Retail theft is the unlawful taking, transferring, possessing, or carrying away of any merchandise offered by a retail store. It is a variation of larceny, which is the crime of taking property of another with the intent to permanently keep the property away from the owner. While retail theft is a separate crime from burglary in Georgia, it is related to burglary in the crime of smash and grab burglary.
In ordinary language, smash and grab burglary is burglary that involves smashing a barrier, grabbing valuable retail merchandise and then making a quick getaway. The barrier might be a store’s display window or a showcase. The main difference between smash and grab burglary and regular burglary is that smash and grab focuses on breaking and entering a retail property to commit theft.
The most common manner of perpetrating a smash and grab burglary is at a jewelry store where the glass cases are broken and the jewelry on display taken. Or a display window might be broken so that the jewelry can be grabbed. However, all retail establishments are included under Georgia law, including restaurants.
A smash and grab burglary could also take place in a pharmacy where the more valuable merchandise is displayed behind locked glass cabinets. If a burglar were to enter the store, smash the glass cabinet door, grab the merchandise and take off, that would be a case of smash and grab burglary. Or a smash and grab burglar might target a “big box” store that displays firearms in locked cases.
If a person breaks a glass door during a burglary, or breaks a lock, and it results in more than $500 in damage, a person can be charged under the smash and grab statute in Georgia. This is true even if nothing is taken or stolen.
What Is Burglary?
Under Georgia law, burglary is the unlawful breaking and entering into or remaining on property with the intent to commit a theft or other felony thereafter. The property may be residential or commercial and occupied or unoccupied at the time of the burglary.
How Does Georgia Define Smash and Grab Burglary?
Smash and grab burglary is a crime that occurs when a person intentionally and without consent enters into a retail establishment with the purpose of committing theft. To be guilty of smash and grab burglary, the person must also cause over $500 worth of damage to the retail establishment without the consent from the owner to cause the damage. This last element would constitute the “smashing” element of the crime.
It is interesting to note that smash and grab burglary is defined in exactly the same way in California. Reportedly smash and grab burglary is often committed by groups of people who rush into stores and steal goods or smash display cases and grab merchandise.
National retail groups have estimated that the retail industry’s annual losses from smash and grab burglaries are in the tens of billions of dollars. The attorneys general of some states, along with the chief executives of major retailers, would like the U.S. Congress to take action and pass federal legislation that would mandate more efforts at prevention by online marketplaces, which is where the stolen goods are sold.
What Is Considered a Retail Establishment in Georgia?
A retail establishment is any place that sells merchandise at a fixed location for direct consumption by consumers. That is, it is to be distinguished from a wholesale outlet. This includes any establishment selling meals or food products for dining in and carryout.
What Is the Punishment for a First-Time Conviction of Smash and Grab Burglary?
Conviction of smash and grab burglary is treated more harshly in Georgia than regular retail burglary, which is called “2nd degree burglary.”. In Georgia, a person convicted of smash and grab burglary for the first time faces a penalty of a $100,000 fine and/or 2 to 20 years in prison. The crime is always charged as a felony.
The sentence for a second conviction for smash and grab burglary ranges from a minimum of 5 to as many as 20 years in prison and/or a fine of up to $100,000.
On the other hand, burglary in the 2nd degree is a lesser included offense of smash and grab burglary. Second degree burglary has a mandatory minimum sentence of only 1 year as opposed to 2 years for a first conviction of smash and grab burglary.
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Under Georgia law, the prosecution does not have to have eyewitnesses to win a conviction for burglary, and this is true for smash and grab burglary as well. Fingerprints, DNA on a cigarette left near the scene, video surveillance footage, and even cell phone records showing the person near the scene could all be enough evidence to justify a conviction.
What Kind of Punishment Is There for a Second Conviction?
Again, a person convicted for the second time, or any subsequent time, of smash and grab burglary faces a possible sentence of from 5 to 20 years in prison and a fine of up to $100,000. .
What Defenses Are There to Smash and Grab Burglary?
There are several defenses available to a charge of smash and grab burglary as follows:
- Innocence: The most basic defense for a person charged with smash and grab burglary is factual innocence. Of course, asserting the defense of innocence means convincing a judge or jury that the person did not commit the acts that constitute the crime. The prosecution bears the burden of proving that a person charged is guilty beyond a reasonable doubt, so to defeat a burglary charge, a lawyer for the defense must create plausible doubt in the minds of the jury regarding whether the prosecutions’ evidence truly demonstrates that the defendant committed the crime.
- A defendant’s attorney can create uncertainty by presenting an alibi or creating doubt as to the scientific reliability of a forensic technique such as DNA analysis or eyewitness identification. An alibi defense depends on the defendant having witness who would testify that the defendant was nowhere near the scene of the crime, but was somewhere else far away at the time the crime was committed;
- Lack of Intent: A lawyer for the defense in Georgia could also attack the element of intent as one of the possible defenses in a case of smash and grab burglary. Because intent to commit a felony in the retail establishment is an element of smash and grab burglary. So, if the facts support the argument, a lawyer could argue that the person charged had a legitimate purpose for being on the property and then decided to commit a crime once inside.
- Without having the intent to commit a crime before entering a structure, the person charged might not be found guilty of burglary. For example, a defendant might attend a party and once inside the home decide that they want to steal a vase. In this case, they might not be convicted of burglary. The person charged might be found guilty of theft but not burglary, because they did not enter the building for the purpose of committing theft. In addition, the defendant would argue that they had permission to enter.
Do I Need a Lawyer’s Help to Fight My Burglary Charge?
Burglary is a serious offense, especially if this is not your first time being charged with this crime. You need all the legal help you can obtain to fight this charge. Contact a Georgia criminal defense lawyer immediately.
An experienced attorney who has handled these types of cases will do a full case evaluation. They may find ways to attack the methods of the investigation, as well as any cell phone records, search warrants, and forensic testing done by law enforcement.
