28-511.01. Theft by shoplifting; penalty; photographic evidence.

466 words·~2 min read·/ne/chapter-28/28-511-01

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating goods or merchandise to his or her own use without paying for the goods or merchandise or to deprive the owner of possession of such goods or merchandise or its retail value, in whole or in part, does any of the following:

(a)Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(b)Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(c)Transfers the goods or merchandise of any store or retail establishment from one container to another;

(d)Interchanges the label or price tag from one item of a good or of merchandise with a label or price tag for another item of a good or of merchandise;

(e)Causes the cash register or other sales recording device to reflect less than the retail price of the goods or merchandise; or

(f)Alters, bypasses, disables, shields, or removes any security or alarm device attached to or housing any goods or merchandise of any store, including the use or possession of a security device countermeasure as defined in section 28-511.03 , prior to purchase of the goods or merchandise.

(2)In any prosecution for theft by shoplifting, photographs of the shoplifted property may be accepted as prima facie evidence as to the identity of the property. Such photograph shall be accompanied by a written statement containing the following:

(a)A description of the property;

(b)The name of the owner or owners of the property;

(c)The time, date, and location where the shoplifting occurred;

(d)The time and date the photograph was taken;

(e)The name of the photographer; and

(f)Verification by the arresting officer.

The purpose of this subsection is to allow the owner or owners of shoplifted property the use of such property during pending criminal prosecutions.

Prior to allowing the use of the shoplifted property as provided in this section, legal counsel for the alleged shoplifter shall have a reasonable opportunity to inspect and appraise the property and may file a motion for retention of the property, which motion shall be granted if there is any reasonable basis for believing that the photographs and accompanying affidavit may be misleading.

This section does not apply equally to lawful and unlawful conduct, and in that context is not unconstitutional. State v. Sexton, 240 Neb. 466, 482 N.W.2d 567 (1992).

Where a defendant was convicted by a jury of shoplifting merchandise valued at $787 and the only evidence of value was the price at which the merchandise was offered for sale, such evidence was insufficient to prove value. State v. Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000).