Massachusetts Shoplifting Statute
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The Commonwealth of Massachusetts' shoplifting statute, enacted in 1981, criminalizes a variety of acts broadly characterized as larceny or theft of merchandise from a retail store. The law, codified in Massachusetts General Law chapter 266 section 30A, proscribes taking and removing from a store, retail merchandise without paying for it and with the intention of keeping it. In addition, the statute attempts to meet the ingenuity of shoplifters by making criminal a host of acts that contribute to a perpetrator's ability to commit an act of shoplifting.
Contrary to conventional wisdom, the shoplifting statute does not require taking goods beyond a store's premises as a precondition to a conviction of larceny. In one case, the defendant had torn off a magnetic sticker, hidden the stolen goods behind other merchandise, and carried the goods for which he had no means of paying past the cash registers. The law also forbids the concealing of merchandise within the store with the intent to later steal the merchandise. In the case of Commonwealth v. Balboni, the Massachusetts Appeals Court held a defendant guilty of violating the shoplifting statute when he placed ten cartons of cigarettes in a bag at the bottom of a shopping cart, despite the fact that the defendant did not leave the store, because the defendant had no means of paying for them.
Other acts, such as altering labels or transferring merchandise from one container to another, violate the statute, provided that the perpetrator intends to deprive the merchant of the full retail value of the merchandise. In addition, a clerk violates the statute by intentionally recording a value for the merchandise less than actual retail value with the intent to deprive the merchant of the full retail value. The statute also criminalizes the theft, or intentional removal of a shopping cart from the store premises. For each of these violations, an intention to deprive the merchant of possession, use, benefit or retail value of the merchandise stolen must exist.
By design, the shoplifting statute complements and is consistent with the Commonwealth's general larceny statute. As a result, a prosecutor can choose which statute to use as a basis for bringing criminal charges, except in cases where the value of the goods is less than one hundred dollars, in which case the shoplifting statute applies to the exclusion of the larceny statute. The case of Commonwealth v. Sollivan illustrates how a prosecutor can use the general larceny statute in a shoplifting case. In that case defendants engaged in shoplifting were convicted of larceny in a building, though such a charge was inappropriate. Despite this error, the court allowed resentencing as general larceny, since larceny is a lesser included offense to larceny in a building.
The shoplifting statute graduates punishment for violating the law based on the value of the merchandise and the number of prior shoplifting convictions. Where the retail value of the goods shoplifted amounts to less than one hundred dollars, the first conviction results in a maximum fine of two hundred and fifty dollar fine. The second offense results in a minimum fine of one hundred dollars and a maximum fine of five hundred dollars. For the third or more offense the punishment can include imprisonment for two years along with a five hundred dollar fine. Where the retail value of the goods shoplifted equals or exceeds $100, punishment includes imprisonment for two and a half years and/or a fine of $1000.
A statute also exists which provides for recovery for shoplifting under small claims procedures. Massachusetts General Law chapter 231 section 85R provides tort liability against a shoplifter. As a result, a merchant can collect for any damages resulting from the commission of attempt to shoplift. In addition, a merchant can collect at least fifty but no more than five hundred dollars in damages beyond those the merchant actually incurred.
A law enforcement officer with authority in a jurisdiction may arrest without a warrant any person the officer has probable cause for believing has shoplifted. An officer has probable cause if the merchant or the merchant's employee states that a person has violated the shoplifting statute.
To better understand the shoplifting statute's place in the general law, it may be helpful to understand the more general crime of larceny. As a result of their codification, the common law crimes of larceny, embezzlement and the obtaining of property by false pretenses are now merged into the one crime of larceny and defined by statute. The merger of these common law crimes permits proof of any one of the crimes on evidence that would sustain a conviction for any of the others. Consequently, a prosecutor may make out a larceny case in any way in which the facts show a larceny has been committed.
While it is essential that the prosecution prove that the defendant intended to keep the property permanently, a prosecutor may rely on the jury to infer such intent from all the totality of the facts surrounding the alleged larceny.
The basic elements which the Commonwealth must prove under the larceny statute are (1) the unlawful taking and (2) carrying away (3) of the personal property of another (4) with the specific intent to deprive the person of the property permanently. Though preferable, the statute does not require direct proof of the ownership of the property stolen. The statute only requires a showing that the defendant was not the owner. And while the value of the property stolen is an element of the punishment, it is not an element of the offense of larceny.
To make out a case of larceny by false pretenses the government must show that there was (1) a false statement of fact (2) known or believed by the defendant to be false (3) made with the intent that the person to whom it was made should rely upon its truth, (4) and that such person did rely upon it as true and (5) parted with personal property as a result of such reliance.
In order to convict a defendant of embezzlement, the Commonwealth must prove (1) that the defendant while in a position of trust or confidence was entrusted with the possession of personal property belonging to another, (2) that the defendant took that property, or hid it, or converted it to his or her own use without the consent of the owner, and (3) that the defendant did so with the intent to deprive the owner of the property permanently.
To prove the offense of larceny from a building, the Commonwealth must establish that the defendant (1) took or carried away property, (2) which belonged to another, (3) from a building that was protecting the property, (4) with the intent to deprive that person of the property permanently.
All these forms of larceny share in common with the shoplifting statute that taking of property with the intent of permanently depriving the owner of the property with possession. The differences among the various types of larceny and shoplifting are in the forms by which the theft is affected.
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