Is Misdemeanor Trespassing and Misdemeanor Shoplifting Really a Felony?

The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge. In a recent blog post, my colleague Alyson Grine analyzed some of the evidentiary issues that may arise in felony breaking or entering prosecutions in these kinds of cases. For example, she questioned whether the element of “intent to commit a felony or larceny” would be met if the evidence showed only that a person entered a store from which he or she had previously been barred. Let’s assume those issues aren’t present. Assume the evidence shows the person entered the store, after having been clearly told by an authorized store representative not to come back, with the intent to steal. Applied literally, the requirements for felony breaking or entering—entering a building, without consent, and with the intent to commit a felony or larceny—would seem to fit. Further, some state courts [...]