A. Shoplifting consists of one or more of the following acts:
(1) willfully taking possession of merchandise with the intention of converting it without paying for it;
(2) willfully concealing merchandise with the intention of converting it without paying for it;
(3) willfully altering a label, price tag or marking upon merchandise with the intention of depriving the merchant of all or some part of the value of it; or
(4) willfully transferring merchandise from the container in or on which it is displayed to another container with the intention of depriving the merchant of all or some part of the value of it.
B. Whoever commits shoplifting when the value of the merchandise shoplifted:
(1) is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor;
(2) is more than two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor;
(3) is more than five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony;
(4) is more than two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony; or
(5) is more than twenty thousand dollars ($20,000) is guilty of a second degree felony.
C. An individual charged with a violation of this section shall not be charged with a separate or additional offense arising out of the same transaction.
History: 1953 Comp., § 40A-16-20, enacted by Laws 1965, ch. 5, § 2; 1969, ch. 24, § 1; 1987, ch. 121, § 8; 2006, ch. 29, § 10.
ANNOTATIONSThe 2006 amendment, effective July 1, 2006, increased the value of the merchandise in Paragraph (1) of Subsection B from $100 or less to $250 or less; increased the value of the services, food, entertainment or accommodation in Paragraph (2) of Subsection B from more than $100 but less than $250 to more than $250 but less than $500; and increased the value of the thing embezzled or converted in Paragraph (3) of Subsection B from more than $250 to more than $500.
The 1987 amendment, effective June 19, 1987, substituted "one hundred dollars ($100) or less" for "not more than one hundred dollars ($100)" in Subsection B(1), redesignated former Subsections B(2) and B(3) as present Subsections B(3) and B(4), added present Subsections B(2) and B(5), substituted "two hundred fifty dollars ($250)" for "one hundred dollars ($100)" in Subsection B(3), and inserted "but not more than twenty thousand dollars ($20,000)" in Subsection B(4).
Conviction of both shoplifting and burglary. — Where the defendant illegally entered a store intending to steal bottles of liquor, took bottles of liquor and did not pay for them, and there was no separation in time or location between the defendant's intent when the defendant entered the store and when the defendant committed the theft, the burglary and the shoplifting arose out of the same transaction and the conviction of the defendant for both shoplifting and burglary was prohibited by this section. State v. Ramirez, 2008-NMCA-165, 145 N.M. 367, 198 P.3d 866, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.
Proof of market value. — In the absence of evidence that retail price of $119.97 did not accurately reflect the value of the merchandise in the retail market, evidence of that price was sufficient for the jury to determine there was a market value of more than $100, despite a showing that the wholesale price was only $84.97. State v. Richardson, 1976-NMCA-021, 89 N.M. 30, 546 P.2d 878.
A necklace's ticket price of $600 was not sufficient to establish its market value since there was evidence that such jewelry was never sold at the ticket price and that the store made its full anticipated profit selling such jewelry at 50% to 60% off such price. State v. Contreras, 1996-NMCA-045, 121 N.M. 550, 915 P.2d 306, cert. denied, 121 N.M. 499, 914 P.2d 636.
Sufficient evidence of market value. — Where defendant was charged with shoplifting over $500 for taking a television and the manager of the store testified that the retail price of the television at the time it was taken was $576, that the price had changed after the theft and had a retail price of $478 six months after the theft, that the store listed the television for $498 on its website, and that the store did not price match its website prices or engage in reference pricing in order to late discount to a lower sale price, there was sufficient evidence that the value of the television exceeded $500. State v. Cofer, 2011-NMCA-085, 150 N.M. 483, 261 P.3d 1115, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Sufficient evidence of value of merchandise stolen. — In defendant's trial for shoplifting and conspiracy to commit shoplifting, there was sufficient evidence to convict defendant of shoplifting of merchandise with a value of more than $500 where the evidence in the form of testimony and a store-generated training receipt that the value of the merchandise recovered from defendant and his accomplice was $556.39, without tax. State v. Gallegos, 2016-NMCA-076, cert. denied.
"Value" as "market value". — Although New Mexico's property crime statutes do not state how value is to be determined, the decisions have used the term "market value" as the test. State v. Richardson, 1976-NMCA-021, 89 N.M. 30, 546 P.2d 878.
"Market value" of merchandise does not include the New Mexico gross receipts tax for the purpose of fixing criminal penalties under this section. Tunnell v. State, 1983-NMSC-013, 99 N.M. 446, 659 P.2d 898.
Tax not included in determining item's "value" unless included in price. — The amount of gross receipts tax which could have been imposed on a regular sale of merchandise cannot be included for purposes of determining the "value" of the shoplifted item under this section, unless the total advertised retail or actual market price of the merchandise which was shoplifted included the amount of New Mexico gross receipts tax applicable to that particular item of merchandise. Tunnell v. State, 1983-NMSC-013, 99 N.M. 446, 659 P.2d 898.
Valuation of property taken by persons working together. — Since the defendant and his cohort working together took merchandise from the same store at the same time, the jury properly attributed to the defendant all the merchandise taken, regardless of in whose bag it was found. State v. Armijo, 1995-NMCA-115, 120 N.M. 702, 905 P.2d 740, cert. denied, 120 N.M. 636, 904 P.2d 1061.
Sentencing under habitual offender statute. — A sentence of eight years' imprisonment, imposed under the habitual offender statute against a defendant convicted for the fifth time on felony shoplifting charges, was not so disproportionate as to require reversal as cruel and unusual punishment under the New Mexico Constitution, notwithstanding facts that three of the convictions were over 15 years old, and the latest charge was only $3 over the minimum threshold for felony shoplifting. State v. Rueda, 1999-NMCA-033, 126 N.M. 738, 975 P.2d 351, cert. denied, 127 N.M. 391, 981 P.2d 1209.
Conspiracy does not arise out of same transaction as shoplifting. — A charge of conspiracy does not arise out of the same transaction which results in an indictment for shoplifting, and thus cannot be dismissed as in violation of a statute prohibiting the charging of separate or additional offense if it arises out of the same transaction, notwithstanding proof of the subsequent shoplifting may also tend to circumstantially prove the conspiracy charge. State v. Leyba, 1979-NMCA-105, 93 N.M. 366, 600 P.2d 312.
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 50 Am. Jur. 2d Larceny § 71.
Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure, 10 A.L.R.4th 376.
Validity, construction, and effect of statutes establishing shoplifting or its equivalent as separate criminal offense, 64 A.L.R.4th 1088.
52A C.J.S. Larceny § 1(5).