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Word to the Wise: A Lesson Learned From Nyshier Oliver's Shoplifting Case

Much like the case with Nu'Keese Richardson, Mike Edwards, and Janzen Jackson, details about Nyshier Oliver's incident at Knoxville's West Town Mall are coming forward in small pieces.  Despite the incident occurring on November 7th, the first significant public mention came on November 17 - a full ten days after the fact.  Initially, all that was known was that he was cited for shoplifting at the Dillard's in the mall, and that he had a court date in the future.  But with further journalism inevitably comes further details.  From Chris Low:

According to police, Oliver was spotted putting a brown Polo shirt valued at approximately $110 into a shopping bag. He was cited at 1:45 p.m., and Tennessee's game that night kicked off at 7 p.m.

That made me stop and think for a second, because the action taken by Nyshier borders on a bit of Tennessee state law that most people aren't aware of.  As a wise lawyer once told me, always ask, "What does the rule say?"

From Tennessee state law, Section 39-14-103:

A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent.

Pretty straightforward.  Now, with specific regards to merchandise, Section 39-14-146:

(a)  For purposes of § 39-14-103, a person commits theft of property if the person, with the intent to deprive a merchant of the stated price of merchandise, knowingly commits any of the following acts:
     (1)  Conceals the merchandise;


There's more, but that's the part that pertains here.  From Low's statement, the suspicion of shoplifting occurred when Oliver placed the shirt in the bag, which (knowingly) concealed the shirt.  That action satisfies (a)(1) of 39-14-146.  The part that remains unanswered is in 39-14-146 (a) itself:  "...with the intent to deprive a merchant of the stated price of merchandise, ...".

Here's the rub:

In Tennessee, you can be cited for shoplifting merely by placing merchandise in a bag.  If you go into a Wal-Mart with those nifty Earth-friendly bags and use one to hold your merchandise until you get up front to pay for them, you can be charged with shoplifting.  It's happened before.

Now, conviction is another matter.  Intent must be proven, and the burden of proof is on the state, not the accused. 

So with the information that is currently available, we merely know that Oliver's actions were sufficient for the suspicion of shoplifting.  The problem comes in that many shoplifters will try to 'lift in such a way as to pretend it was an innocent mistake.  For example, they'll set an item in a coat pocket to answer their suddenly ringing cell phone and 'forget' about the item.  Because of this problem, it's not unusual for the mere physical action to be sufficient to trigger legal action.  After all, even if the whole ordeal was an honest mistake, aggressive and visible enforcement serves as a deterrent, which is quite important in the big picture.

Now, in Oliver's situation, the fact that he was placing the shirt in a bag is not going to help him.  If it was a bag from a previous stop in the mall, why was he mixing unpaid merchandise with paid merchandise?  If it was an eco-bag, why did he bring it into a clothing store?  Situationally, it's not easy to find an innocuous reason why the bag was there.  And the presence of the bag was probably what caused the store to watch him in the first place.  But the bag is not sufficient to prove intent alone.

This gets into the circumstantial evidence of intent (since direct evidence - like an admission of intent - is often not available).  Was he looking around to see if he would get caught?  Did he try to bury the shirt under other items in the bag?  Did he walk out of the store immediately after taking the shirt?  Details like these are very important for intent, which is now the crux of the case - and we simply don't know anything about these details at the moment.

What I'm getting at is this:  the details are not conclusive insofar as the public knows.  That doesn't mean he's innocent, and I'm not trying to suggest that he is.

However, it is expensive for the state to pursue charges for a $110 shirt (which is below the $500 threshold for imprisonment), and the state would much prefer to resolve the matter in a cheaper manner that still serves as a deterrent.  That's where the cite-and-release method comes in.  Rather than arrest and initiate the full legal process, simply citing Oliver and letting the coaches handle the issue saves the state a lot of time and money, and still serves as a deterrent.  By following this approach, Oliver was not arrested, but the incident was still stopped.

There are several possibilities for how this could have played out in reality, but the best option for us in the peanut gallery is to simply wait until the process reaches its natural conclusion.

(And here's where we see who read the whole thing:  I am in no way defending Oliver.  I'm not trying to excuse him.  All I'm saying is that it's important to know the rules and how they apply.  Oh, and don't stick groceries in bags until they're paid for.  Tennessee really does cite and arrest for that, as do some other states.  And no, I don't know from personal experience.)