Opinion
No. 52204-7-II
06-30-2020
STATE of Washington, Respondent, v. Tycameron LAKE, aka Tianna Cameron, Ty Lake, Tyrone Cameron Lake, Ty Cameron, Appellant.
Lise Ellner, Attorney at Law, Po Box 2711, Vashon, WA, 98070-2711, Spencer James Babbitt, Attorney at Law, Po Box 19501, Seattle, WA, 98109-1501, for Appellant. Rachael Rogers, Clark County Prosecuting Attorney's Office, Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
Lise Ellner, Attorney at Law, Po Box 2711, Vashon, WA, 98070-2711, Spencer James Babbitt, Attorney at Law, Po Box 19501, Seattle, WA, 98109-1501, for Appellant.
Rachael Rogers, Clark County Prosecuting Attorney's Office, Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
PART PUBLISHED OPINION
Maxa, J. ¶1 Tycameron Lake appeals her convictions of one count of second degree organized retail theft, two counts of first degree identity theft, one count of second degree identity theft, and two counts of second degree possession of stolen property. In the published portion of the opinion, we hold that there was insufficient evidence to support Lake's conviction of second degree organized retail theft because her theft involving ordering items online from catalogs was not from a "mercantile establishment." In the unpublished portion, we reject Lake's other arguments and the multiple assertions made in her statement of additional grounds (SAG).
¶2 Accordingly, we reverse Lake's second degree organized retail theft conviction and remand for the trial court to dismiss that conviction. We affirm all of Lake's other convictions, but we remand for resentencing.
FACTS
¶3 In 2017, Lake was living in a senior living apartment complex. In February 2017, she placed three catalog orders with different companies using the names and accounts of other apartment complex residents. She had the items delivered to her as "gifts."
¶4 One of the residents noticed that someone had placed an order using her credit account. She reported the suspicious order to the front office and made a fraud complaint with the Vancouver police. After an investigation, the State charged Lake with one count of second degree organized retail theft, three counts of first degree identity theft, and two counts of second degree possession of stolen property.
¶5 The facts stated above were presented at trial. At the close of the State's case, Lake moved to dismiss the second degree organized retail theft charge because there was no evidence that she obtained goods form a "mercantile establishment" as required for that charge. The trial court denied the motion.
¶6 The jury found Lake not guilty of one count of first degree identity theft but guilty of the lesser degree offense of second degree identity theft. The jury found Lake guilty of the other five charged counts. Lake appeals her convictions.
ANALYSIS
¶7 Lake argues that the trial court erred in denying her motion to dismiss because the State failed to present sufficient evidence to prove that she committed second degree organized retail theft. Specifically, she argues that her thefts involving online catalog purchases were not from a mercantile establishment. We conclude that the term "mercantile establishment" is ambiguous, and we apply the rule of lenity to hold that Lake's thefts were not from a mercantile establishment.
A. LEGAL PRINCIPLES
1. Standard of Review
¶8 The test for determining sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Cardenas-Flores , 189 Wash.2d 243, 265, 401 P.3d 19 (2017). Evidence may be insufficient as a matter of law based on an appellate court's interpretation of an undefined statutory provision. See State v. Engel , 166 Wash.2d 572, 578-81, 210 P.3d 1007 (2009) (holding that the evidence was insufficient to prove second degree burglary based on the court's definition of "fenced area").
2. Statutory Interpretation
¶9 Interpretation of a statute is a question of law that we review de novo. State v. Brown , 194 Wash.2d 972, 975, 454 P.3d 870 (2019). The primary goal of statutory interpretation is to determine and give effect to the legislature's intent. Id. To determine legislative intent, we first look to the plain language of the statute. Id. at 976, 454 P.3d 870. We consider the language of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole. State v. Larson , 184 Wash.2d 843, 848, 365 P.3d 740 (2015). If the plain meaning of a statute is unambiguous, we must apply that plain meaning as an expression of legislative intent. Id.
¶10 If a statutory term is undefined, we apply the term's ordinary meaning unless the legislature indicates a contrary intent. Brown , 194 Wash.2d at 976, 454 P.3d 870. We also may consider dictionary definitions to determine the ordinary meaning of undefined terms. State v. Wilson , 10 Wash. App. 2d 719, 727, 450 P.3d 187 (2019).
¶11 If the plain language of the statute is susceptible to more than one reasonable interpretation, the statute is ambiguous. Brown , 194 Wash.2d at 976, 454 P.3d 870. We first attempt to resolve the ambiguity and determine the legislature's intent by considering other indicia of legislative intent, including principles of statutory construction, legislative history, and relevant case law. Id. If these indications of legislative intent are insufficient to resolve the ambiguity, under the rule of lenity we must interpret the ambiguous statute in favor of the defendant. State v. Evans , 177 Wash.2d 186, 192-93, 298 P.3d 724 (2013). We will construe an ambiguous criminal statute against the defendant only where the principles of statutory construction clearly establish that the legislature intended such an interpretation. Id. at 193, 298 P.3d 724. B. MEANING OF "MERCANTILE ESTABLISHMENT"
¶12 In order to prove second degree organized retail theft, the State had to prove that Lake committed theft of property with a cumulative value of at least $750 from one or more "mercantile establishments." RCW 9A.56.350(1)(c). The question here is whether fraudulently purchasing items online from a catalog constitutes theft from a mercantile establishment, or whether that term is limited to physical retail stores.
RCW 9A.56.350 was amended in 2017. See Laws of 2017, ch. 329, § 1. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute.
1. Ordinary Meaning
¶13 The legislature has never explicitly defined the term "mercantile establishment." And the undefined term "mercantile establishment" in RCW 9A.56.350, standing alone, does not necessarily reveal whether the legislature intended the statute to apply to online theft. But we can consider related statutes and the statutory scheme as a whole. Larson , 184 Wash.2d at 848, 365 P.3d 740.
¶14 RCW 9A.56.350 was part of a bill that passed the legislature in 2006 that included former RCW 9A.56.360, which defined the crime of retail theft with special circumstances. LAWS OF 2006, ch. 277. Former RCW 9A.56.360 (2013) also referred to "mercantile establishments" in defining the crime of retail theft with special circumstances:
(1) A person commits retail theft with special circumstances if he or she commits theft of property from a mercantile establishment with one of the following special circumstances:
(a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit ;
(b) The person was, at the time of the theft, in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome
security systems including, but not limited to, lined bags or tag removers.
(Emphasis added.)
¶15 Former RCW 9A.56.360(1)(a) and (b) show that the legislature intended in that provision to curtail thefts from physical retail stores. Only a physical store has a "designated emergency exit" and employs security systems that can be overcome by "lined bags" or "tag removers." Former RCW 9A.56.360(1)(a) and (b). Lake argues that because RCW 9A.56.350 was part of the same legislation as former RCW 9A.56.360, it can be inferred that the legislature also intended RCW 9A.56.350 to address theft from physical retail stores. However, it also is possible that the two statutes were intended to address different scenarios.
¶16 We also can consider dictionary definitions to determine the plain meaning of "mercantile establishment." See Wilson , 10 Wash. App. 2d at 727, 450 P.3d 187. The State relies on vocabulary.com and thefreedictionary.com, both of which define "mercantile establishment" as "a place of business for retailing goods." Webster's Dictionary defines "mercantile" as "relating to merchants or trading" and defines "establishment" to include "a more or less fixed and usu. sizable place of business or residence together with all the things that are an essential part of it (as grounds, furniture, fixtures, retinue, employees)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1412, 778 (2002).
https://www.vocabulary.com/dictionary/mercantile%establishment (last visited June 19, 2019).
https//www.thefreedictionary.com/mercantile+establishment (last visited June 19, 2019).
¶17 The State claims that the term "place of business" would include an online retailer's business operations. This interpretation is reasonable. But another reasonable interpretation is that a merchant's "place of business" is a physical retail store, not the office building or warehouse where a retailer conducts online business. ¶18 We conclude that the term "mercantile establishment" in RCW 9A.56.350 is ambiguous.
2. Resolving Ambiguity
¶19 Because RCW 9A.56.350 does not unambiguously apply only to physical retail stores, we must attempt to resolve that ambiguity by considering other sources of intent. One source that we can consider is the legislative history of that statute. Brown , 194 Wash.2d at 976, 454 P.3d 870.
¶20 The bill reports available for HB 2704 do not provide much insight into the intent of the legislature, but they do show that the people testifying in support of the bill were focused on physical retail stores. The House bill report stated as follows regarding the testimony in support of the bill:
Organized retail theft is a serious problem in this state and it is growing. Organized retail theft is not the same as traditional shoplifting. These criminals are bold, violent, and extremely organized. These thefts are responsible for the majority of merchandise lost in retail establishments. These criminals are aware of the different state laws. When a state gets tough on these criminals, they move on to other states. Anti-theft devices are ineffective in stopping organized retail theft.
H.B. REP. ON H.B. 2704, 59th Leg., Reg. Sess. (Wash. 2006). The Senate report summarized the testimony in favor of the bill.
Retailers are struggling to deal with organized groups conducting serial thefts. These are not casual criminals; they attack
stores in a concerted effort to take large quantities of goods for resale.
S.B. REP. ON H.B. 2704, 59th Leg., Reg. Sess. (Wash. 2006).
¶21 The testimony in favor of a bill is not necessarily determinative of the legislature's intent. Evans , 177 Wash.2d at 217, 298 P.3d 724. But the legislative history fails to resolve the ambiguity in favor of the State. And as discussed above, the language in former RCW 9A.56.360 – part of the same bill as RCW 9A.56.350 – arguably is inconsistent with the State's position. Finally, we cannot identify any other indicia of legislative intent, principles of statutory construction, or relevant case law that would allow us the resolve the ambiguity regarding the meaning of "mercantile establishment."
¶22 Because the term "mercantile establishment" remains ambiguous, we must apply the rule of lenity and interpret the ambiguous statute in favor of Lake. See id. at 192-93, 298 P.3d 724. The interpretation that favors Lake is that the term "mercantile establishment" in RCW 9A.56.350 refers to theft from a physical retail store and does not apply to theft from an online retailer.
¶23 The State presented no evidence that Lake's theft was from a physical retail store. Therefore, we hold that the trial court erred in denying Lake's motion to dismiss because the evidence was insufficient to convict Lake of second degree organized retail theft.
CONCLUSION
¶24 We reverse Lake's second degree organized retail theft conviction, and we remand for the trial court to dismiss that conviction. We affirm all of Lake's other convictions, but we remand for resentencing.
¶25 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
SUTTON, A.C.J.
GLASGOW, J.