                                                                                                    01\ 21-S ION 11

                                                                                            2014 OCT 21
                                                                                             STi\

                                                                                             BY

      IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                                    DIVISION II

    STATE OF WASHINGTON,                                                         No. 44811 -4 -II


                                      Appellant,


            v.

                                                                             PUBLISHED OPINION
    TOM ALLEN REEVES,


                                      Respondent.




           MAxA, J. —      The State appeals the trial court' s dismissal pursuant to a Knapstadl


motion of the charge against Tom Allen Reeves for third degree retail theft with


extenuating      circumstances.     Under former RCW 9A.56. 360( 1),( b) (       2006), 2 an extenuating

circumstance for retail theft includes being in possession of "an item, article, implement,

or device designed to overcome security systems including, but not limited to, lined bags

or   tag   removers."   The evidence showed that Reeves used pliers to remove a security

device before shoplifting a security camera from Walmart. The trial court ruled that the

pliers was not a device designed to overcome security systems. We agree with the trial




1 State v. Knapstad, 107 Wn.2d 346, 729 P. 2d 48 ( 1986).

2
    The legislature amended RCW 9A.56. 360, effective 2014, and changed " extenuating
circumstances"      to "   special circumstances ".          The amendment does not otherwise affect the
subsection cited.       LAWS   OF   2013   ch.   153, § 1.
44811 -4 -II




court and affirm the dismissal of the charge against Reeves for third degree retail theft

with extenuating circumstances.


                                                    FACTS


        On February 15, 2013, a Walmart asset protection associate saw Reeves use pliers to cut

the cables of a spider wrap security device that encased a surveillance camera set. The associate

then watched as Reeves placed the surveillance camera set into a backpack and left the store. A


Chehalis police officer subsequently arrested Reeves and recovered the backpack with the

surveillance camera set inside.


        The State charged Reeves with third degree retail theft with extenuating circumstances

based on the theory that Reeves' s use of pliers to remove the spider wrap was an extenuating

circumstance. Reeves filed a pretrial Knapstad motion, arguing that the pliers was not a device

designed to overcome retail security systems and therefore the use of pliers was insufficient to

support the theft with extenuating circumstances charge. The trial court granted Reeves' s

motion, ruling that the pliers was not a device designed to overcome security systems. The trial

court reasoned that including common tools into the definition of devices designed to overcome

security systems would render every act of removing a security device an extenuating

circumstance.




         The State appeals.


                                                  ANALYSIS


         Under former RCW 9A.56. 360( 1)( b), a person commits retail theft with extenuating


circumstances if he or she commits theft from a mercantile establishment and " the person was, at

the time of the theft,   in   possession of an   item,   article,   implement,   or   device designed to overcome
44811 -4 -II




security   systems    including, but   not   limited to, lined bags   or   tag   removers" ( emphasis added).




The State argues that former RCW 9A.56. 360( 1)( b) criminalizes possession of any tool,

including pliers, used with the intent to overcome a security device. We disagree and hold that

ordinary pliers is excluded from the definition of "item, article, implement, or device designed to

overcome security systems" in former RCW 9A.56. 360( 1)( b).

A.      STANDARD OF REVIEW


        To prevail on a Knapstad motion, a defendant must show that there are no material


disputed facts and the undisputed facts do not establish a prima facie case of guilt. State v.

O' Meara, 143 Wn.       App.    638, 642, 180 P. 3d 196 ( 2008). We review a trial court' s dismissal of a


criminal charge under a Knapstad motion de novo, considering the facts and reasonable

inferences in the light most favorable to the State. State v. Newcomb, 160 Wn. App. 184, 188-

89, 246 P. 3d 1286 ( 2011).


        The trial court' s dismissal was based on its interpretation of former RCW

9A.56. 360( 1)( b).    We also review questions of statutory interpretation de novo. State v. Ervin,

169 Wn.2d 815, 820, 239 P. 3d 354 ( 2010).


B.      PRINCIPLES OF STATUTORY INTERPRETATION


        We employ statutory interpretation " to determine and give effect to the intent of the

legislature."   State   v.   Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013) (          quoting State v. Sweany,

174 Wn.2d 909, 914, 281 P. 3d 305 ( 2012)).            To determine legislative intent, we first look to the


plain language of the statute considering the text of the provision in question, the context of the

statute, and the statutory scheme as a whole. Evans, 177 Wn.2d at 192. We give undefined




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44811 -4 -II




terms their plain and ordinary meaning unless a contrary legislative intent is indicated. Ervin,

169 Wn.2d at 820.


         If the plain language of the statute is susceptible to more than one reasonable


interpretation, the statute is ambiguous. Ervin, 169 Wn.2d at 820. We first attempt to resolve


the ambiguity and determine the legislature' s intent by resorting to other indicia of legislative

intent, including principles of statutory construction, legislative history, and relevant case law.

Ervin, 169 Wn.2d at 820. If these indications of legislative intent are insufficient to resolve the


ambiguity, under the rule of lenity we must interpret the ambiguous statute in favor of the

defendant. Evans, 177 Wn.2d          at   192 -93.    We will construe an ambiguous criminal statute


against the defendant only where the principles of statutory construction clearly establish that the

legislature intended such an interpretation. Evans, 177 Wn.2d at 193.


C.       LANGUAGE OF FORMER RCW 9A.56. 360


         We first examine the plain language of the phrase " item, article, implement, or device


designed to    overcome   security   systems"        in former RCW 9A. 56. 360( 1)( b) (   emphasis added).   If a


word is not specifically defined by statute, we derive the plain meaning of non -technical words

using   dictionary   definitions. State    v.   Kintz, 169 Wn.2d 537, 547, 238 P. 3d 470 ( 2010). The


State relies on Webster' s definition of "designed" as " done, performed, or made with purpose


and   intent." WEBSTER'    S   THIRD NEW INTERNATIONAL DICTIONARY 612 ( 2002) ( WEBSTER' S).


However, the singular term " design" has multiple definitions.3 WEBSTER' S at 611 - 12.




3 The word can be used as a verb, noun, or even adjective. WEBSTER' S at 611 - 12. All forms
come    from the   same common       Latin   root,    designare. WEBSTER'    S at   611. Former RCW
9A.56. 360( 1)( b) uses the verb form of the word, but the definitions of the noun form are also
instructive for our interpretive purposes.

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44811 -4 -II



          Different   dictionary definitions    of "design,"   the    root word of "designed,"    support the



differing interpretations that the State and Reeves advocate. One definition of "design" is " to

create,   fashion,   execute, or construct    according to   plan."     WEBSTER' S   at   611. This definition


supports Reeves' argument that former RCW 9A.56. 360( 1)( b) applies only if a device is

specifically constructed to overcome a security system. But another definition is " a particular

purpose    held in   view   by   an   individual." WEBSTER'    S at   611. This definition supports the State' s


argument that former RCW 9A.56. 360( 1)( b) applies if the defendant intends to use a device to


overcome security systems.


          The meaning of former RCW 9A.56. 360( 1)( b) is unclear in part because the statute does

not indicate to whom the term " designed" refers. Adding the phrase " by the manufacturer" after

the term " designed" suggests a different meaning than adding the phrase " by the defendant" after

the term " designed."


          Because the phrase " item, article, implement, or device designed to overcome security

systems" is susceptible to two reasonable interpretations, we hold that former RCW

9A.56.360( 1)( b) is ambiguous with regard to whether pliers falls within the statutory language.

D.        RESOLVING STATUTORY AMBIGUITY


          Because the language of former RCW 9A.56. 360( 1)( b) is ambiguous, we first turn to the


principles of statutory construction, the legislative history, and the statutory scheme to determine

the legislature' s intent. If this analysis still does not clearly show the legislature' s intent, the rule

of lenity requires us to interpret the statute in Reeves' s favor. Evans, 177 Wn.2d at 193.




                                                         5
44811 -4 -II



            1.    Statutory Construction

            Two statutory construction principles favor interpreting former RCW 9A.56. 360( 1)( b) as

applying only to devices made specifically for the purpose of overcoming security systems and

not to ordinary devices the defendant uses to overcome security systems.

            First, we recognize that " specific words modify and restrict the meaning of general words

when       they   occur     in   a sequence."    State v. Gonzales Flores, 164 Wn.2d 1, 13, 186 P. 3d 1038


 2008) (     describing the statutory interpretation principle of ejusdem generis). 4 Here, the

legislature specifically listed lined bags and tag removers as examples of an " item, article,

implement,        or   device designed to        overcome    security   systems."   Former RCW 9A.56. 360( 1)( b).


Although neither the statute nor the legislative history defines " lined bags" or " tag removers,"

they appear to be devices that have little utility aside from blocking a store security scanner or

removing retail security tags. The fact that the legislature provided these specific examples

suggests that the general terms should be given a similar interpretation: devices that have a


primary purpose of facilitating retail theft. This interpretation would not include ordinary pliers,

which have many purposes independent of retail theft.

            Second, we may compare the wording of statutes that " relate to the same person or thing,

or   the   same class       of persons    or   things."   See In re Yim, 139 Wn.2d 581, 592, 989 P. 2d 512 ( 1999)


    quoting State      v.   Houck, 32 Wn. 2d 681, 684, 203 P. 2d 693 ( 1949)).          We therefore look to other


criminal statutes describing the use of tools for specific purposes. The legislature used broad




4
    Similarly, we       read words      in   context — "  the meaning of a word may be indicated or controlled
by    a reference      to   associated words."       Gonzales Flores, 164 Wn.2d at 12 ( explaining the statutory
interpretation         principle of noscitur a sociis).
44811 -4 -II




language when criminalizing the possession or use of burglar tools, defining such tools as an

 implement adapted, designed or commonly used" for the commission of burglary. RCW

9A. 52. 060( 1) (    emphasis added).       The legislature adopted identical language when defining motor

vehicle   theft tools in   RCW 9A.56. 063( 1).          If the legislature had intended to criminalize the


possession of any device a defendant used to overcome security systems, it could have included

similar   broad language in        former RCW 9A. 56. 360( 1)( b). Instead the legislature used the precise

word "    designed"     rather   than the   more general word " used,"          suggesting that it did not intend

 designed" to       mean " used."       The State' s interpretation of "designed" as synonymous with " used"


is inconsistent with the legislature' s use of a precise word to deliberately convey a different

meaning in the burglary and theft tools statutes.

          2.    Legislative History /Statutory Scheme

          The minimal legislative history of former RCW 9A.56. 360 and the statutory scheme do

not strongly support either Reeves' s or the State' s arguments. However, they do provide some

support for interpreting former RCW 9A.56. 360( 1)( b) as applying only to devices made

specifically for the purpose of overcoming security systems and not to ordinary devices a

defendant intends to use to facilitate retail theft.


          According to both the Senate and House bill reports, testimony in favor of the bill that

included former RCW 9A. 56. 360 indicated that the legislation was necessary to combat

organized thieves who attack stores in concert, against whom anti -theft devices are ineffective.

S. B. REP.     on   H. B. 2704,   at   2, 59th   Leg., Reg. Sess. ( Wash. 2006);        H.B. REP. on H.B. 2704, at 4,


59th   Leg., Reg.      Sess. ( Wash. 2006).        The testimony stated that organized retail theft is not the

same as    traditional shoplifting. H.B. REP.           on   H. B. 2704,   at   4. We   might assume   that   organized
44811 -4 -II




thieves would use more specialized tools than traditional shoplifters, but there is nothing in the

legislative history that specifically addresses former RCW 9A.56. 360( 1)( b) or the use of devices

designed to overcome security systems.

        However, the overall statutory scheme reflects the legislature' s intent to target

sophisticated thieves. In addition to enacting retail theft with extenuating circumstances, the

legislature enacted the theft -related crimes of theft with intent to resell, RCW 9A.56. 340, and


organized retail theft, RCW 9A.56. 350. FINAL B. REP. on H.B. 2704, 59th Leg., Reg. Sess.

 Wash. 2006). The legislature also added theft with intent to resell and organized retail theft to


the definition of "criminal profiteering" under the Criminal Profiteering Act, former RCW

9A.82. 010 ( 2012). 5 FINAL B. REP. on H.B. 2704. Arguably, criminalizing tools specifically

made to facilitate theft, such as lined bags and tag removers, is more consistent with the

legislature' s intent to target sophisticated thieves than with criminalizing the use of ordinary

tools such as pliers.


        3.      Rule of Lenity

        Principles of statutory construction and an analysis of the legislative history and statutory

scheme do not resolve the ambiguity in former RCW 9A.56. 360( 1)( b) in the State' s favor. If

anything, these interpretive aids tend to 'support interpretation of the statute in Reeves' s favor.

They definitely do not " clearly establish" that the legislature intended the phrase " item, article,

implement,     or   device designed to      overcome    security   systems"   to include any   device —including


ordinary     pliers — a person uses to overcome security systems to commit retail theft.




5 RCW 9A.82. 010 was amended in August 2013, but the provisions at issue here were
unchanged.      LAWS    OF   2013,   ch.   302, § 10.


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        Because former RCW 9A.56. 360( 1)( b) is an ambiguous criminal statute, the rule of lenity

applies and we must strictly construe the statute in Reeves' s favor. Evans, 177 Wn.2d at 193.

Accordingly, we hold that former RCW 9A.56. 360( 1)( b) does not apply to Reeves' s use of

ordinary pliers to remove a security device.

        We affirm the trial court' s dismissal of the charge against Reeves for third degree retail

theft with extenuating circumstances.




We concur:




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