In Utah, a person can be convicted of theft for merely concealing something before paying for it. This is because so many prosecutors, judges and many jurors are quick to assume that concealing means an intent to steal.
So, if you are Christmas shopping for a child, and you know you will have to conceal something, so that it will be a surprise for him or her on December 25th, it would be a good idea to let the store manager know what you are doing ahead of time.
And if you ever see a person stealing, it is a good idea to get as far away from that person as possible, so that you are not accused of being an accomplice. This is what happened in the Rothe case in Utah. This is a leading case in Utah on these matters. Here is what the court said:
“Rothe and a companion, Barringer, were together in a Smith’s grocery store in American Fork when a Smith’s employee saw Barringer taking items from the shelf and putting them in his pockets. The store employee saw Rothe looking up and down the aisle and back at Barringer while Barringer was [hiding] the merchandise. Both men then moved to the next aisle and repeated the process, with Rothe looking up and down the aisle while Barringer took more merchandise. The employee did not see Rothe take any merchandise.
“Rothe and Barringer then moved quickly to the front exit of the store, where they were confronted by several store employees. Although Barringer tried to escape, Rothe did not resist. Store employees held the two until the police arrived. While waiting for the police, Rothe told the employees he knew Barringer was stealing from the store. Merchandise was found on Barringer, but not on Rothe. Rothe was charged with retail theft and convicted after a bench trial [which means a trial by a judge, not a jury. Always demand a jury trial!].”
On appela, Mr. Rothe argued that “the evidence presented was insufficient to support his conviction for retail theft.” The problem, however, is that unless the person appealing can show that the judge’s decision was “clearly erroneous”, the Court of Appeals will uphold it. The Court when on to say this:
“Under section 76-6-602(1) of the Utah Code, a person commits retail theft when he or she [t]akes possession of, conceals, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the retail value of such merchandise. . . .”
Here is how Utah defines what an accomplice is:
“In addition, section 76-2-202 provides that [e]very person acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.”
So, you cannot aid or encourage in any way. Even if you don’t, and you are simply there, there is a good chance that a judge or jury will feel you were there to do just that.
The court said, “Rothe argues, in effect, that although he was with Barringer and knew what Barringer was doing, he did nothing to aid Barringer’s crime. He contends his actions were as consistent with innocence as with the theory that he was acting as Barringer’s lookout.”
So, there you have it. It seems like the Defendant was saying something like this: “Yep, I knew he was stealing, but I was not obligated to stop him from doing so, that was the store’s job. The store was not paying me to be their security gurard.”
And if that is what the judge or jury thought was the case, he could have beaten the case. After all, Utah law says this: “Mere presence, or even prior knowledge, does not make one an accomplice when he neither advises, instigates, encourages, or assists in perpetration of the crime.’ ” State v. Kerekes (Utah 1980). In Utah, “No amount of passive presence will render one an accomplice.”
But here is what went against Mr. Rothe. “[W]hile mere presence at the scene of a crime affords no basis for a conviction, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ And the court went all the way to Georgia to come up with that reasoning. Watson v. State, 214 Ga.App. 645, 448 S.E.2d 752, 753 (1994).
So, the Utah Court of Appeals said that “[a]lthough Rothe did not personally take any merchandise, it was the trial court’s prerogative to infer from Rothe’s actions that he was acting as Barringer’s lookout.”
American Fork City v. Rothe, 2000 UT App 277.