August 10, 1995

THIEVES: WATCH FOR BARGAINS

Should shoplifters comparison shop?

This question was recently addressed in State v. Kleist. In that case, our state Supreme Court had to decide whether a theft conviction should be reversed because an admitted shoplifter wasn't allowed to show that clothing she stole from a department store cost less at a competitor's nearby store.

The Kleist case involves a shoplifting episode that took place about three years ago. In early August 1992, Sandra Sue Kleist stole seven clothing items from The Bon Marche in downtown Spokane. According to the price tags, the retail value of the clothing was $299. Evidently nabbed on the spot, Kleist soon faced second degree theft charges in Spokane County Superior Court.

Under Washington law, a person is guilty of second degree theft if he or she steals property whose value exceeds $250 (but doesn't exceed $1,500). Given the dollar value of the stolen clothing and the fact Kleist was caught red-handed, the Spokane County prosecuting attorney probably thought he had an airtight case against Kleist.

But Kleist was in no mood to capitulate. At trial, she tried to present testimony from a Nordstrom buyer regarding the value of the stolen clothing. The gist of Kleist's proposed evidence was that on the same day of the theft, the same items were on sale at the Spokane Nordstrom for under $250. Kleist thus argued that third -- not second -- degree theft was the only appropriate charge.

The trial judge saw things differently. While agreeing that evidence of "regular retail prices" at comparable stores was admissible to prove "value," the judge nonetheless refused to admit evidence of Nordstrom's sale prices. Thwarted by this ruling, Kleist was eventually convicted of second degree theft and sentenced to 10 days in jail.

Kleist didn't fare much better in round two. On the contrary, the appeals court was more conservative than the trial judge. Evidence of prices from other stores, whether sale or regular price, is irrelevant, the court ruled, as long as there is evidence of pricing at the store from which the goods were stolen. As a consequence, since the clothing from The Bon Marche was marked with price tags, there was no need for testimony from the Nordstrom buyer, the court said.

Still in no mood to capitulate, Kleist persuaded our state Supreme Court to accept her case. And by a slim 5-4 majority, Kleist's persistence was ultimately rewarded.

First of all, the high court noted that for purposes of Washington's theft statutes, "value" is defined as "market value" of the stolen property at the time -- and in the approximate area -- of the theft. This statute can't be rewritten, the court said, just because the theory that a thief should be bound by the victim's retail price has "tempting simplicity." Since the Nordstrom store in downtown Spokane was part of the "relevant market," Kleist clearly had the right to compare prices at both department stores, the court ruled.

The justices also noted that in both criminal and civil cases, "market value" is defined under Washington law as the price a "well-informed buyer" would pay to a "well-informed seller," where neither is obligated to enter into a transaction. Given this definition, retail price isn't "absolute evidence" of market value. Retail price is instead only an "expectancy," the court said, which retailers like The Bon Marche might inflate artificially in order to maximize profit. (Nothing too startling about that revelation.)

In short, the high court ruled that because sale prices might demonstrate that retail prices are actually higher than what the market will bear, Kleist should have been permitted to show the sale prices in effect at Nordstrom the same day of the theft. Since that didn't happen, her conviction had to be overturned, the justices said.

Although begrudgingly, I probably have to agree with the Supreme Court's interpretation of our theft statute. But where retail goods are offered at a fixed price, it seems logical that a thief should be bound by that price. As the four dissenting justices said, a thief should comparison shop before --not after -- he or she decides to steal.

Previous columns:

• LADDERS DON'T LEAD TO CRIME, 07-27-1995