State v. Larson

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
STATEOFWASHINGTON, ) No. 91457-5
)
Respondent, )
) EnBanc
v. )
)
ZACHARY SCOTT LARSON, a/k/a/ )
ZACH LARSON, ) Filed DEC 2 4 2015
)
Petitioner. )
_________________________ )
YU, J.-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 ofRCW 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."

We hold that the plain language ofRCW 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
State v. Larson, No. 91457-5

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

Under RCW 9A.56.360(l)(b), 1 a person commits retail theft with

extenuating 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 ofNike 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

1
RCW 9A.56.360 was amended, effective January 1, 2014, to replace all instances of
"extenuating circumstances" with "special circumstances." LAWS OF 2013, ch. 153, §§ 1, 3.
This change was to account for the fact that the word "extenuating" actually refers to factors that
mitigate rather than aggravate. See S.B. REP. ON SUBSTITUTE S.B. 5022, at 2, 63d Leg., Reg.
Sess. (Wash. 2013). The amendment did not affect the elements of the offense or alter the
language at issue in this matter. We use "extenuating circumstances" since this is the language
that Larson was charged and convicted under, but citations are to the current statute.
2
Had Larson been charged under the general theft statute, his crime would have
amounted to third degree theft, a gross misdemeanor. RCW 9A.56.050. Third degree retail theft
with extenuating circumstances is a class C felony. RCW 9A.56.360(4). Gross misdemeanors

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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.

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 Wn. 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.

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. In State v. Reeves, 184 Wn. App. 154, 157, 336 P.3d 105 (2014),

Division Two held that "ordinary pliers" did not fall within the RCW

are punishable by up to 364 days in jail, while class C felonies are punishable by up to 5 years in
prison. RCW 9A.20.021(2), (l)(c). Larson was sentenced to 60 days in jail. Clerk's Papers at
58.
3
The dissent would have held that RCW 9A.56.360(1)(b) was ambiguous and the rule of
lenity required that the statute be construed in Larson's favor. Larson, 185 Wn. App. at 912
(Trickey, J., dissenting).

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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.

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 ofRCW 9A.56.360(1)(b)

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 Wn.2d 909, 914, 281 P.3d 305 (2012) (citing

State v. Budik, 173 Wn.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 Wn.2d 815, 820,239 P.3d 354 (2010). '"[I]fthe 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 Wn.2d 536, 543, 242

P.3d 876 (2010) (quotingDep'tofEcologyv. Campbell & Gwinn, LLC, 146

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State v. Larson, No. 91457-5

Wn.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 Wn.2d at 820 (quoting State v. Jacobs, 154

Wn.2d 596, 600, 115 P.3d 281 (2005)).

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).

We look first to the surrounding statutory language to determine the

legislature's intended meaning and scope. See Burns v. City of Seattle, 161 Wn.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

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noscitur a sociis) (citing State v. Rice, 120 Wn.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."

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 Wn.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 ofRCW 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

ofRevenue, 141 Wn.2d 139, 151, 3 P.3d 741 (2000) (quoting John H Sellen

Constr. Co. v. Dep 't ofRevenue, 87 Wn.2d 878, 883-84, 558 P.2d 1342 (1976));

see also State v. Gonzales Flores, 164 Wn.2d 1, 13, 186 P.3d 1038 (2008)

("specific words modify and restrict the meaning of general words when they

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State v. Larson, No. 91457-5

occur in a sequence" (describing the principle of ejusdem generis) (citing State v.

Roadhs, 71 Wn.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 ofRCW 9A.56.360(1)(b) to similar items.

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 oftinfoil. 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. I d. 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.

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State v. Larson, No. 91457-5

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 Wn.2d 444,450,69 P.3d 318 (2003) (internal

quotation marks omitted) (quoting Davis v. Dep 't of Licensing, 137 Wn.2d 957,

963, 977 P.2d 554 (1999)). If the statute were to encompass any device that could

be used to overcome a security system, as the State contends, the examples

enumerated by the legislature would be superfluous and provide no additional

guidance on the application of the statute. In order to give meaning and effect to

the examples the legislature chose to provide, we must interpret them as instructive

examples that demonstrate the type and character of items that are included within

the scope of the statute. Thus, we can reasonably infer that the examples were

intended to limit the scope to similar items, rather than expand the scope to any

item that could conceivably be used to overcome security systems.

Furthermore, we must interpret statutes to avoid absurd results. State v.

Alvarado, 164 Wn.2d 556, 562, 192 P.3d 345 (2008) (citing Tingey v. Haisch, 159

Wn.2d 652, 664, 152 P.3d 1020 (2007)). Under the State's interpretation,

virtually any shoplifting offense could fall within the scope of RCW

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State v. Larson, No. 91457-5

9A.56.360(1 )(b). For example, where a person slips a stolen item into his pocket

to hide it from a store's security camera, the pocket has arguably become a "device

designed to overcome security systems." Similarly, a person who happens to have

in her pocket a pair of nail clippers, a Leatherman multitool, or any other tool that

people commonly carry with them, at the time she shoplifts would be guilty of

retail theft with extenuating circumstances. As these practical examples

demonstrate, the State's overinclusive approach belies the statute's primary

purpose of capturing retail theft that occurs under certain aggravating

circumstances.

We also cannot agree with the State's assertion that the statute was intended

to include items "that can be used to steal in a variety of retail theft settings."

Resp't's Suppl. Br. at 10 (emphasis added). By treating "designed" as

synonymous with "used," the State's interpretation reads words into the statute that

simply are not there. It is beyond our power and function to "'add words or

clauses to an unambiguous statute when the legislature has chosen not to include

that language."' JP., 149 Wn.2d at 450 (quoting State v. Delgado, 148 Wn.2d

723, 727, 63 P.3d 792 (2003)). The statute plainly criminalizes possession of

certain tools, not actual or intended use. If the legislature had intended to include

use within the scope of the statute, it could have done so by including the word

"used"-as it did with other criminal statutes dealing with tools, discussed below.

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State v. Larson, No. 91457-5

The State's approach is similarly incorrect to the extent that it interprets

"designed" to include an intent element. See Resp't's Suppl. Br. at 10. Had the

legislature wanted to go beyond mere possession and criminalize intent to use a

device to overcome a security system, it could have included specific language to

that end. As an example, we point to RCW 9A.52.060, also discussed further

below, in which the legislature clearly criminalized possession of burglar tools

"under circumstances evincing an intent to use" and "knowing that the same is

intended to be so used." RCW 9A.52.060(1) (emphasis added).

The legislature's intent to limit the scope of 9A.56.360(1 )(b) is further

supported by looking to other provisions within Title 9A RCW that deal similarly

with the possession of tools during the commission a crime. Unlike RCW

9A.56.360(1)(b), these statutes explicitly extend beyond an item's design and mere

possession. Under RCW 9A.52.060(2), making or having burglar tools is a gross

misdemeanor. Burglar tools include any "implement adapted, designed, or

commonly used" to commit burglary. RCW 9A.52.060(1 ). Identical language was

adopted to define motor vehicle theft tools. RCW 9A.56.063(1). Similarly, a

"deadly weapon" under RCW 9A.04.11 0 includes "any other weapon, device,

instrument, article, or substance, ... which, under the circumstances in which it is

used, attempted to be used, or threatened to be used, is readily capable of causing

death or substantial bodily harm." RCW 9A.04.110(6) (emphasis added).

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State v. Larson, No. 91457-5

In all these instances, the legislature utilized appropriately broad language to

capture any device that could be conceivably used to commit burglary or vehicle

theft, or cause death or substantial bodily harm. By comparison, RCW

9A.56.360(1 )(b)'s language is decidedly narrower in scope. These statutes

demonstrate that the legislature knows how to craft a broad statute when it wants to

do so. See Gonzales Flores, 164 Wn.2d at 13. If the legislature had intended

RCW 9A.56.360(1)(b) to have a broad application, it could have used

appropriately broad language, as it did in other similar statutes.

For the reasons discussed above, we hold that an item, article, implement, or

device is "designed to overcome security systems" within the scope ofRCW

9A.56.360(1)(b) if it was created-whether by a manufacturer or a defendant-

with the specialized purpose of overcoming security systems, lawfully or

otherwise. However, we emphasize that we are preserving the illustrative and

nonexclusive nature of the examples of lined bags and tag removers. Without

question, someone will (and probably already has) come up with other specialized

devices to efficiently evade security systems and facilitate retail theft. 4 While

4
Division One cautioned that excluding ordinary tools, such as wire cutters or pliers,
would "provid[ e] those inclined to commit retail theft with an unmistakable incentive to employ
'ordinary devices,' as characterized by the Reeves court, to pursue their nefarious ends." Larson,
185 Wn. App. at 912 (citing Reeves, 184 Wn. App. 154). While this may be a possible
consequence of our ruling here, it is not within our power to rewrite the legislature's carefully
chosen words.

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commonly used tools with a general purpose, like wire cutters or pliers, do not fit

within the narrow scope ofRCW 9A.56.360(1)(b), perhaps an ordinary tool that

has been specifically modified for use in retail theft might constitute a device

"designed to overcome security systems." See Cenatis, 120 So. 3d at 44. 5

Because we find the statute to be plain and unambiguous on its face, our

analysis stops here. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 1994)

("Plain language does not require construction." (citing State v. Thornton, 119

Wn.2d 578, 580, 835 P.2d 216 (1992))). We do not resort to interpretive tools

such as legislative history but nevertheless note that the legislative history supports

our plain reading. Retail associations and individual retailers gave repeated

testimony indicating that they were not concerned with ordinary, petty shoplifting

but, rather, sophisticated retail theft rings working with fencing organizations to

resell stolen merchandise. See, e.g., Hr'g on H.B. 2704 Before the H. Criminal

5 Florida's retail theft statute makes it "unlawful to possess, or use or attempt to use, any
antishoplifting or inventory control device countermeasure." FLA. STAT. § 812.015(7). An
"antishoplifting or inventory control device countermeasure" is defined as "any item or device
which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory
control device." FLA. STAT.§ 812.015(1)(i).
In State v. Blunt, 744 So. 2d 1258 (Fla. Dist. Ct. App. 1999), the defendant's use of
tinfoil to cover security tags did not fall within the statute. But in Cenatis, use of a "booster bag"
was found to qualify as an "antishoplifting or inventory control device countermeasure."
Cenatis, 120 So. 3d at 43-44. Distinguishing Blunt, the court in Cenatis stated that the
defendant had "used an ordinary item in an unusual way; the defendant did not manufacture,
design, modify, or alter the tinfoil in any manner. In this case, however, ordinary items were
combined in an unusual way to create a device capable of avoiding detection by the door
sensors." Id.

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Justice and Corr. Comm., 59th Leg., Reg. Sess. (Jan. 27, 2006), at 19 min., 28 sec.,

audio recording by TVW, Washington State's Public Affairs Network,

http://www.tvw.org (testimony by a loss prevention supervisor regarding the need

to specifically target organized theft rings rather than typical shoplifters); see also

Hr'g on Substitute S.B. 5022 Before the H. Pub. Safety Comm., 63d Leg., Reg.

Sess. (Mar. 5, 2013), at 44 min., 50 sec., audio recording by TVW, Washington

State's Public Affairs Network, http://www.tvw.org (testimony on behalf of the

Washington Retail Association, a prime sponsor of the original statute). The

legislative history suggests that the statute was not intended to encompass crimes

like the one committed by Larson.

B. Sufficiency of the Evidence

The State bears the burden of proving every element of a crime beyond a

reasonable doubt. State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995)

(citing In re Winship, 397 U.S. 358, 364, 90S. Ct. 1068, 25 L. Ed. 2d 368 (1970)).

When a challenge to the sufficiency of the evidence to support a conviction is

alleged, we review the evidence de novo in the light most favorable to the State.

State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). The conviction will

be upheld if any rational trier of fact could have found the essential elements

beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007

(2009) (citing State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003)).

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Larson asserts that because wire cutters do not fall within the scope of RCW

9A.56.360(1 )(b), the evidence was insufficient to support his conviction for retail

theft with extenuating circumstances under the statute. Because we find that the

legislature did not intend to include wire cutters within the scope of RCW

9A.56.360(1)(b), we agree that the evidence is not sufficient to support his

conviction. Consequently, we reverse the Court of Appeals.

CONCLUSION

A plain language analysis ofRCW 9A.56.360(1)(b), which includes looking

at both the internal context of the provision itself and the broader statutory scheme,

indicates that the legislature intended the statute to have a narrow scope. We hold

that "designed to overcome security systems" for the purposes of retail theft with

extenuating circumstances under RCW 9A.56.360(1 )(b} is limited to those items,

articles, implements, or devices created-whether by the defendant or

manufacturer-with the specialized purpose of overcoming security systems.

Ordinary tools, such as pliers or the wire cutters used by Larson, do not fall within

the scope ofRCW 9A.56.360(1)(b). The evidence is insufficient to support

Larson's conviction for third degree retail theft with extenuating circumstances,

and we reverse the Court of Appeals.

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WE CONCUR:

15