Retail fraud, also known as “shoplifting”, is a criminal offense where someone has defrauded or stolen from a store while it was open to the public. There are actually three ways that someone can commit retail fraud in Michigan.
- A person is guilty of retail fraud by theft, contrary to MCL 750.356c or MCL 750.356d, if the prosecutor can prove all of the following beyond a reasonable doubt ( M Crim JI 23.13):
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- That the person took property from the store that was offered for sale.
- That the person moved the property (any movement is enough and the prosecutor doesn’t have to prove that you took the items past the points of sale).
- That the person intended to steal the property by permanently taking it from the store without permission.
- That the person did these things inside the store or its immediate vicinity while it was open.
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- A person is guilty of retail fraud by price-switching, contrary to MCL 750.356c or MCL 750.356d, if the prosecutor can prove all of the following beyond a reasonable doubt ( M Crim JI 23.14):
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- That the person altered or switched a price tag to misrepresent the price of an item.
- That the person did this intending to pay less than the actual price or not at all.
- That the person did these things inside the store or its immediate vicinity while it was open.
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- A person is guilty of retail fraud by false exchanges, contrary to MCL 750.356c and MCL 750.356d, if the prosecutor can prove all of the following beyond a reasonable doubt ( M Crim JI 23.15):
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- That the person exchanged or tried to exchange property that was not paid for and belonged to the store (doesn’t matter if it was for money or other property)
- That the person did this with the intent to defraud and cheat the store.
- That the person did these things inside the store or its immediate vicinity while it was open.
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There are three severity levels of retail fraud in Michigan. The level that you are charged with depends on the value of the items stolen or defrauded and the existence of prior retail fraud convictions on your criminal record. The severity level will also determine if you are charged with a misdemeanor or a felony.
- Third Degree Retail Fraud – If you commit retail fraud where the value of difference in price, property stolen, or money or property obtained is LESS THAN $200.00, you are guilty of a misdemeanor which carries a maximum penalty of 93 days in jail and/or a fine up to $500.00 or THREE TIMES the value of the difference in price, property stolen, or money or property obtained, whichever is greater.
- Second Degree Retail Fraud – If you commit retail fraud where the value of difference in price, property stolen, or money or property obtained is BETWEEN $200.00 BUT LESS THAN $1,000.00 OR THE PERSON HAS A PRIOR CONVICTION FOR THIRD DEGREE RETAIL FRAUD, you are guilty of a misdemeanor which carries a maximum penalty of 1 year in jail and/or a fine up to $2000.00 or THREE TIMES the value of the difference in price, property stolen, or money or property obtained, whichever is greater.
- First Degree Retail Fraud – If you commit retail fraud where the value of difference in price, property stolen, or money or property obtained is $1,000.00 OR MORE OR THE PERSON HAS A PRIOR CONVICTION FOR SECOND DEGREE RETAIL FRAUD, you are guilty of a felony which carries a maximum penalty of 5 years in state prison and/or a fine up to $10,000.00 or THREE TIMES the value of the difference in price, property stolen, or money or property obtained, whichever is greater.
Additionally, the prosecutor can use the values of retail frauds committed in separate incidents within any 12-month period during a common scheme and combine them to determine a total value. The prosecutor may then use that number as a basis to authorize a criminal charge for Second Degree Retail Fraud or First Degree Retail Fraud.
If you are charged with First Degree Retail Fraud, your maximum prison sentence can be enhanced beyond five years under Michigan’s Habitual Offender Status laws if your prior criminal record consists of felony convictions. If you have one prior felony, your maximum prison sentence can be 7 ½ years. If you have two prior felonies, your maximum prison sentence can be 10 years. If you have three or more prior felonies, your maximum sentence may include up to LIFE IN PRISON.
Besides the criminal penalties, the Michigan Legislature has authorized merchants to make a written demand to shoplifters for a civil fine equal to 10 times the retail price of the property involved, not less than $50.00 and not more than $200.00. Pursuant to MCL 600.2953, if the merchant makes this demand and it is not complied with, then the merchant can file a civil action to determine responsibility for the return of any unrecovered property and the payment of the civil damage. If the merchant brings this civil action against you and prevails, you will be liable for the value of the judgment, the merchant’s cost in bringing this action and the merchant’s reasonable attorney fees. The merchant may pursue this action even if you are not criminally charged with retail fraud in any Michigan jurisdiction.
Defending against a retail fraud allegation can be scary and intimidating because you are often battling the financial resources of a major retailer and/or the governmental resources of the prosecutor and police. A conviction for retail fraud is a conviction for a dishonest act that can cause lifelong headaches for employment opportunities or serving in an office of trust. It is important to retain the services of a skilled criminal defense attorney to advise and protect you from the unfortunate consequences of retail fraud. A good attorney will investigate whether you have a valid defense to the charges. You may be wrongfully accused due to mistaken identity by the loss prevention officer, the work of a previous price-switcher to the item you acquired, or simply that there was no intent to steal because the item was accidently forgotten at the point of sale. If your guilt is clear but your actions may have been the result of personal financial stress or substance abuse, a good attorney can advise a proactive approach to addressing the underlying problem so a judge does not conclude that additional fines or jail time is more appropriate. Finally, a good attorney can assess your eligibility for programs that may help you avoid a conviction on your criminal record such as a diversionary program or the Holmes Youthful Trainee Act.
If you or a loved one is charged with retail fraud or any other crime, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
