Is Purchasing a Used Clothing Item and Returning it to a Department Store Considered Theft
12/13/2008 - Criminal - State: MD #14803
Full Question:
I recently returned a suit to a department store. I was unaware that the suit was a knock-off (I purchased it from an online auction). The suit did not have a tag, but being a one time employee there, I knew what the policy was. The policy is to get a tag from a similar item to appease the customer especially when they are putting it on their store credit card. Another employee returned the suit and put the return money on my credit card. Shortly after, I was arrested for theft. After reading this definition of theft, I think I may have been wrongly prosecuted. Please let me if I am correct. If not, what should I do to keep this off my record. This is my first offense.
Answer:
A theft charge in MD may include retail fraud, where a person knowingly returns an item not purchased at the store to obtain a money refund. It may be possible to receive a deferred adjudication, so that the charges will be discharged after the terms of probation are completed.
The following is a MD statute governing deferred adjudication:
§ 6-220 CRIM. PROC. Authority of court to stay judgment and impose probation; terms and conditions of probation; when probation is not allowed; effect of violating probation.
(a) "Custodial confinement" defined. — In this section, "custodial confinement" means:
(1) home detention;
(2) a corrections options program established under law which requires the individual to participate in home detention, inpatient treatment, or other similar program involving terms and conditions that constitute the equivalent of confinement; or
(3) inpatient drug or alcohol treatment.
(b) In general. —
(1) When a defendant pleads guilty or nolo contendere or is found guilty of a crime, a court may stay the entering of judgment, defer further proceedings, and place the defendant on probation subject to reasonable conditions if:
(i) the court finds that the best interests of the defendant and the public welfare would be served; and
(ii) the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea.
(2) Subject to paragraphs (3) and (4) of this subsection, the conditions may include an order that the defendant:
(i) pay a fine or monetary penalty to the State or make restitution; or
(ii) participate in a rehabilitation program, the parks program, or a voluntary hospital program.
(3) Before the court orders a fine, monetary penalty, or restitution, the defendant is entitled to notice and a hearing to determine the amount of the fine, monetary penalty, or restitution, what payment will be required, and how payment will be made.
(4) Any fine or monetary penalty imposed as a condition of probation shall be within the amount set by law for a violation resulting in conviction.
(5) As a condition of probation, the court may order a person to a term of custodial confinement or imprisonment.
(c) Participation in treatment and education programs. —
(1) When the crime for which the judgment is being stayed is for a violation of § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, the court:
(i) before imposing a period of probation, may order the Department of Health and Mental Hygiene to evaluate the defendant in accordance with § 8-505 of the Health — General Article;
(ii) if an evaluation was ordered under item (i) of this paragraph, shall review the evaluation before imposing a period of probation; and
(iii) shall impose a period of probation and, as a condition of the probation:
1. shall require the defendant to participate in an alcohol or drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition; and
2. may prohibit the defendant from operating a motor vehicle unless the motor vehicle is equipped with an ignition interlock system under § 27-107 of the Transportation Article.
(2) When the crime for which the judgment is being stayed is for a violation of any provision of Title 5 of the Criminal Law Article, the court shall impose a period of probation and, as a condition of probation, require the defendant to participate in a drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition.
(d) Conditions under which probation before judgment prohibited. — Notwithstanding subsections (b) and (c) of this section, a court may not stay the entering of judgment and place a defendant on probation for:
(1) a violation of § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, if within the preceding 5 years the defendant has been convicted under § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, or has been placed on probation in accordance with this section, after being charged with a violation of § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article;
(2) a second or subsequent controlled dangerous substance crime under Title 5 of the Criminal Law Article;
(3) a violation of any of the provisions of §§ 3-303 through 3-307, §§ 3-309 through 3-312, § 3-315, or § 3-602 of the Criminal Law Article for a crime involving a person under the age of 16 years; or
(4) a moving violation, as defined in § 11-136.1 of the Transportation Article, if:
(i) the defendant holds a provisional license under § 16-111 of the Transportation Article; and
(ii) the defendant has previously been placed on probation under this section for the commission of a moving violation while the defendant held a provisional license.
(e) Waiver of right to appeal. —
(1) By consenting to and receiving a stay of entering of the judgment as provided by subsections (b) and (c) of this section, the defendant waives the right to appeal at any time from the judgment of guilt.
(2) Before granting a stay, the court shall notify the defendant of the consequences of consenting to and receiving a stay of entry of judgment under paragraph (1) of this subsection.
(f) Effect of violation of probation. — On violation of a condition of probation, the court may enter judgment and proceed as if the defendant had not been placed on probation.
(g) Effect of fulfillment of conditions of probation. —
(1) On fulfillment of the conditions of probation, the court shall discharge the defendant from probation.
(2) The discharge is a final disposition of the matter.
(3) Discharge of a defendant under this section shall be without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.
(h) Local provisions. — Repealed by Acts 2003, ch. 21, § 1, effective October 1, 2003.
(i) Custodial credit. — If an individual violates the terms of probation, any time served by the individual in custodial confinement shall be credited against any sentence of incarceration imposed by the court.
It is possible to get criminal records expunged in MD. The following is a MD statute governing expungement:
§ 10-105 CRIM. PROC. Right to petition for expungement of records after charge is filed; conditions and limitations; procedures. **Update Notice: This section has been amended by CHAPTER 615 OF 2008, CHAPTER 616 OF 2008
(a) Petition for expungement. — A person who has been charged with the commission of a crime, including a violation of the Transportation Article for which a term of imprisonment may be imposed, or who has been charged with a civil offense or infraction, except a juvenile offense, as a substitute for a criminal charge may file a petition listing relevant facts for expungement of a police record, court record, or other record maintained by the State or a political subdivision of the State if:
(1) the person is acquitted;
(2) the charge is otherwise dismissed;
(3) a probation before judgment is entered, unless the person is charged with a violation of § 21-902 of the Transportation Article or Title 2, Subtitle 5 or § 3-211 of the Criminal Law Article;
(4) a nolle prosequi or nolle prosequi with the requirement of drug or alcohol treatment is entered;
(5) the court indefinitely postpones trial of a criminal charge by marking the criminal charge "stet" or stet with the requirement of drug or alcohol abuse treatment on the docket;
(6) the case is compromised under § 3-207 of the Criminal Law Article;
(7) the charge was transferred to the juvenile court under § 4-202 of this article; or
(8) the person:
(i) is convicted of only one criminal act, and that act is not a crime of violence; and
(ii) is granted a full and unconditional pardon by the Governor.
(b) Where petition filed. —
(1) Except as provided in paragraphs (2) and (3) of this subsection, a person shall file a petition in the court in which the proceeding began.
(2) If the proceeding began in one court and was transferred to another court, the person shall file the petition in the court to which the proceeding was transferred.
(3)
(i) If the proceeding in a court of original jurisdiction was appealed to a court exercising appellate jurisdiction, the person shall file the petition in the appellate court.
(ii) The appellate court may remand the matter to the court of original jurisdiction.
(c) Time of filing. —
(1) Except as provided in paragraph (2) of this subsection, a petition for expungement based on an acquittal, a nolle prosequi, or a dismissal may not be filed within 3 years after the disposition, unless the petitioner files with the petition a written general waiver and release of all the petitioner's tort claims arising from the charge.
(2) A petition for expungement based on a probation before judgment or a stet with the requirement of drug or alcohol abuse treatment may not be filed earlier than the later of:
(i) the date the petitioner was discharged from probation or the requirements of obtaining drug or alcohol abuse treatment were completed; or
(ii) 3 years after the probation was granted or stet with the requirement of drug or alcohol abuse treatment was entered on the docket.
(3) A petition for expungement based on a nolle prosequi with the requirement of drug or alcohol treatment may not be filed until the completion of the required treatment.
(4) A petition for expungement based on a full and unconditional pardon by the Governor may not be filed later than 10 years after the pardon was signed by the Governor.
(5) Except as provided in paragraph (2) of this subsection, a petition for expungement based on a stet or a compromise under § 3-207 of the Criminal Law Article may not be filed within 3 years after the stet or compromise.
(6) A court may grant a petition for expungement at any time on a showing of good cause.
(d) Period for objection by State's Attorney. — (1) The court shall have a copy of a petition for expungement served on the State's Attorney.
(2) Unless the State's Attorney files an objection to the petition for expungement within 30 days after the petition is served, the court shall pass an order requiring the expungement of all police records and court records about the charge.
(e) Hearing on expungement. —
(1) If the State's Attorney files a timely objection to the petition, the court shall hold a hearing.
(2) If the court at the hearing finds that the person is entitled to expungement, the court shall order the expungement of all police records and court records about the charge.
(3) If the court finds that the person is not entitled to expungement, the court shall deny the petition.
(4) The person is not entitled to expungement if:
(i) the petition is based on the entry of probation before judgment, a nolle prosequi, or a stet, including a nolle prosequi with the requirement of drug or alcohol treatment or a stet with the requirement of drug or alcohol abuse treatment, or the grant of a pardon by the Governor; and
(ii) the person:
1. since the full and unconditional pardon or entry, has been convicted of a crime other them a minor traffic violation; or
2. is a defendant in a pending criminal proceeding.
(f) Notice of compliance. — Unless an order is stayed pending an appeal, within 60 days after entry of the order, every custodian of the police records and court records that are subject to the order of expungement shall advise in writing the court and the person who is seeking expungement of compliance with the order.
(g) Appellate review. —
(1) The State's Attorney is a party to the proceeding.
(2) A party aggrieved by the decision of the court is entitled to appellate review as provided in the Courts Article.
Because of the important consequences involved, it is recommended you consult with a local attorney.
Please see the statutes below for applicability. The following are MD statutes:
§ 7-101 CRIM. LAW Definitions.
(a) In general. — In this part the following words have the meanings indicated.
(b) Deception. —
(1) "Deception" means knowingly to:
(i) create or confirm in another a false impression that the offender does not believe to be true;
(ii) fail to correct a false impression that the offender previously has created or confirmed;
(iii) prevent another from acquiring information pertinent to the disposition of the property involved;
(iv) sell or otherwise transfer or encumber property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, regardless of whether the impediment is of value or a matter of official record;
(v) insert or deposit a slug in a vending machine;
(vi) remove or alter a label or price tag;
(vii) promise performance that the offender does not intend to perform or knows will not be performed; or
(viii) misrepresent the value of a motor vehicle offered for sale by tampering or interfering with its odometer, or by disconnecting, resetting, or altering its odometer with the intent to change the mileage indicated.
(2) "Deception" does not include puffing or false statements of immaterial facts and exaggerated representations that are unlikely to deceive an ordinary individual.
(c) Deprive. — "Deprive" means to withhold property of another:
(1) permanently;
(2) for a period that results in the appropriation of a part of the property's value;
(3) with the purpose to restore it only on payment of a reward or other compensation; or
(4) to dispose of the property or use or deal with the property in a manner that makes it unlikely that the owner will recover it.
(d) Exert control. —
(1) "Exert control" includes to take, carry away, appropriate to a person's own use or sell, convey, or transfer title to an interest in or possession of property.
(2) "Exert control" does not include:
(i) to trespass on the land of another; or
(ii) to occupy the land of another without authorization.
(e) Interactive computer service. — (1) "Interactive computer service" means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.
(2) "Interactive computer service" includes a service or system that provides access to the Internet.
(f) Motor vehicle. — "Motor vehicle" has the meaning stated in § 11-135 of the Transportation Article.
(g) Obtain. — "Obtain" means:
(1) in relation to property, to bring about a transfer of interest in or possession of the property; and
(2) in relation to a service, to secure the performance of the service.
(h) Owner. — Except as otherwise expressly provided in this part, "owner" means a person, other than the offender:
(1) who has an interest in or possession of property regardless of whether the person's interest or possession is unlawful; and
(2) without whose consent the offender has no authority to exert control over the property.
(i) Property. — (1) "Property" means anything of value.
(2) "Property" includes:
(i) real estate;
(ii) money;
(iii) a commercial instrument;
(iv) an admission or transportation ticket;
(v) a written instrument representing or embodying rights concerning anything of value, or services, or anything otherwise of value to the owner;
(vi) a thing growing on or affixed to, or found on land, or part of or affixed to any building;
(vii) electricity, gas, and water;
(viii) a bird, animal, or fish that ordinarily is kept in a state of confinement;
(ix) food or drink;
(x) a sample, culture, microorganism, or specimen;
(xi) a record, recording, document, blueprint, drawing, map, or a whole or partial copy, description, photograph, prototype, or model of any of them;
(xii) an article, material, device, substance, or a whole or partial copy, description, photograph, prototype, or model of any of them that represents evidence of, reflects, or records a secret:
1. scientific, technical, merchandising, production, or management information; or
2. designed process, procedure, formula, invention, trade secret, or improvement;
(xiii) a financial instrument; and
(xiv) information, electronically produced data, and a computer software or program in a form readable by machine or individual.
(j) Property of another. — "Property of another" means property in which a person other than the offender has an interest that the offender does not have the authority to defeat or impair, even though the offender also may have an interest in the property.
(k) Service. — "Service" includes:
(1) labor or professional service;
(2) telecommunication, public utility, toll facility, or transportation service;
(3) lodging, entertainment, or restaurant service; and
(4) the use of computers, data processing, or other equipment.
(l) Slug. — "Slug" means an object that, because of its size, shape, or other quality, can be deposited or inserted in a vending machine as an improper substitute for the payment required to operate the vending machine.
(m) Theft. —
(1) "Theft" means the conduct described in §§ 7-104 through 7-107 of this subtitle.
(2) "Theft" includes motor vehicle theft, unless otherwise indicated.
(n) Vending machine. — "Vending machine" means a device designed to receive a specified payment and in exchange automatically offer, provide, assist in providing, or allow a person to acquire property or service.
§ 7-102 CRIM. LAW Construing conduct described as theft; knowing conduct.
(a) Interpretation of part. — Conduct described as theft in this part constitutes a single crime and includes the separate crimes formerly known as:
(1) larceny;
(2) larceny by trick;
(3) larceny after trust;
(4) embezzlement;
(5) false pretenses;
(6) shoplifting; and
(7) receiving stolen property.
(b) Knowing conduct. —
(1) A person acts "knowingly":
(i) with respect to conduct or a circumstance as described by a statute that defines a crime, when the person is aware of the conduct or that the circumstance exists;
(ii) with respect to the result of conduct as described by a statute that defines a crime, when the person is practically certain that the result will be caused by the person's conduct; and
(iii) with respect to a person's knowledge of the existence of a particular fact, if that knowledge is an element of a crime, when the person is practically certain of the existence of that fact.
(2) The terms "knowing" and "with knowledge" are construed in the same manner.
Please see the information at the following links:
http://reviews.ebay.com/The-Evolving-Impact-of-Return-Fraud-and-Abuse_W0QQugidZ10000000002549650
http://www.businessedge.ca/article.cfm/newsID/16870.cfm
http://www.sixwise.com/newsletters/07/01/17/the_biggest_crime_youve_never_heard_of_--_return_fraud_--_and_how_the_criminals_do_it.htm
http://definitions.uslegal.com/t/theft-by-deception/
http://definitions.uslegal.com/l/larceny/
http://definitions.uslegal.com/f/fraud/
http://definitions.uslegal.com/d/deferred-adjudication/
http://definitions.uslegal.com/c/criminal-law-and-procedure-expungement/
Please see the handbook at the following link:
http://www.uslegalforms.com/us/US-EXPCR-2.htm
12/13/2008 - Category: Criminal - State: MD #14803
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