STATE v. BLUNT (1999)

The question presented by this State appeal is whether tinfoil can be an “antishoplifting or inventory control device countermeasure” for purposes of a prosecution under subsection 812.015(7), Florida Statutes (1997).   We conclude that it cannot and affirm the order under review.

Defendants-appellees Rosa Mae Blunt and Tiara Williams were apprehended trying to steal clothing from a store.   They covered the store security sensors with tinfoil to evade detection when they attempted to walk past the sensors with the stolen merchandise hidden in a bag.

Defendants were charged with, among other things, a violation of subsection 812.015(7), Florida Statutes (1997), which provides, “It is unlawful to possess, or use or attempt to use, any antishoplifting or inventory control device countermeasure within any premises used for the retail purchase or sale of any merchandise.”   Use of such a device is a third-degree felony.   See id.

The retail theft statute defines “antishoplifting or inventory control device countermeasure” as “any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device.” § 812.015(1)(i), Fla. Stat. (1997) (emphasis added).¹

In granting the defendants' motion to dismiss this charge, Judge Pineiro ruled:

The defendants wrapped tinfoil around the store security sensors to evade detection of the stolen merchandise in their bag.   Tinfoil, by itself, does not fall under the definition of an “antishoplifting or inventory control device countermeasure” found in s. 812.015(1)(i) because tinfoil is not an item or device which is designed, manufactured, modified, or altered.   The tinfoil may have been used in such fashion.   However, use is not part of the definition.

We entirely agree.   The trial court's interpretation is in accord with the plain words of the statute.   If there were any doubt (and we think there is none), “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (1997).²

Affirmed.

FOOTNOTES

1.   An “antishoplifting or inventory control device” is defined as “a mechanism or other device designed and operated for the purpose of detecting the removal from a mercantile establishment or similar enclosure, or from a protected area within such an enclosure, of specially marked or tagged merchandise.”   Id. § 812.015(1)(h).

2.   Upon dismissal of these felony counts the defendants pled no contest to the remaining petit theft counts and were sentenced accordingly.

COPE, J.