Asportation: Carrying Away

Asportation: Carrying Away

Caption settled that the defendant must come to control the property, and the next act element asks what physically happened to it. Larceny requires asportation, which means that the defendant moves all or part of the property, however slightly, as part of the carrying away process.¹ Courts express the same idea as an assertion of control over the item together with some movement of it contrary to the owner's possession, no matter how slight.² The words however slightly carry the rule, because the distance moved is irrelevant. A pickpocket who shifts a wallet six inches before being caught has satisfied the element.³

The reason for the element is evidentiary. A thief's intent exists only in the thief's head, and a person who wants an object, or stands near it planning to take it, has done nothing a court can observe. Requiring movement supplies an objective sign that the defendant has asserted dominion over the property.⁴ Once the property has shifted under the defendant's hand, the defendant has moved beyond thought and preparation and has put the defendant's own command in place of the owner's. The same reasoning explains why the amount of movement is irrelevant: dominion is shown by the first act of moving the property, and a second yard adds nothing to the proof of it. The threshold is therefore low by design, and the element screens out only the defendant whose plan has not yet produced any movement of the property.

A threshold that low makes the offense complete early, and nothing the defendant does afterward undoes it. A diner who sees a companion's watch lying on the table while the companion is away, slips the watch into a pocket intending to keep it, and then hands it back on the companion's return with a story about safekeeping has already carried the watch away. Moving it from the table to the pocket with the intent to steal satisfied the element, and the return shows only a change of heart after the offense was done.⁵ The result is the same when a person finds another's laptop in a law library, picks it up intending to steal it, and puts it back on realizing that someone is watching, because larceny has technically been committed.⁶ The rule has a practical foundation as well as a logical one. If a return could erase the offense, every thief who was interrupted, or who lost nerve, could claim to have been returning the goods all along, and the law would treat a thief caught in the middle of the act as though no crime had occurred.

The movement counts only when it is part of the carrying away, which means movement made in the course of the taking that the defendant undertakes with the intent to steal.⁷ The timing of that intent has its own section below, but the consequence for this element is already visible. A defendant who has moved nothing has no asportation, whatever the defendant wanted.

The link between movement and dominion also explains the one place where the movement requirement may bend. The New York Court of Appeals in People v. Alamo upheld an instruction allowing a jury to find theft of a car when the defendant entered it, turned on the lights, and started the engine, though the car never moved.⁸ The court reasoned that a wallet or a safe is inert and comes under a thief's command only when lifted or shoved, whereas a running car is already within its operator's command. The sources treat starting an engine as something that may suffice, so this is an argument to make from the stem's facts, and it does not replace the movement rule.⁹

Movement inside a store is where courts openly disagree. The California Supreme Court, in a 1998 shoplifting case, had no doubt that a defendant who lifted a shirt from its hanger and carried it through the shoe department to the women's department had moved it enough, and the defendant did not contest the point.¹⁰ The dispute in that case lay elsewhere, in consent and intent. The harder question arises when the only movement is around the sales floor, and there the authorities divide: Craig v. State, from Alabama, treats a shopper who moves merchandise from one place to another within a store with intent to steal as having committed asportation, while People v. Parrett, from New York, points the other way.¹¹ One source of the difficulty is that a self-service store impliedly consents to customers picking up merchandise and carrying it from the display to a sales counter when they mean to buy.¹² Movement within the store is therefore what honest shoppers do as well, so it is weaker evidence of dominion than lifting a wallet from a pocket. On an exam, a stem with only in-store movement calls for the slight-movement rule, an acknowledgment that courts split, and a resolution under whatever law the stem supplies.

Students lose this element when they ask how far the property travelled, since the only questions are whether any of it moved as part of the taking and whether it moved with the intent to steal. The same element is what the minority courts invoke when an innocent buyer, not the defendant, carries the goods away, because on their view the defendant never moved anything.¹³ Asportation also belongs to larceny alone. A defendant who obtains title by false pretenses need not carry anything away, because that offense is complete when title is acquired.¹⁴