State v. Call, 13313-3-III
| Decision Date | 27 September 1994 |
| Docket Number | No. 13313-3-III,13313-3-III |
| Citation | 880 P.2d 571,75 Wn.App. 866 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. David Duane CALL, Appellant. |
James J. Barlow, Barlow & Associates, Spokane, for appellant.
John Grasso, Deputy Pros. Atty., and Donald C. Brockett, Prosecuting Atty., Spokane, for respondent.
David Call appeals the sentence imposed following his conviction of three counts of possession of a controlled substance. He contends the facts found by the trial judge are insufficient to support imposition of the 12-month sentence enhancement based on the court's conclusion he committed an offense while armed with a deadly weapon. We reverse the sentence enhancement.
The trial court's unchallenged findings set forth the following facts:
Spokane police officers went to Mr. Call's home to arrest him on three outstanding warrants. After Mr. Call answered the door he went to his bedroom to retrieve his identification. He returned unarmed.
While in the house, the officers saw what they suspected to be illegal drugs. They obtained a warrant, searched the home, and found cocaine, LSD, marijuana, and a marijuana grow operation. They also found two unloaded handguns in Mr. Call's bedroom and a loaded handgun in a toolbox therein. Numerous documents found in the house established Mr. Call had dominion and control of the premises and thus was in constructive possession of the handguns.
Based on these facts, the trial court concluded Mr. Call committed the offense of possession of marijuana with intent to manufacture while armed with a deadly weapon, and imposed the 12-month sentence enhancement.
Mr. Call contends the court's finding he "was in constructive possession of the three (3) handguns" was insufficient to support the conclusion he was armed with a deadly weapon and consequently the imposition of an enhanced sentence pursuant to RCW 9.94A.125 1 and RCW 9.94A.310(3)(c) 2 was error.
The sentence enhancement statute only applies if the defendant was "armed" while committing a crime. "A person is 'armed' if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes." State v. Valdobinos, 122 Wash.2d 270, 281-82, 858 P.2d 199 (1993); State v. Sabala, 44 Wash.App. 444, 448, 723 P.2d 5 (1986). Valdobinos held evidence a gun was found under the defendant's bed was insufficient to support giving a jury instruction on a deadly weapon charge under RCW 9.94A.125. Sabala, at 448, 723 P.2d 5, expressly found that a gun which was under the defendant's seat in the car he was in and was easily visible was "easily accessible and readily available for use by the defendant for either offensive or defensive purposes." The opinion held this was sufficient to support the trial court's conclusion he was armed.
Here, the trial court's findings relating to the guns in Mr. Call's bedroom establish constructive possession of the weapons, but fail to address the essential question, namely whether any of the weapons was easily accessible and readily available. The findings are insufficient to support imposition of an enhanced sentence under RCW 9.94A.310(3)(c), and the sentence must be stricken.
The only evidence relating to availability of the guns was the police officer's testimony he "found two in a dresser drawer within the bedroom against the south wall of the bedroom, and one in a tool box at the foot--foot of the bed ...". Mr. Call had gone to the bedroom and returned unarmed. This is not sufficient evidence to support a finding the guns were easily accessible and readily available.
Reversed for resentencing.
1 RCW 9.94A.125 states:
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State v. Ague-Masters
...not armed where police arrested him then searched house, finding cocaine under a bed and a rifle under a bed) and State v. Call, 75 Wash.App. 866, 867-69, 880 P.2d 571 (1994) (defendant not armed where he walked into bedroom to get identification and police later found two unloaded guns and......
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State v. Schelin
...in the charging document. Id. at 237, 907 P.2d 316. The Mills court considered two constructive possession cases, State v. Call, 75 Wash. App. 866, 880 P.2d 571 (1994), and State v. Taylor, 74 Wash.App. 111, 872 P.2d 53 (1994). In Call, police recovered three handguns while executing a sear......
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State v. Blade, No. 29684-5-II (WA 2/1/2005)
...(insufficient evidence where State proved only that it found an unloaded .22 rifle under a bed in defendant's home); State v. Call, 75 Wn. App. 866, 880 P.2d 571 (1994) (insufficient evidence where police discovered illegal drugs and found two firearms in a bedroom dresser drawer and anothe......
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State v. Butts, No. 30585-2-II (WA 7/26/2005)
...evidence where State proved only that it found an unloaded .22 rifle under a bed in defendant's home); State v. Call, 75 Wn. App. 866, 868-69, 880 P.2d 571 (1994) (insufficient evidence where police discovered illegal drugs and found two firearms in a bedroom dresser drawer and another in a......