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Washington Appeals Court Reverses Organized Retail Theft Conviction

In a Washington criminal case, the state must prove all of the elements of the crime.  In a recent case, a defendant challenged her conviction for second degree organized retail theft, arguing that the state had not shown that she obtained goods from a “mercantile establishment” when the alleged crime involved online catalogs.

Second degree organized retail theft occurs when the defendant steals property worth a total of at least $750 from one or more “mercantile establishments.” RCW 91.56.350.

According to the appeals court’s opinion, the defendant used her neighbors’ names and accounts to place three orders from online catalogs.  One of the other residents reported the incident to the complex office and the police.  The defendant was charged with second degree organized retail theft, two counts of second degree possession of stolen property, and three counts of first degree identity theft.

At trial, the defendant moved to dismiss the organized retail theft charge, arguing there was no evidence the goods came from a “mercantile establishment.” The trial court denied her motion.  She was found guilty of all charges, except one of the first degree identity theft charges.  The jury instead found her guilty of second degree identity theft for that incident.  The defendant appealed.

The defendant argued the state did not present sufficient evidence to prove second degree organized retail theft.  She argued that an online catalog was not a mercantile establishment.

The appeals court noted the legislature did not define “mercantile establishment.”  The appeals court considered the statutes related to RCW 91.56.350 and the statutory scheme.  A statute that was included in the same bill also used the term “mercantile establishments” and was clearly referencing physical retail stores. The defendant argued it could be inferred the legislature also intended RCW 9A.56.350 to apply to theft from physical stores, but the appeals court noted the legislature could have intended to address different issues with the two statutes.

The appeals court considered several dictionary definitions.  The state cited definitions, from vocabulary.com and thefreedictionary.com, that defined “mercantile establishment” as “a place of business for retailing goods.”  The state argued this definition included online retailers.  The appeals court agreed that interpretation was reasonable, but noted that it would also be reasonable to interpret “place of business” as a physical store and not the office or warehouse of an online retailer.  In light of this analysis, the court found the term “mercantile establishment” to be ambiguous.

The appeals court looked to the legislative history of the statute and noted that the people who supported the bill seemed focused on physical stores in their testimony.  Testimony, however, does not necessarily reflect the legislature’s intent.  The appeals court pointed out that other than the language in the other statute, they found nothing indicating the legislative intent. Furthermore, principles of statutory construction and case law did not assist in resolving the ambiguity.

The appeals court therefore had to apply the rule of lenity, which requires the court to interpret an ambiguity in a criminal law the defendant’s favor.  The appeals court interpreted the term “mercantile establishment” to refer only to theft from a retail store and not from an online retailer. There was no evidence  the defendant stole from a physical retail store, so the trial court erred in denying her motion to dismiss.

The appeals court reversed the conviction for second degree organized retail theft and remanded for the court to dismiss it.

This case shows the importance of the language of the law.  The state must work with the law that is written.  Because of the rule of lenity, the state cannot simply twist an ambiguous statute to apply to a new situation.

If you have been charged with a crime, a skilled Washington criminal defense attorney with a deep understanding of the law can fight for your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up an appointment to talk about your case.

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