State v. Wooten
State v. Wooten
Dissenting Opinion
¶19 (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 2005 and started remodeling in 2007 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.
¶20 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 RCW 9A.48.070(l)(a) (1983) defines “malicious mischief” as “knowingly and maliciously” causing “physical damage to the property of another in an amount exceeding [$1,500].” Wooten’s actions do not fit this definition. The house was not the “property of another” because Kohl had sold it to Wooten. While Kohl may have retained a security interest in the house, a security interest cannot be physically damaged. By holding that it can be, the majority has adopted an unworkable definition of “physical damage” that will subject Washington homeowners to confusion and potential criminal sanction for standard home repair projects.
¶21 Respectfully, I dissent.
ANALYSIS
¶22 A person commits malicious mischief when he or she “knowingly and maliciously ... [clauses 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
I. The Majority Misapplied the Statute to This Case
¶23 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.
A. The House Was Not the Property of Another for Malicious Mischief Purposes
¶24 The Revised Code of Washington defines “property of another” as that “in which the actor possesses anything less than exclusive ownership.” RCW 9A.48.010(l)(c). The legislature’s choice of the word “ownership,” rather than the broader term “interest,” reveals a desire to define “malicious mischief” narrowly. This court has listed the “chief incidents” of ownership as the right to possess, use, enjoy, and sell property. Wasser & Winters Co. v. Jefferson County, 84 Wn.2d 597, 599, 528 P.2d 471 (1974).
¶25 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 or 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.”
¶27 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 U.C.C. § 9-610 or obtaining a judgment under U.C.C. § 9-601(a)(l) to satisfy the debt.
¶28 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 deter
¶29 The majority relies on Tomlinson to rebut this proposition. See majority at 895. 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 legal title and ownership are not the same thing. “[B]are legal title” can be separated from an ownership interest, even in the context of intangible property like stock shares in a company. O’Steen v. Estate of Wineberg, 30 Wn. App. 923, 932-33, 640 P.2d 28 (1982). Thus, legal title is not required to maintain an ownership interest in property; it is merely evidence of such an interest. In this case, Kohl’s title points to a security interest. In Tomlinson, this court also treated legal title as distinct from an ownership interest, explaining that “[t]here is no valid reason to distinguish between those cases in which legal title is conveyed to secure the payment of a debt and those cases in which legal title is retained to secure the payment of a debt.” 118 Wn.2d at 509-10. Regardless of whether the formal legal title passes at the beginning or the end of the transaction, the buyer obtains an exclusive ownership interest in the property, while the seller’s interest is treated as a lien/mortgage-type security interest. Id. at 509. Consequently, Tomlinson directly contradicts the argument made by the majority that exclusive ownership requires legal title.
¶30 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
¶31 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
f 32 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
¶33 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 RCW 9A.48.100(1) (1984) lists two definitions of “physical damage”: the first is its
¶34 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
¶35 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, 2012 Wash. App. LEXIS 1746, at *8-9, 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
2. Kohl’s Interest Was Not Damaged at All
¶36 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.
¶37 There is further evidence, outside of RCW 9A.48-.100(1), that the legislature did not intend the diminution of a security interest to be punished in the context of malicious mischief: a different statute addresses such conduct. RCW 61.12.030 makes damaging securities or mortgage property a misdemeanor. The difference between the misdemeanor statute and the felony statute is not just that the latter requires malice. If that were the case, the felony statute would be explicit about the fact that it punishes damage done to lien-type interests as well as physical property. It is not. The felony statute, former RCW 9A.48.070(l)(a), mentions only physical damage to property, while the misdemeanor statute, RCW 61.12.030, mentions damage to security interests as well. If the legislature provides a specific definition in one statute and a general definition in another, we must assume that the legislature meant to apply the specific statute only. State v. Smeltzer,
¶38 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 RCW 61.12.030 or in a civil suit as a tort.
II. The Majority’s Unworkable Standard Will Shrink and Obscure the Rights of Washington Homeowners
¶39 Placing Wooten’s actions in the context of felony malicious mischief, as the majority has done, will have considerable negative consequences for Washington homeowners by shrinking their property rights and causing confusion as to how far those rights extend. There is no logic or reason in the possibility that they could be prosecuted for malicious mischief for doing something as ordinary as making alterations and repairs to a house they bought but have not yet received title to. They will not be able to make necessary repairs to rid their house of nuisances such as black mold without fear of criminal sanction. Worse still, they will not be protected from this prosecution even if, like Wooten, the sole reason that the “damage” caused by the alterations was discovered was a dubious second mortgage
¶40 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 895. 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 owner from having exclusive ownership over his property.
¶41 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 divest 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.
¶42 Another negative consequence of today’s decision is that the majority’s interpretation of RCW 9A.48.010 has
CONCLUSION
¶43 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
¶44 I respectfully dissent.
Opinion of the Court
¶1 David Wooten was convicted of first degree malicious mischief for damaging a home he was purchasing on a real estate contract. Wooten claims he did not damage “property of another” — an element of malicious
¶2 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.
Background
¶3 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.
¶4 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.
¶5 Without telling Wooten, Kohl took out a mortgage on the property for $216,000 four or five months after entering
¶6 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.
¶7 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.
¶8 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
¶9 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.
¶10 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, 2012 Wash. App. LEXIS 1746, at *25. 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. 2012 WL 3011730, at *9-10, 2012 Wash. App. LEXIS 1746, at *28-29 (Armstrong, J., dissenting). We granted review.
Analysis
¶11 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 RCW 9A.48.070 (1983).
¶12 Wooten claims the State failed to show he damaged “property of another” because he had sole ownership of the real property. Suppl. Br. of Pet’r at 10-11. Wooten contends the seller (or the successor in interest to the seller) had only a security interest in the property, which, he contends, is insufficient to support the charge.
¶13 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 RCW 61.30-.010(1)). Legal title does not pass to the buyer until the purchase price is paid in full. Id. A real estate contract purchaser typically has the right to possess the land, grow and harvest crops, and sue for trespass. Cascade Sec. Bank v. Butler, 88 Wn.2d 777, 782, 567 P.2d 631 (1977) (collecting cases). But a real estate contract seller keeps title to the property until the contract terms are fulfilled and may require the purchaser to forfeit its property interest upon default. RCW 61.30.010(1), .100. Although limited, a seller maintains some ownership rights in property subject to an executory real estate contract.
¶15 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 RCW 9A.48.010(l)(c)).
¶16 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
¶17 The trial court did not abuse its discretion by preventing Wooten’s attorney from arguing about Kohl’s mortgage. During his closing argument, Wooten’s attorney began telling the jury that several months after selling the property to Wooten, “[W]hat did Mr. Kohl do[?] He went to some bank, and we don’t know the name of the bank, but he went to some bank and he took out a loan.” VRP (Apr. 15, 2010) at 81. The court believed Wooten’s attorney was trying to confuse the jury as to who was responsible. Indeed, Kohl’s mortgage is irrelevant to the question of whether Wooten was the exclusive owner of the property. Wooten did not make the final payment or have full ownership of the property. Kohl’s mortgage did not affect Wooten’s status as a nonexclusive owner.
Conclusion
¶18 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.
The State did not contend below that Primary had an ownership interest in the property separate from Wooten’s interest. State v. Wooten, noted at 169 Wn. App. 1029, 2012 WL 3011730, at *1 n.2, 2012 Wash. App. LEXIS 1746, at *2 n.2. We do not address that argument here.
RCW 9A.48.070 now requires the State to prove a defendant caused more than $5,000 in physical damage, but Wooten agrees the events in this case took place before the higher statutory damage minimum went into effect. Suppl. Br. of Pet’r at 9 n.6.
We respectfully disagree with the dissent’s characterization of the State’s burden when charging malicious mischief. The State bore the burden of proving Wooten damaged “the property of another.” 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 85.02, at 218 (3d ed. 2008). The dissent focuses on Kohl’s ownership interest rather than on that of Wooten. But the State need not prove that Kohl owned the property damaged by Wooten, only that Wooten lacked exclusive ownership. Id.; see also RCW 9A.48.010. The State submitted sufficient evidence for the jury to so find. Further, our decision in this case is narrow. We merely hold where an executory contract conveys anything less than exclusive ownership pending the fulfillment of a condition precedent, the purchaser can be found guilty of malicious mischief for damaging the property if the condition has not yet been met.
Here, although Wooten was current on monthly payments to Kohl when Wooten received the notice from the bank, Kohl testified that Wooten had defaulted on the obligations to pay taxes and to maintain the house and yard.
When Wooten contracted with Kohl, he started on the path to exclusive ownership of the property. Kohl’s subsequent mortgage and default washed away that path as well as Wooten’s existing interest. Though Wooten could have protected his interest by recording the purchase and sale agreement, the court is not without sympathy for Wooten and not without reproach for Kohl. We cannot, however, condone Wooten’s resort to self-help remedies. By leaving medical waste, dog feces, rotting food, garbage, and the house in significant disrepair, Wooten sought to diminish the value of Kohl’s (or the bank’s) ownership interest in the house as his own was being extinguished. All criminal liability stems from these malicious actions, not from ongoing home improvement projects or repairs.
We note in passing that statutes defining “malicious mischief” do not require damage to the property of an intended victim. It was sufficient for the State to prove Wooten damaged property of another with the intent to vex, annoy, or injure someone. See ROW 9A.48.070; RCW 9A.04.110(12); see also State v. Wilson, 125 Wn.2d 212, 219, 883 P.2d 320 (1994) (once mens rea is established, any unintended victims are assaulted if they fall within the terms and conditions of the statute).
Reference
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- The State of Washington v. David Allen Wooten, Jr.
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