State v. WootenState v. Wooten
- Reporters:
- ,
- Before:
- Gonzalez, Owens (en banc)
We affirm. For purposes of malicious mischief, Wooten was not the exclusive owner of the property, and the trial court did not abuse its discretion by limiting Wooten‘s attorney‘s closing argument.
State v. Wooten, No. 87855-2
BACKGROUND
In May 2005, Wooten executed a purchase and sale agreement to buy a house from Dennis Kohl in the name of Wooten Primary Care (Primary), Wooten‘s family medical practice. In an addendum to the purchase and sale agreement, Primary and Kohl agreed to enter into an “option to Lease Purchase the Property.” Ex. 1, at 9. Ultimately, Kohl and Primary entered into a real estate contract in November 2005, listing $225,000 as the purchase price. Bob Miller, Wooten‘s business partner, signed the contract on behalf of Primary.1 Wooten did not sign the real estate contract. The contract also obligated the buyer to pay all taxes, keep the property in good repair, and bear the risk of loss for destruction of the property. No one recorded the purchase and sale agreement or the real estate contract.
Wooten and his family moved into the house in May 2005. Wooten claims he began remodeling the house in July 2007 to add a bedroom. When Wooten started work, however, he testified he found black mold in a bathroom and had to remove a large amount of sheetrock from the house. Wooten took a break from the project for the Christmas holiday.
Without telling Wooten, Kohl took out a mortgage on the property for $216,000 four or five months after entering into the purchase and sale agreement. Kohl testified he had informed Miller, Wooten‘s partner, that he was in the process of getting the mortgage when he entered into the agreement with Primary. Kohl further testified that the Wootens had failed to pay taxes for the property, which had accumulated to $8,000, and that he had driven by the house and found it in disarray. According to Kohl, his attorney advised him to “flip” the property back to the bank because Kohl could not afford to pay the back taxes or repair the
When the Wootens came home after the holidays, they found a default notice attached to the front gate. Wooten was surprised to find the notice because he had not used the property to secure any loans, nor had he defaulted on the monthly payments to Kohl. Wooten discovered that because of the mortgage Kohl had taken out, Wooten would have to pay double the sale price to avoid foreclosure. The Wootens moved out of the house in May 2008.
On May 24, 2008, Kohl went to the house and found it was badly damaged. Kohl called the sheriff‘s department, and a deputy arrived who had seen the house before. In January 2006, the deputy found the house in fairly good repair, with sheetrock and carpeting intact. On this visit, however, the deputy found a large amount of garbage outside the house. Inside, Kohl and the deputy found extensive damage. Carpet and tiling had been removed from the floor. Sheetrock was taken off most of the walls. Medical waste — including hypodermic needles and vials of blood — lay on the floor, as did trash, dog feces, and rotting food.
Wooten was charged with first degree malicious mischief. At trial, the State‘s construction expert testified it would cost at least $15,000 to bring the house back “to code” and more to restore the house to finished condition. Verbatim Report of Proceedings (VRP) (Apr. 15, 2010) at 11. The expert testified garbage removal would cost approximately $3,000, after an initial expense of $500 for a hazardous material assessment due to the medical waste. The State argued Wooten was not remodeling the house but that he had damaged it out of anger.
During closing argument, the court prohibited Wooten‘s attorney from arguing about the mortgage Kohl took out after entering the purchase and sale agreement with Primary. The court found the financing details were irrelevant to the issue of whether Wooten damaged the property.
Wooten was convicted and appealed. The Court of Appeals affirmed in a split decision. State v. Wooten, noted at 169 Wn. App. 1029, 2012 WL 3011730, at *8. Judge Armstrong dissented on the grounds the State had not proved that an entity other than Wooten had an ownership interest in the property or that the bank‘s security interest had been diminished. Id. at *9-10 (Armstrong, J., dissenting). We granted review.
ANALYSIS
To convict Wooten of first degree malicious mischief, the State must prove beyond a reasonable doubt that Wooten knowingly and maliciously caused physical damage to the property of another in an amount exceeding $1,500. Former
Wooten‘s property interest derived from his real estate contract. “A real estate contract is an agreement for the purchase and sale of real property in which legal title to the property is retained by the seller as security for payment of the purchase price.” Tomlinson v. Clarke, 118 Wn.2d 498, 504, 825 P.2d 706 (1992) (citing
The terms of this particular real estate contract show Wooten possessed “[some]thing less than exclusive ownership” under
Moreover, this court and the legislature have broadly interpreted “property of another” in the context of malicious mischief. Before the legislature defined the term, we found a spouse may commit malicious mischief by damaging community property. State v. Coria, 146 Wn.2d 631, 636, 639, 48 P.3d 980 (2002). The same year we decided Coria, and consistent with our opinion, the legislature adopted the current definition of “property of another” as “property in which the actor possesses anything less than exclusive ownership.” LAWS OF 2002, ch. 32, § 1 (codified at
Wooten also claims the trial court improperly prevented his attorney from arguing in closing about the mortgage Kohl took out after entering into the purchase and sale agreement. Suppl. Br. of Pet‘r at 22-23. The trial court found the financing details were irrelevant to the malicious mischief charge. We review the trial court‘s decision to limit closing argument for abuse of discretion. State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000). A court abuses its discretion “only if no reasonable person would take the view adopted by the trial court.” State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979) (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)).
The
CONCLUSION
We hold that for purposes of malicious mischief, the purchaser of land under an executory real estate contract is not an exclusive owner. The State provided sufficient evidence that Wooten damaged the property of another. We affirm.
Gonzalez, J.
WE CONCUR:
Madsen, C.J.
Fairhurst, J.
Wiggins, J.
OWENS, J. (dissenting) — David Wooten purchased a house from Dennis Kohl through a real estate contract in May 2005. Wooten and his family began living in the house in 2007 and started remodeling to add a bedroom and remove black mold. Wooten kept current on his payments throughout this period. But unbeknownst to Wooten, Kohl had improperly taken out a second mortgage on the house after the sale. When the Wooten family returned to the house after the holidays that year, they found a default notice on the front gate as a result of Kohl‘s failure to make payments on the second mortgage. Rather than pay double the sale price to keep the house, Wooten allowed the house to undergo foreclosure and he and his family moved out.
A few months later Kohl visited the house and discovered that it was badly damaged. Wooten was subsequently prosecuted for malicious mischief. I believe this prosecution was erroneous. Former
Respectfully, I dissent.
ANALYSIS
A person commits malicious mischief when he or she “knowingly and maliciously . . . [c]auses physical damage to the property of another in an amount exceeding [$1,500].” Id. I argue that the majority has misapplied the statute to the facts at hand and, consequently, brought harm and confusion to Washington homeowners with an unworkable standard.
I. The Majority Misapplied the Statute to This Case
In applying the malicious mischief statute to these facts, the two main concerns are whether the house Wooten damaged — and lived in at the time — was the “property of another” and whether Kohl‘s interest in the property was “physically damaged.” The majority is incorrect about both.
The Revised Code of Washington defines “‘[p]roperty of another‘” as that “in which the actor possesses anything less than exclusive ownership.”
Kohl had no such ownership interests. He did not retain rights essential to ownership such as “‘the right to possession of the land‘” or “‘the right to control the land.‘” Tomlinson v. Clarke, 118 Wn.2d 498, 507, 825 P.2d 706 (1992) (quoting Cascade Sec. Bank v. Butler, 88 Wn.2d 777, 782, 567 P.2d 631 (1977)). Nor did he even maintain the right to manage or enjoy the property. Wasser, 84 Wn.2d at 599. If Kohl wanted to move into the house and enjoy it as if it were his own, he could not legally do so. He could not dictate to Wooten how to combat the black mold found in the bathroom nor assert any other physical control over the property. He certainly could not sell the property out from under its current occupant and give a different buyer the right to use and possess the house. In sum, as long as Wooten continued to make payments, Kohl‘s interest in the property could not accurately be described as one of “ownership.”
Instead of viewing Kohl‘s interest as ownership, Washington treats the seller‘s interest in a real estate contract as a lien/mortgage-type security interest in real property. Tomlinson, 118 Wn.2d at 509. As a vendee, Wooten “possesses the beneficial interest and real ownership in the land,” while the vendor, Kohl, “retains only a security under the contract which is looked upon as personal property rather than as an interest in the land.” Comm. of Protesting Citizens v. Val Vue Sewer Dist., 14 Wn. App. 838, 842, 545 P.2d 42 (1976); see In re Estate of Eilermann, 179 Wash. 15, 18, 35 P.2d 763 (1934) (vendor‘s interest is personal property, not realty, for purposes of probate administration); Meltzer v. Wendell-West, 7 Wn. App. 90, 94-95, 497 P.2d 1348 (1972) (vendor‘s interest is personal property, not realty, under community property law).
Washington‘s perception of real estate purchasers like Wooten as property owners, and sellers like Kohl as holders of a security interest, manifests in other areas of the law as well. Purchasers are treated as real property owners for purposes of attachment, the judgment lien statute, Cascade Sec. Bank, 88 Wn.2d at 782, and for determining superior interest under the bona fide purchaser doctrine, Tomlinson, 118 Wn.2d at 503. This treatment also extends to the remedies available to the parties. “The remedies provided to the seller in the case of breach or nonperformance are those of a secured creditor.” In re McDaniel, 89 B.R. 861, 869 (Bankr. E.D. Wash. 1988). These remedies consist mainly of foreclosure under
The contract between Wooten and Kohl gave Wooten all of the requisites for ownership mentioned above. It did not give Kohl these rights, one of which is the right to mortgage the property, Tomlinson, 118 Wn.2d at 507, but Kohl did so anyway and started himself and Wooten down the path that led to this court and Wooten‘s conviction. Instead, it should have been Wooten‘s actions that determined the future rights of both parties. Wooten‘s timely payments dictated the continuance of his ownership of the house, to the exclusion of all others. The contract shows that if Wooten made all the payments, there would be nothing Kohl could do to prevent him from attaining formal title to the house. Wooten‘s exclusive physical control over the house and its fate made him the sole owner of the property.
The majority relies on Tomlinson to rebut this proposition. See majority at 5. Legal title in a real estate transaction, as the majority points out, does not pass to the buyer until the purchase price is paid in full. Tomlinson, 118 Wn.2d at 504. This may be, but
Despite this precedent to the contrary, the majority still insists that sellers in real estate contracts maintain ownership of the properties after they have been sold. In support of this proposition, they cite this court‘s decision in State v. Coria, 146 Wn.2d 631, 48 P.3d 980 (2002), where the defendant damaged community property owned concurrently with his wife. Despite this ownership interest in the damaged property, he was still convicted. Id. at 633, 643. But Coria established only that community property could be considered “property of another.” Id. at 636. Both Mr. and Mrs. Coria had a possessory, ownership-type interest in the items damaged. Either could exert exclusive physical control over the jointly owned property. This type of exclusive, possessory interest is different from Kohl‘s security interest, which essentially consists of the right to collect payments from Wooten. Because Coria addresses only the former, it has no application to cases involving security interests like the one at issue here.
The State admitted at oral argument that if Kohl‘s interest in the property were only a security interest, it was not proved to be damaged. Wash. Supreme Court oral argument, State v. Wooten, No. 87855-2 (May 21, 2013), at 20 min., 0 sec., audio recording by TVW, Washington State‘s Public Affairs Network, available at http://www.tvw.org. As I have shown above, Kohl had no more than a security interest in the property. Wooten was the exclusive owner of the house, thus he did not damage the “property of another” and cannot be found guilty of malicious mischief.
B. Wooten Did Not Physically Damage Kohl‘s Interest
In addition to erring on the question of whether the house was “property of another,” the majority errs on the question of whether Wooten physically damaged Kohl‘s interest because (1) a security interest cannot be physically damaged and (2) Kohl‘s interest was not damaged at all.
1. Kohl‘s Interest Cannot Be Physically Damaged
First, even if Kohl‘s interest were defined as ownership, Wooten‘s actions do not meet the second requirement for a malicious mischief prosecution, that the interest be physically damaged. Former
A more reasonable interpretation of the second definition of “physical damage” is that it was meant to cover situations where an actor reduced the value of physical property in a manner that could not be described as ordinary “physical damage.” For instance, if a graffiti artist spray painted an image onto a building, the building could still function properly, support the weight of its occupants, and endure the elements as before (perhaps even better now that it has an extra layer of paint). The walls were not smashed; the windows were not broken. Nonetheless, the owner has suffered a loss. If the owner desires to sell the building, she or he must either pay to have the image painted over or accept lower than market price. Or, imagine a car collector with a brand new Ferrari that has never been driven. Without the owner‘s permission, a friend takes the car and, with malicious intent, drives it to the store and back. Despite the still pristine condition of the car and the fact that no physical damage has been done, the owner has suffered a loss: the Ferrari is not worth as much as it was when the odometer read “zero.” In both instances, the items were physically altered but not physically damaged. Consequently these situations would not have been considered malicious mischief under the ordinary meaning of “physical damage,” but they would be under the second, expansive definition. The logical purpose of the expansive definition was likely to cover possible loopholes like these in the ordinary meaning definition. This reading of the statute, unlike that adopted by the majority, is logical, workable, and comports with the statute‘s plain meaning. I would adopt the more logical interpretation, that in order for property to be physically damaged under
In the Court of Appeals opinion in this case, the majority cites State v. Newcomb, 160 Wn. App. 184, 246 P.3d 1286, review denied, 172 Wn.2d 1005 (2011), as evidence that Washington has broadly defined “physical damage” in the malicious mischief context. State v. Wooten, noted at 169 Wn. App. 1029, 2012 WL 3011730, at *3, review granted, 176 Wn.2d 1001 (2013). There the defendant dug up and obstructed the gravel path constituting his neighbor‘s ingress-egress easement, causing $7,000 worth of damage and making the easement impassable. Newcomb, 160 Wn. App. at 187-88. But there the value of the property interest in the easement was considered physically damaged because it could no longer be used. The value of an easement interest is inseparable from the ability to physically use it, while the value of Kohl‘s security interest in the house is different from the value of the house itself. Consequently this reliance on Newcomb is misplaced. Newcomb does not demonstrate that a security interest can be physically damaged, only that, because of their unique physicality, easements can be. See id. at 190. Similarly, other cases cited by the Court of Appeals have no application to this case because they involve damage to physical property, not a security interest. State v. VanValkenburgh, 70 Wn. App. 812, 814, 856 P.2d 407 (1993) (noting that the defendant was convicted of malicious mischief for breaking windows); State v. Schaffer, 120 Wn.2d 616, 618-19, 845 P.2d 281 (1993)
2. Kohl‘s Interest Was Not Damaged at All
Second, assuming, for the sake of argument, that the Revised Code of Washington provides that nonphysical items can be physically damaged, Wooten would still not be guilty of a felony because Kohl‘s interest in the house was not damaged by Wooten‘s actions. Indeed, the State admitted at oral argument that if Kohl‘s interest in the property were only a security interest, it was not proved to be damaged. That is because the value of a security interest is not necessarily the same as the value of the secured property. Bennett v. Maloney, 63 Wn. App. 180, 185-86, 817 P.2d 868 (1991). So when Wooten damaged the house, he did not cause de facto damage to Kohl‘s interest in the house. Kohl‘s interest consists only of the ability to collect payments from Wooten and, upon default, collect the amount he is owed (through repossessing the house under, selling it and garnishing the proceeds under, obtaining a judgment for the amount owed under, or other collection methods set forth in the Uniform Commercial Code).
There is further evidence, outside of
Punishing Wooten‘s conduct with a malicious mischief prosecution also goes against established concepts of malicious mischief. A primary distinction between malicious mischief and theft is that malicious mischief involves property that cannot be redeemed. State v. Webb, 64 Wn. App. 480, 490, 824 P.2d 1257 (1992). It was not meant to apply to cases like this one where the property (the house) and the property interest (the security) can still be redeemed by selling the house. Simply put, this case does not belong in the “felony” category. It belongs as either a misdemeanor under
II. The Majority‘s Unworkable Standard Will Shrink and Obscure the Rights of Washington Homeowners
Placing Wooten‘s actions in the context of felony malicious mischief, as the
As long as a buyer abides by the contract and makes timely payments, the property will become his or hers. As the majority points out, if the buyer fails to make these payments, the seller may compel the buyer to forfeit the latter‘s interest in the property. See majority at 6. But the possibility of future loss does not preclude a buyer who has been making timely payments from being the exclusive owner of the house. There are countless examples of property that could be taken from owners: by the government if misused or by creditors to satisfy payment. But this possibility does not prevent the original owner from having exclusive ownership over his property.
For instance, if a vehicle is used as an accessory to a crime, the State may confiscate it. The prospect of forfeiture, however, does not mean all car owners automatically share ownership rights in their cars with the government. Similarly, taking out a loan raises the possibility of default and subsequent seizure of the borrower‘s assets to satisfy the debt. Still, maintaining a debt, the default of which could cause a creditor to take possession of the borrower‘s property, does not divulge the borrower of exclusive possession of that property, despite the very real prospect of separation from it. Exclusive ownership does not require an absolute certainty that the buyer will sustain ownership of the property no matter what, only that her continued ability to lawfully exercise that ownership is within her control. Homeowners across the state of Washington who thought that they had such control over their houses have been rebuffed by the majority‘s decision. Today‘s ruling will cause significant confusion for average home buyers and owners struggling to understand what conduct will and will not give them exclusive ownership of their homes.
Another negative consequence of today‘s decision is that the majority‘s interpretation of
CONCLUSION
The majority‘s opinion brings about the perverse result that Wooten would likely win a civil case in tort against the holder of the security interest because there was no actual damage to that entity‘s interest, yet he will lose this criminal case for malicious mischief for the same actions. Today‘s ruling is incompatible with the plain meaning of “physical damage,” contrary to the intent of the legislature that drafted the malicious mischief statute and harmful to Washington homeowners. For these reasons, I cannot agree. I would reverse the Court of Appeals ruling and hold that a security interest cannot be physically damaged for purposes of the malicious mischief statute.
I respectfully dissent.
Owens, J.
Gordon McCloud, J.
Stephens, J.