Opinion
Court of Appeals No. A-12081 No. 6408
12-21-2016
DANIEL ALEX ROCERO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael A. Moberly, Hozubin, Moberly, Lynch & Associates, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-14-1443 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Jennifer Henderson, Judge. Appearances: Michael A. Moberly, Hozubin, Moberly, Lynch & Associates, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Daniel Alex Rocero was convicted of third-degree theft after he was stopped while attempting to leave an Anchorage Walmart store with $239.02 of unpaid- for merchandise in his shopping cart. Rocero challenges his conviction on appeal, arguing that the definition of theft under Alaska law is unconstitutionally vague. He also challenges the sufficiency of the evidence supporting his conviction. For the reasons explained below, we reject these arguments and affirm Rocero's conviction.
Relevant factual background
In January 2014, Rocero was shopping at an Anchorage Walmart when he attracted the attention of David Kamer, a loss-prevention officer. According to Kamer, Rocero was nervous, fidgety, and "[l]ooking around the aisles to make sure nobody else was around." While Kamer surreptitiously observed, Rocero placed several items from the automotive area into his shopping cart. He then selected a large trunk, placed all the previous items inside it, and moved the closed trunk into his cart.
Rocero "wandered around the store for a while" and then walked to the jewelry counter at the front of the store. As Kamer observed from behind a nearby clothing rack, Rocero purchased a single item from the jewelry case with the assistance of a jewelry counter employee. Rocero did not attempt to pay for the other merchandise in the cart, and neither Rocero nor the employee opened the trunk during the transaction.
Rocero then walked to the McDonald's restaurant inside the Walmart, which was located past the cash registers and next to the store's exit. After a short time, Rocero left McDonald's and pushed his cart toward the exit doors. Kamer and another store employee stopped Rocero after he passed the first set of exit doors and detained him for shoplifting.
For this conduct, Rocero was charged with third-degree theft. At trial, Kamer testified to the events recounted above. The jury found Rocero guilty, and this appeal followed.
Former AS 11.46.140(a)(1) (2014), later amended by ch. 36, § 7, SLA 2016.
The theft statute is not unconstitutionally vague
Under AS 11.46.100, "[a] person commits theft if ... with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another." The legislature has defined "obtain" to include: "exert[ing] control over property of another."
AS 11.46.100(1).
AS 11.46.990(12)(A).
Rocero argues that the term "obtain" is unconstitutionally vague. According to Rocero, because the term's definition does not require that a person unlawfully exert control over the property of another, a person could be found guilty of theft for simply picking up an item at a retail store, even when the person intended to pay for the item before leaving the store.
But in Simon v. State, we held "that Alaska's definition of 'obtain' includes a requirement that the defendant's exertion of control over the property was unauthorized."
349 P.3d 191 (Alaska App. 2015).
Id. at 197.
Rocero argues that, notwithstanding this Court's holding in Simon, the term "obtain" is still unconstitutionally vague because an ordinary person would not know when their control over property is unauthorized in the context of a retail environment. Rocero claims that this Court's interpretation of theft "conditioned a defendant's theft liability on the variable policies and enforcement measures of a given retailer."
When determining whether a statute is unconstitutionally vague, we must consider two factors: "First, whether the statute gives adequate notice of the conduct that is prohibited and, second, whether the statute's language is so imprecise that it encourages arbitrary enforcement by allowing prosecuting authorities too much discretion in determining the scope of the law."
Leu v. State, 251 P.3d 363, 367 (Alaska App. 2011).
Turning to the first factor, we have previously explained that "[a] statute will not be invalidated on its face on vagueness grounds unless it is impermissibly vague in all its applications." Thus, "the possibility of difficult or borderline cases will not invalidate a statute where there is a hard core of cases to which the ordinary person would doubtlessly know the statute unquestionably applies."
Id.
Stock v. State, 526 P.2d 3, 9 (Alaska 1974).
Here, we conclude that the statute gives adequate notice of what conduct is prohibited. As we explained in Simon, theft in a retail context requires a person to "perform[] an act that exceeds, or is otherwise inconsistent with, the scope of physical possession granted to customers by the store owner." An ordinary person would, at a minimum, understand that Rocero's conduct — placing multiple items into a shopping cart, paying for a single item, and then attempting to leave the store with the remaining unpurchased merchandise — fell within the "hard core" of theft.
Simon, 349 P.3d at 192.
Rocero also asks us to invalidate the statute because it encourages arbitrary enforcement. But Rocero has provided no evidence of past arbitrary enforcement and "we cannot on the basis of such mere hypothesis, in the absence of actual arbitrary application, invalidate the statute."
Stock, 526 P.2d at 12.
We accordingly reject Rocero's vagueness challenge.
The evidence against Rocero was sufficient to support his conviction
Rocero also challenges the sufficiency of the evidence supporting his theft conviction. Specifically, he argues that his conviction was based solely on Kamer's uncorroborated testimony. He points out that the State neither presented surveillance video of the incident, nor supporting evidence of Rocero's transaction at the jewelry counter.
But when reviewing a claim of insufficient evidence, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to the jury's verdict. We then ask "whether, viewing the evidence in that light, a reasonable [juror] could have concluded that the State's case was proved beyond a reasonable doubt." Importantly, we do not re-weigh the evidence or re-assess witness credibility.
See, e.g., Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Id. --------
Having reviewed the record in this case, we conclude that the State presented sufficient evidence for a reasonable juror to find Rocero guilty beyond a reasonable doubt.
Conclusion
We AFFIRM the judgment of the district court.