Simon v. State

349 P.3d 191 (2015)

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Simon v. State

Alaska Court of Appeals
349 P.3d 191 (2015)

  • Written by Alexander Hager-DeMyer, JD

Facts

Harold Simon (defendant) entered a Walmart store in Anchorage, Alaska. Walmart allowed customers to exert control over merchandise before entering the register area and purchasing the items. Simon took a jacket from a sales rack, tried it on, and continued to wear it while walking through the store. Simon did the same with a backpack. Simon placed several DVDs and food items in the backpack. Simon paid for some items at the register and attempted to leave the store without paying for the backpack full of merchandise or the jacket. A Walmart employee detained Simon and called the police. Simon returned the full backpack and the jacket. Due to previous convictions for theft, Simon was indicted for second-degree theft, the crime of stealing property worth at least $50 by someone with two or more prior theft convictions in the last five years. For the trial, Simon stipulated to his past record, so the only issue litigated was whether Simon had stolen the Walmart merchandise. The court’s instructions stated that the jury had to decide whether Simon intended to take the items from Walmart without paying for them, regardless of where in the store he was confronted by the employee. The jury convicted Simon, and he appealed the case to the Alaska Court of Appeals. Simon argued that the jury instruction was flawed because theft required exerting control over the property of another, and depending on Simon’s location in the store, he may only have attempted theft rather than completing the act.

Rule of Law

Issue

Holding and Reasoning (Mannheimer, J.)

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