State of Washington v. Joshua Michael Barnes

I
II
FILED
OCTOBER 6, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 33811-8-111
Appellant, )
)
V. )
)
JOSHUA M. BARNES, ) PUBLISHED OPINION
)
Respondent. )

FEARING, C. J. -

Someone says to me: "Shew the children a game. " I teach them
gaming with dice, and the other says "I didn 't mean that sort ofgame. "
Ludwig Wittgenstein, Aphorism 69 from Philosophical Investigations
(1953).

Is a riding lawnmower a motor vehicle? We entertain this question in the context

ofRCW 9A.56.065, the statute that criminalizes the theft of a motor vehicle. After

reviewing the purposes behind RCW 9A.56.065, we answer the question in the negative.

Those purposes trump the plain meaning of an appurtenant statute defining "motor

vehicle." We affirm the trial court's dismissal of charges against Joshua Barnes for theft

of a motor vehicle.
No. 33811-8-III
State v. Barnes

FACTS

We present the facts in a light most favorable to the State of Washington. On June

22, 2015, Joshua Barnes and a female companion, Danielle Goodman, drove, in a white

pickup, on to the property of Judy Fraker on Chumstick Highway near lovely

Leavenworth. Fraker was then home. Barnes exited the pickup, mounted Fraker's riding

lawnmower, and started the mower's motor. The mower was a Craftsman, gas-powered,

self-propelled riding lawnmower, with a twenty-six horse power engine. We do not

know the value of the lawnmower. We do not know the maximum speed ofFraker's

riding lawnmower.

Joshua Barnes drove the lawnmower up a ramp and into the bed of the white

pickup. Judy Fraker exited her home and confronted Barnes. Barnes claimed an

unidentified person directed him to retrieve the riding lawnmower for "John" at a

pumpkin patch. Fraker, unimpressed with the pumpkin patch story, ordered Barnes to

remove the lawnmower from the back of the pickup and leave her premises. Barnes

obeyed. Two days later, Joshua Barnes admitted to law enforcement that he attempted to

steal the riding lawnmower.

PROCEDURE

The State of Washington, as a result of the June 22 incident, charged Joshua

Barnes with theft of a motor vehicle, driving with license suspended in the third degree,

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State v. Barnes

and criminal trespass in the second degree. Barnes moved the court to dismiss the

allegation of theft of a motor vehicle. Barnes argued the evidence was insufficient as a

matter of law to prove the offense because a lawnmower is not a "motor vehicle." The

trial court agreed and dismissed the charge of theft of a motor vehicle without prejudice.

The State has delayed prosecution of the remaining charges to pursue this appeal.

LAW AND ANALYSIS

Under Washington law, a defendant may present a pretrial motion to dismiss a

charge and challenge the State's ability to prove all of the elements of the crime. State v.

Montano, 169 Wn.2d 872, 876, 239 P.3d 360 (2010). Judges and lawyers refer to such a

motion as a Knapstad motion from the leading decision of State v. Knapstad, 107 Wn.2d

346, 729 P .2d 48 ( 1986). The trial court has inherent power to dismiss a charge when the

undisputed facts are insufficient to support a finding of guilt. Knapstad, 107 Wn.2d at

351. The court must decide whether the facts that the State relies on, as a matter of law,

establish a prima facie case of guilt. Knapstad, 107 Wn.2d at 356-57. We review de

novo a trial court's dismissal of a criminal charge under Knapstad. State v. Conte, 159

Wn.2d 797, 803, 154 P.3d 194 (2007).

The facts, on which the State relies, include Joshua Barnes taking, without the

owner's permission, a powerful, self-propelled riding lawnmower. On these facts we

face the legal question of whether the riding lawnmower can constitute a motor vehicle

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State v. Barnes

under the statute rendering taking a motor vehicle a crime.

The controlling statute, RCW 9A.56.065, declares in circularity:

( 1) A person is guilty of theft of a motor vehicle if he or she commits
theft of a motor vehicle.
(2) Theft of a motor vehicle is a class B felony.

Even if a riding lawnmower does not constitute a motor vehicle for purposes of RCW

9A.56.065, Joshua Barnes committed a crime by taking the lawnmower. Assuming the

lawnmower had a value of between $750.01 and $5,000.00, Barnes' conduct constituted

theft in the second degree, a class C felony. RCW 9A.56.040. Presumably the State

charges Barnes with theft of a motor vehicle since it constitutes a higher level of crime, a

class B felony.

The Washington Legislature enacted RCW 9A.56.065 in 2007. The bill responded

to rising automobile thefts on the nation's west coast, and the enactment contained

extensive findings. These findings explore the purposes behind the 2007 law. We

consider these findings important to our decision. LA ws OF 2007, ch. 199, § 1 declares,

in part:

AN ACT Relating to auto theft; . . . Be it enacted by the Legislature
of the State of Washington: NEW SECTION. Sec. 1. (1) The legislature
finds that:
(a) Automobiles are an essential part of our everyday lives. The west
coast is the only region of the United States with an increase of over three
percent in motor vehicle thefts over the last several years. The family car is
a priority of most individuals and families. The family car is typically the
second largest investment a person has next to the home, so when a car is
stolen, it causes a significant loss and inconvenience to people, imposes

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State v. Barnes

financial hardship, and negatively impacts their work, school, and personal
activities. Appropriate and meaningful penalties that are proportionate to
the crime committed must be imposed on those who steal motor vehicles;
(b) In Washington, more than one car is stolen every eleven minutes,
one hundred thirty-eight cars are stolen every day, someone's car has a one
in one hundred seventy-nine chance of being stolen, and more vehicles
were stolen in 2005 than in any other previous year. Since 1994, auto theft
has increased over fifty-five percent, while other property crimes like
burglary are on the decline or holding steady. The national crime insurance
bureau reports that Seattle and Tacoma ranked in the top ten places for the
most auto thefts, ninth and tenth respectively, in 2004. In 2005, over fifty
thousand auto thefts were reported costing Washington citizens more than
three hundred twenty-five million dollars in higher insurance rates and lost
vehicles. Nearly eighty percent of these crimes occurred in the central
Puget Sound region consisting of the heavily populated areas of King,
Pierce, and Snohomish counties;
(c) Law enforcement has determined that auto theft, along with all
the grief it causes the immediate victims, is linked more and more to
offenders engaged in other crimes. Many stolen vehicles are used by
criminals involved in such crimes as robbery, burglary, and assault. In
addition, many people who are stopped in stolen vehicles are found to
possess the personal identification of other persons, or to possess
methamphetamine, precursors to methamphetamine, or equipment used to
cook methamphetamine; . . . . and
(e) A coordinated and concentrated enforcement mechanism is
critical to an effective statewide offensive against motor vehicle theft. Such
a system provides for better communications between and among law
enforcement agencies, more efficient implementation of efforts to discover,
track, and arrest auto thieves, quicker recovery, and the return of stolen
vehicles, saving millions of dollars in potential loss to victims and their
insurers.

(Emphasis added.) Note that the findings interchangeably use the nouns "auto,"

"automobile," "motor vehicle," "car," and "vehicle."

Our sole task is determining whether a riding lawnmower is a "motor vehicle"

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State v. Barnes

under RCW 9A.56.065. The legislature holds the prerogative of defining and classifying

crimes. Therefore, our fundamental purpose in construing a criminal statute is to

ascertain and carry out the intent of the legislature. In re Marriage ofSchneider, 173

Wn.2d 353, 363, 268 PJd 215 (2011).

Washington follows the plain meaning rule. To determine legislative intent, this

court looks first to the language of the statute. Lacey Nursing v. Dep 't of Revenue, 128

Wn.2d 40, 53, 905 P.2d 338 (1995). If the statute's meaning is plain on its face, the court

will give effect to that plain meaning as the expression of what was intended. Trac/one

Wireless, Inc. v. Dep't ofRevenue, 170 Wn.2d 273,281,242 P.3d 810 (2010).

Unambiguous language must be applied as written. State v. Smith, 117 Wn.2d 263, 270-

71, 814 P.2d 652 (1991). When the statute is clear, courts may not engage in statutory

construction. State v. Hahn, 83 Wn. App. 825,832,924 P.2d 392 (1996). Plain words do

not require construction. City of Kent v. Jenkins, 99 Wn. App. 287,290, 992 P.2d 1045

(2000). We assume the legislature means what it says. Vance v. XXXL Dev., LLC, 150

Wn. App. 39, 41, 206 PJd 679 (2009). Only if the language of the statute gives rise to

two reasonable interpretations, will the court look outside the language of the statute and

employ rules of construction. Cerrillo v. Esparza, 158 Wn.2d 194, 203-04, 142 P.3d 155

(2006).

Under the plain meaning rule, Washington courts may look to other language in

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State v. Barnes

the same statute and even language in other statutes. In Washington, courts determine the

plain meaning of a statute's language by simultaneously examining the language of the

entire statute and related statutes. Dep 't ofEcology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 10-12, 43 P.3d 4 (2002); In re Estate ofLyons, 83 Wn.2d 105, 108, 515 P.2d

1293 (1973); CJC v. Corp. of the Catholic Bishop of Yakima, 138 Wn.2d 699, 708-09,

985 P .2d 262 ( 1999). A court deciphers meaning based on the context of all statutes.

Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d at 10.

RCW 9A.56.065 does not define our key phrase: "motor vehicle." Nor does the

criminal code, Title 9 RCW, define the term. RCW 9A.04.110, the criminal code's

definitional section, defines the narrower term "vehicle." RCW 9A.04. l 10(29) reads:

"Vehicle" means a "motor vehicle" as defined in the vehicle and
traffic laws, any aircraft, or any vessel equipped for propulsion by
mechanical means or by sail.

So RCW 9A.04.110(29) returns us to the phrase "motor vehicle" and directs us to

the vehicle and traffic laws found in Title 46 RCW, incidentally the "motor vehicle"

code. This court has already ruled that we should interpret the definition of "motor

vehicle," for purposes of Title 9A, by reviewing Title 46. State v. Acevedo, 159 Wn.

App. 221, 228-29, 248 P.3d 526 (2010); State v. McGary, 37 Wn. App. 856,858,683

P.2d 1125 (1984). Title 46 RCW contains definitions for "motor vehicle," "vehicle," and

"highway."

RCW 46.04.320 defines "motor vehicle:"

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State v. Barnes

"Motor vehicle" means every vehicle that is self-propelled and every
vehicle that is propelled by electric power obtained from overhead trolley
wires, but not operated upon rails. . . . An electric personal assistive
mobility device is not considered a motor vehicle. A power wheelchair is
not considered a motor vehicle. A golf cart is not considered a motor
vehicle, except for the purposes of chapter 46.61 RCW.

(Emphasis added.) RCW 46.04.670 defines "vehicle:"

"Vehicle" includes every device capable of being moved upon a
public highway and in, upon, or by which any persons or property is or
may be transported or drawn upon a public highway, including bicycles.
"Vehicle" does not include power wheelchairs or devices other than
bicycles moved by human or animal power or used exclusively upon
stationary rails or tracks. Mopeds are not considered vehicles or motor
vehicles for the purposes of chapter 46. 70 RCW. Bicycles are not
considered vehicles for the purposes of chapter 46.12, 46.16A, or 46. 70
RCW or RCW 82.12. 045. Electric personal assistive mobility devices are
not considered vehicles or motor vehicles for the purposes of chapter
46.12, 46.16A, 46.29, 46.37, or 46. 70 RCW. A golf cart is not considered a
vehicle, except for the purposes of chapter 46. 61 RCW.

(Emphasis added.) RCW 46.04.197 defines "highway:"

"Highway" means the entire width between the boundary lines of
every way publicly maintained when any part thereof is open to the use of
the public for purposes of vehicular travel.

Under Title 46 RCW definitions, a "motor vehicle" means a self-propelled device

capable of transporting people or property on a public highway. A riding lawnmower is

self-propelled by a gasoline engine. A riding lawnmower is rarely found on a public

street and is intended only for use on a lawn. Nevertheless, a riding lawnmower is

capable of transporting a person or property on a road. Therefore, a riding lawnmower

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State v. Barnes

meets the elements· of "motor vehicle." Ifwe read RCW 46.04.320 and .670 literally, a

riding lawnmower is a motor vehicle.

Note that RCW 46.04.320 and .670 contain express exceptions to the term "motor

vehicle." A riding lawnmower is not one of those exclusions. The failure to list a riding

lawnmower as an exception is some evidence that the legislature wanted the lawnmower

included within the definition of a motor vehicle. In Goldstein v. Grinnell Select

Insurance Co., 2016 IL. App (1st) 140317, ,i,i 33-35, _ N.E.3d _ (2016), the court

held that a riding lawnmower was a "motor vehicle" under an Illinois statute because the

legislature did not exempt a lawnmower from the definition of the term.

The State argues that no interpretation or construction of RCW 46.04.320's

definition of "motor vehicle" is necessary. Use of the word "every" in RCW 46.04.320.

and .670, according to the State, confirms a legislative intent for a broad reading of the

term. A riding lawnmower is not listed as an exception. Joshua Barnes has failed to

identify any ambiguous words or phrases in the definitions found in RCW 46.04.320 and

.670. Therefore, the State argues that, under the plain meaning rule, we should not

engage in interpretation. We disagree.

We question, for at least two reasons, whether we should always follow the plain

meaning principle. First, the state legislature sometimes ineptly expresses its intent. Our

Supreme Court has recognized that the legislature sometimes uses inept language. State

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State v. Barnes

v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981). Ifwe took the plain meaning rule as an

unyielding rule, we might slavishly follow the language of a statute despite knowing the

legislature intended a different result. We would then not fulfill our fundamental goal of

following the intent of the legislature. We would violate the separation of powers

doctrine since we would knowingly thwart the desire of the legislative branch in service

to a court created rule.

Second, language can never adequately and comprehensively express the

speaker's message or intent. If there can never be perfect human communication,

language to some degree is always inept. If the legislature wanted to precisely and

thoroughly express its objective, each enactment would comprise a book so as to identify

the one and only meaning intended for each word in the statute, particularly with regard

to words that have multiple meanings. The book would need to compile all of the

examples intended to fall under the respective terms in the statute and intended to fall

outside each term. Ludwig Wittgenstein's friend would need to instruct Wittgenstein for

minutes, if not hours, as to the types of games he did not wish Wittgenstein to teach

children. Although the friend could instruct Wittgenstein only to teach age appropriate

games, the friend and Wittgenstein could disagree as to age appropriate games.

Apparently the plain language rule may be skirted. One critical principle of

statutory interpretation and the principle on which we base our decision is a statute

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State v. Barnes

should be construed in light of the legislative purposes behind its enactment. State v.

Day, 96 Wn.2d at 648 (1981). The spirit or purpose of an enactment should prevail over

the express but inept wording. State v. Elgin, 118 Wn.2d 551,555, 825 P.2d 314 (1992).

Even if a court determines that the statute's meaning is not ambiguous, the court should

still construe the statute to affect its purpose, and any unlikely, absurd, or strained

consequences resulting from a plain and literal reading of the statute should be avoided.

State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992); State v. Fjermestad, 114

Wn.2d 828, 835, 791 P.2d 897 (1990). In such circumstances, when the literal expression

is inconsistent with the legislature's obvious objectives or policy, the spirit or intention of

the law must prevail over the letter of the law. Janovich v. Herron, 91 Wn.2d 767, 772,

592 P.2d 1096 (1979); State v. Brasel, 28 Wn. App. 303,309,623 P.2d 696 (1981). A

thing within the letter of the law, but not within its spirit, may be held inoperative when it

would otherwise lead to an absurd conclusion. Murphy v. Campbell Inv. Co., 79 Wn.2d

417,421, 486 P.2d 1080 (1971).

As argued by Joshua Barnes, a literal reading ofRCW 46.04.320 and its definition

of "motor vehicle" would lead to unintended and silly results. An iRobot Roomba, a self-

propelled vacuum, would be a motor vehicle, since one could transport small property on

the Roomba. Ajokester could place her cat on top of the vacuum and send the iRobot

Roomba down her neighborhood street. Theft of a child's remote control car that

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State v. Barnes

includes a doll in the driver's seat would also qualify for theft of a motor vehicle ifwe

literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065

should assist in limiting a literal meaning of the "motor vehicle" definition.

The Washington Legislature's findings adopted when enacting RCW 9A.56.065

show that the legislature did not consider a riding lawnmower to be a motor vehicle for

purposes of the theft statute. The legislature adopted the 2007 statute because of a rash of

automobile thefts and because of the importance of a car in our mobile society. A riding

lawnmower does not constitute essential family transportation. Purchase of the

lawnmower is not a huge investment. We are unaware of a significant rise in the theft of

riding lawnmowers. The statute's findings interchangeably used the nouns "auto,"

"automobile," "motor vehicle," "car," and "vehicle," suggesting the legislature only

intended to encompass automobiles, or at least transportation designed for public roads.

Decisional law also assists in answering the issue on appeal. In Peterson v. King

County, 199 Wash. 106, 110, 90 P.2d 729 (1939), the Supreme Court held a road grader

to be a motor vehicle under an earlier statute that defined a motor vehicle, in part, as "all

vehicles or machines propelled by any power other than muscular, used upon the public

highways for the transportation of persons, freight, produce, or any commodity." The

court observed that the grader was built and equipped in many respects like heavy duty

trucks and was intended to be operated on highways in going and returning from places

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State v. Barnes

where it was employed in the task of grading.

The Straight Story (Walt Disney Pictures), a critically acclaimed 1999 film, tells

the true story of Alvin Straight's 1994 240-milejoumey across Iowa and Wisconsin on a

riding lawnmower in order to make amends with his brother before his brother's

impending death. Straight could not obtain a driver's license because of impaired legs

and eyesight. Nevertheless, despite Straight's moving story, a riding lawnmower is built

for clipping grass, not for public highway use. The lawnmower's use does not require a

license to operate, and the mower need not be registered as a vehicle. One generally tows

a lawnmower in a trailer behind a motor vehicle when wanting to transport the

lawnmower from worksite to site. Joshua Barnes did not drive Judy Fraker's riding

lawnmower on a public street, but instead sought to transport it in the bed of a pickup.

Many foreign decisions address whether a riding lawnmower is a motor vehicle

under various circumstances. In at least two cases, courts have held a riding lawnmower

to be a motor vehicle for particular purposes. Goldstein v. Grinnell Select Insurance Co.,

2016 IL. App (1st) 1403171133-35; Stanger v. Riggs, 85 S.W.3d 703 (Mo. Ct. App.

2002). Other persuasive cases disagree.

In Lee v. Mowett Sales Co., 76 N.C. App. 556, 334 S.E.2d 250 (1985), ajf'd, 316

N.C. 489, 342 S.E.2d 882 (1986), a child sued a parent for injuries sustained from the

blade of a riding lawnmower driven by her father. A North Carolina statute removed a

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State v. Barnes

parent's immunity from actions brought by a child arising out of the "operation of a

motor vehicle." The statute did not define "motor vehicle," but the court held a riding

lawnmower not to be a motor vehicle.

In Deere & Co. v. Ford, 434 Mass. 223, 747 N.E.2d 1208 (2001), the court

addressed whether its state's statutory scheme regulating the relationship between motor

vehicle manufacturers and dealers applied to the relationship between Deere and one of

its franchisees. Deere manufactured riding lawnmowers and other lawn equipment. The

regulations applied if Deere manufactured "motor vehicles." The statutory scheme

defined "motor vehicle" as:

All vehicles constructed and designed for propulsion by power other
than muscular power ... except ... vehicles used for other purposes than
the transportation of property and incapable of being driven at a speed
exceeding twelve miles per hour and which are used exclusively for the
building, repair and maintenance of highways or designed especially for
use elsewhere than on the travelled part of ways.

Deere & Co. v. Ford, 434 Mass. at 226 n.4. The trial court found that some of Deere's

riding lawnmower models traveled in excess of twelve miles per hour and thus the

exception did not apply. Therefore, the trial court denied Deere summary judgment on

the question of whether the regulations applied. The reviewing court reversed. The court

concluded that the trial court took the language of the statute too literally. The court

looked at the purpose behind the motor vehicle dealer act and concluded that the act

should apply only to vehicles designed for regular use on the traveled part of public

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State v. Barnes

highways.

A case involving a similar criminal statute is Harris v. State, 286 Ga. 245, 686

S.E.2d 777 (2009). A Georgia statute punished one for the theft of a "motor vehicle."

Franklin Harris stole a Toro riding lawnmower worth more than $500. A second Georgia

statute defined a "motor vehicle" as "any device or vehicle including automobiles,

motorcycles, motor trucks, trailers, and all other vehicles operated over the public

highways and streets of this state and propelled by power other than muscular power but

does not include traction engines, road rollers, implements of husbandry and other

agricultural equipment." Harris v. State, 686 S.E.2d at 779 n.l. Nevertheless, the court

held the riding lawnmower not to be a motor vehicle. A riding lawnmower was capable

of transporting people or property and of driving on the street for short stretches.

Nevertheless, the lawnmower is not designed for street use since streets contain little

grass to mow. Although exceptions to the definition did not include riding lawnmowers,

the state legislature recognized that some vehicles that are self-propelled were not meant

to fall under the meaning of "motor vehicle." In a compelling passage that addresses the

purpose behind motor vehicle theft statutes, the Georgia court wrote:

What most distinguishes the theft of a "motor vehicle" from the theft
of other property is not its value or its ability to be easily escaped with, as
many items are more valuable or more easily loaded into the back of a van
and driven away. What makes motor vehicles, as that term is properly
understood, most worthy of specialized treatment is that they are an unusual
type of personal property which, once stolen, can be readily escaped in. A
thief can steal and escape quickly in an automobile, a motorcycle, a truck,

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State v. Barnes

or even a four-wheeler, but not on a riding lawnmower, asphalt spreader, or
skid steer.

Harris v. State, 686 S.E.2d at 781 (2009).

The purposes of criminal statutory construction, codified as RCW 9A.04.020, also

aids in our interpretation of RCW 9A.56.065's and RCW 46.04.320's use of the term

"motor vehicle." The first statute reads, in relevant part:

( 1) The general purposes of the provisions governing the definition
of offenses are:

(d) To differentiate on reasonable grounds between serious and
minor offenses, and to prescribe proportionate penalties for each.
(2) The provisions of this title shall be construed according to the
fair import of their terms but when the language is susceptible of differing
constructions it shall be interpreted to further the general purposes stated in
this title.

RCW 9A.04.020.

Theft of a motor vehicle carries a potential sentence that is twice as long as

standard theft, meaning theft of a lawnmower, Segway, or iRobot Roomba could be

treated the same as theft of a Ferrari. This result conflicts with the fourth purpose of Title

9A RCW, "[t]o differentiate on reasonable grounds between serious and minor offenses,

and to prescribe proportionate penalties for each." RCW 9A.04.020(l)(d).

We find support in State v. Day, 96 Wn.2d 646 (1981), for avoiding the plain

language of the definition of "motor vehicle" found in RCW 46.04.320 and .670. The

State charged Willie Day with driving while intoxicated. Day drove an unlicensed

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State v. Barnes

pickup in rapid circles in a field owned by his parents. He never entered a public road or

drove near a public road. Day did not contest that he drove under the influence. The

charging statute rendered it "unlawful for any person who is under the influence ... to

drive ... a vehicle within this state." Former RCW 46.61.506 (1979). As noted by the

dissent, the plain language of the statute did not require that the accused drive on a public

street or highway. Nevertheless, the Supreme Court reversed Day's conviction. The

purpose of the drunk driving law was to reduce drunk driving hazards to highway safety

and the traveling public. Day did not pose a threat to the public when driving intoxicated

on his parent's land.

Joshua Barnes suggests that we utilize the rule of lenity. We see no need to

employ the rule for the benefit of Barnes.

CONCLUSION

We affirm the superior court's dismissal of charges against Joshua Barnes for theft

of a motor vehicle. A riding lawnmower is not a motor vehicle for purposes of theft.

Fearing, C.J.

WE CONCUR:

fr]cU!Jw ~
ddoway,J.
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17
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