A man was apprehended at a Fort Wayne clothing store after a loss prevention officer spotted him placing merchandise into a trash bag. The man dropped the bag in a store aisle and then left the store when he realized security officers were watching him. He was arrested for shoplifting and was ultimately charged with
Theft, a Class D felony, in the Allen County Superior Court.
At trial, the defendant requested that the jury be given an instruction on criminal conversion, a Class A Misdemeanor, as a lesser included charge to theft. A lesser included offense is one that can be established by proving all the same elements, or less, than the offense charged. Theft and conversion have the same definition in Indiana, except that the theft statute requires proof that a defendant intended to deprive the owner of his property. The trial court denied his request, and the defendant was convicted of theft, a
Class D felony.
The defendant appealed his conviction arguing that the trial court erred by not giving the jury instruction for conversion. The Court of Appeals reversed the theft conviction and awarded a new trial. The Court found that the defendant had placed unpurchased merchandise in his bag
, but he did not leave the store with the items. The State was still required to prove that he intended to deprive the store of the merchandise to convict him of theft, and that is a factual question for a jury. Under Indiana law, the jury should have had the option to convict the defendant of a Class A misdemeanor conversion charge and not just the Class D felony charge.
Prosecutors have the discretion to file shoplifting charges as Theft, a Class D felony; or Conversion, a Class A misdemeanor. However, if a defendant presents evidence that he or she did not intend to deprive the owner of merchandise, even though he or she exerted unauthorized control of the property, a jury instruction for the misdemeanor charge of conversion is required.
If you are arrested for shoplifting, you should contact an experienced criminal defense attorney immediately. Regardless of the dollar amount of the alleged shoplift, you could be charged with either a Class D felony Theft or a Class A misdemeanor Conversion. If you are accused of shoplifting, but did not leave the store, you may be able to defeat a felony charge.
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