Oral Argument January 6, 2015
Appeal from Whatcom County Superior Court. Docket No: 13-1-00574-6. Judge signing: Honorable Charles Russell Snyder. Judgment or order under review. Date filed: 12/02/2013.
Dana M. Nelson (of Nielsen Broman & Koch PLLC ), for appellant.
David S. McEachran, Prosecuting Attorney, and Kimberly A. Thulin, Deputy, for respondent.
Authored by Stephen J. Dwyer. Concurring: Mary Kay Becker. Dissenting: Michael J. Trickey.
[185 Wn.App. 905] Dwyer,
¶ 1 Zachary Larson attempted to steal a pair of shoes from a retail store. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of retail theft with extenuating circumstances, which criminalizes the commission of retail theft while in [185 Wn.App. 906] possession of a " device designed to overcome security systems." Former RCW 9A.56.360(1)(b) (2013). After a bench trial resulted in his conviction, he appealed, arguing that because wire cutters do not constitute a device designed to overcome security systems, the evidence was insufficient to support his conviction. Given our contrary conclusion that wire cutters do, in fact, constitute a device designed to overcome security systems, we deny Larson's request for appellate relief and, instead, affirm his conviction.
¶ 2 On May 17, 2013, Larson and his girlfriend, Meichielle Smith-Bearden, entered a Marshalls store in Bellingham. Larson used wire cutters to sever the wire that attached the security device to a pair of Nike shoes. By doing so, he was able to remove the security device from the shoes. When the couple attempted to leave the store without paying for the shoes, they were detained by security and the police were called. Larson admitted to a responding officer that he had intended to take the shoes without paying for them.
¶ 3 On May 23, Larson was charged by amended information with one count of retail theft with extenuating circumstances.
(1) A person commits retail theft with extenuating circumstances if he or she commits theft of property from a mercantile establishment with one of the following extenuating circumstances:
(b) The person was, at the time of the theft, in possession of an item, article, implement, or device designed to overcome security systems including, but ...