* State of Washington v. Richard Scott Moose

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THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
RICHARD SCOTT MOOSE,
Appellant.
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No. 38368-7-III
PUBLISHED OPINION
LAWRENCE-BERREY, J. — Richard Moose attempted to light a car on fire and
intentionally lit a police dog on fire while resisting arrest. The State filed four charges
against him—attempted arson in the second degree, harming a police dog, resisting arrest,
and attempted malicious mischief in the third degree. A jury convicted him of all
charges.
This appeal presents the question of whether arson in the second degree and
malicious mischief in the third degree are concurrent statutes, so that the State may charge
only the former, more specific offense, rather than both. We conclude they are not.
This appeal also presents the question of whether “maliciously”—generally
defined as an evil intent to annoy or injure “another person”—extends to police dogs for
FILED
NOVEMBER 22, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 38368-7-III
State v. Moose
2
purposes of RCW 9A.76.200(1), which makes it a felony to “maliciously” harm a police
dog. The definitional statute does not require a wooden application of defined terms. We
conclude that “maliciously,” for purposes of RCW 9A.76.200(1), includes acts against
police dogs.
We affirm Mr. Moose’s four convictions and remand for amendment of his
community custody term or for resentencing so his combined term of incarceration and
community service does not exceed the statutory maximum of 60 months.
FACTS
Late one evening, the Yakima Police Department received a report of a man, later
identified as Richard Moose, vehicle prowling in a closed car dealership parking lot.
When the police responded and spoke to Mr. Moose, he became agitated, hid between
two cars, and refused an officer’s request to either leave the property or come out and
speak with the them. Mr. Moose then used an aerosol can and a butane lighter to create a
fireball. The police requested additional units and the fire department because of their
concern for injuries or damage to the car dealership.
As additional units arrived, police saw a sock hanging from the gas tank of one of
the cars next to Mr. Moose. Mr. Moose continued to use the aerosol can and lighter to
create fireballs, telling the police to leave. He directed the fireballs toward the sock in the
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No. 38368-7-III
State v. Moose
3
car’s gas tank, and it appeared to officers he was attempting to ignite the sock and light
the car on fire.
Mr. Moose continued to ignore the officers’ commands to come out from between
the cars and the police decided to use a police dog, K-9 Trex, to help take Mr. Moose into
custody. As K-9 Trex approached Mr. Moose, he shot a fireball at the dog, lighting his
head on fire. K-9 Trex retreated, the fire quickly extinguished itself, and the dog bravely
reengaged and helped subdue Mr. Moose so officers could take him into custody. The
dog’s whiskers and eyelashes were burned off and the fur on his head was singed.
By second amended information, the State charged Mr. Moose with four offenses:
count 1—attempted second degree arson (RCW 9A.48.030 and RCW 9A.28.020),
count 2—harming a police or accelerant detection dog (RCW 9A.76.200),
count 3—resisting arrest (RCW 9A.76.040), and count 4—attempted third degree
malicious mischief (RCW 9A.48.090 and RCW 9A.28.020). A jury convicted him on all
counts, and the trial court sentenced Mr. Moose to 46 months of imprisonment and 18
months of community custody.
Mr. Moose timely appealed.
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No. 38368-7-III
State v. Moose
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ANALYSIS
A. CONCURRENT STATUTES
Mr. Moose argues his conviction for attempted third degree malicious mischief
(the general statute) must be vacated under the “general-specific rule” because the statute
criminalizing that offense is concurrent with the statute criminalizing arson in the second
degree (the specific statute). He did not raise this argument below.
The State does not contend that Mr. Moose’s argument is unpreserved for appeal.
We nevertheless consider it prudent to discuss this procedural issue.
Generally, we decline to address issues not preserved by argument or an objection
at trial. RAP 2.5(a). The underlying policy of the rule is to “encourag[e] the efficient use
of judicial resources. The appellate courts will not sanction a party’s failure to point out
at trial an error which the trial court, if given the opportunity, might have been able to
correct to avoid an appeal and a consequent new trial.” State v. Scott, 110 Wn.2d 682,
685, 757 P.2d 492 (1988).
An exception allows review of unpreserved errors if they are manifest errors of
constitutional magnitude. RAP 2.5(a)(3). That exception does not apply here because the
question of whether the two statutes are concurrent is one of statutory construction, rather
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No. 38368-7-III
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than an issue of constitutional dimension.1 State v. Shriner, 101 Wn.2d 576, 580, 681
P.2d 237 (1984).
Pitted against our inclination to dismiss Mr. Moose’s argument by applying
RAP 2.5(a) is RAP 12.1(a). Under the latter rule, we generally decide a case only on the
basis of issues set forth in the parties’ briefs. An exception to that rule permits us to raise
a new issue, provided we first direct the parties to file supplemental briefs on that issue.
RAP 12.1(b).
The policy behind RAP 12.1(a) is important. By limiting our review to the issues
raised by the parties, we preserve our role as neutrals, rather than risk being viewed as
advocates by raising an issue missed by one of the parties.
Because the State does not argue that the issue of concurrent statutes is
unpreserved, we decline to apply RAP 2.5(a). We now address the substantive issue
raised by Mr. Moose.
1 Offenses that are prosecuted under similar statutes can also offend the
constitutional prohibition against double jeopardy, which prevents multiple punishments
for the same offense. See State v. Calle, 125 Wn.2d 769, 775-76, 888 P.2d 155 (1995).
But Mr. Moose does not raise a double jeopardy challenge.
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No. 38368-7-III
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We must decide whether RCW 9A.48.090(1)(a)2 (malicious mischief in the third
degree) and RCW 9A.48.030(1) (arson in the second degree) are concurrent statutes for
purposes of the “general-specific” rule. Judge Glasgow recently set forth the law on this
subject very well in State v. Guang None Zheng:
“The general-specific rule is a well established rule of statutory
construction.” State v. Numrich, 197 Wn.2d 1, 13, 480 P.3d 376 (2021).
Under this rule, “[if] a special statute punishes the same conduct [that] is
punished under a general statute, the special statute applies and the accused
can be charged only under that statute.” Id. Put another way, whenever two
concurrent statutes govern the same subject matter and cannot be
harmonized, the specific statute prevails “unless it appears that the
legislature intended to make the general act controlling.” Id.
The general-specific rule applies only when two statutes are
concurrent. Statutes are concurrent when “the general statute will be
violated in each instance where the special statute has been violated.” Id.
“The determinative factor is whether it is possible to commit the specific
crime without also committing the general crime.” State v. Ou, 156 Wn.
App. 899, 902-03, 234 P.3d 1186 (2010). For purposes of the general-
specific test, “[i]t is not relevant that the special statute may contain
additional elements not contained in the general statute.” Numrich, 197
Wn.2d at 13.
“Statutes are concurrent if all of the elements to convict under the
general statute are also elements that must be proved for conviction under
the specific statute.” Ou, 156 Wn. App. at 903. And because we consider
the elements that must be proved for a conviction under each statute in the
abstract, we look at “the elements of the statutes, not the facts of the
particular case.” Id. In sum, if there is any possible way for a person to
2 Malicious mischief in the third degree can be committed in one of two ways,
either under RCW 9A.48.090(1)(a) or (1)(b). The charging language in the second
amended information and the jury instruction given by the trial court show that the State
elected the former subsection.
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No. 38368-7-III
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violate the specific statute but not the general statute, the two statutes
cannot be concurrent. We review this question de novo.
18 Wn. App. 2d 316, 322-23, 491 P.3d 254 (internal quotation marks and citations
omitted) (alterations in original), review denied, 198 Wn.2d 1024, 497 P.3d 394 (2021).
We now examine the elements of both statutes.
A person is guilty of malicious mischief in the third degree if he or she knowingly
and maliciously causes physical damage to the property of another. See State v. Wooten,
178 Wn.2d 890, 894, 312 P.3d 41 (2013) (reciting elements plus damage required for first
degree malicious mischief); RCW 9A.48.090(1)(a) (no damage amount required).
A person is guilty of arson in the second degree if he or she knowingly and
maliciously causes a fire or explosion that damages property. State v. Westling, 145
Wn.2d 607, 610, 40 P.3d 669 (2002); RCW 9A.48.030(1).
One readily sees that a person can commit the more specific offense of arson in the
second degree without also committing malicious mischief in the third degree: the person
can cause a fire or explosion to their own property. We conclude the two statutes are not
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No. 38368-7-III
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concurrent and affirm Mr. Moose’s conviction of the challenged offense, attempted
malicious mischief in the third degree.3
We are critical of this result because the arson statutes already punish an offender
more harshly than the malicious mischief statutes. For instance, arson in the first degree
is a class A felony, whereas malicious mischief in the first degree is a class B felony.
Compare RCW 9A.48.020(2) with RCW 9A.48.070(2). Similarly, arson in the second
degree is a class B felony, whereas malicious mischief in the second degree is a class C
felony. Compare RCW 9A.48.030(2) with RCW 9A.48.080(2). Because arson is already
punished more severely than malicious mischief, it seems incongruent to allow the State
to add an additional charge for the same conduct of attempting to explode the car. This
may well be a legislative omission.
B. SUFFICIENCY OF THE EVIDENCE OF HARMING A POLICE DOG
Mr. Moose contends the State failed to prove each element of RCW 9A.76.200,
harming a police dog, beyond a reasonable doubt. He raises this argument for the first
time on appeal. But here, the State cites RAP 2.5(a) and argues we should not consider
the unpreserved claim of error.
3 We express no opinion whether Mr. Moose’s convictions for attempted malicious
mischief in the third degree and attempted arson in the second degree violate his guaranty
against double jeopardy.
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No. 38368-7-III
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Mr. Moose frames his challenge as a due process issue regarding the sufficiency of
the State’s evidence. We conclude that his claim involves a manifest error of
constitutional magnitude, reviewable although not preserved with an objection or
argument below. See State v. Cardenas-Flores, 189 Wn.2d 243, 251, 401 P.3d 19 (2017).
Mr. Moose’s sufficiency argument is intertwined with issues of statutory
interpretation. He argues RCW 9A.76.200 requires proof a person “maliciously” harmed
a police dog; RCW 9A.04.110(12) in turn defines “maliciously” as “an evil intent, wish,
or design to vex, annoy, or injure another person” and because Mr. Moose harmed a
police dog, not “another person,” the State failed to prove he acted maliciously as
required by RCW 9A.76.200.
Mr. Moose’s argument is unconvincing. He ignores the prefatory phrase that
precedes the statutory definitions: “In this title unless a different meaning plainly is
required . . . ‘maliciously’ shall import an evil intent, wish, or design to vex, annoy, or
injure another person.” RCW 9A.04.110(12) (emphasis added).
A statute criminalizing malicious injury of a police dog plainly requires a
definition of “maliciously” that applies to police dogs. Further, Mr. Moose’s reading of
“maliciously” in RCW 9A.76.200 to require acting against “another person” violates
multiple canons of statutory interpretation. Statutes should be interpreted so that no
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No. 38368-7-III
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portion is rendered meaningless and so as to avoid absurd results. Gronquist v. Dep’t of
Corr., 196 Wn.2d 564, 571, 475 P.3d 497 (2020). Mr. Moose’s interpretation does
precisely the opposite. He suggests we read RCW 9A.76.200 so as to render the entire
statute meaningless. This is an absurd result that was clearly not intended by the
legislature. The State was not required to prove Mr. Moose harmed “another person” to
prove he harmed a police dog, and the evidence at trial was sufficient to sustain his
conviction.
C. EXCESSIVE SENTENCE
Mr. Moose contends his total sentence of confinement and community custody
exceeds the statutory maximum allowable for attempted second degree arson. The State
concedes, and we agree.
Former RCW 9.94A.701(9) (2010) requires the sentencing court to reduce the term
of community custody “whenever an offender’s standard range term of confinement in
combination with the term of community custody exceeds the statutory maximum for the
crime . . . .” Mr. Moose’s most serious offense, attempted second degree arson, is a class
C felony with a maximum term of confinement of 5 years (60 months). RCW 9A.48.030;
RCW 9A.28.020; RCW 9A.20.021(1)(c). Mr. Moose’s total confinement and community
custody totals 64 months, greater than the statutory maximum. This is not a permissible
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No. 38368-7-111
State v. Moose
result. We remand for the trial court to either amend the term of community custody or
resentence Mr. Moose consistent with former RCW 9.94A.701(9). See State v. Boyd, 174
Wn.2d 470, 473, 275 P.3d 321 (2012).
Affirmed, but remanded for amendment or resentencing.
Lawrence-Berrey, J.
WE CONCUR: j
Pennell, J.
11
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