Utah bill would stiffen penalties for retail theft by groups or across state lines

The Capitol in Salt Lake City is pictured on Monday, May 6, 2024. (Photo by Spenser Heaps for Utah News Dispatch)

Lawmakers are considering ramping up penalties for retail theft, in particular what they call illegal, out-of-state “businesses” that target Utah stores and resell the merchandise on the black market. 

The bill, called Criminal Offense Modifications, also addresses a number of issues related to gang activity and organized crime in the state, including increased penalties for adults who recruit or intimidate minors into a gang. 

It would enhance the penalty for people who come to Utah intent on stealing from retail stores, a crime that, as long as there isn’t more than $500 of goods stolen, is usually a class B misdemeanor. 

Under the bill, if the person was convicted of a similar, class A misdemeanor offense in another state, they could now be charged with a third-degree felony. 

“There’s very much a business of people coming into Utah, where they can make sure that each theft they commit stays under $500. And so they just hit multiple stores, then leave out of state again, and they’ve guaranteed the most they’re going to get is a class B misdemeanor, because convictions that they’ve had in other states don’t count against them,” said Richard Larsen, a prosecutor with the Davis County Attorney’s Office. 

He compared the approach to how Utah prosecutes impaired driving — if someone was found guilty of impaired driving in another state, and is then hit with a separate impaired driving charge in Utah, they could face an enhancement. 

Larson, who spoke during a Law Enforcement and Criminal Justice Interim Committee last week, told lawmakers of at least one instance where an organized gang with ties to Cuba stole retail in Utah, shipped it to Florida where it was stored in a warehouse, then eventually shipped to Cuba where it was sold on the black market.

The law also targets people working “in concert,” which essentially means they’re working together. Larson gave an example from a Best Buy store in Farmington. 

“There was a group of three or four that would go in, each select an Xbox — which would be a class B misdemeanor based on the value — and then the group would all run out at once knowing there was only one loss-prevention officer. That was a guaranteed loss of hundreds of dollars every time they did it, because the business doesn’t have the resources to guard against these types of things,” Larson said.  

Under the law, a group of two or more people acting together would face an enhanced charge, depending on the crime. A class B misdemeanor would become a class A misdemeanor, a class A misdemeanor would become a third-degree felony, and so on. 

That “in concert” enhancement previously existed in Utah code, but was repealed in 2021 — the bill proposed last week would reinstate it. 

“Currently there is no discouragement under the law to discourage people from working in concert to commit these offenses. And by working in concert, they’re able to be much more effective,” Larson said. 

The enhancement goes far beyond targeting theft, including crimes like homicide, human trafficking, arson, burglary, bribery, making a false statement, prostitution and more.  

The bill’s broad scope drew some skepticism from both lawmakers and attorneys who spoke during the committee meeting, including director of the Utah Defense Attorneys Association Steve Burton. 

“If you and your buddy went to a store and you both stole a candy bar, now instead of a class B misdemeanor, you’re looking at a class A misdemeanor,” Burton said. “So instead of six months of potential jail, now you’re looking at one year of potential jail, because you did it with a buddy.” 

House Minority Leader Angela Romero, D-Salt Lake City, said she was concerned that the bill promotes racial profiling, with groups of the same race or ethnicity being targeted unfairly. 

“You could have more than two people in a particular situation, where people may say they are gang affiliated, but maybe they’re not gang affiliated and we just assume they are,” Romero said. “That’s a concern for me.” 

Larson, in response, said there’s a big difference between a gang enhancement and an in concert enhancement — as long as prosecutors can prove that the two people were working together to engage in the same offense, even if only one was caught, “that should be enhanceable,” he said. 

“We don’t care about the color of their skin, we don’t care about any of those things. It’s about the in concert participation. And that will negate any of the concerns about profiling,” he said. 

The bill would also allow retail stores to report the retail cost for material that was stolen when trying to get restitution, rather than the wholesale cost.