When Is Taking Someone’s Phone Not Considered “Theft”?

How long do you need to borrow something before it’s considered stolen? And does the mere act of taking a phone out of someone else’s hands without permission constitute theft? According to an appeals court in California, no.

The SFgate.com’s Crime Scene blog reports on a case [PDF] that seems like something straight out of a TV show.

Back in 2010, a hospital employee was minding his own business during a break, texting with his fiancee on his new iPhone 4, when he says a man came up and said to him, “Hey man, let me get that phone” and allegedly took the iPhone right out his hand.

The hospital worker claims the man began to walk away with the phone but he followed the man, who allegedly punched him in the head several times. Eventually, he got his phone back, but the “borrower” then started telling him, “I’ll pay you, I’ll pay you. I’ll pay you. I just want the phone,” saying that his mother’s house caught on fire.

In his defense, the phone-borrower says he had been en route to the hospital with his soon-to-be mother-in-law when they got in an argument, causing him to jump out of the car while it was still moving. Yes, you read that correctly.

This man felt like he’d probably need to explain to his fiancee why he’d bailed out of her mom’s moving car — the same mom whose he claims had burnt down a few days earlier, possibly because of his own inept wiring work. So when he saw the hospital worker with his shiny new iPhone, he wasn’t trying to steal it, he just really needed to make a call.

“Man, I got to call my mother,” he says he told the employee, actually referring to his fiancee. “I got to call Mommy right now man.”

Contrary to the victim’s testimony, the defendant says he never got away with the phone, but he does admit to offering $50 for the use of the device.

A jury found the defendant guilty of one count of grand theft from a person.

A state appeals court reviewed the case to determine whether the jury made the right decision, California law mandates that “theft by larceny requires the intent to permanently deprive the owner of possession of the property,” except in cases where the thief intends to sell back the stolen item, or claim a reward or refund for the stolen item.

Likewise, the state holds that “[T]he intent to deprive an owner of the main value of his property is equivalent to the intent to permanently deprive an owner of property,’” basically putting a vague time limit on how long you can “borrow” something by taking it away for so long a period of time that it becomes value-less to the owner.

The court cited examples, like “taking cut flowers from a florist without consent, with intent to return them in a week” and “taking a neighbor’s lawn mower without consent for the summer, with intent to return it in the fall,” as instances in which the borrowing had gone so far as to become larceny.

On the other side of that coin, the court gives the example of a child who takes another kids bike to get even after being teased. This, says the court, would not be larceny if the bike-taker intends to return it the next day.

“Nor do joyriding or taking a car with the intent to deprive the owner of possession only temporarily constitute theft,” writes the court. To clarify, joyriding falls under “unlawful driving of a vehicle,” so it’s still a crime, but not specifically “theft.”

During the appeal, the prosecution argued that the defendant’s urgent desire to obtain a phone “left no room for an intent to return it,” in an effort to make the case that the phone-taker had effectively tried to commit theft by larceny.

But during the original trial, the prosecutor only focused on the “depriving the owner of the main value of his property” portion by alleging that the defendant intended to take it away for an extended period of time.

In fact, during deliberations, the jury asked the judge for a definition of “extended period of time,” to which the judge suggested that they substitute the word “unreasonable.”

“Clearly, the jury convicted defendant on the theory that [the defendant] took the phone intending to make a phone call and thereby to deprive [the hospital worker] of a ‘major portion of its value and enjoyment,’” writes the appeals court in its finding that the defendant did not intend to permanently steal the phone. “The phone was neither perishable in nature nor good for only seasonal use. Taking a phone for temporary use is far more akin to ‘joyriding’ or taking a bicycle with intent to return it the next day, which do not constitute theft. While such a temporary taking may constitute a tort or a separate crime, it does not meet the definition of larceny. No reasonable jury could conclude that using a cell phone long enough to make a call would deprive an owner of a major portion of its value or enjoyment.”

And so there you have it. The man might have been a complete jerk who behaved rashly (and who seems to need to take a course on impulse-control), and may have committed assault if he did indeed punch the hospital worker in the head as alleged. But, per the letter of the law, he didn’t commit theft by larceny in the state of California.