## Facts

- Harold Evan Simon entered a self-service retail store and selected multiple items of merchandise.
- He placed some items openly in a shopping cart while concealing or disguising other items among them.
- Simon went through the checkout line and paid only for a few inexpensive items, without paying for the concealed/disguised items.
- After the checkout, Simon pushed the cart toward the store exit while still possessing the unpaid merchandise.
- A store employee stopped Simon near the front of the store; witnesses differed on whether he was at the outer door, in the vestibule, or approaching it.
- It was undisputed that Simon had passed the registers, paid for only some items, and was taking the unpaid concealed items toward the exit.

## Issues

1. In a self-service retail store, is the *actus reus* of theft completed only when the defendant physically leaves the store with unpaid merchandise?
2. Alternatively, is theft completed earlier when, with intent to steal, the defendant performs an act with the merchandise that exceeds or is inconsistent with the store’s limited permission granted to customers?

## Decision

- The Alaska Court of Appeals affirmed Simon’s conviction for fourth-degree theft.
- The court held that theft in a self-service store is complete when a person, acting with intent to deprive the owner, performs an act exceeding or inconsistent with the store’s limited grant of possession to customers.
- The court rejected the State’s view that theft is complete upon removing an item from a shelf if accompanied by intent to steal.
- The court rejected Simon’s view that theft is not complete until the person physically exits the premises.
- Simon’s conduct—concealing/disguising merchandise, passing through checkout without paying for those items, and proceeding toward the exit—constituted the completed *actus reus* of theft regardless of whether he had fully exited.

## Legal Principles

- In a self-service retail setting, a store’s consent allows customers to handle and carry merchandise only for shopping and purchase; theft occurs when conduct exceeds that limited license.
- Mere removal of merchandise from a shelf, even with intent not to pay, is not by itself a completed theft because it is within the scope of the store’s permission.
- Physical departure from the store is not required for completion of theft; the relevant inquiry is whether the defendant’s acts show unauthorized appropriation inconsistent with the granted permission.
- Evidence is sufficient when, viewed favorably to the verdict, it permits a rational factfinder to conclude beyond a reasonable doubt that the defendant both (a) acted inconsistently with authorized possession and (b) intended to deprive the owner.

## Conclusion

The court affirmed the theft conviction because Simon’s deceptive concealment of items, passage through checkout without paying for them, and movement toward the exit exceeded the store’s limited permission to possess merchandise while shopping, completing the *actus reus* of theft even without proof that he left the premises.


Simon v. State, 349 P.3d 191 (Alaska Ct. App. 2015)