Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Supreme Court to Decide Sufficiency of the Evidence in Larceny Case

The Michigan Supreme Court granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. in People v. Smith-Anthony, Supreme Court No. 145371.  The parties shall include among the issues to be briefed: 

(1) whether the evidence was sufficient to prove beyond a reasonable doubt that the crime of larceny from a person was committed within the “immediate area of control or immediate presence” of the loss prevention officer who witnessed the theft;

(2) whether the 2004 amendment of the robbery statute altered the definition of “presence” with respect to the larceny from a person statute; and, if not,

(3) whether the common-law definition of the phrase “from the person” remains consistent with the common-law definition of “presence.” 

The 2-1 Court of Appeals decision reversed the Defendant’s conviction. The case took place in a Macy’s Department store. The Defendant shoplifted a bottle of woman’s perfume while under surveillance by a story security agent. As the Defendant tried to leave the store, a struggle ensued. The Defendant was arrested. The prosecutor tried to charge the Defendant with unarmed robbery and the jury was also instructed on the lesser included offense of larceny from a person. The jury convicted the Defendant of the lesser included offense.

The Court of Appeals opinion majority opinion (available
here) found that Michigan’s larceny from a person statute required the owner to be in close proximity of the property. They cited to pickpocketing and purse snatching as examples which would be in violation of the statute. They also cited to the example of a victim standing next to the item stolen as an example. An example of this would be someone standing next to a suitcase hailing a cab and a thief steals the luggage while the owner’s back is turned. Judge Whitbeck dissented (available here).

This is an attempt by the Oakland County Prosecutor’s to circumvent the Michigan’s Legislature’s intent. Ten years ago, the Michigan Legislature passed the retail fraud statute to address the problem of shoplifting. Before that, prosecutor’s were charging individuals with larceny in a building. The Court of Appeals split whether this practice was an abuse of prosecutorial charging discretion. The Michigan Supreme Court ultimately upheld this practice. The Michigan Legislature then passed the retail fraud statute which represented a comprehensive attempt to decide when shoplifting was a felony.