State v. B.E.K.

141 Wash. App. 742
CourtCourt of Appeals of Washington
DecidedNovember 14, 2007
DocketNo. 35338-5-II
StatusPublished
Cited by13 cases

This text of 141 Wash. App. 742 (State v. B.E.K.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. B.E.K., 141 Wash. App. 742 (Wash. Ct. App. 2007).

Opinion

Houghton, C.J.

¶1 B.E.K. appeals a juvenile court order notifying the Department of Licensing (DOL) of his second degree malicious mischief felony conviction for spray-painting a police vehicle, resulting in a one year revocation of his driver’s license. He argues that his act does not constitute a vehicle use in the commission of a felony under RCW 46.20.285(4). We agree and reverse and remand with instructions to vacate the revocation order.

FACTS

¶2 On October 19, 2005, Pierce County Sheriff’s Deputy Wulick contacted Deputy Larsen at his residence regarding Larsen’s report of vandalism to his patrol car between the night of October 10 and the morning of October 11. Larsen reported that unknown person(s) had spray-painted his patrol car with purple paint. Spray-painted on the hood and windshield was the phrase, “$20 pig,” and sprayed on the driver’s side door was the phrase, “4:20 f—ing pigy [sic]!!” Clerk’s Papers at 2.

¶3 The same day, Wulick contacted 17-year-old B.E.K. regarding the incident, who admitted that he and two adult friends had spray-painted the patrol car.

¶4 The State charged B.E.K. with second degree malicious mischief for physically damaging an emergency vehicle, RCW 9A.48.080(l)(b).1 B.E.K. pleaded guilty.

¶5 At the plea and sentencing hearing, B.E.K. challenged whether the juvenile court should notify the DOL of [745]*745his adjudication, arguing that Washington’s driver’s license revocation statute did not apply because he did not use a vehicle during the commission of his felony. The juvenile court entered a disposition order against him for second degree malicious mischief but reserved the issue on his motion whether it would report his adjudication to the DOL.

¶6 Ajuvenile court commissioner denied B.E.K.’s motion and ordered the DOL be notified of his adjudication but stayed the order pending B.E.K.’s motion to revise.

¶7 The juvenile court later denied his motion to revise and ordered the DOL be notified of his adjudication. It stayed the order pending B.E.K.’s appeal.

ANALYSIS

¶8 B.E.K. contends that, for purposes of ROW 46.20-.285(4), one uses a vehicle in the commission of a felony when he operates or actively employs the vehicle to accomplish a crime but not when the vehicle is merely the target of the crime.

¶9 We interpret a statute de novo as a question of law. State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003). Where a statute’s meaning is plain on its face, we follow that plain meaning without resorting to statutory construction. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). We find a statute ambiguous if we can reasonably interpret it in more than one way. Vashon Island Comm. for Self-Gov’t v. Wash. State Boundary Review Bd., 127 Wn.2d 759, 771, 903 P.2d 953 (1995). But under the rule of lenity, where two possible statutory constructions are permissible, we construe the statute strictly against the State in favor of a criminal defendant. State v. Gore, 101 Wn.2d 481, 485-86, 681 P.2d 227 (1984).

¶10 Washington’s license revocation statute, RCW 46.20.285, mandates that the DOL revoke a driver’s license for one year where the driver has a final conviction for “[a]ny [746]*746felony in the commission of which a motor vehicle is used.” RCW 46.20.285(4). The statute does not define “use.” In the absence of a statutory definition, we have used the plain and ordinary meaning of the word to find that, in order for RCW 46.20.285(4) to apply, a vehicle must have been “employed in accomplishing” the crime. State v. Batten, 95 Wn. App. 127, 129-30, 974 P.2d 879 (1999), aff’d, 140 Wn.2d 362, 997 P.2d 350 (2000) (Batten II).

¶11 There is no Washington case law addressing the applicability of RCW 46.20.285(4) to the crime of second degree malicious mischief for damage to an emergency vehicle, but we have interpreted the statute in the context of other felonies. In analyzing the statute’s applicability to the crimes of unlawful possession of a controlled substance and unlawful possession of a firearm, our Supreme Court affirmed the relevant test for “use” as whether the felony has some reasonable relation to the operation of a motor vehicle, or whether the use of the motor vehicle contributes in some reasonable degree to the commission of the felony.2 Batten II, 140 Wn.2d at 365.

¶12 Based on this test, Washington courts have found that the statute clearly applies where the commission of a felony directly involves motor vehicle operation. See. e.g., State v. Dykstra, 127 Wn. App. 1, 11-12, 110 P.3d 758 (2005) (finding the Batten II test was met for a first degree theft conviction where the appellant was part of an auto theft ring and cars were stolen, driven around to find other cars to steal, and used during lookout operations); State v. Griffin, 126 Wn. App. 700, 708, 109 P.3d 870 (2005) (finding that the use of a car directly contributed to the commission of the crime of cocaine possession where the appellant received cocaine in exchange for giving someone a ride in the car).

¶13 Likewise, for a possession crime, we have found a sufficient nexus to invoke the statute where the defendant [747]*747used a vehicle as a repository to store contraband. See Batten, 95 Wn. App. at 131 (for a crime of possession, the mere presence of the prohibited item in a vehicle is sufficient to permit the State to revoke a driver’s license because the vehicle was the location where the item was kept); Batten II, 140 Wn.2d at 366 (“[ejmploying a vehicle as a place to store and conceal the weapon, in our judgment, creates a sufficient relationship between the use of the vehicle and the crime of unlawful possession of the weapon to bring the possession of the weapon within the reach of the statute”).

¶14 On the other hand, we have held that RCW 46.20-.285(4) does not apply where the vehicle was incidental to the commission of the crime. See State v. Wayne, 134 Wn. App. 873, 875-76, 142 P.3d 1125

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141 Wash. App. 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bek-washctapp-2007.