Should shoplifting suspects take advantage of discount prices?

If an item is on sale, should someone who steals it be able to get a deal?

That question was raised 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 pay a lower fee based on the retail prices of the articles.

The argument was crucial to their case. In Colorado, theft of less than $2,000 is a misdemeanor punishable by up to one year in prison. But theft between $2,000 and $5,000 is a crime punishable by up to 18 months in prison.

The district attorney’s office argued that the “documented value” of the items was $2,094.98. That would make the theft a crime.

But the two men, Michael Green, 50, and Byron Bolden, 37, who pleaded not guilty, claimed the value of the items was $1,856.19 because some of the goods, including at least one of the mixers, were on sale goods. said Thomas A. Ramunda Jr., Mr. Bolden’s attorney. That would qualify the charge as a misdemeanor.

“It was our position,” in accordance with state law and Colorado case law, “that in order to determine the value of the items as of the date of taking, one must take into account the retail price, which is evidence of the retail price ( what a seller is willing to accept, and a buyer is willing to pay), also known as fair market value,” Mr. Ramunda said in an email.

He said that in some cases, such as thefts of old jewelry or antiques, it can be difficult to determine “fair market value.” But when items are stolen from a store, he says, a police officer will usually report the value based on store labels, tags and several other factors that might indicate some items were on sale.

Mr. Green and Mr. Bolden were accused of loading shopping carts and stealing from a Kohl’s in Parker, Colorado, 25 miles southeast of downtown Denver, on September 10, 2022. But they were not immediately arrested. Prosecutors said they were later identified through surveillance video and subsequently charged.

Mr Ramunda said the defense was able to determine the “exact price” of each item through a subpoena to Kohl’s headquarters. Kohl’s did not respond to a request for comment.

“This is not a defense shenanigan,” Mr Ramunda said. “Colorado theft statutes are very specific when it comes to proving value and determining the level of crime and punishment. And I am convinced that the value of the items in this case was below the criminal offense threshold.”

Eric Ross, a spokesman for the district attorney’s office in Colorado’s 18th Judicial District, which prosecuted the case, rejected the argument about the sale price. He said Parker police spoke with Kohl’s loss prevention manager, who disclosed the retail price of the stolen goods.

Even if some items were on sale, “we argued that that doesn’t count,” Mr. Ross said. “You can’t get sale prices or sales on stolen goods. Sale prices, promotions, discount coupons: all that only applies to paying customers.”

On Dec. 6, a jury agreed and found Mr. Green of Aurora and Mr. Bolden of Denver guilty of misdemeanor theft, Mr. Ross said. Mr Green was sentenced to 15 months in prison. His attorney did not respond to a request for comment. Mr. Bolden was sentenced to 90 days in jail, with credit for time served.

The case came after retailers across the country warned of widespread theft. Their concerns were heightened by videos circulating online of brazen thefts. But the increase in shoplifting appears to be limited to a few cities. According to police data, shoplifting rates are lower this year in most of the country than they were a few years ago.