Shoplifting scheme fails, but conviction sticks

A failed shoplifter tried to hide behind his own incompetence. But a Virginia judge would have none of it.

The Virginia Court of Appeals on Sept. 1 upheld the shoplifting conviction of a man who attempted -- but failed -- to return several five-gallon containers of paint at a Home Depot store.

According to court documents, Jack Edward Carter entered a Home Depot near Richmond, Va., on Aug. 22, 2007, and loaded four buckets of paint from the store shelf into a shopping cart and wheeled it over to the returns desk. There he was met by a female accomplice named Tracy Browning. Together, they tried to return the paint for a cash refund of $398.92.

Asuspicious assistant manager alerted the store's loss prevention officer, who then called the police. The police arrested Browning and later apprehended Carter. Browning pled guilty to grand larceny. Carter was convicted of the same charge in a bench trial.

Carter appealed the verdict, arguing that he never really stole the paint and therefore was not guilty of larceny. The three-judge appellate panel upheld the trial court's conviction. Taking merchandise from a store shelf with the intention of selling it back to the retailer is stealing, they ruled.

One judge dissented, however. "I do not believe that the evidence proved that Carter intended to permanently deprive Home Depot of the paint," wrote Judge J. Powell. Carter and his accomplice never discussed what to do with the paint if Home Depot refused to issue a refund, Powell noted.

"Although the evidence is arguably sufficient to prove that Carter intended to obtain money from Home Depot by false pretenses, the Commonwealth [of Virginia] did not charge him with that offense or an attempt to commit that offense," the dissenting judge argued. Instead, the state charged Carter with larceny -- stealing property having a value of $200 or more. "The [state] cannot prosecute a defendant for a specific larceny and prevail by proof of another act of larceny for which the defendant was not prosecuted," the judge opined.