CRS 18-4-406 is the statute that permits Colorado courts to presume that defendants intended to shoplift if they conceal the unpurchased items inside of a retail establishment. This presumption makes it more difficult for defendants to contest shoplifting charges.
Section 18-4-406 states that: If any person willfully conceals unpurchased goods, wares, or merchandise owned or held by and offered or displayed for sale by any store or other mercantile establishment…such concealment constitutes prima facie evidence that the person intended to commit the crime of theft.
The punishments for shoplifting are the same whether or not the defendant hid the merchandise.
The sentence for shoplifting in Colorado turns on the value of the items stolen.
Stealing less than $50 worth of goods is a petty offense:
- Up to 6 months in jail time, and/or
- Up to $500 in fines
Stealing at least $50 but less than $2,000 worth of goods is a misdemeanor:
- Up to 18 months in jail, and/or
- $50 to $5,000 in fines
Stealing items worth $2,000 or more is a felony:
- 1 to 24 years in Colorado State Prison, and/or
- $1,000 to $1,000,000 in fines
The defendant will also be ordered to pay restitution to the store.
Three potential defense strategies to Colorado shoplifting charges include:
- There was no intent to steal;
- No shoplifting occurred; or
- The police performed an illegal search
In this article, our law firm’s Denver criminal defense lawyers discuss:
- 1. What is Colorado’s legal definition of shoplifting?
- 2. What are the penalties under CRS 18-4-406?
- 3. What are common defenses?
- 4. Can the record be sealed?
- 5. What are the immigration consequences?
- 6. What other charges could defendants face?
Shoplifting is knowingly taking merchandise from a store without paying.1 If a shoplifting defendant conceals the merchandise, a jury may conclude that the suspect intended to steal:2
Example: A security guard stops Kelly after she leaves a Denver Walmart. The guard saw Kelly holding a new iPhone box under her jacket. Kelly gets accused of shoplifting and is charged with felony theft. She elects to have a jury trial.
At trial, the prosecutor admits video surveillance showing that Kelly concealed the iPhone. Kelly argues that she simply forgot to pay. But under Colorado law, the jury can make the reasonable inference that Kelly intended to steal because the iPhone was concealed (“the concealment of goods”).
Had Kelly carried the iPhone box openly when she left Walmart without paying, the jury could not automatically presume she intended to steal. Then Kelly might have an easier time arguing that she simply forgot to pay.
Some shoplifting defendants may be eligible for a pretrial diversion program. This would allow them to avoid getting a conviction. In return, defendants may have to pay a fine and restitution, take a class, and/or do community service.
Otherwise, Colorado’s punishments for shoplifters depend on the price of the stolen items:
Value of stolen merchandise
Colorado shoplifting penalties (plus restitution)*
|Less than $50||Class 1 petty offense:|
|$50 to less than $300||Class 3 misdemeanor:|
|$300 to less than $750||Class 2 misdemeanor:|
|$750 to less than $2,000||Class 1 misdemeanor:|
|$2,000 to less than $5,000||Class 6 felony:|
|$5,000 to less than $20,000||Class 5 felony:|
|$20,000 to less than $100,000||Class 4 felony:|
|$100,000 to less than $1,000,000||Class 3 felony:|
|$1,000,000 or more||Class 2 felony:|
|*If the defendant allegedly shoplifted twice or more from the same store, the D.A. may bring one charge for the total value of the items. Or if the defendant allegedly shoplifted more than once in a six-month period, the D.A. may bring one charge for the total value of the items.3|
There is no specific punishment under Colorado criminal law for concealing goods a person has not yet purchased.
There are various ways to fight Colorado shoplifting charges. Three typical defense strategies that experienced defense attorneys use in these criminal cases are:
- The defendant had no intent to steal. Perhaps the defendant simply forgot to pay. Or perhaps someone else planted the merchandise on the defendant. Or maybe the defendant believed the store owner agreed to let the defendant pay at a later time. If the defendant has an innocent explanation of what happened, the D.A. may dismiss the case.
- No shoplifting occurred. Defendants can show they paid by producing the receipt, eyewitness testimony, or video surveillance footage. Perhaps the cashier forgot to remove the theft detection device. As long as the full price was exchanged for the items, theft charges should be dropped.
- The police performed an illegal search. Law enforcement needs probable cause to perform a search. If the police found the merchandise through an illegal search, then the court may dismiss it as evidence. And then the D.A. may be left with too weak a case to prosecute.
The prosecution always has the burden to prove guilt beyond a reasonable doubt. This is true even if the defendant allegedly concealed the merchandise.4 If the defense attorney can show the prosecution’s evidence is inadequate or unreliable, the D.A. may be willing to throw out the case.
Convictions for shoplifting cases may be sealable unless they are for class 2 or class 3 felonies.
Petty offense convictions for theft crimes may be sealed one year after the case ends. Class 3 or 2 misdemeanor convictions can be sealed two years after the case ends. Class 1 misdemeanor convictions or class 4, 5, or 6 felony convictions can be sealed three years after the case ends.
Any case that gets dismissed can be sealed right away.5 Learn about how to get a Colorado criminal record seal.
Shoplifting is a crime involving moral turpitude. Therefore, theft offenses are deportable. But if the shoplifting conviction was just a petty offense or class 3 misdemeanor, it is less likely a non-citizen defendant would be deported.6
Aliens facing criminal charges should hire an attorney right away. An attorney may be able to get the charges dismissed or reduced to a non-deportable crime. Learn more about the criminal defense of immigrants.
Robbery (CRS 18-4-301 – 303) is knowingly taking anything of value from another person — or in another person’s presence — by the use of force, threats, or intimidation. The classic example is holding up a cashier with a gun.
Robbery is a felony. Depending on the case, penalties include:
- 2 – 48 years in prison, and/or
- $2,000 – $750,000
Burglary (CRS 18-4-202 – 204) is knowingly entering or unlawfully remaining on someone else’s property with the intent to commit a crime. The classic example is sneaking into someone’s home to steal valuables.
Burglary is a felony. Depending on the case, penalties include:
- 1 – 48 years in prison, and/or
- $1,000 – $1,000,000
6.3. Receiving stolen property
Receiving stolen property (CRS 18-4-404) is punished the same as shoplifting in the state of Colorado. Depending on the value of the property, penalties include:
- Up to 24 years in prison, and/or
- Up to $1,000,000
In California? Learn about California shoplifting laws (Penal Code 495.5 PC).
In Nevada? Learn about Nevada shoplifting laws (NRS 205.220 & NRS 205.240).
- Colorado Revised Statutes 18-4-401 C.R.S. (theft statute criminal code).
- CRS 18-4-406.
- CRS 18-4-401.
- People in Interest of R.M.D., 829 P.2d 852 (Colo. 1992).
- CRS § 24-72.
- See, e.g., Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006).