Lee v. State

BELL, Judge. Appellant, Joe William Lee, Jr. (Lee) was convicted by the Circuit Court for Baltimore County of two separate charges ³¹ of theft under $300.00 and sentenced to the Division of Correction for two consecutive one year sentences. We will dispose of the appeal from the first conviction without much discussion as the evidence clearly was sufficient to convict Lee of theft. In the second conviction, however, Lee urges this Court to decide that his concealment of a bottle of liquor in his trousers while shopping in a self-service liquor store does not constitute evidence sufficient to convict him of theft.

Since Lee was accosted with the merchandise in the store, abandoned it and then departed from the premises, this case poses a substantial question regarding the law of theft which has never specifically been resolved in this state: May a person be convicted of theft for shoplifting in a self-service store if he does not remove the goods from the premises of that store? The agreed statement of facts disclosed that in the first case, two security guards employed by Montgomery Ward observed Lee take one bottle of cologne valued at $14.50 from the display area and conceal it in his pocket and then pick up a hair dryer valued at $16.99 and conceal it under his jacket. Lee exited the store without paying for the merchandise. He was thereafter apprehended and arrested.

Based on these facts, we find ample evidence to support Lee’s subsequent conviction under Md.Code (1957 Repl.Vol.1982) Art. 27 § 342. Thus we hold the court did not err. In the second case, an employee of a pharmacy-liquor store observed Lee displacing two $16.47 bottles of cognac. Lee concealed one of the bottles in his pants and held the other in his hand.

When approached by the employee, Lee returned both bottles to the shelf and fled the store. He was chased by the employee who flagged down a passing police cruiser. Subsequently, Lee was arrested and convicted. For the reasons set forth in our discussion, we uphold the theft conviction despite the fact Lee was accused and “returned” the merchandise before he left the store. ³² To resolve the question of whether the evidence in the second case is sufficient to satisfy the elements of larceny as defined by the theft statute, Md.Code (1954 Repl.Vol. 1982) Art. 27 § 342, the development of the common law of larceny and its evolution into modern statutory form must be briefly addressed.

Common Law Distinctions among larceny, embezzlement, obtaining by false pretenses, extortion, and the other closely related theft offenses, including shoplifting, can be explained by a brief exposition of the historical role criminal law played in protecting property. Model Penal Code, Sec. 223.1 and Comment (Proposed.Official Draft, 1962) (hereinafter MPC). The history of these theft related offenses commenced with the common law courts’ concern for crimes of violence (e.g. robbery) and for protecting society against breaches of peace; then expanded by means of the ancient quasi-criminal writ of trespass to cover all taking of another’s property from his possession without his consent, even though no force was used. This latter misconduct was punished as larceny.

MPC 223.1; Fletcher, Metamorphosis of Larceny, 89 Harv.L.Rev. 469 (1976). Larceny at common law was defined as the trespassory taking and carrying away of personal property of another with intent to steal the same. Fletcher v. State, 231 Md. 190 , 189 A.2d 641 (1963); Farlow v. State, 9 Md.App. 515, 517 , 265 A.2d 578 (1970); See also Perkins, Criminal Law 234 (2d ed. 1969); People v. Olivo, 52 N.Y.2d 309 , 438 N.Y.S.2d 242 , 420 N.E.2d 40 (1981). The requirement of a trespassory taking made larceny an offense against possession 1 ; and thus, a person such as a ³³ bailee who had rightfully obtained possession of property from its owner could not be guilty of larceny even if he used the property in a manner inconsistent with the owner’s expectations.* 2 Because of this narrow interpretation of larceny, the courts gradually broadened the offense by manipulating the concept of possession to embrace misappropriation by a person who with the consent of the owner already had physical control over the property.

MPC § 223.1. First the common law courts distinguished “legal possession” from “physical possession”, or actual control, in that a shopowner retained “legal possession” until the actual sale was made, regardless of who had physical possession. In Chisser, 83 Eng.Rep. 142 (1678), for example, the defendant bolted from a store without paying for two cravats the shopkeeper had handed him for inspection. The Exchequer found the taking to be felonious, despite the handing over of the cravats, in that the owner retained legal possession and was therefore protected until the actual sale. 89 Harv.

L.Rev. at 487. In an effort to delineate further the contours of possession, the courts began to distinguish “possession” from “custody”, thereby enabling an employer to temporarily entrust his merchandise to an employee or a customer while still retaining “possession” over the goods until a sale was consummated. See People v. Olivo, supra at 244, 420 N.E.2d at 42 , citing 3 Holdsworth, A History of English Law [3d ed. 1923], at p. 365. These distinctions and delineations, which ultimately laid the foundation for the statutory offense of theft as it exists today, provided the courts with the judicial machinery with which to sustain a larceny ³⁴ conviction when the customer who had rightful “custody” or “physical possession” converted the property to his own use and thereby performed, albeit subjectively, the requisite “trespassory taking.” As the expansion of the offense continued, the intent element increased in importance while the “trespassory taking” element became less significant.

In King v. Pear, 1 Leach 212, 168 Eng.Rep. 208 (1779), a case involving the fraudulent hiring of a horse, “larceny by trick” was born when the judges faced the problem of whether intent to steal was sufficient to overcome the immunity provided by rightfully acquiring possession. In Pear’s case the judges reasoned that if Pear’s intention was fraudulent at the outset, then he never acquired legal possession. Thus the conversion of the horse (presumably at the time of the sale) became equivalent to the taking and carrying away under common law larceny. 89 Harv.L.Rev. at 505. Apparently, the courts began to realize that the actor’s wrong typically had little to do with the act of acquiring physical control over the object, but, rather revolved around the intent behind the acquisition.

Accordingly, later cases often ignored the fact that a defendant had obtained possession lawfully. Instead they focused upon the intent of the actor as evidenced by his unauthorized exercise of control over the property; thus the “trespassory taking” element became a subjective rather than objective element. 3 89 Harv. L.Rev. at 517. Most modern statutes have incorporated these developments under a unified definition of theft which tends to focus upon the perpetrator’s intent and his exercise of dominion and control over the property.

MPC § 223.1; Joint Subcommittee on Theft Related Offenses, Revision of ³⁵ Maryland Theft Laws and Bad Check Laws (1978) (hereinafter Subcommittee). In Maryland, before the passage of the theft law which became effective on July 1, 1979 (Md.Code (1954 Repl.Vol. 1982), Art. 27 §§ 340-344) the law of larceny was sprinkled throughout Article 27. Several separate offenses, each involving some sort of taking and carrying away of property with an intent to deprive the owner, were consolidated under Article 27 § 342. These offenses included larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property.

Gilbert and Moylan, Md. Criminal Law: Practice and Procedure § 19.0 (1983). The legislature consolidated these offenses in an effort to eliminate the “technical and absurd distinctions that have plagued the larceny related offenses and produced a plethora of special provisions in the criminal law.” Subcommittee, supra at p. 2.3 4 Under § 342 are the primary elements of theft: wilfully and knowingly; obtaining unauthorized control over the property or services of another; by deception or otherwise; with intent to deprive the owner of his property; by using, concealing, or abandoning it in such a manner that it probably will not be returned to the owner. Gilbert and Moylan, supra, § 19.4. The evolution of theft law is particularly relevant to thefts occurring in modern self-service stores where cus ³⁶ tomers are impliedly invited to examine, try on, and carry about the merchandise on display.

In a self-service store, the owner has in a sense, consented to the customer’s possession of the goods for a limited purpose. (See e.g. People v. Olivo, supra; Day v. Grand Union Co., 280 App.Div. 253, 254-55 , 113 N.Y.S.2d 436 (1952); Lasky v. Economy Grocery Stores, 319 Mass. 224 , 65 N.E.2d 305 (1946); Groomes v. United States, 155 A.2d 73 (D.C.Mun.App.) (1959). Under common law principles of theft, a person could not have been convicted if apprehended while still in the store because the perpetrator would have rightful possession (albeit temporarily) and thus could not perform the element of trespassory taking until he left the store without paying (at which point it might be too late).

Under the present law, the fact that the owner temporarily consents to possession does not preclude a conviction for larceny if the customer exercises dominion and control over the property by using or concealing it in an unauthorized manner. Such conduct would satisfy the element of trespassory taking as it could provide the basis for the inference of the intent to deprive the owner of the property. Other Jurisdictions Although this is a case of first impression in Maryland, courts in other jurisdictions which have considered this issue appear to be unanimous in holding that a shoplifter need not leave the store to be guilty of larceny. (E.g.

People v. Olivo, supra; State v. Grant, 135 Vt. 222 , 373 A.2d 847 (1977); Groomes v. United States, supra; People v. Baker, 365 Ill. 328 , 6 N.E.2d 665 (1937); People v. Bradovich, 305 Mich. 329 , 9 N.W.2d 560 (1943); accord People v. Britto, 93 Misc.2d 151 , 402 N.Y.S.2d 546 , (1978). These cases have revealed several different factors which if found may be sufficient to allow a trier of fact to find the requisite larcenous intent. In New York, the Court of Appeals in People v. Olivo, supra, sustained convictions of larceny based on fact patterns not unlike the instant case. In that case, the Court ³⁷ found the evidence sufficient to convict the defendants in three separate situations while in a self-service store.

In one the defendant concealed goods in his clothing, in a particularly suspicious manner and was stopped before he exited the store. In a second he removed a price tag from a jacket and put it on himself and was stopped prior to leaving the store. In a third the defendant looked furtively up and down the aisle before concealing a book in an attache case. In upholding these convictions, the Court espoused at 420 N.E.2d 40, 45 .

In view of the modern definition of the crime of larceny, and its purpose of protecting individual property rights, a taking of property in the self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store’s continued rights. Quite simply, a customer who crosses the line between the limited right he or she has to deal with merchandise and the store owner’s rights may be subject to prosecution for larceny. Such a rule should foster the legitimate interests and continued operation of self-service shops, a convenience which most members of the society enjoy. The Criminal Court of the City of New York in People v. Britto, supra, also sustained a conviction of theft in a self-service store.

In that case the court held that evidence indicating the defendant placed six or seven ham steaks under his belt and walked by the register without paying was sufficient to present a prima facie case of shoplifting. The fact that the defendant had not left the store with the concealed goods was wholly irrelevant. In the District of Columbia in Groomes v. United States, supra, a defendant, while shopping in a self-service market was seen by a clerk to remove two articles from a shelf and put them in her purse. She closed the purse and after looking around her, walked about the market.

The customer claimed that the Government’s evidence failed to estab ³⁸ lish that she had obtained complete control and dominion over the property. The court held at p. 75 [I]t is quite true, as appellant argues, that the burden of proof to establish a taking and asportation is more onerous on the Government where the larceny alleged occurs in a self-service store. By this system of merchandising the patron is invited to select and take possession of the commodities he intends to purchase. Mere possession of the goods, however, does not pass title to the customer and the possession is of itself conditional in character until the merchandise is taken to the cashier and payment is made.

The Government’s evidence in this case tended to prove that appellant’s actions were wholly inconsistent with those of a prospective purchaser. It was established that the items once removed from the shelf were immediately secreted in her purse. At the time, the cart used by appellant was about