Woman shouldn't face felony for $80 in shoplifting at Walmart, Kentucky Supreme Court says

The Kentucky Supreme Court ruled Thursday a woman who shoplifted about $80 worth of items from a Walmart self-checkout station should not face a felony that carries five to 10 years in prison, a punishment that Attorney General Daniel Cameron defended.

All seven justices instead agreed with the Kentucky Court of Appeals, which had said it was "inherently unfair to convict somebody of a class C felony for theft of goods worth $80," and the Supreme Court sent the case back to Pulaski Circuit Court, where a jury had initially found Chasity Shirley guilty of "unlawful access to a computer."

Shirley, 34, will now likely receive a directed verdict, which would see her felony conviction dismissed in court.

While shopping in 2018 at a Walmart in Somerset, Shirley pulled what retailers call a "switcheroo" by switching the bar codes from a toothbrush holder with those from a more expensive children's rug and slipcover before checking herself out of the store.

A loss-control associate caught her, and the cost difference between the item she paid for and the two items she tried to take was $80.80. She also allegedly "pushed and elbowed" a loss prevention manager as she exited the store but was later found not guilty of a fourth-degree assault charge at trial, the Supreme Court noted.

Instead of charging her with a class B misdemeanor — the standard for shoplifting crimes involving less than $500 that in Kentucky carries up to 90 days in jail and a $250 fine — a Pulaski County prosecutor persuaded a grand jury to indict Shirley for "unlawful access to a computer," which is a class C felony punishable by five to 10 years in prison. (For context, theft cases can reach the class C felony level if they involve property valued between $5,000 to $10,000.)

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The prosecution and Walmart contended that when Shirley misled the self-checkout scanners, she was tapping unlawfully into the sophisticated computer system connected to them.

But the Court of Appeals said the crime didn’t meet the statute’s definition — using a computer without its owner's "effective consent." Shirley, and millions of other Walmart customers, have the retail giant’s permission to use its self-checkout scanners to pay for merchandise, the appeals court reasoned.

In Thursday's opinion, written by Deputy Chief Justice Lisabeth T. Hughes, the Supreme Court agreed and found the "Commonwealth did not present proof that Shirley accessed Walmart’s self-checkout register beyond the consented-to barcode scanning for completion of a self-checkout sales transaction."

"Without that proof, it was clearly unreasonable for the jury to find Shirley guilty of unlawful access to a computer in the first degree," the opinion said, citing similar findings from courts in other states, such as Oregon. "The circuit court erred by denying Shirley’s motion for a directed verdict of acquittal."

The justices noted the case presented them with the first interpretation issue of the "unlawful access to a computer in the first degree" law, or KRS 434.845, since it was amended in 2002.

The law reads: "A person is guilty of unlawful access to a computer in the first degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network,or any part thereof, for the purpose of: (a) Devising or executing any scheme or artifice to defraud; or (b) Obtaining money, property, or services for themselves or another by means of false or fraudulent pretenses, representations, or promises."

Focusing on "effective consent," which is not present under Kentucky law if "used for a purpose other than that for which the consent is given," the Supreme Court noted that "Walmart emphasizes that it cannot and does not consent to customers using self-checkout registers to commit fraud and steal merchandise."

But the Supreme Court found the "effective consent" statute "speaks to the purpose for which the user was granted access to the computer, e.g., a shopper granted access to scan items."