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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HAROLD EVAN SIMON,
Court of Appeals No. A-11002
Appellant, Trial Court No. 3AN-10-10229 CR
v.
O P I N I O N
STATE OF ALASKA,
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).
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1
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
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
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.
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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
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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
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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
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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
comment.
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
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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
theft.
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,
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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
store.
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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.
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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).
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with the property that was inconsistent with the type or scope of control that the property
7
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
control].
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.
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But unlike the vast majority of other states that enacted theft statutes based
8
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
"unlawful":
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
control").
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"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
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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
customers.
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
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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).
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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
Conclusion
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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