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Simon v. State (5/8/2015) ap-2453

Simon v. State (5/8/2015) ap-2453


          The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   

                                    303 K Street, Anchorage, Alaska  99501

                                               Fax:  (907) 264-0878

                                       E-mail:  corrections @



                                                                       Court of Appeals No. A-11002  

                                     Appellant,                     Trial Court No. 3AN-10-10229 CR  


                                                                               O  P  I  N  I  O  N 


                                     Appellee.                             No. 2453 - May 8, 2015  

                   Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                   Anchorage, Michael L. Wolverton, Judge.  

                   Appearances:  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. *  


                   Judge MANNHEIMER.  

                   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  

     *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------


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 check-  

out 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  



                           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  


allowed 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  

       1     "Larceny is              the  trespassory  taking  and  carrying  away  of  the  personal  property  of  

another with intent to steal the same.   It was one of the few felonies under the common law  

of England."  Rollin M. Perkins and Ronald N. Boyce,  Criminal Law (3rd edition 1982),   

p. 292.  

                                                                                 - 2 -                                                                             2453

----------------------- Page 3-----------------------

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.  

          Underlying facts  

                    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  


                                                            - 3 -                                                        2453

----------------------- Page 4-----------------------

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.- 



                     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  


                                                                 - 4 -                                                            2453

----------------------- Page 5-----------------------

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  

                                                               - 5 -                                                         2453

----------------------- Page 6-----------------------

attorney now contended that there was a flaw, amounting to plain error, in the wording   

of the first sentence of the second paragraph.   

                     According to the defense attorney, that sentence should have been worded,  


"One issue for you to decide ... ", rather than "The issue for you to decide ... ", because  


more than one issue was contested at Simon's trial.  The defense attorney pointed out  

that he had contested the State's evidence regarding Simon's culpable mental state, and  


that he had also argued that Simon might only be guilty of attempted theft, rather than  

the completed crime.   

                     A little over three months later, the trial judge denied this motion without  



          Simon's initial contention on appeal  

                     In Simon's opening brief on appeal, he renews his contention that the trial  

judge committed error by using the phrase, " The issue for you to decide ...  ", instead of  


"One issue for you to decide ... ".   

                     Simon contends that, in effect, the judge's instruction told the jury that the  


 State had already proved the actus reus component of theft - the element of "exerting  

control" over the property of another - and therefore the jurors did not need to decide  


this  aspect  of  the  case.    But  Simon's  argument  ignores  the  context  of  the  judge's  


supplemental instruction.   

                     The judge was responding to a jury question that asked, "At what point  


does [the] defendant 'exert control over the property of another' ... [in] reference to the  


vestibule area [of the store?]"  The jury's question focused on the actus reus of the crime  

(the element of "exerting control over the property of another"), and how the State's  


                                                               - 6 -                                                         2453

----------------------- Page 7-----------------------

proof of that element might be affected by Simon's physical location within the store  

when he was apprehended.  

                     The judge's response to this question was to tell the jurors that it did not  


matter exactly where Simon was located when he was apprehended - that Simon was  

guilty or innocent of theft "without regard to any particular area where he was confronted  


by [the store employee]."   

                    In this context (i.e., formulating the answer to a jury question that focused  

on the specific issue of actus reus), it was not error for the judge to use the phrase "the  


issue for you to decide".  (Indeed, the defense attorney perceived nothing wrong with the  


judge's response until six days later.)  

           Our call for supplemental briefs on how to define the actus reus of theft in  


          this context, and the parties' positions  

                    Although the judge's answer to the jury was not flawed in the way Simon  


contended in his opening brief, the judge's answer was potentially flawed in another way  


- because, depending on how the phrase "exert control over property of another" is  


defined in the context of a retail store, Simon's location at the time he was apprehended  


might possibly be the factor that distinguished a completed act of theft from an attempted  



                    We therefore asked the parties to submit supplemental briefs on the issue  


of what, exactly, is the actus reus of theft in the context of a retail store where customers  


are allowed to take possession of items of merchandise while they shop.   

                    In its supplemental brief, the State argues that if a person intends to take an  


article of merchandise without paying for it, then the crime of theft is complete at the  

moment the person first "exerts control" over that merchandise - by which the State  


means the act of taking the item from its shelf or display case.  Simon, on the other hand,  


                                                              - 7 -                                                         2453

----------------------- Page 8-----------------------

argues that even if a person takes an article of merchandise off the shelf with the intent  


to steal it, the crime of theft is not complete until the person physically leaves the store  


with the merchandise.  

           Why we conclude that, in this context, Alaska's definition of theft requires  


          proof that the defendant did something with the merchandise that  was  


          outside  the  scope  of,  or  otherwise  inconsistent  with,  the  possession  

          authorized by the store  

                    The general definition of the crime of theft is contained in AS 11.46.100(1).  


Under this definition, theft occurs if a person "obtains the property of another", acting  


with the intent "to deprive another of property or to appropriate property of another to  


oneself or a third person".   

                    For purposes of the issue raised in Simon's case, the key portion of this  


definition is the word "obtains". This word is defined in AS 11.46.990(12); the relevant  


portion of that definition is:  "to exert control over property of another".  

                    In situations where the accused thief had no right at all to exert control over  


the other person's property, this definition expresses our traditional notion of theft.  It  


describes what most of us think of when we hear the word "theft" - situations where  

a thief picks up someone else's property and makes off with it.   

                    The State contends that this definition applies equally to the circumstances  


of Simon's case.  The State argues that a person in a retail store "exerts control" over an  


item of merchandise when they pick it up and take it from the shelf or display case.  


Thus, if a person performs this action with an intent to steal the item, the crime of theft  

is complete - even if the person is apprehended before they ever attempt to leave the  


                                                              - 8 -                                                         2453

----------------------- Page 9-----------------------

                    It is true that, in common usage, one might say that shoppers "exert control"     

over the items that they take from the shelves and put in their shopping baskets (or carry  

in their hands).  But the State's proposed interpretation of the statute is inconsistent with  


the traditional common-law approach to theft.  

                    Our present-day crime of theft covers conduct that, at common law, was  


viewed as two different offenses:  larceny and embezzlement.   

                    The common-law crime of larceny covered classic instances of theft, and  

it required proof of a "trespassory taking". 2  

                                                                    That is, the government was required to  


prove that the defendant committed a trespass - violated someone else's property rights  


- when they exerted physical control over the property.   

                    The English judges were willing to stretch the concept of trespassory taking  

to cover situations where the defendant acquired possession by fraud - i.e., situations  


where  the  owner  of  the  property  voluntarily  gave  possession  (but  not  title)  to  the  

defendant because of the defendant's lies. 3  


                                                                  But the common-law crime of larceny did  

not apply to situations where, in the absence of fraud, the owner voluntarily allowed  

another person to take possession of the property. 4  



                    For example, a wealthy person might entrust a butler or maid with daily  


custody of their silverware, or they might take the silverware to a shop and temporarily  


leave  it  with  the  employees  for  polishing  or  cleaning.    Or,  turning  to  more  modern  


situations, people who are about to purchase a house or other real estate will ordinarily  

leave a large sum of money in escrow with a third party (a bank or an escrow company),  

     2    See Rollin M. Perkins and Ronald N. Boyce, Criminal Law  (3rd ed.1982), pp. 303-07;   

Wayne  R.  LaFave,  Substantive  Criminal  Law   (2nd   ed.   2003),      19.1(a)  &  19.2(a),  

Vol. 3, pp. 57 & 61-65.  

     3    LaFave ,  19.2(e), Vol. 3, pp. 68-69.  

     4    Perkins & Boyce , pp. 303-07; LaFave ,  19.1(b), Vol. 3, pp. 59-61.  

                                                             - 9 -                                                       2453

----------------------- Page 10-----------------------

with instructions that the money be transferred to the seller if the deal is successful.  And                     

the owners of businesses ordinarily entrust their bookkeepers with checkbooks or access   

codes that allow the bookkeepers to pay bills, pay employees' salaries, and otherwise   

disburse the company's funds for business purposes.   

                      To cover situations where theft occurred after the owner of the property  

voluntarily allowed one or more people to exert control over the property for a particular  


purpose (or range of purposes), a new crime was created:  "embezzlement". 5  



                     In  these  situations,  one  might  reasonably  say  that  the  employees  or  

custodians were already "exerting control" over the owner's property (with the owner's  


permission) before they stole it.  Accordingly, one might argue that these employees or  


custodians became guilty of embezzlement at the very moment they formed the mens rea  


of the crime - the moment they decided to deprive the owner of the property - even  

if they performed no further action toward this goal.  

                     But one of the axioms of the common law was that a person should not be  


punished for their thoughts alone. 6  

                                                           Thus, in prosecutions for embezzlement, proof of  

the defendant's larcenous thoughts was not enough:  the common law required proof that  


the defendant's conduct departed in some way from the conduct of someone who was  


dutifully upholding the property owner's trust (and that this conduct was prompted by  

an  accompanying  intent  to  steal).    The  government  was  required  to  prove  that  the  


defendant exerted unauthorized control over the property - i.e., engaged in conduct  

     5     See   LaFave ,  19.1(b), Vol. 3, pp. 60-61;  19.2(a), p. 62; &  19.6(a), pp. 99-101.  

     6     LaFave ,  6.1(b), Vol. 1, pp. 423-25;  6.3(a), Vol. 1, pp. 451-54;                                  Braham v. State ,  

571 P.2d 631, 636 (Alaska 1977).  

                                                                 - 10 -                                                            2453

----------------------- Page 11-----------------------

with the property that was inconsistent with the type or scope of control that the property     


owner had allowed.    


                       When the drafters of the Model Penal Code created the crime of "theft" (a  

crime  that  was  intended  to  encompass  and  modernize  the  common-law  crimes  of  

embezzlement and larceny in its  various forms), the drafters expressly included this  


concept of exerting unauthorized control.   

                       Model Penal Code  223.2(1), the provision that defines the crime of theft  


as it relates to movable property, declares that a person is guilty of theft if the person  


"unlawfully takes, or exercises unlawful control over, movable property of another with  

purpose to deprive him thereof."  (Emphasis added) And in Section 2 of the Comment  


to  223.2, the drafters emphasized that the crime of theft requires an  unauthorized  

taking or an unauthorized exercise of control:   


                                   The  words  "unlawfully  takes"  have  been  chosen  to  


                       cover  [all]  assumption  of  physical  possession  or  control  

                       without consent or authority ... .  The language "exercises  

                       unlawful  control"  applies  at  the  moment  the  custodian  of  

                       property begins to use it in a manner beyond his authority ... .  


                       The word "unlawful" in each instance implies the [actor's]  

                       lack of consent or authority [for the taking or the exertion of  



American Law Institute, Model Penal Code and Comments, Official Draft and Revised  


Commentary (1962), pp. 165-66.  

                       In Saathoff v. State, 991 P.2d 1280, 1284 (Alaska App. 1999), this Court  


recognized that this provision of the Model Penal Code "appears to be the source of the  


definition of 'obtain' codified in AS 11.46.990[(12)] - 'to exert control over property  

of another'."   

      7    Perkins & Boyce , pp. 358-59; LaFave ,  19.6(b), Vol. 3, pp. 100-01.  

                                                                      - 11 -                                                                  2453

----------------------- Page 12-----------------------

                        But unlike the vast majority of other states that enacted theft statutes based         


on the Model Penal Code,                                                                                                               

                                                  the drafters of Alaska's criminal code did not include the  


words "unauthorized" or "unlawful" when they defined the word "obtain".  Instead, the  


drafters defined "obtain" as simply "to exert control over property of another".  See  

Tentative Draft 11.46.990(6), Alaska Criminal Code Revision Subcommission, Tentative  

Draft, Part 3 ("Offenses Against Property"), p. 98.  

                        There is nothing in the Tentative Draft of our criminal code explaining (or  


even commenting) on the drafters' omission of "unauthorized" or "unlawful".  There is  


only a derivation note, saying that Alaska's definition was based on the Oregon theft  


statutes - that it came from Oregon Statute 164.005.  Id. at 104.  

                        This  Oregon  statute  uses  the  word  "appropriate"  rather  than  the  word  

"obtain" to describe the actus reus of theft.  But, like Alaska's definition of "obtain", the  

Oregon  definition  of  "appropriate"  does  not  include  the  words  "unauthorized"  or  


      8     See  Alabama  Stats.    13A-8-1(7)  ("obtains  or  exerts  unauthorized  control  over  

property"); Colorado Stats.  18-4-401(1)(a) ("obtains or exercises control over anything of  

value  ...  without  authorization,  or  by  threat  or  deception");  Hawai'i  Stats.    708-830(1)  

("obtains or exerts unauthorized control over property"); Illinois Stats. 720 ILCS 5/16-1(a)(1)  

(obtaining  or  exerting  unauthorized  control  over  property  of  another);  Indiana  Stats.    

35-43-4-2(a)  ("exerts  unauthorized  control  over  property  of  another  person");  Maryland  

Stats., Criminal Law,  7-104(a) ("obtains or exerts unauthorized control over property");   

Montana Stats.  45-6-301(1) ("obtains or exerts unauthorized control over property"); New       

Hampshire Stats.  637:3(I)  ("obtains or exercises unauthorized control over the property   

of  another");  Ohio  Stats.    2913.02(A)(1)  ("obtain  or  exert  control   over  ...  property  ...  

without the consent of the owner or person authorized to give consent."); Pennsylvania Stats.  

  3921(a)  ("unlawfully  takes,  or  exercises  unlawful  control  over,  movable  property  of  

another"); Washington Stats.  9A.56.020(1)(a) ("wrongfully obtain or exert unauthorized  



                                                                        - 12 -                                                                    2453

----------------------- Page 13-----------------------


                              "Appropriate property of another to oneself or a third             

                    person" or "appropriate" means to:  


                              (a)  Exercise control over property of another, or to aid  

                         a third person to exercise control over property of another,   

                         permanently   or for so extended a period or under such  

                         circumstances  as  to  acquire  the  major  portion  of  the  

                         economic value or benefit of such property; or  


                              (b) Dispose of the property of another for the benefit  

                         of oneself or a third person.  


                    But even though this statutory language does not expressly include the  

modifiers  "unauthorized"  or  "unlawfully",  the  Oregon  courts  have  construed  this  

language  to  require  proof  that,  when  the  defendant  "appropriated"  the  property  of  

another,  the  appropriation  was  unauthorized  or  unlawful  -  in  the  sense  that  it  

constituted a "substantial interference with [another person's] property rights", State v.  


Gray, 543 P.2d 316, 318 (Or. App. 1975), or that it constituted an "unauthorized control  


of property", State v. Jim , 508 P.2d 462, 470 (Or. App. 1973).  

                    The Oregon Court of Appeals' decisions in State v. Gray and State v. Jim  


were issued before the Alaska Criminal Code Revision Subcommission drafted our theft  


provision in 1977.  Thus, when the drafters of the Alaska theft statutes composed our  

definition of "obtain" (based on the Oregon statute), the Oregon courts had already  

construed their statute to require proof of an  unauthorized  exertion of control (even  


though the statute did not explicitly mention this requirement).   

                    For these reasons, we hold that Alaska's definition of "obtain", AS 11.46.- 

990(12)(A), includes a requirement that the defendant's exertion of control over the  

property  was  unauthorized.    This  interpretation  of  the  statute  is  supported  by  the  


principles of the common law, it is consistent with the law of Oregon (the state from  


                                                             - 13 -                                                        2453

----------------------- Page 14-----------------------

which our statute was immediately derived), and  it brings Alaska's law of theft into  


conformity with the law of every other jurisdiction (at least, every other jurisdiction we  


are aware of) that has enacted theft statutes based on the Model Penal Code.  

         Application of this law to Simon's case  

                   We have just held that the actus reus of theft requires proof, not just that  


the defendant exerted control over someone else's property, but that this exertion of  

control was unauthorized.  Thus, the supplemental instruction that the trial judge gave  

to Simon's jury was technically wrong.  Depending on the facts of a particular case, it  


might make a difference where a shoplifter is apprehended - because there might be  

cases  where  defendants  could  plausibly  argue  that  they  had  not  yet  taken  the  

merchandise anywhere that was inconsistent with the scope of their implicit authority as  


                   On this point, we wish to point out that even though a defendant's physical  

location when apprehended may be relevant to the issue of whether their exertion of  

control was unauthorized, physical location is not necessarily determinative.  There are  


other types of conduct that a person can engage in, within the confines of a retail store,  


that are inconsistent with a customer's scope of authority.  See, for example, State v.  

T.F., 2011WL 5357814 (Wash. App. 2011), where the Washington Court of Appeals  

upheld the theft conviction of a defendant whose female accomplice hid an item of  

merchandise under her clothes, even though the defendant and the accomplice never left  


the store:    


                            T.F. handed the belt to [the accomplice] R.M., [who,]  

                   rather than carrying it in the open, ... exerted unauthorized  

                   control over the belt by placing the belt under her shirt and  

                   starting toward the store's exit.  Concealing the belt in this  


                                                        - 14 -                                                     2453

----------------------- Page 15-----------------------

                   way was an act inconsistent with the store's ownership of the  

                   item ... .  On these facts, the trial court could have found that  

                   a third degree theft had been committed.  

T.F., 2011WL 5357814 at *2.  

                   Turning to the facts of Simon's case, we conclude that any technical flaw   

in the judge's response to the jury was harmless beyond a reasonable doubt.   

                   As we have explained, there was a dispute in Simon's case as to precisely  


where Simon was located when he was stopped by the store employee.  But under any  


version of the evidence, Simon had already gone through the check-out line - where he  


paid for a couple of food items while, at the same time, either hiding or disguising the  

jacket, the backpack, and the DVDs he had taken - and he was headed toward the exit  


when he was apprehended.   

                   Even viewed in the light most favorable to the defense, Simon's conduct  

constituted  the  actus  reus  of  theft.    His  conduct  was  inconsistent  with  the  scope  of  

possession granted to customers - regardless of whether Simon had reached the outer  


door, or even the  entrance to the vestibule, when he was stopped.  Thus, under the  

specific facts of Simon's case, the judge's response to the jury was correct:  any variation  


in the testimony on this point was irrelevant to Simon's guilt or innocence of theft.  

                   Simon also argues on appeal that the jury instructions on the lesser offense  


of attempted theft were flawed.  Given our resolution of the preceding issue, any error  


in the jury instructions on attempted theft was harmless.  

                   We accordingly affirm Simon's second-degree theft conviction.  

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           We uphold the sentencing judge's rejection of mitigating factor (d)(9) -  


           Simon's assertion that his conduct was among the least serious within the  

           definition of second-degree theft  


                     Simon presents one further claim on appeal.  At his sentencing, Simon  


contended  that  he  was  entitled  to  the  benefit  of  the  mitigating  factor  defined  in  


AS 12.55.155(d)(9) - that his conduct in committing this offense was among the least  


serious within the definition of second-degree theft.  The superior court rejected this  

proposed mitigator, and Simon now claims that the superior court's ruling was error.  

                     The items that Simon stole were valued at slightly over $100.  Normally,  


a     theft      of      this      amount          would         be      the      lesser       crime         of     third-degree  

theft. 9  

            But because of Simon's prior theft convictions (two or more theft convictions  

within   the   preceding   five   years),   his   offense   was   elevated   one   degree.      See  

AS 11.46.130(a)(6).   

                     In arguing  that his conduct was among the least serious second-degree  


thefts, Simon relies primarily on the fact the stolen items were worth $100 - i.e., at the  


low end of the $50-to-$500 range covered by the version of the statute that was in effect  


at the time of his offense. 10  



                     In addition, Simon argues that, because he was living on the streets, and  


because he had very few skills he could use to make a living, the items that he stole -  


most notably, a jacket and a backpack - could be viewed as necessities for him.  And  


Simon notes that he was cooperative with store personnel, and later with the police, after  

he was apprehended.   

     9     AS 11.46.140(a)(1) (theft of property valued between $50 and $500).  

     10    This  statute,  AS  11.46.140(a)(1),  has  since  been  amended:    it  now   requires  the  

government to prove that the stolen items were worth at least $250.                                    See  SLA 2014, ch. 83,     

 5 (effective July 17, 2014).  

                                                               - 16 -                                                            2453

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                         It is true, as Simon argues, that the value of the things he stole was toward         

the low end of the range for his offense.  But Simon's claim that he was merely trying  

to obtain necessities for his life on the streets is belied by his interaction with the store  


 security officer when he was apprehended.   

                        When Simon was apprehended, he handed the backpack and the DVDs to  


the Walmart employee, telling her, "There you go; there's your stuff.  I'm sorry; I was  


going to sell it."  In effect, Simon told the employee that he viewed the theft of the  

backpack and the DVDs as a commercial enterprise.  

                        Nor was Simon being as forthcoming as he wished to appear.  When he  

handed over the backpack and the DVDs, Simon still did not reveal that the jacket he was  


wearing  was also stolen.  This fact was only discovered later, when a police officer  


arrived  to take custody of Simon.  The officer noticed that most of Simon's clothes  


looked  "dingy", but Simon's  jacket looked  new.   And  when  the  officer  handcuffed  


 Simon, he saw a store tag on one of the jacket's sleeves.  Only then was the theft of the  


jacket revealed.  

                         Given all of this, we conclude that Simon failed to prove that his conduct  


was among the least serious within the definition of his offense. 11  



                         The judgement of the superior court is AFFIRMED.  

       11    See Michael v. State , 115 P.3d 517, 519-520 (Alaska 2005), where the supreme court         

held  that  the  question  of  whether  mitigator  (d)(9)  is  established  under  the  facts  of  any  

particular case is an issue that an appellate court decides                                       de novo  -  i.e., without deference  

to the trial judge's ruling.  

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