Effective March 31, 2013, the Michigan Legislature enacted new laws that combat organized retail crime activity in this state and increased the penalties from misdemeanors to felonies. The underlying purpose of the act was to go after organized crime groups who steal goods from retail stores and resell them at pawn shops or on the internet. These laws not only punish the actual thieves with felony crimes but also imposes criminal liability on anyone that supervises, conspires or assists the thieves (including receiving the stolen goods for resale).
A person is guilty of organized retail crime when that person, alone or in association with another person, does any of the following:
- “Knowingly commits an organized retail crime.” MCL 752.1084(1)(a).
-
- “Organized retail crime” means “the theft of retail merchandise from a retail merchant with the intent or purpose of reselling, distributing, or otherwise reentering the retail merchandise in commerce, including the transfer of the stolen retail merchandise to another retail merchant or to any other person personally, through the mail, or through any electronic medium, including the internet, in exchange for anything of value.” MCL 752.1083(c).
- “Retail merchant” means “any person that is in the business of selling retail merchandise at retail.” MCL 752.1083(f).
- “Retail merchandise” means “any new article, product, commodity, item, or component intended to be sold in retail commerce.” MCL 752.1083(e).
- “Person” means “an individual, sole proprietorship, partnership, cooperative, association, corporation, limited liability company, personal representative, receiver, trustee, assignee, or other entity.” MCL 752.1083(d).
- “Organizes, supervises, finances, or otherwise manages or assists another person in committing an organized retail crime.” MCL 752.1084(1)(b).
- “Removes, destroys, deactivates, or knowingly evades any component of an antishoplifting or inventory control device to prevent the activation of that device or to facilitate another person in committing an organized retail crime.” MCL 752.1084(1)(c).
- “Conspires with another person to commit an organized retail crime.” MCL 752.1084(1)(d).
- “Receives, purchases, or possesses retail merchandise for sale or resale knowing or believing the retail merchandise to be stolen from a retail merchant.” MCL 752.1084(1)(e).
- “Uses any artifice, instrument, container, device, or other article to facilitate the commission of an organized retail crime act.” MCL 752.1084(1)(f).
- “Knowingly causes a fire exit alarm to sound or otherwise activate, or deactivates or prevents a fire exit alarm from sounding, in the commission of an organized retail crime or to facilitate the commission of an organized retail crime by another person.” MCL 752.1084(1)(g).
- “Knowingly purchases a wireless telecommunication device using fraudulent credit, knowingly procures a wireless telecommunications service agreement with the intent to defraud another person or to breach that agreement, or uses another person to obtain a wireless telecommunications service agreement with the intent to defraud another person or to breach that agreement.” MCL 752.1084(1)(h).
To prove the charge of organized retail crime by merchandise theft, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 10.9):
- First, that the individual took some property from a person or a business that sells merchandise at retail without the consent of the person or business; OR that the individual organized, supervised, financed, or otherwise managed or assisted another in taking some property from a person or a business that sells merchandise at retail; OR that the individual conspired with another person or persons to take some property from a person or a business that sells merchandise at retail.
- Second, that the property taken or to be taken was retail merchandise, which is a new article, product, commodity, item, or component that was intended for sale in retail commerce.
- Third, that the individual intended to permanently deprive the owner of the retail merchandise that was taken or intended to be taken or cheat the owner out of the value of the retail merchandise that was taken.
- Fourth, that when the retail merchandise was taken, the individual intended that the merchandise would be resold or distributed, or would otherwise be reentered in commerce. Reentering the merchandise in commerce includes transferring it to another person or another business that sells merchandise at retail. A transfer may be done personally, by mail, or through any electronic medium, including the Internet, but it must be intended to be done in exchange for something of value. It does not matter whether the reentry or transfer of the merchandise actually took place, so long as the defendant intended that it take place at the time that it was taken.
To prove the charge of organized retail crime by possession of stolen merchandise, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 10.9a):
- First, that some property was stolen or explicitly represented to the individual as being stolen from a retail merchant. It does not matter whether the property was actually stolen, if someone told the defendant that it was stolen.
- Second, that the property was retail merchandise, which is a new article, product, commodity, item, or component that was intended for sale in retail commerce.
- Third, that the individual received, bought or possessed the merchandise.
- Fourth, that, when the individual received, bought or possessed the merchandise, he or she knew or believed that it was stolen from a retail merchant. It does not matter whether the property was actually stolen if someone told the individual that it was stolen.
- Fifth, that, when the individual received, bought, or possessed the merchandise, he or she intended that the merchandise would be resold or distributed, or would otherwise be reentered in commerce. Reentering the merchandise in commerce includes transferring it to another person or another business that sells merchandise at retail. A transfer may be done personally, by mail, or through any electronic medium, including the Internet, but it must be intended to be done in exchange for something of value. It does not matter whether the reentry or transfer of the merchandise actually took place, so long as the individual intended that it take place at the time that it was taken.
To prove the charge of organized retail crime by subterfuge (evading detection of the theft of retail merchandise), the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 10.9b):
- First, that the individual removed, destroyed, deactivated, or evaded an antishoplifting or inventory device OR used an artifice, instrument, container, device, or other article OR deliberately caused a fire alarm to sound.
- Second, that the individual removed, destroyed, deactivated, or evaded an antishoplifting or inventory device OR used an artifice, instrument, container, device, or other article OR deliberately caused a fire alarm to sound SO THAT he or she or others could take property without the owner’s consent from a person or a business that sells merchandise at retail.
- Third, that the property stolen, or intended to be stolen, was retail merchandise, which is a new article, product, commodity, item, or component that was intended for sale in retail commerce.
- Fourth, that, when the individual removed, destroyed, deactivated, or evaded an antishoplifting or inventory device OR used an artifice, instrument, container, device, or other article OR deliberately caused a fire alarm to sound, THEM he or she intended to permanently deprive the owner of the retail merchandise that was taken or intended to be taken, or cheat the owner out of the value of the retail merchandise that was taken.
- Fifth, that when the retail merchandise was taken, the individual intended that the merchandise would be resold, distributed, or otherwise reentered in commerce. Reentering the merchandise in commerce includes transferring it to another person or another business that sells merchandise at retail. A transfer may be done personally, by mail, or through any electronic medium, including the Internet, but it must be intended to be done in exchange for something of value. It does not matter whether the reentry or transfer of the merchandise actually took place, so long as the defendant intended that it take place at the time that it was taken.
To prove the charge of organized retail crime by possession involving a telecommunications device, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 10.9c):
- First, that the individual purchased a wireless telecommunications device.
- Second, that the individual purchased the device using fraudulent credit.
- Third, that, at the time that the individual purchased the device, he or she knew that the method of payment that he or she used was fraudulent.
- Fourth, that when the individual used fraudulent credit to purchase the wireless telecommunications device, he or she intended to defraud or cheat someone.
To prove the charge of organized retail crime by possession involving a telecommunications service agreement, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 10.9d):
- First, that the individual obtained or used another person to obtain a wireless telecommunications service agreement with a wireless telecommunications company.
- Second, that when the individual obtained or used the other person to obtain the service agreement, he or she intended to break the agreement, in order to cheat the wireless telecommunications company, or he or she intended to defraud or cheat someone.
Organized retail crime is a felony punishable by imprisonment for not more than 5 years or a fine of $5,000.00, or both. MCL 752.1084(2). In addition, the offender will have to pay restitution to any retail merchant that was cheated and pay the prosecutor and police for its expenses in pursuing this criminal case. MCL 752.1084(4). Any stolen retail merchandise that can’t be returned to its true owner due to lack of identification will be forfeited to the state. MCL 752.1084(3).
It is not a defense to a charge of organized retail crime that the property was not stolen, embezzled, or converted property at the time of the violation if the property was explicitly represented to the defendant by someone else as being stolen, embezzled, or converted property. MCL 752.1084(5).
Organized retail crime is a serious offense and requires the best legal representation in your corner. While this law was passed to combat large criminal organizations, it is often employed to punish retail fraud activity by groups as small as two people. For example, if one person takes items from the store shelf and puts it in a hidden location, then a second person takes the items from that location and subsequently passes all points of sale, then both individuals can be charge with felonies. This charge is often used on very minor thefts to frighten the accused into accepting a plea bargain to lesser charges. Before you plead guilty, you should have a skilled criminal defense lawyer on your side to review all the evidence and secure the best possible outcome in your case.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
