Every week I get a call from someone saying they have been charged with shoplifting in Fayetteville, Van Buren, or Fort Smith, Arkansas. Often times they deny that they were in fact going to try and get a “five finger” or “four finger” discount.

As I often tell my clients, even if you did everything they say you did in the police report, sometimes that still is not enough to convict you for the crime they are charging you with.

In Arkansas, shoplifting is prosecuted under the Theft of Property statute (Arkansas Code Annotated § 5-36-103), which in relevant part reads:

“(a) A person commits theft of property if he or she knowingly:

(1) Takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or

(2) Obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property.”

Interestingly, there is a statutory presumption that if you completely hide a product from the store on your person (or in a purse, etc) that you were doing so in order to steal it. Do not fret, however, because this presumption is beatable! Here’s how the statute puts it, which of course is clear as mud:


Ҥ 5-36-116. Shoplifting presumption-

(a)(1) The knowing concealment by a person on his or her own person or on the person of another of an unpurchased tangible personal property offered for sale by a store or business establishment gives rise to a presumption that the person took the tangible personal property with the purpose of depriving the owner of the store or business establishment or another person having an interest in the tangible personal property.”

This presumption has been explored by the courts in Arkansas, the first time was back in 1979 when Bill Clinton was our Attorney General, in Smith v. State. In that case, Ms. Smith (the defendant) grabbed a pack of cigarettes and put them in her coat pocket and then proceeded to check out and pay for all of her items (except the cigarettes).  Ms. Smith then passed the cigarettes to her sister who was behind her in line so she could pay for the items. The allegation was that Ms. Smith saw a man approaching her after she had checked out, she suspected that it was asset protection or store security and that is the only reason she gave the concealed cigarettes to her sister.

The court said that the case must be dismissed and Ms. Smith must be found not guilty because the presumption that she was going to steal the items was not enough. There was no evidence of “an overt attempt to pass the check out station” or “last point of sale” and no one accused the defendant of trying to steal the cigarettes before she passed them onto her sister. The court said that the judge was only left to speculation and conjecture in reaching the conclusion that the defendant had an intent to deprive it’s owner of property (that the defendant was going to steal the cigarettes).

Basically, the court said there has to be something else, anything else, that shows you had the intent to steal the items other than merely concealing them. In other cases that have cited this presumption the court has found that the following has been enough to prove the intent to steal:

  1. Fleeing upon confrontation.
  2. Denying that you hid a product on your person or making other false statements.
  3. Going past the last point of sale.

I’m sure there are others, such as taking items out of the box and placing them in your purse and leaving the box behind. If there is no bar code on the product, how did you ever intend to pay for it?

Now, this is just the bare minimum for a court to find you guilty.  A judge or jury could be convinced that you did not have the intent to steal even if you think that you meet that bare minimum threshold to be found guilty. The weight of your testimony in court cannot be calculated and computed by the Court of Appeals or Supreme Court. Only you know how believable or unbelievable your version of events sounds. I would not plead guilty if I was not guilty of shoplifting, even if the case law and statute make it sound like I should.

If you are facing shoplifting charges in Fayetteville, Fort Smith, or Van Buren, Arkansas (or any nearby city) give our criminal defense lawyers a call at 479-782-1125.