Anyone can make the honest mistake of forgetting to return a borrowed item, no matter how aggravating it might be for the rightful owner. While the person from whom you borrowed the item may wonder whether they may ever receive it back, your actions don't amount to the criminal offense of theft if you just merely forgot to return the item. However, simply saying "I was planning to return it," will not suffice as a legal defense against theft charges.
So, the question remains: When does borrowing become a theft crime in the eyes of the law? It depends.
The Role of Intent
Under criminal law, the intent to commit a criminal act is called "mens rea." Criminal intent is one of the key elements that must be established by the prosecution in order to convict an individual of a crime, including the intent to permanently deprive an owner of one of their possessions. From a legal perspective, in order to be accused of stealing, or a theft crime, you would need to have had the intent never to return the item to its rightful owner.
Common law further distinguishes among different degrees of criminal intent:
- Specific intent: The defendant committed an act with a specific intent or purpose.
- General intent: The defendant's act was not an accident.
- Strict liability crimes: The defendant committed a crime, regardless of intent.
A criminal charge of theft (or larceny) generally requires the specific intent to deprive another individual of their personal property permanently. If you legitimately forgot to return a borrowed item to its rightful owner, you lacked specific intent to steal the item. As with other specific intent crimes, stronger and more credible evidence may be needed for the prosecution to establish guilt.
Many states today also have crimes against unauthorized property use. These crimes prohibit using or operating property that belongs to another person without the person's consent. The level of intent may be less than permanently depriving the owner of the property. For example, in Michigan, a person can face charges of using a motor vehicle without authority without intent to steal the car.
The Burden of Proof
In addition, prosecutors must prove a crime beyond a reasonable doubt to obtain a conviction. They must provide compelling and convincing evidence that you had no intention to return the borrowed item and, in fact, planned on keeping it. For example, an email or text message bragging to another person that you intend to keep an item you supposedly “borrowed" could be used as evidence of a plan to steal. That intent to keep the item must have been present at the time of the taking. The factfinder (judge or jury) will decide, based on the facts of your case, whether the intent existed.
Even if you did intend to keep an item under the pretense of borrowing it, the burden of proof often is too difficult for the prosecutor to overcome in a theft case. For example, you may have asked to borrow your neighbor's lawn mower with no intention of actually returning it. If you consistently ignore your neighbor's request to return it, did you steal it? It will depend on the evidence. A judge or jury may decide that your actions speak louder than words and that you had the intent of keeping the lawnmower at the time.
Here's another example: Your neighbor, who's out of town, leaves his bicycle on the side of the road in front of his house. You take the bike for the weekend, but your neighbor returns home earlier than you expected, sees that his bike is missing, and files a police report. He claims that you stole his bike. You had no intention of keeping the bicycle, nor is there any evidence that you did not plan to return it. Still, you need a good reason for taking something that doesn't belong to you. In this example, it's possible the neighbor would drop charges if you were on good terms with them.
The police and prosecutors will also review your criminal record. Prior theft convictions may provide some evidence that you did not make a mistake in the current situation. Convictions for certain crimes, such as felonies and offenses involving dishonesty (like theft), may also be available for impeachment when you testify.
What Is the Value of the Property?
In some cases, whether the state views your conduct as theft may relate to the value of the alleged stolen property. The greater the value of the property, the more a borrower will take care of it and the owner will expect its safe return. For example, if your neighbor lends you their car, you will see it in your driveway or garage each day. It would be hard to make the case that you forgot about it. If you borrow your aunt's diamond necklace, you will know she expects you to secure it and return it promptly.
The value of the property may also affect the criminal charges pursued by law enforcement. States often classify their property crimes by dollar value. If the value of the item is small, the offense may be a misdemeanor. If the value of the offense is high, the offense may be grand theft, which is a felony.
Have You Been Accused of Stealing Something You Borrowed? Call an Attorney
If you've borrowed someone's property and perhaps had issues returning it, you may wonder whether you can be charged with theft. Without witness testimony or physical evidence, a prosecutor may be unable to prove a theft charge. Even so, seeking legal advice might be a good idea. Consider making a visit to a law office and talking to a local criminal defense attorney to discuss the specific facts of your case.