You can’t blame them for trying I guess. Two adult men arrested and charged for stealing from a Kohl’s department store in Colorado had their lawyer make the case that the charges against them should reduced from a felony to a misdemeanor because some of the items were on sale.

The pair were dubbed the “KitchenAid Mixer Crew,” because the pricey kitchen appliance was included in the theft, along with brand-name shoes and clothing. Investigators identified the two through surveillance images.

Prosecutors said the items stolen totaled $2,094. That’s important because the cutoff line between a misdemeanor theft and a felony theft in Colorado is $2,000, according to the prosecutor’s office.

“The legal argument by the defense was that these two individuals basically stole merchandise that was on sale, and if you took the sale price, it would fall below the $2,000 threshold required for a Class 6 felony conviction,” said Eric Ross, spokesperson for the 18th Judicial District Attorney’s Office.

If the stolen goods had been $95 cheaper then the most these two could face was a year in jail. But if this is treated as a felony then they are facing up to 18 months in prison, not to mention a felony conviction on their records. Their attorney argued the items were below the misdemeanor threshold if you counted the sale prices instead of the regular retail price.

the two men, Michael Green, 50, and Byron Bolden, 37, who had pleaded not guilty, contended that the value of the items was $1,856.19, because some of the goods, including at least one of the mixers, were on sale, said Thomas A. Ramunda Jr., Mr. Bolden’s lawyer. That would classify the charge as a misdemeanor.

“It was our position,” consistent with state law and Colorado case law, “that in order to determine the value of the items on the date of taking, one must consider the sale price, which is evidence of the retail price (what a seller is willing to accept, and a buyer is willing to pay) also known as fair market value,” Mr. Ramunda said in an email…

“This is not some defense shenanigan,” Mr. Ramunda said. “The theft statutes in Colorado are very specific when it comes to evidence of value and the determination of the level of crime and punishment. And I stand firm that the value of the items was under the felony threshold in this case.”

Prosecutors argued the sale prices didn’t matter because thieves don’t get a discount, only customers. Having shopped at Kohl’s many times over the years, I can tell you that the store is famous for its mailed coupons and its various and sometimes overlapping discounts. For instance an item can be 20% off and you can have a 10% off coupon which reduces the price even more. But I can also tell you that all of the discount magic happens at the register, which is why it sometimes takes a while to get out of Kohl’s.

In any case, it’s fair to say that if you bypass the register you don’t get any of the discounts. Put another way, the five-finger discount is not compatible with any other promotions. The jury agreed and both Green and Bolden were convicted of Class 6 felonies. They have since been sentenced.

Green was sentenced to 15 months in prison, but he is currently in the Department of Corrections on a separate conviction.

Bolden was sentenced to 90 days in jail with credit for time served as a condition of 18 months of probation.

It occurs to me that this might be a way for retailers that are struggling with increased theft to deal with the problem. Raise sticker prices and then offer an equivalent discount at the register. That way actual customers get the same price but thieves find themselves facing felony charges when they run out with a bag or cart of merchandise.

Here’s a local news report on the story.