If an item is on sale, should someone who steals it also be able to get a deal?
That question arose in a recent case in Colorado, where two men accused of stealing shoes, KitchenAid mixers and other items from a Kohl's department store argued that they should face a lesser charge based on the items' sales prices.
The argument was vitally important to his case. In Colorado, theft under $2,000 is a misdemeanor punishable by up to one year in jail. But theft of between $2,000 and $5,000 is a serious crime punishable by up to 18 months in prison.
The prosecution argued that the “documented value” of the items was $2,094.98. That would make theft a felony.
But the two men, Michael Green, 50, and Byron Bolden, 37, who had pleaded not guilty, maintained that the value of the items was $1,856.19, because some of the products, including at least one of The mixers were on sale. said Thomas A. Ramunda Jr., Mr. Bolden's attorney. That would classify the charge as a misdemeanor.
“It was our position,” consistent with state law and Colorado case law, “that to determine the value of the items on the date of taking, one must consider the sales price, which is evidence of the retail price (which the seller is willing to accept and the buyer is willing to pay), also known as fair market value,” Ramunda said in an email.
He said that in some cases, such as theft of jewelry or antique antiques, determining “fair market value” can be a challenge. But when items are stolen from a store, he said, a police officer typically reports the value based on store tags, tags and several other factors that could reveal that some of the items were on sale.
Green and Bolden were accused of loading shopping carts and robbing a Kohl's in Parker, Colorado, 25 miles southeast of downtown Denver, on Sept. 10, 2022. But they were not immediately arrested. Prosecutors said they were later identified through surveillance video and later charged.
Ramunda said the defense was able to determine the “exact price” of each item by subpoenaing Kohl's corporate office. Kohl's did not respond to a request for comment.
“This is not a defense prank,” Ramunda said. “Theft statutes in Colorado are very specific when it comes to testing for value and determining the level of crime and punishment. And I remain adamant that the value of the items was below the felony threshold in this case.”
Eric Ross, a spokesman for the U.S. Attorney's Office for Colorado's 18th Judicial District, which prosecuted the case, rejected the sales price argument. He said the Parker Police Department spoke with Kohl's loss prevention manager, who provided the retail price of the stolen goods.
Even if some of the items were on sale, “we argue that doesn't count,” Ross said. “You cannot obtain sales prices or sales promotions for stolen goods. Sale prices, promotions, coupons – all of that only applies to paying customers.”
On Dec. 6, a jury agreed, finding Mr. Green, of Aurora, and Mr. Bolden, of Denver, guilty of felony theft, Ross said. Mr Green was sentenced to 15 months in prison. His attorney did not respond to a request for comment. Bolden was sentenced to 90 days in jail, with credit for time served.
The case came as retailers across the country warned of widespread theft, their concerns amplified by videos circulating online of brazen thefts. But the rise in shoplifting appears to be limited to a few cities. In most of the country, retail theft has been lower this year than it was a few years ago, according to police data.
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