State v. Coria , 146 Wash. 2d 631 ( 2002 )

Sanders, J.

(dissenting) — The essential question here is one of straightforward statutory construction: Does “property of another” as used in RCW 9A.48.080, our second degree malicious mischief statute, encompass a defendant’s community property he co-possesses?²

I

1 begin with the text of the statute itself. See State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). The Washington statute defining second degree malicious mischief provides in relevant part:

A person is guilty of malicious mischief in the second degree if he or she knowingly and maliciously:

(a) Causes physical damage to the property of another in an amount exceeding two hundred fifty dollars ....

RCW 9A.48.080(1) (emphasis added).

Our Legislature has not defined “property of another.” Nor does legislative history offer us any aid. Although based on common law, the statute has its modern roots in the 1975 overhaul of our criminal code. Laws of 1975, 1st Ex. Sess., ch. 260.

When a statute does not define a term used at common law, courts must look to and apply the common law definition. See State v. Bash, 130 Wn.2d 594, 606-07, 925 P.2d 978 (1996); State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995); State v. Scoby, 117 Wn.2d 55, 57, 810 P.2d 1358, 815 P.2d 1362 (1991); Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 504-05, 125 P.2d 681 (1942); N. Pac. Ry. Co. v. Henneford, 9 Wn.2d 18, 21, 113 P.2d 545 (1941); Joshua Dressler, Understanding Criminal Law § 3.02[B] (1995); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.1 (1986). Indeed, unlike in most states, our Legislature expressly requires us to consider common law definitions of crimes to “supplement” Washington criminal statutes.³ RCW 9A.04.060. Given the legislative silence on “property of another,” we must look to the common law definition, if any.* **⁴

Malicious mischief was a misdemeanor at common law. See 4 Charles E. Torcía, Wharton’s Criminal Law § 485 (14th ed. 1978); see also State v. Watts, 48 Ark. 56, 2 S.W. 342, 342-43 (1886) (citing William Blackstone, Commentaries; Wharton’s Criminal Law). The common law crime was defined generally as the malicious injury or destruction of the property of another. 3 William L. Bltrdick, The Law of Crime § 778 (1946). The common law term “property of another” did not include property the defendant lawfully possessed. Id. Obviously, this would exclude a defendant’s community property he co-possessed.

This definition of “property of another” aptly coincides with other common law property crimes. For example, with respect to larceny at common law, Sir Matthew Hale stated it was no crime for a joint tenant or tenant in common to destroy property he and the other tenant co-own. 1 Sir Matthew Hale, Historia Placitorum Corona: The History of the Pleas of the Crown 513-14 (1736); Sir Matthew Hale, Pleas of the Crown: or, A Methodical Summary of the Principal Matters Relating to that Subject 60-61, 65-68, 85 (1694) (stating no crime where man has property interest); see also State v. Larsen, 834 P.2d 586, 590 (Utah Ct. App. 1992).

Similarly, at common law, partners or joint owners could not embezzle or steal partnership or jointly owned property. Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes 1100 (6th ed. 1995); Dressler, supra, § 32.06[B]; 2 LaFave & Scott, supra, § 8.4; 3 Torcia, supra, § 419; see also State v. Eberhart, 106 Wash. 222, 224-46, 179 P. 853 (1919); State v. Sylvester, 516 N.W.2d 845, 846-47 (Iowa 1994); People v. Zinke, 76 N.Y.2d 8, 555 N.E.2d 263, 265, 556 N.Y.S.2d 11 (1990); People v. Clayton, 728 P.2d 723, 724 (Colo. 1986); Babcock v. State, 91 Nev. 312, 535 P.2d 786, 786 (1975).

A husband and a wife were treated as one person for purposes of common law property crimes. 3 Torcia, supra, §§ 335, 393, 419; see also State v. Mahaley, 122 N.C. App. 490, 470 S.E.2d 549, 550-51 (1996); State v. Dively, 431 N.E.2d 540, 541 (Ind. Ct. App. 1982). Accordingly, “property of another” as used in common law property crimes did not include the marital property a spouse co-possessed. See, e.g., 3 Torcía, supra, § 335 (burglary); § 350 (arson); § 393 (larceny); § 419 (embezzlement); § 446 (false pretenses); see also State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995) (burglary); State v. Winkelmann, 761 S.W.2d 702, 706-07 (Mo. Ct. App. 1988) (larceny); State v. Phillips, 85 Ohio St. 317, 97 N.E. 976, 976-77 (1912) (larceny). For example, a husband could not be convicted of common law arson for destroying the dwelling house he and his wife shared. 3 Torcia, supra, § 350; see also State v. Denis, 304 A.2d 377, 382-83 (Me. 1973).

This discussion leads to the inextricable conclusion that “property of another” at common law would not have included a defendant’s own community property. Thus, when applying this common law definition to the case at hand, as we should until the Legislature says otherwise, Coria’s conviction for malicious mischief cannot stand.

II

In addition to considering the common law itself, the Court of Appeals also found relevant the history of our theft statute. See State v. Coria, 105 Wn. App. 51, 55-60, 17 P.3d 1278 (2001). I agree.

As mentioned above, it was traditionally not a crime for a partner to steal partnership property for it was not the “property of another.” See supra Part I. This remained true even after the Legislature initially codified the common law. See, e.g., State v. Birch, 36 Wn. App. 405, 675 P.2d 246 (1984) (interpreting “property of another” as used in the then-current theft statute). Birch so held because the Legislature had the opportunity to amend the theft statute to include partnership property but did not. Id. at 411. It was only in response to Birch that the Legislature finally amended the statute to include theft of partnership property by a partner. See Laws of 1986, ch. 257, § 2.

While the Legislature modified the theft statute regarding partnership property, it has never done so for community property. I suppose then, absent future amendment, a spouse could not be convicted for “stealing” his or her own community property.* ***⁵

Like the amendment to the theft statute covering theft of partnership property by partners, our Legislature could have amended the malicious mischief statute to include the damage or destruction of the defendant’s own community property. See Millay v. Cam, 135 Wn.2d 193, 202, 955 P.2d 791 (1998) (stating, “[i]t is well settled that where the Legislature uses certain language in one instance but different, dissimilar language in another, a difference in legislative intent is presumed”).⁶

Other state legislatures have enacted statutes that expressly govern damage or destruction of community property. For example, in Arizona, “property of another” is clearly defined in their malicious mischief statute to include “property in which any person other than the defendant has an interest, including community property and other property in which the defendant also has an interest.” Aeiz. Rev. Stat. § 13-1601(4) (West 2001) (emphasis added). In Alaska, “property of another” as used in all property crimes means, “property in which a person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest in the property and whether or not the person from whom the property was obtained or withheld also obtained the property unlawfully.” Alaska Stat. § 11.46.990(13) (Lexis 2000).

In a similar vein, it is also striking our Legislature has chosen not to adopt the Model Penal Code’s definition of “property of another” for purposes of property crime. We have stated that failure to include language from the Model Penal Code in a criminal statute evidences an intent that the statute’s meaning differs from the Model Penal Code. See State v. Jackson, 137 Wn.2d 712, 723-24, 976 P.2d 1229 (1999). The Model Penal Code defines “property of another” generally to include “property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property.” Model Penal Code § 223.0(7), at 125 (1980) (emphasis added); see also id. § 220.3 cmt. 3, at 44-45 (criminal mischief). If applicable, this definition would include Coria’s community property. Under Jackson, however, we should not reach this result because our Legislature has chosen not to incorporate the Model Penal Code definition into the malicious mischief statute.

While the majority acknowledges the Model Penal Code definition of “property of another,” as well as other states’, see majority at 638-40, it fails to explain the simple fact our Legislature has chosen not to enact similar legislation. The majority must remember our duty not to reconstruct legislation it does not like, as we have a “long history of restraint in compensating for legislative omissions.” Millay, 135 Wn.2d at 203; see also Dep’t of Labor & Indus. v. Cook, 44 Wn.2d 671, 677, 269 P.2d 962 (1954) (stating “[t]he court cannot read into a statute anything which it may conceive that the legislature has unintentionally left out.”).

III

The Court of Appeals employed the rule of lenity as an alternative ground to reverse Coria’s malicious mischief conviction. Coria, 105 Wn. App. at 60-62. Our majority neglects to address this point. I opine the rule of lenity applies if there is doubt as to the meaning of this statute.

The rule of lenity requires ambiguity in the language of a criminal statute be resolved to favor the defendant. United States v. R.L.C., 503 U.S. 291, 305, 112 S. Ct. 1329, 117 L. Ed. 2d 559 (1992); id. at 307-08 (Scalia, J., concurring); United States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971); State v. Radan, 143 Wn.2d 323, 329-30, 21 P.3d 255 (2001); In re Pers. Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999); In re Pers. Restraint of Charles, 135 Wn.2d 239, 252, 955 P.2d 798 (1998).

The rule of lenity derives from both the doctrine of separation of powers and principles of due process of law. It is based in part on separation of powers because it provides a clear guiding principle to both the judicial and legislative branches that the latter alone is the entity charged with defining crimes and punishments. See R.L.C., 503 U.S. at 309 (Scalia, J., concurring); Bass, 404 U.S. at 348; United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L. Ed. 37 (1820); Hopkins, 137 Wn.2d at 901; see also Brian Slocum, RICO and the Legislative Supremacy Approach to Federal Criminal Lawmaking, 31 Loy. U. Chi. L.J. 639, 662-67 (2000); Sarah Newland, Note, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 Harv. C.R.-C.L. L. Rev. 197, 201 (1994).

To this end, the rule of lenity serves as a “nondelegation doctrine” which promotes democracy. Slocum, supra, at 664-65. As Justice Frankfurter commented:

In a democracy the legislative impulse and its expression should come from those popularly chosen to legislate, and equipped to devise policy, as courts are not. The pressure on legislatures to discharge their responsibility with care, understanding and imagination should be stiffened, not relaxed. Above all, they must not be encouraged in irresponsible or undisciplined use of language.

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545-46 (1947). As a result, the rule of lenity similarly acts as an incentive for legislatures to create clear criminal statutes. Slocum, supra, at 665-66.⁷ Courts cannot do the legislature’s work for it.

The rule of lenity also is a necessary outgrowth of due process. In McBoyle v. United States, Justice Holmes speaking for the Court stated:

a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.

283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816 (1931). The rule of lenity assures adequate notice, and thus due process concerning what conduct will be considered illegal, by requiring strict construction of penal statutes. Liparota v. United States, 471 U.S. 419, 427, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985); McBoyle, 283 U.S. at 27; see also R.L.C., 503 U.S. at 308-09 (Scalia, J., concurring); Bass, 404 U.S. at 348; Wiltberger, 18 U.S. (5 Wheat.) at 95; Slocum, supra, at 662-63; Newland, supra, at 201-02; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 471 (1989).

This Court commonly, and recently, used the rule of lenity to interpret criminal statutes. See, e.g., Radan, 143 Wn.2d at 327-34; Hopkins, 137 Wn.2d at 900-01; Charles, 135 Wn.2d at 246-53. We apply the rule when the text of a statute is ambiguous. Radan, 143 Wn.2d at 329. Ambiguity exists if the statutory language is susceptible to more than one reasonable interpretation. Charles, 135 Wn.2d at 250. It must also be remembered the State bears the burden of establishing the narrower interpretation does not reasonably comport with the statute’s text. United States v. Granderson, 511 U.S. 39, 54, 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994); Slocum, supra, at 673-74; see id. at 674 n.179 (noting that placing the burden on the State “comport [s] well with principles of due process and judicial restraint”).

To be convicted of second degree malicious mischief in Washington a defendant must cause damage to “property of another,” which is statutorily undefined. RCW 9A-.48.080(1); see supra, Part I. Here, defendant Coria was convicted of damaging his own community property. If arguably “property of another” could broadly mean the separate or community property of another, it is equally if not more reasonable to suppose “property of another” simply means, more narrowly, property the defendant does not own. This narrow interpretation would of course exclude Coria’s community property.

The State does not address the ambiguity issue. It either neglects it outright, see Pet. for Review (failing to raise rule of lenity entirely) or assumes ambiguity and centers on various statutory construction theories to resolve it. See State’s Suppl. Br. at 6-13. Therefore, in no way could one reasonably conclude the State met its burden of showing the narrow interpretation of “property of another” does not comport with the text of RCW 9A.48.080(1).

The majority unreflectively implies there is no textual ambiguity as applied to this case when it reasons, “[fit is beyond dispute that the items the defendant damaged were property, and that they belonged to Mrs. Coria, another person. Thus the defendant’s conduct is squarely within the literal reach of the statute notwithstanding his interest in the property.” Majority at 636. Of course, it is also beyond dispute that the items the defendant damaged belonged to the defendant as well, as he possesses a community property interest. It is precisely this ambiguity which warranted our review in the first place.

The majority also claims, “[i]f there is any doubt about the meaning of ‘property of another,’ it is resolved by chapter 10.99 RCW, part of the legislature’s official response to domestic violence.” Majority at 636. However, I see no persuasive authority to resolve a textual ambiguity in our malicious mischief statute based solely on one portion of a different title of our state code, especially before looking to the common law or applying the rule of lenity. In any event, while the domestic violence statutes cited by the majority (RCW 10.99.020(3)(m) and RCW 10.99.010) suggest legislative intent that spouses do not have a get-out-of-jail-free card for malicious mischief crimes, this does nothing to answer the question whether “property of another” for malicious mischief purposes includes only the separate property of a spouse.

Moreover, by looking only to chapter 10.99, the majority ducks other statutes adverse to its position. For example, as the Court of Appeals noted, “the distinct history of Washington’s theft statutes regarding ‘property of another’ places the meaning of the same term in the malicious mischief statute in doubt.” Coria, 105 Wn. App. at 60. I agree. See supra, Part II. Such is also true when considering our community property law, which implies no criminal liability for damaging household personal community property. Id. If the majority sees fit to consider other areas of the code, why does it ignore these statutory considerations? At the very least, “property of another” is ambiguous.

Our case law remains unclear concerning whether the rule of lenity should be applied at this point in the interpretive process. While we have indicated we apply the rule of lenity as soon as we find textual ambiguity, see, e.g., Hopkins, 137 Wn.2d at 901, we have also stated we should first determine whether legislative history resolves the ambiguity, and only if it does not, do we then apply the rule of lenity. See, e.g., Charles, 135 Wn.2d at 250 n.4, 252.

I prefer the former approach. Applying the rule of lenity immediately after finding textual ambiguity better protects a defendant’s constitutional right to adequate notice of the criminal laws and penalties, for it is only the statutory text itself that constitutes legislative criminal law. Moreover, when we apply the rule of lenity upon a finding of textual ambiguity only, we send a strong message to the Legislature to make sure it drafts clearer statutes. See R.L.C., 503 U.S. at 308-11 (Scalia, J., concurring); Hughey v. United States, 495 U.S. 411, 422, 110 S. Ct. 1979, 109 L. Ed. 2d 408 (1990); Wiltberger, 18 U.S. (5 Wheat.) at 95-96; Slocum, supra, at 669-71; see also Newland, supra, at 200-19 (concluding the rule of lenity should serve as a background guiding principle at all points in the process of interpreting criminal statutes).⁸

It is for the Legislature, not a majority of this Court, to define a statutory crime. When the Legislature fails to do so by drafting unclear penal laws, we must apply the rule of lenity, uphold the separation of powers, and protect the due process rights of the criminal defendant. I would apply the rule of lenity to Coria’s advantage immediately upon finding ambiguity in the words “property of another” in RCW 9A.48.080. I therefore would hold “property of another” as used in the second degree malicious mischief statute does not encompass a defendant’s own community property which he co-possesses.⁹

IV

I am also persuaded “property of another” as used in the malicious mischief statute cannot include a defendant’s community property under our community property law. A community property interest is “a present, undivided, fully vested, interest in each and every item of community property.” 19 Kenneth W. Weber, Washington Practice: Family And Community Property Law § 8.4 (1997) (footnotes omitted). Accordingly, each spouse “is considered to be a one-half owner thereof.” Id.

By statute, each spouse has an equal right to individually manage and control community property. RCW 26.16.030. A spouse’s authority to control community property is very extensive:

The sole management powers of a spouse are quite broad, including the right to determine the day to day use of community property, to contract in relation to community property, to purchase community property, to sell community property, to encumber community property, to trade community property, and to otherwise do that which an owner of property can do with that person’s own property.

Weber, supra, § 12.1 (emphasis added) (footnote omitted). This power extends to community personal property. Id. § 12.8 (noting until 1972 the husband retained sole management authority over community personal property).

RCW 26.16.030 contains six exceptions which prove the rule because none applies here. Section (1) pertains to devising or bequeathing by will; section (2) pertains to gifts; sections (3) and (4) pertain to real property; section (5) pertains to selling specific types of community personal property; and section (6) pertains to community business transactions. Nothing in this statute expressly prevents a spouse from destroying community personal property as part of the power of disposition, and certainly no exception suggests legislative intent to make the damaging of community personal property a crime.

Our community property law makes sense. It does not create criminal liability for a spouse who dents the family car, breaks a window in the family house, or cracks the family china.

Recognizing this, the Court of Appeals refused to construe the “property of another” to include community property, explaining that it was “ loath to take such a nebulous concept and reduce it, by judicial opinion, to a criminal rule.’ ” Coria, 105 Wn. App. at 58 (quoting State v. Birch, 36 Wn. App. 405, 410, 675 P.2d 246 (1984)). The majority, having no such fear, rushes in, creating potential due process concerns in its wake.

Due process requires fair notice of proscribed criminal conduct and standards to prevent arbitrary enforcement. State v. Becker, 132 Wn.2d 54, 61, 935 P.2d 1321 (1997). RCW 9A.48.080 requires the State to prove the defendant “knowingly and maliciously” destroyed the property of another. Under the majority’s interpretation, a defendant would be required to know in advance whether the property he or she destroyed was separate or community property.¹⁰ Moreover, law enforcement would have to be able to make that distinction. As anyone familiar with marriage dissolution proceedings knows, the distinction between separate and community property is not always obvious. The majority’s decision opens the door to insufficient notice and invites arbitrary enforcement.

V

For the foregoing reasons, “property of another,” as that term is used in our second degree malicious statute, does not encompass a defendant’s own community property. Since it is undisputed Coria damaged only his own community property, and not the separate property of his wife, his conviction for malicious mischief must be vacated.

Accordingly I dissent.

2 This question has nothing to do with domestic violence although the majority seems confused on this point.

3 It is no excuse that the members of our majority have not truly digested this statute. On the second floor of our own courthouse, we display an exhibit-panel about the common law, one which majority signatories walk by almost everyday. It proudly states, “The Washington Legislature adopted the Common Law of England in 1891,” citing to section 1, chapter 17 of the Code of 1891 which provides the common law shall be the “rule of decision” when not inconsistent with state and federal law. This statute is alive and kicking today. See RCW 4.04.010.

4 Looking to the common law also makes sense because it appears one of our first general malicious mischief statutes was expressly based on the common law. See McLaughlin’s Code of 1896, § 6228 (citing to “HPC”). “HPC” refers either to Hale’s or Hawkins’ Pleas of the Crown, the common law of England. See Mary Miles Prince, Bieber’s Dictionary of Legal Abbreviations 339 (4th ed. 1993).

5 This Court has held, based on the statutory definition of “owner,” that theft can occur when a defendant, even with title, takes the property from another with a superior possessory interest. State v. Pike, 118 Wn.2d 585, 590, 826 P.2d 152 (1992). This, of course, is irrelevant here where neither Coria nor his wife has a superior possessory interest. In any event, the Pike court rested its decision on express statutory authority—unlike our majority.

6 The majority responds by claiming theft and malicious mischief are significantly distinct because “possession can be redeemed when property is stolen, but not when it is damaged or destroyed.” Majority at 638. However, this is plainly wrong. Possession sometimes cannot be redeemed after property is stolen, and possession sometimes may be redeemed when property is merely damaged.

7 Similar is our requirement to strictly construe criminal statutes. On this we have stated, “ ‘[i]t is a familiar rule of statutory construction ... that a criminal statute will not be extended beyond its plain terms by construction or implication.’ ” Marble v. Clein, 55 Wn.2d 315, 317, 347 P.2d 830 (1959) (quoting State v. Youngbluth, 60 Wash. 383, 384, 111 P. 240 (1910)). Courts strictly construe statutes by choosing a narrow construction over a broad one. State ex rel. McDonald v. Whatcom County Dist. Court, 19 Wn. App. 429, 431, 575 P.2d 1094 (1978); see also State v. Eden, 92 Wash. 1, 7, 158 P. 967 (1916).

8 Even if we were to consider legislative history before applying the rule of lenity in this case, that would not resolve the textual ambiguity in our second degree malicious mischief statute. See supra Part I.

9 A procedural note: The State failed to properly raise the rule of lenity issue for our review. We review only questions raised in the petition for review and answer, unless we order otherwise. RAP 13.7(b). Issues are properly raised according to RAP 13.4(c)(5), which requires, “[a] concise statement of the issues presented for review” set forth with “specificity.” See State v. Collins, 121 Wn.2d 168, 178, 847 P.2d 919 (1993) (citing Clam Shacks of Am., Inc. v. Skagit County, 109 Wn.2d 91, 98, 743 P.2d 265 (1987)). We decline to review portions of Court of Appeals decisions when the petition or answer fails to clearly state the issues for review pertaining to these portions. See, e.g., Collins, 121 Wn.2d at 178-79; Douglas v. Freeman, 117 Wn.2d 242, 257-58, 814 P.2d 1160 (1991); Clam Shacks, 109 Wn.2d at 98. It does not suffice the issues were raised in the petition’s argument section, reply briefs, or supplemental briefs. Collins, 121 Wn.2d at 178-79; Clam Shacks, 109 Wn.2d at 98; see also Douglas, 117 Wn.2d at 257-58. Here, the Court of Appeals reversed Coria’s malicious mischief conviction alternatively on rule of lenity grounds. Coria, 105 Wn. App. at 60-62. The State failed to seek review of this portion of the decision as it did not properly set forth the rule of lenity issue for review in its petition. See Pet. for Review at 1-2. The State addressed only the issue specifically in a supplemental brief filed after we already accepted review. See State’s Suppl. Br. at 8-9. Therefore, under RAP 13.4(c)(5), 13.7(b), and its interpretive case law, the Court of Appeals decision to reverse Coria’s conviction on rule of lenity grounds should still stand.

10 This issue was not raised here, and Coria freely admits on appeal the property was community in nature.