Theft Of A Display Item

Ok, so if I contest the charge do you think that a tester is still charged as retail theft since it was never for retail?:confused:

Pennsylvania apparently defines retail theft as occurring when the offender "takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof." (Pennsylvania statutes, Title 18, § 3929).

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Quoting aaron

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Pennsylvania apparently defines retail theft as occurring when the offender "takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or (offered for sale )by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof." (Pennsylvania statutes, Title 18, § 3929).

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The parts I place () around are factor I was referring to. The tester was not for sale nor would be sold. There is no arguement that OP removed item from store property with intent to keep. The question is was it a theft? also in question is the value of said item. Lastly is the value LP list correct and is the documentation of item falsely documented?

Obviously it was a theft. The question is then whether this statute applies. The statute doesn't say "merchandise displayed, held, stored and offered for sale by" - it says "or". Thus, by the plain language of the statute, stealing display merchandise falls under the statute, whether or not it is offered for sale.

If it was not a new unit, it shouldn't have been described as new, but again that seems unlikely to change the outcome. This is not a situation where lowering the valuation of the stolen item will result in a lesser charge.

I see your point Aaron and I agree item was taken from store without permission or being paid for. What about its retail value? How much is a tester worth? Furthermore if OP is correct and LP documented tester as a new bottle (unused) does this misdocumentation play a role in a successful prosecution? Lp documents tester as new unused bottle yet video tape (supenoed by defense) shows it as tester. How would this effect prosecutions case?

For a first offense, retail theft is a "Summary offense when the offense is a first offense and the value of the merchandise is less than $150." The prosecutor isn't going to claim that the value exceeds $150, and all they have to do is establish that the tester has some value to satisfy a value of "less than $150." I don't think it can be reasonably disputed that the tester had value.

Given that there is no dispute that a unit was taken, I doubt that there is much point to arguing over whether it was in fact new or a tester. As a question of credibility, as it has no relevance to either the question of whether a theft occurred or the charge filed, I doubt it would have much impact on a jury. If the issue is raised, the LP would likely testify that he believed it to be a new unit that the shoplifter had removed from a box, even if it is ultimately established that it was a test unit that the store had removed from its box.

This is also one of those situations where even if you could argue that a different statute could apply, you probably wouldn't want to. As previously noted, the offense charged appears to be a summary offense. If this were charged under the general theft statute, Pennsylvania Statutes Title 18, §*3903, it would either be a second degree or third degree misdemeanor offense depending upon whether the value of the tester were determined to be above or below $50.

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Quoting aaron

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For a first offense, retail theft is a "Summary offense when the offense is a first offense and the value of the merchandise is less than $150." The prosecutor isn't going to claim that the value exceeds $150, and all they have to do is establish that the tester has some value to satisfy a value of "less than $150." I don't think it can be reasonably disputed that the tester had value.

Given that there is no dispute that a unit was taken, I doubt that there is much point to arguing over whether it was in fact new or a tester. As a question of credibility, as it has no relevance to either the question of whether a theft occurred or the charge filed, I doubt it would have much impact on a jury. If the issue is raised, the LP would likely testify that he believed it to be a new unit that the shoplifter had removed from a box, even if it is ultimately established that it was a test unit that the store had removed from its box.

This is also one of those situations where even if you could argue that a different statute could apply, you probably wouldn't want to. As previously noted, the offense charged appears to be a summary offense. If this were charged under the general theft statute, Pennsylvania Statutes Title 18, §*3903, it would either be a second degree or third degree misdemeanor offense depending upon whether the value of the tester were determined to be above or below $50.

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Most Loss Prevention manuals forbid assumptions when making stops. The LPo must have seen selection, concealment, maintain unbroken observation and then exit from store (in States requiring exit). Now I agree merchandise was taken I am playing Devil's Advocate on this. If the LPO in this case violated any store policy in making stop, like what I placed in bold is this a means of defense for OP? So if policy was broken in making stop can stop and any evidence gathered after stop admissible in court? Again I am not saying merchandise was not taken as it was and OP admits to it. Just playing Devil's Advocate on this one. While working as a LPM our store policy on testers was to let it walk. My DLPM stated that once box was opened item had zero value so now stop could be made. Now this store may have different policy. However the requirements for shoplifting stop were not there if one uses your description of how tester was documented as new unused. I might add why was it documented as new unused (based on OP's version) after they got to office and found out it a tester?

It doesn't mean squat for a criminal prosecution that a LP officer didn't follow store procedure to the letter, or even if the store didn't have formal procedures. The adequacy of store procedure is not an issue at the criminal trial, and "did you see her take it from the box" doesn't change the fact that she was observed to steal the item. Also, what if he answers "yes"? Maybe that's his perception. Maybe that's what the clerk at the counter says occurred.

LP does not operate on "what ifs" I do understand what your saying and I am not disagreeing just some thoughts I had.

I think it was a legit stop. I agree with tester stops and think they should be made. The OP removed something from the store with intent to convert it to their own use. They could have stolen an office chair, a store sign or a tester.

If the tester is stolen, they have to remove a "brand new" one from stock to replace it so they may sample it for the customers. That is where the loss is and that is why they put down in the report that a "new" bottle was taken.

The courts really don't care about company policy, though the LP should follow it to reduce liability not only for the company, but themselves.