Author: Lynn Norton-Ramirez

Theft from a retail store or from one’s employer is a common charge in criminal court. Sometimes, my client is aware of the motivation for the theft but often the client seems bewildered by his/her own actions. Why do people who have the money to buy a desired object try to steal it anyway? This blog will focus on adults who commit theft and a separate blog will address teen-age theft.

Many people steal because they feel that life has shorted them in some respect and by stealing, they are taking steps to correct this injustice. It is irrelevant that the store where the property was stolen had nothing to do with the deprivation; it is the fact that something of value has been obtained without payment which triggers a feeling of vindication.

Emotional deprivation occurs when feelings of rejection or unmet personal expectations motivate a desire to remedy one’s misfortune. By taking a desired item, he/she is trying to balance life’s injustices with a windfall. “The question they’re asking is, “How can I make up for what I feel has been taken from me?” Stealing offers—at least momentarily—relief, peace, and completion. For a few minutes, they’ve made life fair again.” (Shulman, Something for Nothing: Shoplifting Addiction and Recovery.)

Financial deprivation occurs when the person has less money, assets or material goods currently as compared with a time previously. It could be a paper loss such as a fall in the stock market or it could be a diminution in their standard of living. Alternatively, the person feels that he/she has less money, assets or material goods than friends, peers or celebrities.
Entitlement occurs when a person feels that they deserve more than what they are receiving in the sale transaction. Although similar to deprivation, entitlement occurs in a predominantly affluent person who believes that moral precepts do not apply to him/her.

“It becomes a cat-and-mouse game: What are you going to see me take today? They’d pay for one of the things they were still holding but drop something extra in their shopping bag, like their own version of a free gift,” said a former Sephora employee who detained a woman for hiding cosmetics and skin products behind her baby’s head in an $800 stroller. An Anthropologie employee commented that the thieves were their best paying customers; some upper middle class women buy very expensive clothing and then “accessorize” for free. “We were taught that our prime shoplifters were women and girls who were regular shoppers” said one ex-employee, who every night would find piles of security tags in the fitting rooms which had been removed from apparel that day. “They would spend insane amounts and at the same time steal a few items because they felt that since they had spent so much money, they were entitled to freebies.”

A manager from Macy’s concurred, “It’s often the best customers who steal the most. They’re spending $100,000 a year, but just stole a bag for $5,000,” the ex-staffer said. (Jamieson, Why The Rich Feel Entitled to Shoplift, The New York Post, Aug. 9, 2015)

Instead of motivation preceding action, a theft case can present an example of action preceding motivation. Since impulsive and unexamined acts can result in detrimental consequences, I have to grudgingly admit that my mother’s adage, “Think before you act” is sound advice.

This week in court, a 19 year old facing a felony drug case characterized the criminal allegations and the corresponding suspension from his university as a “bump in the road.” His life had been on hold for six months while the criminal case was pending. He had been kicked out of college and was back living with his family. The tuition and dorm fees secured by parental personal loans had been forfeited. A 28 day residential drug treatment, paid for by his parents and their health insurance had been completed last year but the defendant had continued to smoke marijuana. As the defendant spoke, it was apparent that he alone failed to appreciate the severity of his situation.

To all Millennials: if you find yourself facing a felony charge, here are some tips:

1. This is serious. A felony conviction will bar you from desired education, employment, immigration, licensing and additional significant opportunities. You have gone through life with your parents, teachers etc. minimizing characterizations of harsh situations. All sugar coating aside, it is time to dig deep and comprehend that there are consequences to actions.
2. Once you can appreciate that this is some serious shit, begin to work with your lawyer to formulate a strategy for your defense. The goal is to protect your future even if it means sacrifice in the present. A reduction in charges or a dismissal is worth suffering through jail, community service, rehab or counseling. Be grateful if you get this chance.
3. If you are asked questions by the judge or an attorney, THINK before you answer. A glib or thoughtless comment will reflect really badly and possibly make the judge or the prosecutor withdraw the break that was about to be bestowed upon you. This is referred to this as “snatching defeat from the jaws of victory.” Don’t let it happen to you.
4. If you are put on probation, given a deferred judgment or conditional discharge, don’t blow it. If you violate the terms of probation, you will go to prison. State prison. Not television prison, not “Orange is the New Black” prison but scary real life prison where you are locked in with dangerous adult criminals. If you are given a conditional discharge or deferral, you have an OPPORTUNITY to earn a dismissal. Fulfill your obligations and don’t pick up any new charges and get that dismissal. Once dismissed, the case can be expunged and you can begin anew with an unmarred future and a lot more wisdom.

North Carolina is one of only two* states who treat 16-17 year olds as adults for criminal law purposes but effective April 15, 2016, a misdemeanor diversion program will ameliorate this inequity. Instead of being arrested or receiving a citation for alleged misdemeanor violations, a “youth citation” will be issued and participation in an in a diversion plan tailored to the needs of the specific teen is required. Successful completion of community service and any recommended counseling or substance abuse rehabilitation will result in the absence of filing of criminal charges. No tangible or computer record of the offense will exist and no mug shot will be taken which could hamper one’s future educational, employment or personal opportunities.
The diversion program is administered by the Criminal Justice Resource Manager and should take approximately 90 days to complete. Only teens with no prior criminal record and with allegations that are not sex-based will qualify for participation.
While we should continue to fight to amend the statute and increase the age for criminal responsibility from 16 to 18 years, Orange County teens can now join Durham County teens in catching a break.

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* New York is the other state.

You are driving when your phone buzzes with an alert. You take your eyes off the road, ascertain the location of the phone, grab it and look at it to determine the source of the vibration. Is it a text, an email, what? If you are security minded, in order to read the message, you swipe your finger over the fingerprint reader or enter a password or a pass code or trace a shape with your finger. Once you have gained access to the phone, you look at the device again to read the contents of the message. Now, not only are you not looking at the road but you have removed at least one hand from the wheel, but maybe both hands. Did you have to hold the phone in one hand and use your other hand to enter the access code? Did you have to steady the steering wheel with your knee? Also, you are no longer thinking of the road conditions and traffic because you are paying attention to gaining access to the message, reading the message and possibly, although it is against the law, typing back a response. Well the sender is waiting for a response aren’t they? While all this is happening, you are moving through space at what speed? Are you on the interstate going 70 mph, or on a country road doing 50, or in city traffic, creeping along? Have you had close calls before where your car drifted over the center line while you, just for a second, glanced at the phone? Or maybe your car veered towards the shoulder. Or maybe you slammed on your brake and just avoided hitting the bumper of the car in front of you. Lucky. Whew. Lucky until you aren’t. What happens when you hit a person or another car?
As an admitted distracted driver and a geeky criminal defense lawyer, I wondered what criminal responsibility would lie with someone who kills another person as a result of texting. Death could result from plowing into a pedestrian, a cyclist or a moped/scooter driver. There could be collision between your car and another car. Hey, that car came out of nowhere! What about the death of a passenger in your own car? Many possibilities.
I expect that over time texting while driving will be punished as DUI/DWI is now. The police will use a Textalyzer1 to analyze cell phones at a crash site to determine whether the driver was distracted because of recent use of a mobile device.
What are potential punishments?
At the top of the punishment pyramid is Second Degree Murder. Here, implied malice is shown if the texter had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.2 This mental state could be proven by knowledge imparted upon the driver from any previous violation(s) of the law. For example, if you got a ticket for driving while texting and as part of your punishment, you were required to participate in an educational program dealing with the dangerous and potentially fatal results of texting and driving and signed an advisement to that effect, you would be on notice. So when you subsequently texted while driving, in a trial, prosecutor could offer as evidence that advisement to prove that when you continued to text while driving, you were doing so with a conscious disregard that injury or death would result from any resulting collision when you were driving in an inherently dangerous manner.
A much easier felony to prove yet still serious is the common law offense of Involuntary Manslaughter: the killing of another person by an unlawful act that does not amount to a felony and is not ordinarily dangerous to life or by a culpably negligent act. Texting while driving, a violation of G.S. 20-137.4(A), should constitute a culpably negligent act because texting is an intentional violation of a statute which is intended to protect human life. A person acts in a culpably negligent way if he knows the probable consequences of the action but acts intentionally, recklessly or wantonly indifferent to the results.
Finally, misdemeanor Death by Vehicle3 occurs when an unintentional death results from the violation of a law relating to the operation, use of a vehicle or regarding the regulation of traffic and death proximately results from this violation. Death by Motor Vehicle applies when the circumstances do not establish the culpable negligence.
This blog only touches on possible criminal ramifications. There would be a civil suit for money as well as the emotional trauma inflicted upon you, your loved ones and the family of the victim. Most importantly, you would have caused the tragic extinguishment of a person’s existence prematurely. All because you needed to look at that text.
I am putting my phone under my seat or in the trunk, what about you?
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1.Cellebrite a company focused on the creation of data extraction, transfer and analysis devices for cell phones and mobile devices, is developing the textanalyzer.
2.State v. McAllister, 138 N.C. App. 252 (2000)
3.G.S. 20-141.4(a2)

Today I read that Governor McCrory has set up a 24 hour bathroom hotline to facilitate the reporting of persons of questionable gender, an “HB2 Offender Hotline.”
Although I doubt the veracity of this “news story,” don’t get any ideas. To the citizens of North Carolina, do not think that you can discreetly take photographs in the bathroom of gender-suspicious persons. There are a plethora of potential pitfalls with collecting evidence and taking photographs in a bathroom while an unsuspecting person is trying to engage in a private excretory function. In addition to being morally offensive, that method of evidence collection is called Secret Peeping and North Carolina law prohibits it. North Carolina General Statute § 14-202 is the Secret Peeping law which prohibits spying or secretly peeping into a room or bathroom for the purpose of viewing the body of, or the undergarments worn by, another person without their consent. Violation of the law is a Class 1 misdemeanor. Additionally, any person, who secretly peeps while in possession of any device which may be used to create a photographic image, is guilty of a Class A1 misdemeanor.
I will not be your peeper and I advise my other peeps not to peep either.