       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       DIVISION ONE                              r-l

                         Respondent,
                                                       No. 71238-1-1


                                                       PUBLISHED OPINION
ZACHARY SCOTT LARSON,
a.k.a. ZACH LARSON,

                         Appellant.                    FILED: February 17, 2015


        Dwyer, J. — Zachary Larson attempted to steal a pair of shoes from a

retail store. The shoes were equipped with a security device that was attached

to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the

store, severed the wire and removed the security device. When Larson tried to

leave the store, he was stopped by security employees and, subsequently, was

charged with one count of retail theft with extenuating circumstances, which

criminalizes the commission of retail theft while in possession of a "device

designed to overcome security systems." Former RCW 9A.56.360(1 )(b) (2013).1
After a bench trial resulted in his conviction, he appealed, arguing that because

wire cutters do not constitute a device designed to overcome security systems,

the evidence was insufficient to support his conviction. Given our contrary

        1 RCW 9A.56.360 was amended, effective January 1, 2014, so as to replace every
instance of the phrase "extenuating circumstances" with "special circumstances." Laws of 2013,
ch. 153, § 1. The statutory language at issue in this matter was not altered by the amendment
and remains in effect.
No. 71238-1-1/2



conclusion that wire cutters do, in fact, constitute a device designed to overcome

security systems, we deny Larson's request for appellate relief and, instead,

affirm his conviction.

                                             I


       On May 17, 2013, Larson and his girlfriend, Meichielle Smith-Bearden,

entered a Marshalls store in Bellingham. Larson used wire cutters to sever the

wire that attached the security device to a pair of Nike shoes. By doing so, he

was able to remove the security device from the shoes. When the couple

attempted to leave the store without paying for the shoes, they were detained by
security and the police were called. Larson admitted to a responding officer that

he had intended to take the shoes without paying for them.

       On May 23, Larson was charged by amended information with one count

of retail theft with extenuating circumstances.

       (1) A person commits retail theft with extenuating circumstances if
       he or she commits theft of property from a mercantile establishment
       with one of the following extenuating circumstances:

               (b) The person was, at the time ofthe theft, in possession of
       an item, article, implement, or device designed to overcome
       security systems including, but not limited to, lined bags or tag
       removers.


Former RCW 9A.56.360.

       On November 8, Larson filed a Knapstad2 motion, seeking dismissal of the

charge. Therein, he argued that, as a matter of law, wire cutters do not
constitute a "device designed to overcome security systems." Thus, he asserted,


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

                                            -2-
No. 71238-1-1/3



the facts alleged were legally insufficient to support a finding of guilt as to the

charged crime.

       On November 18, after a hearing, the trial court denied Larson's motion.

Larson then stipulated to the admissibility and accuracy of the police reports,

waived his right to a jury trial, and agreed that the trial court could decide his

innocence or guilt based upon the police reports and argument of counsel.

       On December 18, the trial court found Larson guilty as charged. He was

sentenced to 60 days of confinement.

       Larson appeals.

                                           II


       Larson's lone contention is that the State failed to adduce sufficient

evidence to support his conviction. He maintains, as he did in his Knapstad

motion, that wire cutters do not constitute a "device designed to overcome

security systems," as required by former RCW 9A.56.360(1)(b). We disagree.
The plain meaning of the statute reveals the legislature's intent to punish thieves
who, anticipating that the possession ofa device which may be able to foil a
store's security system will be expedient to their cause, commit retail theft while
in possession of such a device. In recognition of the fact that wire cutters are

designed to cut wire, which is a common feature ofsecurity systems, we hold
that, within the meaning of former RCW 9A.56.360(1 )(b), wire cutters constitute a

"device designed to overcome security systems."

        It is the State's burden to prove beyond a reasonable doubt every

essential element of a charged crime. In re Winship, 397 U.S. 358, 364, 90 S.

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No. 71238-1-1/4



Ct. 1068, 25 L Ed. 2d 368 (1970); State v. Vasquez. 178 Wn.2d 1, 6, 309 P.3d

318 (2013). "In a challenge to the sufficiency of the evidence, this court reviews

the evidence in the light most favorable to the State." State v. Serano Salinas.

169 Wn. App. 210, 226, 279 P.3d 917 (2012), review denied. 176 Wn.2d 1002

(2013). A conviction will be reversed only in the event that no rational fact finder

could have found the essential elements of the crime beyond a reasonable

doubt. State v. Engel. 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

       The meaning of a statute is a question of law subject to de novo review.

State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010). "The purpose of

statutory interpretation is '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. Sweanv. 174 Wn.2d 909, 914, 281 P.3d 305 (2012)). Where a statute's

meaning is plain on its face, we must give effect to that plain meaning as an
expression of legislative intent. Ervin, 169 Wn.2d at 820. "The plain meaning of
a statute may be discerned 'from all that the Legislature has said in the statute

and related statutes which disclose legislative intent about the provision in

question.'" State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting Dep't
of Ecology v. Campbell & Gwinn. LLC. 146 Wn.2d 1,11, 43 P.3d 4 (2002)).

While we may, in seeking to perceive the plain meaning of a statute, examine
"'the ordinary meaning of the language at issue, the context of the statute in
which that provision is found, related provisions, and the statutory scheme as a
whole,'" we "'must not add words where the legislature has chosen not to include

them,'" and "must 'construe statutes such that all of the language is given effect.'"

                                          -4-
No. 71238-1-1/5



Lake v. Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283

(2010) (quoting Engel. 166 Wn.2d at 578; Rest. Dev.. Inc. v. Cananwill, Inc.. 150

Wn.2d 674, 682, 80 P.3d 598 (2003)). "If, after this inquiry, the statute is

susceptible to more than one reasonable interpretation, it is ambiguous and we

'may resort to statutory construction, legislative history, and relevant case law for
assistance in discerning legislative intent.'" Ervin, 169 Wn.2d at 820 (quoting

Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007)).

       A person commits retail theft with extenuating circumstances if, at the time

of the theft, that person was in possession of a device designed to overcome

security systems.

       (1) A person commits retail theft with extenuating circumstances if
       he or she commits theft of property from a mercantile establishment
       with one of the following extenuating circumstances:

              (b) The person was, at the time of the theft, in possession of
       an item, article, implement, or device designed to overcome
       security systems including, but not limited to, lined bags or tag
       removers.


Former RCW 9A.56.360(1)(b).

       On appeal, Larson contends that the legislature, by using the phrase
"device designed to overcome security systems," signaled an intent to criminalize
the commission of retail theft while in possession of devices "conceived and

manufactured for the purpose of overriding security systems." Opening Br. of
Appellant at 5. Larson maintains thatwire cutters are not conceived and
manufactured for the purpose of overriding security systems and, thus, are not
designed to overcome security systems. According to Larson, wire cutters are
No. 71238-1-1/6



designed to cut wire: an act that is not confined to the overcoming of security

systems.

       We agree that wire cutters are designed to cut wire, just as we perceive

that tag removers (one of the two illustrative example set forth in the statute) are

designed to remove tags—both are designed to perform the physical act

suggested by their descriptors. However, in considering this issue, we are

careful to distinguish between an act and its outcome. While the question of

whether a device is designed to perform a physical act is relevant to our inquiry,

it is not itself the decisive issue. The decisive issue is whether the act which the

device was designed to perform is meant to effect an outcome—namely, a

security system being overcome.

        In order to determine whether a device is designed as such, it is

necessary to consider not only the device itself, but also the object upon which
the device, often in the hands of an individual, acts.3 More to the point, it must

be determined whether the object meant to be neutralized, disabled, or otherwise

thwarted by the device is actually used in security systems. For instance, in
order to determine whether the use of a tag remover is designed to overcome a

security system, it is necessary to consider whether tags are used in security
systems.



       3Our analysis does not depend upon the actual use ofa device (or lack thereof) in each
case. Rather, our consideration of usage on an abstract level is premised on the notion that the
relationship between the device and the object upon which it acts will often suggest a design ofor
purpose for that device. Thus, while it is true that, in this case, Larson used wire cutters to cut the
wire and thereby overcome the store's security system, our conclusion would be the same if it
had beenfound only that he was in possession ofwire cutters while committing retail theft.

                                                 -6-
No. 71238-1-1/7



      The facts of this case, as well as experience, confirms that wire is used in

security systems. Thus, the unremarkable observation that wire cutters are

designed to cut wire, when considered together with the fact that wire is used in

security systems, indicates that wire cutters are indeed designed to overcome

security systems. While, in addition to overcoming security systems, wire cutters

may be designed to achieve other results, the statutory provision at issue here

does not restrict the devices within its ambit to those whose sole purpose is to

overcome security systems.

      We are aware that the foregoing analysis is at odds with a recent Division

Two decision. See State v. Reeves,        Wn. App. _, 336 P.3d 105 (2014)

(holding that "ordinary pliers" do not constitute a device designed to overcome
security systems). We are not persuaded by that decision's reasoning.
       The Reeves court distinguished between "ordinary tools" and "tools

specifically made to facilitate theft." In the former category, the court placed
"ordinary pliers" and other tools "which have many purposes independent of retail
theft." Reeves, 336 P.3d at 108-09. In the latter category, the court placed "lined

bags and tag removers" and other "devices that have a primary purpose of
facilitating retail theft." Reeves, 336 P.3d at 108.

       We do not agree that the devices with which the legislature was

concerned were those whose primary purpose is to facilitate retail theft. While

we do not have reason to doubt that the legislature acted in response to the evils

presented by retail theft, the language that was used in the statute targeted
possession of devices "designed to overcome security systems"—not "devices

                                         -7-
No. 71238-1-1/8



that have a primary purpose of facilitating retail theft." By straying from the

statutory text, the Reeves court formulated a test that actually excludes one of

the examples—tag removers—set forth in the statute by the legislature to

illustrate the types of devices it intended to cover. Indeed, as Larson's counsel

acknowledged at oral argument, the primary purpose of tag removers is not to be

used by thieves to facilitate retail theft but, rather, to be used by retailers to

disable security systems following an exchange of currency for goods.

       Furthermore, as observed, the legislature did not limit the statute's reach

to those devices designed "only" or even "primarily" for the purpose of

overcoming security systems. In the absence of restrictive language to that

effect, we do not presume that the legislature intended to exclude certain devices

that are designed not only to overcome security systems, but to accomplish other

objectives as well. Therefore, even assuming that wire cutters are designed to
achieve more than one result, we decline to hold that they are, by virtue of their

diverse utility, removed from the statute's coverage.

       The provision at issue suggests that the legislature intended to target

thieves who foresee the need for a device which may be able to overcome

security systems. By providing illustrative rather than enumerative examples, the

legislature signaled its intent to reach devices beyond those set forth in the
statute. To exclude wire cutters from the statute's reach on the basis that wire

cutters may be used in other settings to achieve different ends would frustrate

the legislature's intent, while providing those inclined to commit retail theft with an
unmistakable incentive to employ "ordinary devices," as characterized by the

                                          -8-
No. 71238-1-1/9



Reeves court, to pursue their nefarious ends. Surely, the legislature did not

intend such a result. We hold, therefore, that the legislature intended to include

wire cutters within those devices "designed to overcome security systems."

Accordingly, sufficient evidence was presented at trial to support the trial court's

judgment of guilt.

       Affirmed.                                                 a

                                            vj* i> ^--c*—"T^i y -
We concur:                                                   J




                                           9-
                   No. 71238-1-1, State v. Zacharv Scott Larson


       Trickey, J. (dissenting) — I respectfully dissent.       The phrase "device

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

tag removers" is ambiguous. Former RCW 9A.56.360(1 )(b) (2013). The phrase

is susceptible of differing reasonable interpretations, one of which is that the device

must be "specifically constructed to overcome a security system." State v. Reeves,

   Wn. App.       , 336 P.3d 105, 108 (2014). Since the statute here creates a

criminal offense, we must apply the rule of lenity and "strictly construe" the statute

in favor of the accused. Reeves, 336 P.3d at 109. Wire cutters are built to perform

many tasks other than retail theft. The trial court should have granted the motion

to dismiss.




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