State v. Wooten

312 P.3d 41, 178 Wash. 2d 890

Opinions

González, J.

¶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 mischief — because he had exclusive possessory and proprietary interests in the property. He also argues the trial court abused its discretion by excluding closing argument about financing issues relating to the home.

¶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.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.

¶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 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 damage to the property. Kohl stopped paying on the mortgage in September 2007.

¶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 $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.

¶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).² “Malice” is defined as “an evil intent, wish, or design to vex, annoy, or injure another person.” RCW 9A.04.110(12). “Property of another” “means property in which the actor possesses anything less than exclusive ownership.” RCW 9A.48.010(l)(c) (emphasis added).³ The meaning of a statute is a question of law, reviewed de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002) (citing State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)).

¶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.

¶14 The terms of this particular real estate contract show Wooten possessed “[some]thing less than exclusive ownership” under RCW 9A.48.010(l)(c). The buyer could not harvest commercial timber from the property without the consent of the seller. Nor could any of the rights in the contract, such as possession, be freely assigned. Both the seller and buyer had the right to appear in condemnation actions. If the buyer failed to meet any of its obligations— including paying taxes and keeping the property in good repair — the seller could require the buyer to forfeit its interest in the property.⁴ These are not characteristic of exclusive ownership.⁵

¶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 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)).

¶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.⁶

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.

Madsen, C.J., and Fairhurst, J.M. Johnson, and Wiggins, JJ., concur.

Footnotes

1

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.

2

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.

3

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.

4

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.

5

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.

6

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).