Simon v. State

349 P.3d 191 (2015)

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Nature of the Case

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Facts

D went to a Walmart. D took a jacket from a sales rack, put it on, and continued to wear it as he walked through the store. D also took a backpack and started carrying it around. D placed several DVDs in the backpack. Simon then picked up a couple of food items. D 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. D left the cash register area and headed for the store exit. Before he 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. D 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 D's jacket was also unpaid-for. (It still had the Walmart tags on it.) D was indicted for second-degree theft. D presented no evidence. D's attorney argued in closing that D 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). D's attorney suggested that D 'didn't deprive anyone of property' because 'he didn't even enter the vestibule [leading to the final exit door].' The jury was instructed that before Simon could be found guilty of theft, P had to prove that Simon 'exerted control over the property of another.' The jury was reinstructed that, 'The issue for you to decide is whether P proved, beyond a reasonable doubt, that D intended to take the items from Walmart without paying for them, without regard to any particular area where he was confronted by the Walmart employee. D was found guilty and appealed.