State of Washington v. Wooten [Wash. Sup. Ct. No. 87855-2]
Commentary: David Wooten was convicted of first degree malicious mischief for damaging a home that he was purchasing pursuant to real estate contract. Wooten claimed on appeal that he did not damage “property of another,” an element of the offense, because he had exclusive possessory and proprietary interests in the property. A five-justice majority of the Washington Supreme Court rejected the argument because it concluded that Wooten was not the exclusive owner of the property. As the four-justice dissent notes, the majority opinion adopts a definition of “property of another,” as well as “physical damage,” that greatly expands the reach of the malicious mischief statute and could create confusion and potential criminal sanction for home repair projects where, as here, another party has a security interest in property that is solely and exclusively occupied by another.
The court’s statement of facts is not entirely clear, but it appears that Wooten agreed to “lease purchase” the property from Dennis Kohl. The contract obligated the buyer, Wooten, to pay all taxes, keep the property in good repair, and bear the risk of loss for destruction of the property. Wooten and his family moved into the house in May 2005 and began remodeling a bathroom, which included removing sheetrock.
Without telling Wooten, Kohl took out a mortgage on the property for $216,000. Kohl subsequently discovered that Wooten had failed to pay taxes for the property totaling $8,000. Because Kohl could not afford to pay the back taxes, he decided to “flip” the property back to the bank and stopped paying the mortgage.
When the Wootens returned home after a winter vacation, they found a default notice attached to the front gate. Wooten discovered that because of the mortgage that Kohl had taken out, he would have to pay double the sale price of the house to avoid foreclosure. The Wootens moved out of the house in May 2008.
Kohl later drove by the property and found it had been badly damaged. A sheriff deputy was called to the residence and found a large amount of garbage in the house, extensive damage, missing sheetrock (the bathroom remodel), medical waste, and rotting food. Woods was charged with first degree malicious mischief. After he was convicted, he appealed.
Wooten argued on appeal that the State had failed to show that he had damaged “property of another,” an element of first degree malicious mischief, because he had sole ownership of the real property. A five-justice majority (authored by Justices Gonzalez, with Justices Madsen, J.M. Johnson, Wiggins, and Fairhurst concurring) disagreed. The majority noted, at the outset, that Wooten’s property interest derived from the operative real estate contract. Pursuant to that contract, legal title did not pass until the purchase price was paid in full. In addition, the contract also provided that Wooten could assign his rights under the contract. According to the majority opinion, “these are not characteristics of exclusive ownership.”
Justice Owens (joined by Justices Gordon McCloud, C. Johnson, and Stephens) dissented. Justice Owens concluded that the house was not the “property of another” because Kohl had sold it to Wooten. And while Kohl had retained a security interest in the house, Justice Owens reasoned that a security interest cannot be physically damaged. Justice Owens therefore concluded that Wooten had not damages property of another and could not be convicted of malicious mischief.