Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-10-10229 CR Michael L. Wolverton, Judge.
Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
The earliest, most classic definition of theft is laying hold of property that you know belongs to someone else and carrying it away without permission, with the intent to permanently deprive the owner of the property.  The present case requires us to examine how this general notion of theft applies to modern retail stores - stores where customers are allowed to take merchandise from the shelves or display cases, and walk around the store with these items, until they ultimately pay for the items at a checkout station.
The State contends that if a person intends to take the property without paying for it, then the crime of theft occurs at the moment the person removes an article of merchandise from a shelf or display case within the store. The defendant, for his part, contends that the crime of theft is not complete until the person physically leaves the store.
For the reasons explained in this opinion, we conclude that the true answer lies in between the parties' positions: In the context of a retail store where customers are allow ed to take possession of merchandise while they shop, the crime of theft is complete when a person, acting with the intent to deprive the store of the merchandise, performs an act that exceeds, or is otherwise inconsistent with, the scope of physical possession granted to customers by the store owner.
In the present case, the parties disagreed as to precisely where the defendant was located when he was stopped by the store employee: whether he had reached the outer door of the store, or whether he was still inside the vestibule leading to that outer door, or whether he was merely approaching that vestibule. But it was undisputed that the defendant had already gone through the check-out line, and that he had paid for a couple of inexpensive items while, at the same time, either hiding or disguising other items of merchandise - items that he then carried toward the exit.
Even viewed in the light most favorable to the defense, this conduct was inconsistent with the scope of physical possession granted to customers by the store owner. This conduct therefore constituted the actus reus of theft - the physical component of the crime. This conduct, coupled with the mental component of the crime (intent to deprive the store of the property), made the defendant guilty of theft. We therefore affirm the defendant's conviction.
The defendant, Harold Evan Simon, went into a Walmart store in Anchorage. Like many other retail merchants, Walmart allows its customers to exert control over its merchandise before making a purchase: customers are allowed to roam the aisles of the store, to handle and examine the items that are offered for sale, and to take these items with them (either in their hands, or in a basket or shopping cart) as they walk through the store, before going to the cash registers or scanning stations to pay for these items.
While Simon was walking through the Walmart store, he took a jacket from a sales rack, put it on, and continued to wear it as he walked through the store. Simon also took a backpack and started carrying it around. At some point, Simon placed several DVDs in the backpack. Simon also picked up a couple of food items. Finally, Simon went to the row of cash registers. He paid for the food items - but he did not pay for the jacket, the backpack, or the DVDs hidden in the backpack.
Simon then left the cash register area and headed for the store exit. Before Simon reached the exit, a Walmart employee approached him and detained him. Simon handed the backpack to the employee, and then he removed the DVDs from the backpack. Simon told the Walmart employee, "There you go; there's your stuff. I'm sorry; I was going to sell it." A short time later, the police arrived, and they noticed that Simon's jacket was also unpaid-for. (It still had the Walmart tags on it.)
Based on this incident, and because of Simon's prior convictions for theft, Simon was indicted for second-degree theft under AS 11.46.130(a)(6) (i.e., theft of property worth $50 or more by someone with two or more prior convictions for theft within the previous five years). Simon ultimately stipulated that he had the requisite prior convictions, so the only issue litigated at Simon's trial was whether he stole property worth $50 or more.
The State presented the evidence we have just described. Simon presented no evidence. In his summation to the jury, Simon's attorney focused on potential weaknesses in the State's proof, and he argued that Simon might have been so intoxicated that he lacked the culpable mental state required for theft (the intent either to deprive Walmart of the property or to appropriate the property for himself). Additionally, toward the end of his summation, Simon's attorney suggested that Simon "didn't deprive anyone of property" because "he didn't even enter the vestibule [leading to the final exit door]".
This latter argument mistakenly conflated the "conduct" component and "culpable mental state" component of the crime of theft. The State was not required to prove that Simon actually deprived Walmart of its property. Rather, the State was required to prove that Simon exerted control over the property with the intent to deprive Walmart of its property (or to appropriate the property to his own use). See AS 11.46.100(1).
But it appears that the defense attorney's argument struck some of the jurors as potentially important - because, during its deliberations, the jury sent a note to the judge in which they asked about the vestibule. The jury's note read: "At what point does [the] defendant 'exert control over the property of another' [in] reference to the vestibule area ... [and] # 20 of [the jury] instructions[?]"
(The jury instructions informed the jurors, in accordance with AS 11.46.100(1) and AS 11.46.990(12), that before Simon could be found guilty of theft, the State had to prove that Simon "exert[ed] control over the property of another".)
After conferring with the parties, and without objection from Simon's attorney, the trial judge responded to the jury's question as follows:
The word "property" as used in Instruction 20 refers to the items Mr. Simon is alleged to have taken, and not to any particular area in or around Walmart.
The issue for you to decide is whether the State proved, beyond a reasonable doubt, that Mr. Simon intended to take the items from Walmart without paying for them, without regard to any particular area where he was confronted by Ms. Mills [the Walmart employee].
The court also refers you to Instruction 14 [an instruction dealing with the lesser included offense of attempted theft], with the caution that you are to consider all of the instructions as a whole.
Shortly after receiving this reply from the judge, the jury found Simon guilty of theft.
Six days later, Simon's attorney filed a motion for a new trial, arguing that the judge had committed reversible error in his answer to the jury's question. Even though Simon's attorney had not objected to the wording of the judge's answer (indeed, Simon's attorney had actually contributed to the wording of the judge's answer), the attorney now contended that there was ...