State of Washington v. Casey Wade

FILED
SEPT 27, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33643-3-111
Respondent, )
)
v. )
)
CASEY WADE, ) PUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Casey Wade appeals from his conviction for third degree retail
theft with special circumstances, contending that the magnets and key he used to unlock
Wal-Mart's security devices did not constitute an implement or device designed to defeat
a security system. Concluding that the evidence supported the jury's determination, we
affirm.
FACTS
Mr. Wade was arrested after a customer assisted store security in stopping Wade's
flight from a Spokane Valley Wal-Mart store. An investigation uncovered nine empty
No. 33643-3-III
State v. Wade
security devices in the men's room garbage can after Mr. Wade had entered the room.
Nine plastic-wrapped video games were discovered in Mr. Wade's backpack, along with
charging cords, a bolt cutter, a pry bar, and a screwdriver. In his right pocket, police
discovered 35 powerful small magnets, a thin key, and a tumbler key. His left pocket
contained a knife and box cutters.
The magnets were arranged in three columns along the key, a configuration that
allowed a person to open the magnetic lock on the security cases used to protect the video
games by sliding the magnet group along the top of the case. The prosecutor filed a
felony charge of third degree retail theft with special circumstances, alleging the crime
was committed with an "item, article, implement, or device designed to overcome
security systems." Clerk's Papers (CP) at 15. The matter ultimately proceeded to jury
trial.
The magnets, keys, and one of the security devices recovered from the restroom
were admitted into evidence. Trial testimony established that a device containing a
magnet was used by store employees to open the security cases that held the video games.
At the conclusion of the State's case, the defense moved to dismiss the charge, arguing
that magnets were a common item and not specifically manufactured to defeat security
devices. After taking a recess to review case law, the court concluded that the
configuration of the magnets on the key could be considered a device and that the matter
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No. 33643-3-III
State v. Wade
was appropriately a question for the jury. 1 Neither party offered a definitional jury
instruction on the topic.
The parties respectively argued the matter to the jury on the basis that the
arrangement of magnets was or was not a device designed to overcome a security system.
The jury convicted Mr. Wade as charged. The court imposed a 90 day sentence with
credit for 71 days already spent in custody. Mr. Wade then timely appealed to this court.
ANALYSIS
The appeal raises the sufficiency of the evidence as the sole issue. 2 Mr. Wade
argues that magnets and keys are ordinary objects that have many uses other than to
defeat security devices. However, we agree with the trial court that the arrangement of
the magnets on the key provided sufficient evidence that the jury could conclude Mr.
Wade used a device or instrument that he had designed to overcome a security device.
Well settled standards govern review of evidentiary sufficiency challenges in
criminal cases. The reviewing court does not weigh evidence or sift through competing
testimony. Instead, the question presented is whether there is sufficient evidence to
1
Curiously, after trial the State prepared, and the trial court signed, findings of
fact and conclusions of law denying the motion. CP at 92-95.
2
Mr. Wade also requests that we waive appellate costs in the event he does not
prevail in this appeal. Since he has not provided us with an updated financial statement
in accordance with our general order, we decline his motion without prejudice to his
presenting the matter to our commissioner in the event the State seeks costs and he is able
to provide updated information.
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No. 33643-3-III
State v. Wade
support the determination that each element of the crime was proved beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980). The reviewing court will
consider the evidence in a light most favorable to the prosecution. Green, 94 Wash. 2d at
221. Reviewing courts also must defer to the trier of fact "on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence." State v.
Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004), abrogated on other grounds by,
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
As charged in this case, the prosecutor had to establish the defendant committed
third degree theft while
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(1)(b), (4). The only question presented by this appeal is whether the
magnet group constituted an "article, implement, or device." The statute does not further
define this phrase, but that language was at issue in State v. Larson, 184 Wash. 2d 843, 365
P.3d 740 (2015). Larson was released after trial in this case and both parties rely on it in
their briefing to this court.
There, the defendant had used wire cutters to remove a security tag from a pair of
shoes at a store in Bellingham. Id. at 846. Resolving a split between Division One and
Division Two, the court determined that an ordinary item did not constitute a "device
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No. 33643-3-III
State v. Wade
designed to overcome security systems." Id. at 848-49. Noting that the word "designed"
was not synonymous with "used," the court focused on the common usage of the object.
Id. at 853. The statute targeted items that were specifically created to overcome security
devices such as tag removers and lined bags. It did not apply to ordinary tools of general
usage. Id. The conviction was reversed. Id. at 855. The court reiterated its holding:
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 of RCW
9A.56.360(1 )(b ).
Id.
Likening his situation to that in Larson, Mr. Wade argues that magnets are a
common device that are not manufactured specifically to overcome security systems.
While we agree with that general observation, Mr. Wade was not prosecuted for
possessing a single magnet strong enough on its own to open the security box. Instead,
he possessed 35 magnets, arranged in three columns roughly the length of the metal in the
security box, and joined to a key, making it easy to use the magnets in concert to slide
open the security box. The jury was permitted to infer that the defendant assembled the
magnets in this grouping in order to defeat a security system.
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Accordingly, we believe the evidence supported the jury's determination that this
homemade device was created for the purpose of overcoming a security device. The
conviction for third degree retail theft with special circumstances · affirmed.
WE CONCUR:
j
Pennell, J.
6