State v. CoriaState v. Coria
- Reporters:
- , ,
- Before:
- Owens (en banc)
OWENS, J.
Defendant Angel Coria was convicted of malicious mischief in the second degree for damaging community property owned by him and his wife, Kristen Coria. The defendant contends that because he is co-owner of the property, he did not damage “property of another” within the meaning of the malicious mischief statute. The Court of Appeals, Division
FACTS
On Saturday, December 5, 1998, the defendant and his wife had an argument at a restaurant in Tacoma. After leaving, they had an altercation in the car, in which Mrs. Coria received a gash on the left side of her face. When they got home, Mrs. Coria ran inside to call 911, and the defendant got into his pickup truck and left. Tacoma Police Officer Wendy Haddow responded to the 911 call, reaching the Corias at 10:27 P.M.
Officer Haddow testified that when she arrived Mrs. Coria was crying, she had blood in her hair, and her face was swollen. She told Officer Haddow what happened. At the restaurant, the defendant became jealous because the waiters had been giving her too much attention. On the way home, the defendant drove to an empty parking lot. He slammed her face against his knee and the dashboard, punched her 10 times, and said that he would make sure no one would look at her again. She said she lost consciousness for a few minutes.
Officer Haddow called an ambulance for Mrs. Coria. At the hospital, Dr. Paul Hildebrand closed the gash on her face with six stitches. A CT scan revealed swelling on the right side of Mrs. Coria‘s head. Dr. Hildebrand testified that Mrs. Coria‘s injuries were consistent with her statements to police, including her reported loss of consciousness. Mrs. Coria‘s friend Debra Carrillo drove her home from the hospital around midnight.
The defendant got home later. Mrs. Coria ran to the neighbor‘s and called 911 again at 2:58 A.M. Again Officer Haddow responded (this time to the neighbor‘s) and again Mrs. Coria told her what happened. She said that she heard the defendant return and ran over to the neighbor‘s when she heard a loud banging noise coming from the garage. She said she went to the neighbor‘s because her neighbor had a big husband. She warned Officer Haddow not to try to arrest the defendant without backup because he was in a killing mood. But Officer Haddow was able to arrest the defendant, who was calm.
When Officer Haddow and Mrs. Coria returned to the house, it was a mess. A mirror was broken, the television was toppled over, the microwave was torn out of the wall, there were slashes in the kitchen linoleum, the couple‘s pet cockatiel was dead, and its cage was broken apart. When Officer Haddow came into the house, the Corias’ three-year-old daughter pointed to the shattered mirror and said, “Daddy broke.” 2 Report of Proceedings (RP) at 147. The exterior garage door was off its rollers, and the door leading from the garage into the house had been smashed in, its frame and lock broken. Officer Haddow estimated the damage around $620.
With the defendant in custody, Mrs. Coria obtained a protection order barring contact with her and their children. The defendant had several contacts with them before trial, but was not prosecuted for violating the order. He was charged with second degree assault, second degree malicious mischief, and willful killing of a pet. The corrected information alleged property damage in the approximate amount of $355. Clerk‘s Papers (CP) at 6-7.
In January 1999 Mrs. Coria recanted. She told the prosecutor and later testified that she became jealous in the restaurant because of the defendant‘s flirting. She lunged at him in the car. He pushed her away, and she hit her head on the ceiling and fell backwards, hitting her face on the dash. She denied being taken to the parking lot and losing consciousness. When they got home, to stop the defendant from leaving, she threatened to call 911 and lie to the police to get the defendant arrested. She broke the mirror in a “jealous rage,” 1 RP at 108, and toppled over the television and the microwave. When the defendant returned they started to fight again, and she ran over to the neighbor‘s to force him not to leave, since he would not leave the children home alone. She said she called 911 from the neighbor‘s when she heard him banging on the garage.
The defendant testified that he dropped off his wife after fighting at the restaurant and
The jury found the defendant guilty of assault and malicious mischief, but could not reach a verdict on the count of willful killing of a pet. The Court of Appeals affirmed the assault conviction, but reversed the conviction for malicious mischief, based on the defendant‘s assertion that the items damaged were community property, and therefore not “property of another.” We granted the state‘s petition for review.
ISSUE
Is community property co-owned and co-possessed by the defendant and his wife “property of another” for purposes of the crime of malicious mischief,
ANALYSIS
We begin with the statute itself: a person commits malicious mischief in the second degree who knowingly and maliciously “[c]auses physical damage to the property of another in an amount exceeding two hundred fifty dollars.”
Clear statutory language must be afforded its plain meaning. In re Pers. Restraint of Long, 117 Wash.2d 292, 302, 815 P.2d 257 (1991). “When a statute is clear and unambiguous, its meaning is to be derived from the language of the statute alone and it is not subject to judicial construction.” State v. Azpitarte, 140 Wash.2d 138, 141, 995 P.2d 31 (2000) (per curiam). “An ambiguity exists if the language at issue is susceptible to more than one reasonable interpretation.” Id.
At least one court has observed that property owned jointly by defendant and victim is “property of another” as a “strictly literal” matter. People v. Brown, 185 Misc.2d 326, 333, 711 N.Y.S.2d 707 (N.Y.Crim.Ct.2000). It 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. Even the defendant does not argue that such a result is so absurd as to defeat literal enforcement of the law.
If 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. There we find explicit evidence of what conduct the legislature understands to be reached by the crime of malicious mischief.
Nevertheless, the defendant urges us to interpret “property of another” in the context of its meaning at common law, which supplements Washington penal statutes.
One such modification is
Washington courts required legislative action to change the common law rule that a partner could not steal partnership property. State v. Eberhart, 106 Wash. 222, 225, 179 P. 853 (1919). The larceny statute at issue in Eberhart is substantially the same as
Having any property or services in one‘s possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, ... to secrete, withhold, or appropriate the same....
Eberhart held that a partner‘s appropriation of partnership property was not a crime, since “partner” is not on the list, and since a prior statute repealed by the criminal code of 1909 had made it a crime. Eberhart, 106 Wash. at 225, 179 P. 853. This decision was reaffirmed by State v. Birch, 36 Wash.App. 405, 410, 675 P.2d 246 (1984). In response the legislature made it a crime for a partner to steal partnership property. Laws of 1986, Reg. Sess., ch. 257, § 2;
The Court of Appeals concluded from Pike and Eberhart that “property of another“—for property crimes in general—does not include property in which the defendant has an ownership interest without legislative modification. The court said that by not including spouses on the list of persons who may commit theft, the legislature intended “that spouses who co-possess community property are not subject to crimes dealing with the property of another.” State v. Coria, 105 Wash.App. 51, 59, 17 P.3d 1278 (2001). We do not believe that our decisions relating to theft require the same result in malicious mischief cases.
Division One of the Court of Appeals dealt with the same argument made here in State v. Webb, 64 Wash.App. 480, 489-91, 824 P.2d 1257 (1992). In Webb the defendant and his wife had separated and divided up their property; he was convicted of malicious mischief for breaking into her apartment and vandalizing her property. The court held that the defendant‘s community property was “property of another” under the malicious mischief statute. The court relied on Pike‘s holding that theft lies where the defendant may not exert control over property without the permission of another person. The court said that because the couple had separated, Webb‘s wife had a superior possessory interest in the property. Although Webb can be distinguished on this basis, the Webb court noted an important distinction between theft and malicious mischief: possession can be redeemed when property is stolen, but not when it is damaged or destroyed. Id. at 490, 824 P.2d 1257.
This distinction is important because damaging co-owned personal property is effectively like an ouster of other co-owners. The defendant‘s right to possess his community property is not a defense here, because his right was not exclusive of his wife‘s right to possession. Both spouses have undivided half interests in community property. Lyon v. Lyon, 100 Wash.2d 409, 413, 670 P.2d 272 (1983). The defendant‘s rights in their community property, as co-owner, do not include the right to infringe Mrs. Coria‘s. The Model Penal Code also recognizes that a defendant‘s property interest may not include the right to infringe others’ rights. It defines “property of another” as “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 § 220.3 cmt. 3, at 45 (1980).
Most courts that have considered the issue agree with our decision. In State v. Superior Court, 188 Ariz. 372, 373, 936 P.2d 558 (Ct.App.1997), the court held that property in which the defendant held a joint tenancy with his wife was “property of another” for purposes of Arizona‘s criminal damage statute. The defendant had broken down the door to his and his wife‘s home and assaulted her. The court affirmed the conviction despite the couple‘s cohabitation and co-possession of the property.
This issue comes up more often in separation or dissolution cases, as in Webb. In People v. Kahanic, 196 Cal.App.3d 461, 241 Cal.Rptr. 722 (1987), the defendant, upon discovering her husband‘s Mercedes parked at another woman‘s house near the end of dissolution proceedings, threw a beer bottle through the rear window of the car. The court affirmed her vandalism conviction, saying:
It is of no consequence defendant wife may have had a community property right to share possession of the Mercedes.... The essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive....
Id. at 466, 241 Cal.Rptr. 722 (citations omitted). This court thus felt that the defendant‘s own rights with respect to the property were irrelevant, since the gravamen of the crime is infringing another person‘s rights. Under Kahanic, malicious mischief lies in spite of the defendant‘s community property interest.
Iowa, Illinois and Minnesota have also held that co-owned property can serve as the basis for prosecution for property damage. State v. Zeien, 505 N.W.2d 498, 499 (Iowa 1993); People v. Schneider, 139 Ill.App.3d 222, 224-25, 93 Ill.Dec. 712, 487 N.E.2d 379 (1986); State v. Mayhood, 308 Minn. 259, 262-63, 241 N.W.2d 803 (1976). A contrary result was reached in People v. Person, 239 A.D.2d 612, 613, 658 N.Y.S.2d 372 (1997), but that decision has failed to persuade even lower courts in New York. People v. Kheyfets, 174 Misc.2d 516, 520-22, 665 N.Y.S.2d 802 (N.Y.Sup.Ct.1997) followed Person with a serious grudge and a call for legislative reversal. Brown, 185 Misc.2d at 333-34, 711 N.Y.S.2d 707, distinguished Person, stating outright that it was decided wrongly.
Because we hold that community property is “property of another” within the meaning of
The state presented Officer Haddow‘s testimony on the dollar value of the property damage and photographs of the damage. Officer Haddow estimated the total amount of damage at $620. Excluding the cost of the pet bird, since the jury did not reach a verdict on willful killing of a pet, the total amount of damage proved by the state is $555. The defendant relied on Mrs. Coria‘s testimony that the total repair cost of the damage was $67. On appeal, the defendant contends that no foundation was laid for Officer Haddow‘s expertise, nor for how she arrived at her figures. Appellant‘s Br. at 19. However, the defendant did not object to this
The concurrence invites us to address whether half or all the damage done to community property counts toward the degree of the offense. This issue was not raised by the parties. Contrary to what the concurrence claims, the defendant‘s challenge to the sufficiency of the evidence does not require us to resolve this question. The state‘s proof supports finding $555 worth of damage. Half of that is $277.50, which is still sufficient to support the conviction for second degree malicious mischief. It therefore makes no difference to the disposition of this case whether half or all the damage counts.
More importantly, resolution of this case does not require discussion of whether a community property interest is divisible. The recent community property cases on which the concurrence relies were based on a “landmark decision” that “signified a major departure” from prior authority. Haley v. Highland, 142 Wash.2d 135, 142, 12 P.3d 119 (2000); see Keene v. Edie, 131 Wash.2d 822, 935 P.2d 588 (1997). Haley and Keene were also based on careful analysis of policy considerations which had as much to do with principles of tort recovery as with domestic relations. Those cases demonstrate that we should not delve into unrelated aspects of community property law here, where we do not have the benefit of briefing by parties interested in the outcome. We accordingly decline to do so.
CONCLUSION
We conclude that the defendant‘s community property was “property of another” within the meaning of the crime of malicious mischief. We will not reconsider whether criminal prosecution is an appropriate response to domestic violence. A crime is not any the less because it is against a family member. This is not a case of one spouse cleaning the other‘s “junk” out of the garage, nor of venting anger on the nearest breakable furniture. The jury found that the defendant acted with malice. This element brings the defendant‘s violent conduct within reach of the criminal law. Our decision affects not only the prosecutor‘s power to bring a defendant to trial, but also the police department‘s power to come to a victim‘s aid. Mrs. Coria certainly sought help from the police that night, and we would be wary of a decision preventing them from giving it.
The law does not require such a decision. The defendant does not advance a construction of the meaning of “property of another” that would support reversal of his conviction. Its literal meaning is against him, since whether the defendant has an ownership interest in a piece of property is not relevant to the issue of whether another person does. Here another person did. Instead, the defendant argues that “property of another” is a term of art, drawn from the common law and retaining its common law meaning. The defendant‘s position is well argued, but unconvincing. First, chapter 10.99 RCW refutes the argument that the crime of malicious mischief is intended to refer to the common law. Second, the common law on which the defendant relies, the crime of larceny, is inapposite. This case deals with property damage. Malice for others has no place at home.
The Court of Appeals is reversed. The conviction for malicious mischief is affirmed.
WE CONCUR: ALEXANDER, C.J., SMITH, JOHNSON, IRELAND, BRIDGE, CHAMBERS, JJ.
MADSEN, J., (concurring).
While I agree with the majority that “property of another” includes the one-half interest of a spouse in community property, I write separately to make it clear that only the value of the victim‘s one-half interest in the community property may be considered when determining whether the evidence is sufficient to sustain a conviction for malicious mischief in the second degree.
Discussion
I agree with the majority that “property of another” includes the one-half interest of a
Because under Washington law each spouse has a separate, one-half ownership interest in community property, it stands to reason that one-half of the property involved in this case is the “property of another.” It is also clear that Mr. Coria had no right to destroy the property belonging to Ms. Coria as a matter of management or control.
[n]either spouse shall ... sell, community household goods, furnishings, or appliances... unless the other spouse joins in executing the security agreement or bill of sale, if any.
“Household goods” generally refers to goods of a permanent nature, not consumed, and used by a person for his house or goods with which a residence is equipped, other than fixtures, and includes everything about the house that is usually held and enjoyed. Cooper‘s Mobile Homes, Inc. v. Simmons, 94 Wash.2d 321, 325, 617 P.2d 415 (1980). The purpose of the
Taken as a whole, both statutory and case law establish that Ms. Coria has a one-half interest in the community property that was damaged and Mr. Coria had no authority to damage or destroy that property absent her agreement.
The discussion above is critical to the question of sufficiency of the evidence on the issue of property value. A spouse owns only one-half the value of community property. Her separate creditors can reach only her half of community property. She can devise or bequeath only one-half of the community property.
ALEXANDER, C.J., concurs.
SANDERS, J., (dissenting).
The essential question here is one of straightforward statutory construction: Does “property of another” as used in
I.
I begin with the text of the statute itself. See State v. McDougal, 120 Wash.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....
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 Wash.2d 594, 606-07, 925 P.2d 978 (1996); State v. Byrd, 125 Wash.2d 707, 712, 887 P.2d 396 (1995); State v. Scoby, 117 Wash.2d 55, 57, 810 P.2d 1358; 815 P.2d 1362 (1991); Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 504-05, 125 P.2d 681 (1942); N. Pac. Ry. Co. v. Henneford, 9 Wash.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.2
Malicious mischief was a misdemeanor at common law. See 4 CHARLES E. TORCIA, WHARTON‘S CRIMINAL LAW § 485 (14th ed.1978); see also State v. Watts, 48 Ark. 56, 2 S.W. 342, 342-43 (1886) (citing BLACKSTONE‘S COMMENTARIES and 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. BURDICK, 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.
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, 224-26, 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 TORCIA, 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 Wash.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 Wash.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, 675 P.2d 246. 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.4
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
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.”
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 Wash.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 983 - 84, 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 Wash.2d at 203, 955 P.2d 791; see also Dep‘t of Labor & Indus. v. Cook, 44 Wash.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 Wash.App. at 60-62, 17 P.3d 1278. 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, 112 S.Ct. 1329 (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 Wash.2d 323, 329-30, 21 P.3d 255 (2001); In re Pers. Restraint of Hopkins, 137 Wash.2d 897, 901, 976 P.2d 616 (1999); In re Pers. Restraint of Charles, 135 Wash.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
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 665-66.6 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, 51 S.Ct. 340; see also R.L.C., 503 U.S. at 308-09, 112 S.Ct. 1329 (Scalia, J., concurring); Bass, 404 U.S. at 348, 92 S.Ct. 515; 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 Wash.2d at 327-34, 21 P.3d 255; Hopkins, 137 Wash.2d at 900-01, 976 P.2d 616; Charles, 135 Wash.2d at 246-53, 955 P.2d 798. We apply the rule when the text of a statute is ambiguous. Radan, 143 Wash.2d at 329, 21 P.3d 255. Ambiguity exists if the statutory language is susceptible to more than one reasonable interpretation. Charles, 135 Wash.2d at 250, 955 P.2d 798. 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.
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
The majority unreflectively implies there is no textual ambiguity as applied to this case when it reasons, “[i]t is beyond dispute that the items the defendant damages 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 982. 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 982. 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 (
Moreover, by only looking 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 Wash.App. at 60, 17 P.3d 1278. 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 Wash.2d at 901, 976 P.2d 616, 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 the lenity. See, e.g., Charles, 135 Wash.2d at 250 n. 4, 252, 955 P.2d 798.
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, 112 S.Ct. 1329 (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
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
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.
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 (footnote omitted) (emphasis added). This power extends to community personal property. Id. § 12.8 (noting until 1972 the husband retained sole management authority over community personal property).
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 Wash.App. at 58, 17 P.3d 1278 (quoting State v. Birch, 36 Wash.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 Wash.2d 54, 61, 935 P.2d 1321 (1997).
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.