DOES THE THEFT STATUTE REQUIRE THAT THE OWNER ACTUALLY SUFFER PERMANENT DEPRIVATION OF PROPERTY?
The simple answer is NO.
The law doesn't focus on the outcome of the defendant's actions it focuses on the intent of the defendant when they took the property. Even if the owner gets the property back, the defendant can still be convicted of theft if at the time they acted on the impulse to steal they intended to permanently deprive the owner of the item.
Does the theft statute require that the owner actually suffer permanent deprivation of property?
The answer to that question comes from: State v. Mayes, 98 P.3d 294 (Kan. Ct. App. 2004).
This case explored the issue of whether the theft statute required that the owner actually suffer permanent deprivation of property. Essentially, if the owner of the property gets the property back from the defendant, should the defendant still be found guilty of theft? In exploring this issue, the court held that the theft statute required only that there be intent to permanently deprive the owner of property; it did not require that the owner actually suffer permanent deprivation of property. Id. at 300.
In this case, the theft took place by the defendant at a J.C. Penney’s department store. Id. at 296. While at the department store, the defendant drew the attention of the J.C. Penney security guard operating the security camera when the defendant stood at the entryway of the stockroom. Id. Using the security camera, the guard noticed a bulkiness in the defendant’s pants. Id. Furthermore, the security camera captured the defendant enter the sports department’s stock room and come out 8 to 9 minutes later with a Dillard’s bag. Id. At that point, the security guard pursued the defendant outside of the department store. Id. The defendant then ran back inside the store and dropped the bag inside the entrance to the store. Id. at 296-97. After examining the bag, the security guard found 47 pairs of Nike shorts and 1 pair of Nike shoes. Id. at 297. At trial, the jury found the defendant guilty of theft of property of the value of at least $500 but less than $25,000. Id As a result, the defendant was sentenced to 13 months in jail with 12 months post release supervision. Id. After being found guilty, the defendant appealed the case to the Court of Appeals of Kansas. Id.
On appeal, the defendant argued that J.C. Penney recovered all of the merchandise and, therefore, the store was not permanently deprived of possession, use, or ownership, as required by the Kansas statute on theft. Id. at 300. In addressing the defendant’s argument, the court cited past case law which held that a theft occurred when a customer in a self-service store concealed property of the store, failed to make proper payment, and left with the property concealed. Id. Additionally, the court noted that the defendant misinterpreted the Kansas statute on theft. Id. With this in mind, the court stated that the statute only required that there be intent to permanently deprive the owner of property. Id. So, the court found that the statute did not require the owner to actually suffer permanent deprivation. Id. In this case, even though the defendant immediately returned the stolen items, intent was still established by the fact that the defendant concealed the items and exited the store. Id. As a result of these facts, the court held that the defendant’s theft conviction should be upheld. Id.
In conclusion, even if a defendant immediately returns property and the owner is not technically “permanently deprived,” the fact that the defendant intended to permanently deprive the owner is all that is needed for the action to be considered theft. Id.
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