to be a crime of “moral turpitude”, which basically means bad character or dishonesty.

  • Local Ordinance Theft - A Retail Theft offense is sometimes charged as a “local ordinance”, which means that a local police department may choose to prosecute the crime under that city’s or municipality’s own book of laws, referred to as a city code or municipal code. When a person is charged in this way, sometimes, they are not even fingerprinted, arrested or subject to a mug shot. It’s also much less likely that the information of this offense will appear on that person’s “rap sheet”. The other benefit to being charged in this way is that because it’s not a misdemeanor or a felony, it’s unlikely to be an answer to any of the typical questions on a job application.
  • Misdemeanor Theft - Usually, a retail theft is charged as a misdemeanor when the accused has not been convicted of a theft in the past and the amount of the merchandise doesn’t exceed $300. When a theft is charged in this way, it’s a Class A misdemeanor punishable by up to $2500 in fines and up to a year in jail. Misdemeanors are “state charges” which means that they are charged under the Illinois book of laws called the Illinois Complied Statutes. A person will almost always be subject to fingerprints and a mug shot when charged as a misdemeanor.
  • Felony Theft - But depending on the amount of merchandise involved and the defendant’s criminal background, a retail theft can also be charged as a felony, subject to more than one year in the penitentiary. Whereas local ordinance offenses and misdemeanors may result in a sentence of supervision (which may allow the expungement of the charge), felonies are not generally expungable, unless a special disposition of “deferred prosecution” has been agreed to ahead of time with the prosecutor or State’s Attorney.

But I Didn’t Mean to Steal Anything

A retail theft is an “intent” crime, which means that a person must have the actual intention of stealing something and depriving the owner permanently of the use of the item. But absent a confession by the defendant that he or she intentionally stole merchandise, how exactly can the police and prosecutor prove what a person intended? No one can ever look into your brain to determine what you were thinking, right? So, if you continue to insist that it was just a mistake and you don’t confess, you can never be proven guilty, right? Wrong. If that was all there was to it, no one would ever be convicted of a crime. That’s where evidence, including circumstantial evidence, comes into play. Circumstantial evidence is something that although it doesn’t directly prove a person’s guilt or innocence (like a video of the person stealing the item), tends to suggest that a person did or didn’t do something.

Retail Theft in Self-Checkout Lanes

For instance, these days, self-checkout lines are in a great many stores. It’s very common for a person to be charged with a crime when they haven’t scanned and paid for all the items in their cart. Inevitably, the shopper is detained by store security and held for police, where most of the time, the customer will say that he or she was distracted by others, spacing out, or scanned the items but didn’t realize that the scanner didn’t register the purchase. So how is a judge to decide whether that person really “intended” to commit a theft? Often, the answer is with the help of circumstantial evidence at trial. Examples of this type of evidence in a theft case might include:

  • Surveillance video – does it show that the shopper: Really did scan the items? Looked around nervously like he or she is trying to determine if others are watching? Walked quickly to the exit door? Was distracted by crying children? Opened packages or switched price stickers?
  • Store receipts – is the shopper accused of purchasing many items, but paying an amount that is much less than what would have been expected? In other words, if a person purchased a frozen pizza and an expensive cut of steak, but the amount that was paid was only $5, shouldn’t they have realized that maybe the steak wasn’t scanned properly?
  • Eyewitness testimony – did store security follow the shopper around or monitor him or her via security video cameras? Would they testify that the person was doing anything unusual or waiting until others were not present in the aisle to take items from the shelf?
  • Age and/or mental condition – was the person elderly or suffering from a mental condition which might have made it such that they didn’t really realize that they hadn’t paid for the item?

Consult Our Experienced Chicago Retail Theft Team

Every theft case is different and every client deserves to have their case evaluated individually to determine whether a legitimate criminal defense exists that may result in a finding of not guilty at trial. Since 1990, the criminal attorneys at Mitchell S. Sexner & Associates LLC have handled thousands of theft and retail theft cases in all major counties in Northern Illinois including Cook, Lake, Kane, DuPage, Will, McHenry and many others. Call today for a free initial consultation to discuss your rights at (312) 644-0444.

Written by Mitchell S. Sexner Last Updated : January 13, 2023