One of the biggest issues when stopping a shoplifter who is with another or a group of others is determining whether the others can be apprehended as well. In the majority of states, so long as the person has knowledge of the offense taking place and aids or encourages the primary participant in one form or another, that person can be apprehended as an accomplice and can potentially have the same liability as the primary participant.
For example, in Illinois, actual participation in the underlying offense is not required to show accountability. The victim need only show some fashion of involvement and the sharing of the criminal purpose underlying the offense.[1] Factors which are considered in determining accountability include whether the accused was present during the commission of a crime without opposing or disapproving it, whether the accused maintained a close affiliation with his companion after the perpetration of the offense and whether the accused failed to report the crime.[2] Therefore, even if the other person was not found to be directly involved in the offense, that person could also potentially be liable.
Texas has gone one step further and eliminated all distinctions between principals and accomplices.[3] In Texas, one can be held liable for an offense committed by another if “acting with [the] intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense.”[4] Texas case law has held that events occurring before, during and after commission of the offense may be examined in determining whether the other person also participated in the theft.[5] Courts in Texas have found that evidence is sufficient to support a conviction of theft under the law of parties where the person is physically present and encourages the commission of the offense either by words or other agreement. So while mere presence alone will not make one a party to the offense, it is a circumstance that has the capability to prove, under the totality of the circumstances, that one is an accomplice.[6]
While most states have broad accomplice liability statutes, some states have more stringent laws. New York, for example, goes beyond mere encouragement and requires that the person actively participate in the purported offense. An accomplice is liable “for intentionally aiding another to engage in conduct which constitutes the charged offense while himself ‘acting with the mental culpability required for the commission’ of that offense.”[7] New York courts require that the person has “exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights.”[8] Therefore, while in other states the person must only aid or encourage the primary participant, in New York, the person must physically participate in the taking of the merchandise.
Though most states have one form or another of accomplice liability, the actions required to be held liable as an accomplice differ from state to state. While some states allow liability for knowledge of the offense, others require an actual act in furtherance of the offense. It is helpful to be familiar with your state’s accomplice liability statute when making stops to help in determining whether or not one can be held liable as an accomplice.
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[1] People v. Rodgers, 160 Ill.App.3d 238, 240 (Ill. App. 3d 1987).
[2] People v. Williams, 157 Ill.App.3d 496, 507 (Ill. App. 5d 1987).
[3] Vernon’s Texas Statutes and Codes Annotated, Penal Code Section 7.01(c)
[4] Vernon’s Texas Statutes and Codes Annotated, Penal Code Section 7.02(a)(2)
[5] Diaz v. State, 902 S.W.2d 149, 151-152 (Tex. Crim. App. 1995).
[6] Id.
[7] People v. Motte, 235 A.D.2d 582, 585, 653 N.Y.S.2d 378, N.Y.A.D. 3 Dept., 1997.
[8] People v. Zombo, 813 N.Y.S.2d 624, 626 (N.Y. App. Div. 4 2006).