Felony Larceny by Removing Anti-Shoplifting Device

Posted by Sean P. CecilFeb 12, 20168 Comments

As I am still fairly new to the North Carolina Bar and the practice of criminal defense here in NC, I was surprised to recently be in a consultation with an individual whose petty shoplifting allegation was charged as a felony because of the additional allegation that he had removed a security device.  Shoplifting in North Carolina can be charged as a felony if the value of the goods stolen exceeds $1,000.00. It can also be a felony in some other circumstances, including if the person has four or more prior convictions for larceny. 

Under North Carolina General Statute Sect. 14-72.11(2), a person is guilty of a Class H felony if the person commits larceny against a merchant "by removing, destroying, or deactivating a component of an anti-shoplifting or inventory control device to prevent the activation of any anti-shoplifting or inventory control device." In my recent case, it turned out that the "anti-shoplifting device" in question was a piece of plastic designed to prevent removal of the merchandise (in this case, a small electronic device). The police report confirmed this, alleging that the accused "defeated two anti theft devices by cutting the merchandise from the anti-theft ring or hook it was attached to." 

Obviously, it is important to read criminal statutes very carefully, piece by piece. By my reading of the statute, an essential element of felony shoplifting involving tampering with anti-theft device is the purpose of the tampering: to prevent activation of the device. In my mind, this requires a device that can be "activated," such as an exploding dye pack or a magnetic strip that sets off alarms if not deactivated. The device my client was accused of tampering with was, in my mind, a "passive" security device because there was no way to activate it or tamper with it to prevent its activation. By my reading of the statute, my client was innocent of any felonious behavior and the case was overcharged as a felony. Research revealed no direct guidance from the courts, so I took the argument to the assigned prosecutor. She was not particularly interested in the issue so much as my client's record, and possibly sensing a fight over a relatively minor factual scenario, rather reasonably agreed to allow us to enter a misdemeanor deferral agreement whereby my client would secure dismissal of the case if he stayed out of trouble for six months, paid restitution, and performed some community service. If he failed the agreement, his greatest exposure was to a misdemeanor conviction. I had already decided that, based on the known facts, the best we could hope to accomplish was to beat the felony allegation, so we accepted the offer rather than push further. 

In my mind, it seems rather arbitrary to increase the severity of a shoplifting charge to a felony merely because there was an anti-shoplifting device involved. I have recently begun building more of a criminal defense practice, and would be happy to argue in a different case that removal of a "passive" security device does not meet the essential elements of felony shoplifting. I provide free consultations regarding criminal charges or investigations (I prefer to get involved in cases prior to formal charges being filed) and am charging reduced rates as I build my familiarity with the system here in North Carolina.