Date: 02-17-2015

Case Style: State of Washington v. Zachary Scott Larson a/k/a Zach Larson

Case Number: 71238-1-1

Judge: Dwyer

Court: Court of Appeals of the State of Washington

Plaintiff's Attorney: Kimberly Anne Thulin

Defendant's Attorney: Dana Nelson

Description: 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
1RCW 9A.56.360 was amended, effective January 1, 2014, so as to replace every
instance of the phrase "extenuating circumstances" with "special circumstances." Lawsof 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. Bydoing 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, theywere 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) Aperson 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).
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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). Aconviction 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 mustgive 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 statutoryscheme 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.'"
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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)).
Aperson 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) Aperson 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 securitysystems 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, ourconsideration 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 bethe sameif it
had beenfound only that he was in possession ofwire cutters while committing retail theft.
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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 bythat 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 ofdevices "designed to overcome security systems"—not "devices
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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
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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.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: