Legal Question in Criminal Law in Michigan

Hi. I was arrested at Wal-Mart for theft when I accidentally walked past the security gates to reach my boyfriend, who was paying. I wasn't trying to steal items, and they were in a wal-mart bag, one of those reusable non-plastic ones. I wasn't trying to steal anything, and I thought I could use the bags the way people used the shopping carts. I told them I was NOT trying to steal, and nothing was damaged. Now, I do admit, I have stolen little things before from wal-mart, but I had stopped, and gotten back on track. I have no record, and this is my first offense, or first time getting caught. I was wondering, if they could say that I have stolen before, and show video of me stealing from their store in the past. Wal-Mart only keeps their securty tapes for 90 days, but I had stolen from their before about two months before this incident. They are only charging me for this one incident, and when they were telling me why I was being arrested, they didn't bring anything up that I've done in the past, so I'm not sure if they can bring it up in the past. But I'm really nervous, because I don't want anything to be on my record. I'm sixteen years old, and I've finally gotten my life back on track.


Asked on 4/28/10, 8:48 am

2 Answers from Attorneys
Timothy Klisz Klisz Law Office, PLLC

You need to hire an attorney or this could be a disaster. Visit www.kliszlaw.com to discuss this privately. Your posted info could be used against you. Tim Klisz

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Answered on 5/03/10, 9:40 am
Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

Lots of issues here.

First, this is not a "disaster" as labeled by the other responding attorney. You are 16 years old. This would be at worst a juvenile delinquency case ... not an adult criminal prosecution. Delinquency offenses are not criminal convictions. Plus, juvie court has procedures that can result in a petition being dismissed. Talk to your attorney or talk to the juvenile court referee or judge about "Consent Calendar". If you have no prior juvenile cases and this is a property crime with no restitution because the store got its stuff back unharmed, you should qualify for this deferral program and walk away with a dismissed case that you earn by jumping through the court's hoops.

Second, don't say "I have no record ... this is my first offense ... or first time getting caught" and then say "I have stolen before about 2 months before this incident". If the latter is true then the former is not. And if you say these conflicting things to the court, they might not BELIEVE you when you really want to be believed (or trusted). It may be true that you hadn't been caught or prosecuted. But the rest is not true. Best to say nothing than to say things that are not true. If you do talk, tell the Truth.

Third, retail fraud is a larceny crime, and larceny requires proof beyind a reasonable doubt that you were stealing (i.e., intending to permanently deprive the owner of the stuff). "Accident" is a potential defense because you were not intending to steal. But, just saying so doesn't make it so. Circumstances can prove the opposite ... like putting merchandise in a store bag and walking past the registers w/o paying. You raise a debatable factual issue, but not an iron-clad defense.

Fourth, it's possible that prior acts might be used under Rule of Evidence 404(b) to show "lack of mistake/accident", scheme, system, plan, intent. the prosecutor would have to give the defense reasonable notice of it's intent to use this, and the court might have to rule on its admissibility.

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Answered on 5/03/10, 3:59 pm


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