Chances of Reduced Charge, Dismissal, or Diversion for 3rd Degree Retail Fraud

Hello, I had a quick question regarding the options that would typically be available to someone accused of 3rd degree retail fraud in Wyoming, Michigan.

A couple weeks ago myself, my fiancee, and our 2 kids were shopping at a local retailer and had been stopped by loss prevention associates for failing to scan items that were placed on the bottom of our shopping cart. We had a cart full of items, a 2 year old in the front the cart and a 4 year old in the main section of the cart. We used the self checkout and between trying to get our 2 year old to quit crying and our 4 year old to the bathroom (recently potty trained) we neglected to scan a box of pullups and a small case of water under our cart.

My view of the bottom of the cart was obstructed and my attention was divided between managing a 2 year old screaming bloody murder and a 4 year old crying to go to the bathroom and trying to help me scan items. Our purchases totalled over $100. The items that we failed to scan were worth around $60. I have no prior criminal record, have a great job, and had more than enough cash on hand to cover any purchases made. I am frightened of a fraud charge on my record. Any options?

How old are you?

and are you the only one being charged?

I am 30 and my fiancee is 27 and being charged as well

If this was at Walmart there is undoubtedly video. If that matches your account (i.e. your view was obscured, etc.) and doesn't show anything indicating intent, you may have a defense and would want to demand a trial, but only your lawyer can help you make that decision. You MUST have an attorney. Nobody here can really help much with your actual case. You might have an opportunity for a diversion program that would wind up having the charges dismissed, but again, your attorney is the best person to advise you on whether that would be the best route because your attorney will have access to all the evidence.

Well HYTA is out of the picture.

Penalties are

up to 93 days in jail and/or up to $500 fine.

I found nothing addressing specific diversion programs in statute. That doesn’t mean the specific court cannot offer such. You would be best served by an attorney that is familiar with the local courts

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Quoting asa_jim

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If this was at Walmart there is undoubtedly video. If that matches your account (i.e. your view was obscured, etc.) and doesn't show anything indicating intent, you may have a defense and would want to demand a trial, but only your lawyer can help you make that decision. You MUST have an attorney. Nobody here can really help much with your actual case. You might have an opportunity for a diversion program that would wind up having the charges dismissed, but again, your attorney is the best person to advise you on whether that would be the best route because your attorney will have access to all the evidence.

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They will be hard pressed to argue they inadvertently missed a box of pull up diapers and whatever a small case of water refers to. It’s nkt like it was a pack of gum.

Im not sure what you mean by the video showing no intent. It doesn’t have to show them placing the item on the cart and making motions like they are trying to conceal the stuff.

The fact it was on the cart and wasn’t paid for is pretty much all that is needed to show intent unless it really was so hidden that it just couldn’t have been seen by a reasonable person scanning over their cart make sure they have scanned all of the merchandise. Mistake or lack of intent is highly unlikely to be a viable defense.

I am not sure but I think this would apply to me.

I am being asked to visit wyoming 62nd district court but wyoming michigan is a part of Kent county so I'm not sure if this applies.

https://www.accesskent.com/Courts/Co.../diversion.htm

It was at Walmart and I believe the video surveillance will match my account of the events.

Don't they have to prove intent? As I said there was a 2 year old and a 4 year old that demanded most of my attention. I was distracted and offered to pay for the items I forgot to scan.

How likely would a prosecutor be to plea to a lesser charge to avoid a trial?

You’re likely to find something similar in most counties. It is the local courts option of whether to offer it or not though. Given your history I would suspect you would be offered a diversion but there are no guarantees.

You would be best served by hiring a lawyer. You can apply for a public defender but you have to qualify for that. The court will review your income and financial resources and make a determination of whether you qualify for a pd or not.

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Don't they have to prove intent? As I said there was a 2 year old and a 4 year old that demanded most of my attention. I was distracted and offered to pay for the items I forgot to scan.

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i surely wouldn’t count on them not proving intent. As I said; you put the items on your cart. They are quite visible. You didn’t pay for them while you paid for your other items. Kind of hard to argue there wasn’t intent.


Many many shoplifters offer to pay for the merchandise after they are caught and many have the money in their pockets. Your offer to pay doesn’t really mean anything

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How likely would a prosecutor be to plea to a lesser charge to avoid a trial?

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that’s where the diversion comes in. I suspect the prosecutor will offer some form of diversion program.

I used to try petit theft cases regularly. Juries take reasonable doubt seriously. They watch the demeanor of the person to see if they are looking around to see if they are being watched. Items on the bottom of the cart can easily be overlooked. Young children can be very distracting. Intent can never be proven by direct evidence. We don't have machines to look into a person's mind and tell us what they intend. But yes, proving theft requires proving intent. Indirect evidence can prove intent. If I throw a rock at your window I might argue that I didn't intend to break the window, I just wanted to throw a rock. But a reasonable person would know that the broken window would be the result, so intent can be inferred from the totality of the circumstances.

Nobody here can see the video, what the kids were doing, how the other items were scanned, etc. Were there many distractions occurring? A jury very well could find it reasonable to doubt intent and believe it was an inadvertent oversight if these things come into play. Only a lawyer reviewing the evidence can decide how advisable it would be to go to trial. At trial the video and the testimony of the loss prevention officer are the relevant evidence. What did the LPO observe that caused him/her to conclude this was theft and not an accident? All of the evidence has to be reviewed by a lawyer.

But if diversion is an option that takes a huge risk out of the equation.

Thank you for the responses.

Could anyone please better educate me as to the details regarding a delayed or deferred sentence? Are these typically offered?

Reason I ask is that I believe I actually have 3 misdemeanors which would make me ineligible for diversion, (they do not show up on ICHAT background check.)

I have a dwls, no ops on person, and providing false info to a po on my record so I'm trying to learn more about deferred or delayed sentences.

I do plan on hiring legal representation very soon.

Thank you for the responses.

Unless statute provides for a diversion program, it is totallly discretionary on the part of the prosecutor. Given the level of the crime I would be surprised one isn’t offered but who knows, maybe the prosecutor is on a kick to punish all shoplifters to the fullest extent possible and doesn’t offer it.

If you have already benefitted from a diversion it becomes less likely one will be offered. The intent is to reduce court crowding but it is also to give a violator a second chance. If this is your second chance, or third (the no ops on person isn’t a huge issue, anybody can forget their license and even used to be dismissed with nothing more than showing up at the magistrates office to prove you had one) but dwls and false Id are seen as more serious), the prosecutor may say enough is enough and just run with the full court press.

at this point I think you are simply at the wait and see stage. I believe an attorney asap is your best action.

Thank you for the reply.

What exactly is a deferred or delayed sentence?

Does it prevent the conviction from appearing on your criminal record / background history?

It’s where you plead guilty (with the deal in place). You get assigned probation and anything else the court feels like tossing at you. Once you complete the obligations imposed the charges are dismissed. Offhand I don’t know how it shows up on your criminal records history at any level.

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Quoting Nddwind

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What exactly is a deferred or delayed sentence?

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Read this.

In my jurisdiction there is no plea change from not guilty, and the decision whether to offer diversion is policy driven, not by the whim of the prosecutor. If you have no criminal record and you commit a misdemeanor you get a shot at diversion. In my jurisdiction it would be 6 months of supervision (monthly reporting), about $400 in financial impact, taking a retail theft class, and performing 32 hours of community service. Do that and then the charge is dismissed with no criminal conviction record. There would remain an arrest record, of course, unless you can get that expunged.

There is wide variation between jurisdictions even within a particular state, and certainly from state to state. You lawyer can explain the common practice in your jurisdiction.