State v. Larson

• Decision Date: 24 December 2015
• Docket Number: No. 91457–5.,91457–5.
• Parties: STATE of Washington, Respondent, v. Zachary Scott LARSON, a/k/a/ Zach Larson, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 843

365 P.3d 740

STATE of Washington, Respondent,

v.Zachary Scott LARSON, a/k/a/ Zach Larson, Petitioner.

No. 91457–5.

Supreme Court of Washington, En Banc.

Argued Oct. 22, 2015.

Decided Dec. 24, 2015.

Dana M. Nelson, Nielsen Broman & Koch PLLC, Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, for Petitioner.

Whatcom County Prosecutor's Office, Attorney at Law, Kimberly Anne Thulin, Whatcom Cty. Pros. Atty's Office, Bellingham, WA, for Respondent.

YU, J.

¶ 1 Are ordinary wire cutters "designed to overcome security systems" within the context of retail theft? To answer this question, we must interpret the statutory language of RCW 9A.56.360(1)(b), which elevates retail theft to a more serious offense when the defendant is in possession of "an item, article, implement, or device designed to overcome security systems."

¶ 2 We hold that the plain language of RCW 9A.56.360(1)(b) establishes the legislature's intent to target organized retail theft only where particular types of tools are utilized. An item, article, implement, or device is "designed to overcome security systems" if it is created—whether by the manufacturer or the defendant—with the specific purpose of disabling or evading security systems. Because we hold that ordinary, unmodified wire cutters do not fall within this definition, the evidence is insufficient to support petitioner Zachary Larson's conviction for retail theft with "extenuating" circumstances. We reverse the Court of Appeals.

BACKGROUND

¶ 3 Under former RCW 9A.56.360(1)(b), a person commits retail theft with "extenuating"¹ circumstances when he or she "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." Petitioner Zachary Larson was convicted under the statute for committing retail theft while in possession of wire cutters. He used the wire cutters to remove a security tag from a pair of Nike shoes worth $32 at a Marshalls store in Bellingham. The State elected to charge Larson under this statutory provision rather than the ordinary theft statute.² Larson contends, as a matter of law, that wire cutters do not constitute a device "designed to overcome security systems" as required by the statute and, therefore, the evidence is insufficient to support his conviction for retail theft with "extenuating" circumstances.

¶ 4 The Court of Appeals has addressed the question of what the legislature intended by "designed to overcome security systems" in two conflicting opinions. In the case below, Division One affirmed Larson's conviction in a split decision. State v. Larson, 185 Wash.App. 903, 344 P.3d 244 (2015).³ Interpreting "designed" to include the item itself as well as the objective to which the item is put to use, Division One reasoned that because wire cutters are designed to cut wire and wires are used in security systems, wire cutters fall within the scope of RCW 9A.56.360(1) (b). Under Division One's sweeping logic, the statute encompasses any item that can be used to overcome a security system.

¶ 5 Division One explicitly rejected Larson's argument that the statute is limited to devices created with the specific purpose of overcoming security systems, and recognized that its decision was in direct conflict with a decision by Division Two. Id. at 910–11, 344 P.3d 244. In State v. Reeves, 184 Wash.App. 154, 157, 336 P.3d 105 (2014), Division Two held that "ordinary pliers" did not fall within the RCW 9A.56.360(1)(b). Although Division Two ultimately relied on the rule of lenity to construe the statute in Reeves' favor, the court found that principles of statutory construction and the legislative history supported interpreting the statute "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." Id. at 162, 336 P.3d 105.

¶ 6 We accepted review to resolve this conflict within the Court of Appeals between Division One and Division Two as to the meaning and scope of the phrase "designed to overcome security systems."

ANALYSIS

A. Interpreting the Scope of RCW 9A.56.360(1)(b)

¶ 7 Whenever we are tasked with interpreting the meaning and scope of a statute, "our fundamental objective is to determine and give effect to the intent of the legislature." State v. Sweany, 174 Wash.2d 909, 914, 281 P.3d 305 (2012) (citing State v. Budik, 173 Wash.2d 727, 733, 272 P.3d 816 (2012) ). We look first to the plain language of the statute as "[t]he surest indication of legislative intent." State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010). " ‘[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ " State v. Hirschfelder, 170 Wash.2d 536, 543, 242 P.3d 876 (2010) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002) ). We may determine a statute's plain language by looking to "the text of the statutory provision in question, as well as ‘the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ " Ervin, 169 Wash.2d at 820, 239 P.3d 354 (quoting State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) ).

¶ 8 Former RCW 9A.56.360 elevates retail theft to a more serious offense under certain 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 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.

RCW 9A.56.360 (emphasis added). "Designed to overcome security systems" is not defined in the statute, but a plain language analysis leads us to conclude that the legislature did not intend to include ordinary wire cutters within the scope of RCW 9A.56.360(1)(b).

¶ 9 We look first to the surrounding statutory language to determine the legislature's intended meaning and scope. See Burns v. City of Seattle, 161 Wash.2d 129, 148, 164 P.3d 475 (2007) ("a doubtful term or phrase in a statute or ordinance takes its meaning from associated words and phrases" (describing the principle of noscitur a sociis) (citing State v. Rice, 120 Wash.2d 549, 560–61, 844 P.2d 416 (1993) )). Specifically, we turn to the illustrative examples of lined bags and tag removers to determine what the legislature intended by "designed to overcome security systems."

¶ 10 The State correctly observes that the statute, by its own terms, is not limited to the examples provided by the legislature. The statutory language "including, but not limited to" plainly establishes lined bags and tag removers as illustrative examples rather than an exhaustive list. Cf. In re Postsentence Review of Leach, 161 Wash.2d 180, 186, 163 P.3d 782 (2007) (lack of a provision for "similar" or "like" offenses indicated that "the legislature plainly meant for these enumerated crimes to be the exclusive and complete list"). However, contrary to the State's assertions, the plain language of RCW 9A.56.360(1)(b) indicates that the illustrative examples were intended to limit the scope of the statute. We apply the principle of statutory interpretation that "general terms, when used in conjunction with specific terms in a statute, should be deemed only to incorporate those things similar in nature or ‘comparable to’ the specific terms." Simpson Inv. Co. v. Dep't of Revenue, 141 Wash.2d 139, 151, 3 P.3d 741 (2000) (quoting John H. Sellen Constr. Co. v. Dep't of Revenue, 87 Wash.2d 878, 883–84, 558 P.2d 1342 (1976) ); see also State v. Gonzales Flores, 164 Wash.2d 1, 13, 186 P.3d 1038 (2008) ("specific words modify and restrict the meaning of general words when they occur in a sequence" (describing the principle of ejusdem generis) (citing State v. Roadhs, 71 Wash.2d 705, 708, 430 P.2d 586 (1967) )).

Extrapolating from the two illustrative examples of lined bags and tag removers, we can determine that the legislature intended to limit the scope of RCW 9A.56.360(1)(b) to similar items.

¶ 11 The statute does not define lined bags or tag removers, but a commonsense examination of these examples provides insight into the statute's intended meaning and scope. Lined bags are an example of an article created by a thief for the specific purpose of committing retail theft. Also known as "booster bags," these are typically bags lined with layers of tinfoil. See Cenatis v. State, 120 So.3d 41, 42 (Fla.Dist.Ct.App.2013). A lined bag overcomes a security system by preventing detection of the security device by security scanners when the thief exits the store. Id. As its name states, the sole purpose of a tag remover is to remove security tags from merchandise. The intended, lawful purpose is for retail employees to remove tags from merchandise after the customer has purchased it. But in the hands of a thief, the tag removers become a highly effective tool for overcoming a store's security system. Lined bags and tag removers are highly specialized tools with little to no utility outside of the commission of retail theft. From this fact, it can be reasonably inferred that there is no reason a person would be in possession of these items except to facilitate retail theft.

¶ 12 We disagree with the State's contention that the legislature intended to capture a significantly broader class of items beyond the examples expressly provided in the statute. The State's overly broad interpretation is inconsistent with the well-established principle that statutes must be interpreted " ‘so that all the language used is given effect, with no portion rendered meaningless or superfluous.’ " State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (internal quotation marks...