(dissenting) — As the majority notes, counts one, two, three, five, six, eight, and nine are all predicated on the State’s asserted ownership of the submerged trees and the stray logs.2 Majority at 96. Tortorelli contends the State submitted insufficient evidence to prove it owns the submerged trees Tortorelli allegedly stole from the State.
The common law supplements the criminal statutes “insofar as [it is] not inconsistent with the Constitution and statutes of this state ... .” RCW 9A.04.060. Tortorelli raises the common law doctrine of finds. Under this doctrine, “the finder of things that have never been appropriated, or that have been abandoned by a former occupant, may take them into his possession as his own property; and the finder of any thing casually lost is its rightful occupant against all but the real owner.” Eads v. Brazelton, 22 Ark. 499, 501 (1861). Because the ancient submerged trees fell into Lake Washington prior to the existence of the state and federal governments and none of the previous inhabitants lay claim to the trees, Tortorelli asserts ownership of the submerged trees under the law of finds. Pet. for Review at 14. Without reaching the merits of Tortorelli’s common law claim, the majority concludes as a matter of law that the State owns the submerged trees. Majority at 90.
The majority reaches this astonishing conclusion by overstating the State’s claim to natural resources under the *98federal Submerged Lands Act of 1953, 43 U.S.C. § 1301. Majority at 91-92. As the majority notes, the act provides a nonexclusive definition of “natural resources.” Majority at 91. However, its illustrative examples, “oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life,” 43 U.S.C. § 1301(e), are all resources that grow or evolve naturally below water, rather than resources that once grew on dry land and then happened to end up beneath the surface by accident or natural disaster.
The majority’s conclusion is counterintuitive. The Submerged Lands Act speaks of minerals and marine life, not of sunken trees. Moreover, the rule of lenity requires the court to construe an ambiguous statute in a criminal case favorably to the accused. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 249-50, 955 P.2d 798 (1998). This assures adequate notice, and thus due process, concerning what conduct will be considered illegal. Liparota v. United States, 471 U.S. 419, 427, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985). Today’s majority gives short shrift to this vital concern.
I therefore respectfully dissent.
Alexander, C.J., concurs with Sanders, J.
Tortorelli was originally charged with nine violations. Majority at 89. Count seven was dropped, id. at 89 n.l; the issue of title has no bearing on count four, offering a false document for filing. Id. at 96.