OPINION
COATS, Judge.
Rodney Smith was convicted of concealment of merchandise in violation of AMC 8.05.550(B).
On appeal Smith argues his conviction should be reversed because the jury was not instructed that in order to convict him the jury had to find proof that he had a specific intent to conceal and a specific intent to permanently deprive the owner of the merchandise. We conclude that the ordinance does not require a specific intent to permanently deprive the owner of the merchandise. However, we interpret the ordinance as requiring an intent to conceal merchandise. We find that the instructions which the trial court gave in this case sufficiently informed the jury of the requirement of an intent to conceal and, accordingly, we affirm Smith’s conviction.
On January 9,1981, in the Gambell Street Safeway store, security guard Kenneth Ray observed Smith carrying a bottle of Calvert’s Extra whiskey. When Ray approached Smith, he observed a bulge in Smith’s jacket. Smith then walked to the back of the store and left the bottle of whiskey in a section of wine bottles. Smith was ultimately convicted of concealment of merchandise.
At trial, defense counsel requested an instruction which stated that a specific intent to permanently deprive the owner of the concealed merchandise was a necessary element for conviction. The prosecutor argued that the ordinance required only general intent. The trial court refused to instruct the jury that an intent to deprive the owner of property was a necessary element for conviction. The jury was instructed that willful concealment of merchandise was necessary for conviction. Instructions defining the words “willfully”
and “conceal”
were given. The jury was also
instructed that general intent
was necessary for conviction.
We begin our analysis by noting that there is no state statutory prohibition to the enactment of AMC 8.05.550(B). Because Anchorage is a home rule municipality, the Municipal Assembly has the power, unless expressly or impliedly prohibited by state statute, to enact a concealment statute which does not require specific intent. Alaska Const, art. X, § II;
Jefferson v. State,
527 P.2d 37, 43 (Alaska 1974). Enforcement of AMC 8.05.550(B) does not prevent giving any statute the full weight of law.
We will first consider whether a specific intent to permanently deprive is a necessary element of the offense. Smith argues that when drafting AMC 8.05.550(B), it was the legislative intent to include specific intent to permanently deprive as a necessary element. He states that the element of specific intent must be implied, because there is no indication that the municipality intended to delete the specific intent element designated in the state statute, AS 11.46.220
and its predecessor, AS 11.20.-275.
He offers no authority for this position. This argument might be valid if the municipal ordinance were derived from the state statute. However, the shoplifting ordinance, AMC 8.05.550, was adopted from the Greater Anchorage Area Borough Code 18.05.040, which was identical to the current ordinance.
Secondly, Smith argues that because shoplifting is a common law, larceny-type offense, specific intent to permanently deprive must be required by implication. Smith does not question the constitutionality of the ordinance. However, as noted in
Kimoktoak v. State,
584 P.2d 25, 31 (Alaska 1978) and
State v. Rice,
626 P.2d 104, 108 (Alaska 1981), the “danger of unconstitutionality is a relevant concern in determining whether to construe intent into the regulation.”
Most states enacted shoplifting statutes in the 1950’s and 1960’s, when it became apparent that traditional larceny statutes were inadequate to control shoplifting.
See
Note,
Shoplifting
— An
Analysis of Legal Controls,
32 Ind.L.J. 20 (1956); Comment,
Legislation
— Survey
and Analysis of Criminal and Tort Aspects of Shoplifting Statutes,
58 Mich.L.Rev. 429, 432 (1960); Comment,
Shoplifting and the Law of Arrest: The Merchant’s Dilemma,
62 Yale L.J. 788 (1952). As one commentator states:
Because the elements needed to prove larceny do not coincide with the evidence often available in shoplifting cases, convictions were difficult to obtain. For example, unless a witness saw the taking and subsequent departure from the premises without payment for the goods, it was hard to prove the essential element of an intent to deprive the owner of his property or to appropriate the property to the taker’s own use. In an attempt to facilitate criminal prosecutions, some of the new statutes provide that certain specific acts shall constitute the crime of shoplifting.
Potentially, the most effective criminal provision is the ‘willful concealment’ type of legislation ... In those states [
] with no statutory intent requirement, prosecution is facilitated by the fact that an offender can be accosted on the premises, and also by the use of statutory presumptions which provide that goods found concealed upon the person constitute
prima facie
evidence of willful concealment.
58 Mich.L.Rev. at 433, 435 (footnotes omitted).
The North Carolina “willful concealment” statute was upheld as constitutional in
State v. Hales,
122 S.E.2d 768 (N.C.1961). The language of the statute is nearly identical to Anchorage’s ordinance.
In
Hales,
the defendant argued that the statute was unconstitutional because the crime of shoplifting was a common law crime which required a specific intent to permanently deprive. The court concluded that “the offense charged therein is not based on a violation of the common law.”
Id.
at 773. We agree. The
Hales
court also held that it was within the legislature’s power to outlaw concealment of merchandise without requiring proof of a specific intent to permanently deprive. It ruled that such a law bore a rational relation to the need to deter store thefts and insulate store managers from civil suits for false arrests and imprisonment. Again, we agree.
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OPINION
COATS, Judge.
Rodney Smith was convicted of concealment of merchandise in violation of AMC 8.05.550(B).
On appeal Smith argues his conviction should be reversed because the jury was not instructed that in order to convict him the jury had to find proof that he had a specific intent to conceal and a specific intent to permanently deprive the owner of the merchandise. We conclude that the ordinance does not require a specific intent to permanently deprive the owner of the merchandise. However, we interpret the ordinance as requiring an intent to conceal merchandise. We find that the instructions which the trial court gave in this case sufficiently informed the jury of the requirement of an intent to conceal and, accordingly, we affirm Smith’s conviction.
On January 9,1981, in the Gambell Street Safeway store, security guard Kenneth Ray observed Smith carrying a bottle of Calvert’s Extra whiskey. When Ray approached Smith, he observed a bulge in Smith’s jacket. Smith then walked to the back of the store and left the bottle of whiskey in a section of wine bottles. Smith was ultimately convicted of concealment of merchandise.
At trial, defense counsel requested an instruction which stated that a specific intent to permanently deprive the owner of the concealed merchandise was a necessary element for conviction. The prosecutor argued that the ordinance required only general intent. The trial court refused to instruct the jury that an intent to deprive the owner of property was a necessary element for conviction. The jury was instructed that willful concealment of merchandise was necessary for conviction. Instructions defining the words “willfully”
and “conceal”
were given. The jury was also
instructed that general intent
was necessary for conviction.
We begin our analysis by noting that there is no state statutory prohibition to the enactment of AMC 8.05.550(B). Because Anchorage is a home rule municipality, the Municipal Assembly has the power, unless expressly or impliedly prohibited by state statute, to enact a concealment statute which does not require specific intent. Alaska Const, art. X, § II;
Jefferson v. State,
527 P.2d 37, 43 (Alaska 1974). Enforcement of AMC 8.05.550(B) does not prevent giving any statute the full weight of law.
We will first consider whether a specific intent to permanently deprive is a necessary element of the offense. Smith argues that when drafting AMC 8.05.550(B), it was the legislative intent to include specific intent to permanently deprive as a necessary element. He states that the element of specific intent must be implied, because there is no indication that the municipality intended to delete the specific intent element designated in the state statute, AS 11.46.220
and its predecessor, AS 11.20.-275.
He offers no authority for this position. This argument might be valid if the municipal ordinance were derived from the state statute. However, the shoplifting ordinance, AMC 8.05.550, was adopted from the Greater Anchorage Area Borough Code 18.05.040, which was identical to the current ordinance.
Secondly, Smith argues that because shoplifting is a common law, larceny-type offense, specific intent to permanently deprive must be required by implication. Smith does not question the constitutionality of the ordinance. However, as noted in
Kimoktoak v. State,
584 P.2d 25, 31 (Alaska 1978) and
State v. Rice,
626 P.2d 104, 108 (Alaska 1981), the “danger of unconstitutionality is a relevant concern in determining whether to construe intent into the regulation.”
Most states enacted shoplifting statutes in the 1950’s and 1960’s, when it became apparent that traditional larceny statutes were inadequate to control shoplifting.
See
Note,
Shoplifting
— An
Analysis of Legal Controls,
32 Ind.L.J. 20 (1956); Comment,
Legislation
— Survey
and Analysis of Criminal and Tort Aspects of Shoplifting Statutes,
58 Mich.L.Rev. 429, 432 (1960); Comment,
Shoplifting and the Law of Arrest: The Merchant’s Dilemma,
62 Yale L.J. 788 (1952). As one commentator states:
Because the elements needed to prove larceny do not coincide with the evidence often available in shoplifting cases, convictions were difficult to obtain. For example, unless a witness saw the taking and subsequent departure from the premises without payment for the goods, it was hard to prove the essential element of an intent to deprive the owner of his property or to appropriate the property to the taker’s own use. In an attempt to facilitate criminal prosecutions, some of the new statutes provide that certain specific acts shall constitute the crime of shoplifting.
Potentially, the most effective criminal provision is the ‘willful concealment’ type of legislation ... In those states [
] with no statutory intent requirement, prosecution is facilitated by the fact that an offender can be accosted on the premises, and also by the use of statutory presumptions which provide that goods found concealed upon the person constitute
prima facie
evidence of willful concealment.
58 Mich.L.Rev. at 433, 435 (footnotes omitted).
The North Carolina “willful concealment” statute was upheld as constitutional in
State v. Hales,
122 S.E.2d 768 (N.C.1961). The language of the statute is nearly identical to Anchorage’s ordinance.
In
Hales,
the defendant argued that the statute was unconstitutional because the crime of shoplifting was a common law crime which required a specific intent to permanently deprive. The court concluded that “the offense charged therein is not based on a violation of the common law.”
Id.
at 773. We agree. The
Hales
court also held that it was within the legislature’s power to outlaw concealment of merchandise without requiring proof of a specific intent to permanently deprive. It ruled that such a law bore a rational relation to the need to deter store thefts and insulate store managers from civil suits for false arrests and imprisonment. Again, we agree. AMC 8.05.550(B) passes constitutional muster without requiring proof of a specific intent to deprive.
However, the Anchorage ordinance must be interpreted to require an intent to conceal property. The intent of the ordinance was to prohibit a person from intentionally concealing merchandise. To construe the ordinance otherwise could lead to constitutional problems by allowing a person to be convicted of a crime where he had no criminal intent.
State v. Rice,
626 P.2d 104 (Alaska 1981).
Construing the ordinance to require an intent to conceal meets the substantive due process problem suggested in
Rice.
Almost all people are aware that concealing merchandise will arouse suspicion and, if detected, will probably result in allegations of criminal conduct. We therefore believe that a person who violates the ordinance, if found to have a specific intent to conceal
merchandise, has received adequate notice that his conduct is illegal. In addition, concealment of merchandise is reasonably related to the legitimate purpose of preventing theft.
See State v. Rice,
626 P.2d at 110.
Although we believe that the instructions given in the instant case would have been better if the instruction on the elements of the offense had told the jury' that the defendant had to have an intent to conceal the property, we believe that the instruction which stated that the jury had to find the defendant “wilfully concealed . . . merchandise” was adequate. First, although the defendant asked the court to instruct the jury that a specific intent to permanently deprive the owner of property was required, he never specifically objected that the instructions which the trial judge gave did not adequately convey that the jury had to find an intent to conceal the property. Given the definitions of “willfully” and “conceal” which the court included in the jury instructions, we believe that the jury would have understood that in order to convict Smith, it had to find that he intended to conceal the merchandise. Furthermore, Smith’s defense at trial was not that he did not intend to conceal the merchandise, but that he never concealed the merchandise. Any error in the instructions was therefore harmless beyond a reasonable doubt.
Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Accordingly the conviction is AFFIRMED.