IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

ZACHARY SCOTT LARSON, a.k.a. ZACH LARSON, Appellant. DIVISION ONE No. 71238-1-1 PUBLISHED OPINION

FILED: February 17, 2015 r-l

Dwyer, J. — Zachary Larson attempted to steal a pair ofshoes from a retail store. The shoes were equipped with a security device that was attached 

### to the shoes bywire. Yet, Larson, using wire cutters that he had broughtinto 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 ofretail theftwith extenuating circumstances, which criminalizes the commission of retail theft while in possession of a "device 

### designed toovercome 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
1 RCW 9A.56.360 was amended, effective January 1, 2014, so as to replace every instance of the phrase "extenuating circumstances"with "specialcircumstances." Lawsof2013, 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 severthe 

### wire that attached the security device to a pair ofNike shoes. By doing so, he
was able to remove the security device from the shoes. When the couple 

### attempted to leave the storewithout paying for the shoes, theyweredetained by security and the police werecalled. Larson admitted to a responding officerthat he had intended to take the shoes without paying for them. 

### On May 23, Larson was charged by amended information with onecount of retail theft with extenuating circumstances. 

### (1) Aperson commits retail theftwith extenuating circumstances if he or she commits theft of property from a mercantile establishment with one ofthe following extenuating circumstances: 

### (b) Theperson was, at thetime ofthetheft, in possession of an item, article, implement, or device designed to overcome 

### securitysystems including, but notlimited 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 matteroflaw, wire cutters do not constitute a "device designed to overcome security systems." Thus, he asserted,

2State v. Knapstad. 107 Wn.2d 346, 729 P.2d 48 (1986). -2-No. 71238-1-1/3 the facts alleged were legally insufficient to support a finding of guiltas 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 ofthe police reports, waived his right to a jury trial, and agreed that the trial court could decide his 

### innocence or guiltbased 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 hisconviction. Hemaintains, 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. 

### Theplain meaning ofthe statute reveals the legislature's intenttopunish thieves who, anticipating that the possession ofa device which may be able tofoil a store's security systemwill be expedienttotheir cause, commit retail theftwhile in possession of such a device. In recognition ofthe fact thatwire cutters are 

### designed to cutwire, which is a common feature ofsecurity systems, wehold that, within the meaning of formerRCW 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 reWinship, 397 U.S. 358, 364, 90 S.
-3-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 ofthe evidence, this court reviews the evidence inthe lightmost 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 onlyin the event that no rational fact finder could have found the essential elements ofthe 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 effectto the intent ofthe 

### legislature.'" Statev. 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 isplain on its face, we mustgive effect to thatplain meaning as an 

### expression oflegislative intent. Ervin, 169 Wn.2d at820. "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 provisionin 

### question.'" Statev. J.P., 149 Wn.2d 444, 450, 69P.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 "'theordinary meaning of the language at issue, the context ofthe statute in which that provision isfound, related provisions, and the statutoryscheme as a whole,'" we "'mustnot add words where the legislature has chosen not to include 

### them,'" and "must 'construe statutes such thatall ofthe language isgiven effect.'"
-4-No. 71238-1-1/5
Lake v. Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283 

### (2010) (quoting Engel. 166Wn.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 lawfor assistance in discerning legislative intent.'" Ervin, 169Wn.2d at 820 (quoting Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007)). 

### A personcommits retail theftwith extenuating circumstances if, at thetime 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 propertyfrom a mercantile establishment with one ofthe following extenuating circumstances: 

### (b) The person was, at thetime ofthetheft, in possession of an item, article, implement, or device designed to overcome 

### security systems including, but notlimited 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 toovercome security systems," signaled anintenttocriminalize the commission ofretail theftwhile in possession of devices "conceived and 

### manufactured for the purpose ofoverriding security systems." Opening Br. of 

### Appellant at5. Larson maintains thatwire cutters arenot conceived and manufactured for the purpose ofoverriding securitysystems and, thus, are not 

### designed toovercome security systems. According to Larson, wire cutters areNo. 71238-1-1/6 designed to cut wire: an act that is not confined to the overcoming of security systems. 

### We agree that wirecutters are designed to cut wire, just as we perceive 

### that tag removers (one of the two illustrative example setforth in the statute) are 

### designed to removetags—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 toconsider not only thedevice itself, but also theobject 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, orotherwise 

### thwarted by thedevice isactually usedin security systems. For instance, in order to determine whether the use of a tag remover is designed to overcome a 

### security system, it isnecessary toconsiderwhethertags are used in security systems.
3Our analysis doesnot depend upon theactual use ofa device (or lackthereof) in each case. Rather, ourconsideration of usage on an abstractlevel ispremised on the notion thatthe relationship between the device and the object upon which itactswill often suggestadesign ofor 

### purpose for thatdevice. Thus, while it is true that, in this case, Larson used wire cutters to cutthe wire and thereby overcome the store's security system, ourconclusion would bethe sameifit had beenfound only that he wasin possession ofwire cutters while committing retail theft.
-6-No. 71238-1-1/7
The facts ofthis 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 statutoryprovision 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 notconstitute 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 tofacilitate theft." In theformer category, the court placed 

### "ordinary pliers" andothertools "which have many purposes independent ofretail theft." Reeves, 336 P.3d at 108-09. Inthe latter category, the court placed "lined 

### bags and tag removers" andother "devices thathave a primary purpose of facilitating retail theft." Reeves, 336 P.3d at 108. 

### We do notagree that the devices with which the legislature was concerned were those whose primarypurpose 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 statutetargeted possession ofdevices "designed toovercome security systems"—not "devices
-7-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 inthe statute by the legislature to illustrate the types ofdevices itintended to cover. Indeed, as Larson's counsel acknowledged at oral argument, the primary purpose of tag removers is not to be used bythieves 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 ofrestrictive language to that effect, we do not presume that the legislature intended to exclude certain devices 

### that are designed notonly to overcome security systems, but to accomplish other 

### objectives as well. Therefore, even assuming thatwire 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 intentto 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
-8-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 ofdiffering reasonable interpretations, one of which isthatthe device mustbe "specificallyconstructed 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 lenityand "strictlyconstrue" the statute infavor ofthe 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. 

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