State v. Carter

• Decision Date: 01 May 2007
• Docket Number: No. 32514-4-II.,32514-4-II.
• Citation: 157 P.3d 420,138 Wn. App. 350
• Parties: STATE of Washington, Appellant, v. Marcus A. CARTER, Respondent.
• Court: Washington Court of Appeals

157 P.3d 420

138 Wn. App. 350

STATE of Washington, Appellant, v. Marcus A. CARTER, Respondent.

No. 32514-4-II.

Court of Appeals of Washington, Division 2.

May 1, 2007.

Randall Avery Sutton, Jeremy Aaron Morris, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Appellant.

Marcus A. Carter (Appearing Pro Se), Port Orchard, WA.

VAN DEREN, J.

¶ 1 The State appeals the dismissal of a machine gun possession charge, contrary to RCW 9.41.190(1) and .010(7), against Marcus Alton Carter. The trial court dismissed the charge because the State lacked sufficient evidence to prove that an ammunition supply device, defined by RCW 9.41.010(7), was present at the scene. The State argues that the statute does not require it to show the presence of an ammunition supply device and that the trial court erred in disregarding its evidence that such a device was present. Because RCW 9.41.010(7) contemplates a weapon accompanied by an ammunition supply device and because the State did not respond with an affidavit containing evidence of an ammunition supply device, the trial court did not err in dismissing the State's case on Carter's Knapstad¹ motion. We affirm and construe the trial court's dismissal to be without prejudice.

FACTS

¶ 2 Carter was the chief instructor of a certification course for firearms safety instructors. Two investigators from the Pierce County Prosecuting Attorney's office, Bruce Jackson and Frank Clark, attended the course. As part of the instruction, Carter asked the students to familiarize themselves with a firearm and prepare for practical training presentations. These included demonstrating how to operate the weapon.

¶ 3 From the available firearms, Jackson selected a Colt AR-15 rifle that Carter had identified as his personal rifle. Having owned an AR-15 since the seventies, Jackson was familiar with its normal functions. He noticed that the safety/selector switch was not characteristic of the AR-15, instead it resembled one from a military M-16 that could be moved to a full automatic fire position. He then opened the weapon and found a non-standard "auto sear block," which suggested that the weapon had been modified to fire as a machine gun. Clerk's Papers (CP) at 2. He also noticed that the standard hammer had been replaced with a M-16 hammer.

¶ 4 After class, Jackson and Clark asked Carter if he had modified the rifle for automatic fire. He admitted that he had. When they told him that possessing such a weapon was illegal, he offered to demonstrate that it would not function in automatic mode but said that he needed to "get some ammunition first." CP at 45. During the investigators' ensuing attempts to confiscate the rifle, Carter insisted on his constitutional right to bear arms, and his teenage son claimed that the law against possession of automatic firearms was stupid because semi-automatic fire was more accurate and effective, while automatic fire "just sprayed a lot of bullets everywhere." CP at 48.

¶ 5 Jackson and Clark eventually seized the rifle without an ammunition supply device. The Washington State Patrol Crime Laboratory examined it and found that it contained "the following parts from an M16 rifle-Safety (selector), Disconnector, Trigger, Hammer, and Bolt Carrier." CP at 32. Examiners also test-fired it after they inserted an ammunition supply device and determined that it was capable of automatic fire at an average rate of 787 rounds per minute.

¶ 6 The State charged Carter under RCW 9.41.190(1) and .010(7) for possession of a machine gun. The trial court initially suppressed the weapon as unlawfully seized, and we affirmed. State v. Carter, noted at 112 Wash.App. 1046, 2002 WL 31186936 (2002). The Supreme Court reversed and remanded for trial. State v. Carter, 151 Wash.2d 118, 129-30, 85 P.3d 887 (2004).

¶ 7 Carter then brought a Knapstad motion to dismiss on the ground that the rifle did not meet the statutory definition of a machine gun because it did not have a "`reservoir clip, disc, drum, belt, or other separable mechanical device for storing, carrying, or supplying ammunition which can be loaded into the firearm, mechanism, or instrument, and fired therefrom at the rate of five or more shots per second.'" CP at 52 (quoting RCW 9.41.010(7)). In its response to this motion, the State did not deny the absence of an ammunition supply device, but argued, instead, that this showing was unnecessary. At the motion hearing, however, the State offered an e-mail exchange between Jackson and a prosecutor in which Jackson said there were magazines present at the scene.

¶ 8 The trial court determined that the State had to show the presence of an ammunition supply device as described in the statute and concluded that there were no facts before it alleging that the State could prove this. Possibly referring to Jackson's e-mail, the trial court stated that "this is not part of the record and not part of what has been considered up to now." Report of Proceedings (RP) at 13. It then dismissed the case "with prejudice pursuant to State v. Knapstad." CP at 70. The State appeals.

ANALYSIS

I. AMMUNITION SUPPLY DEVICE REQUIREMENT

¶ 9 The State assigns error to the trial court's dismissal of the case based on lack of evidence that the firearm had an ammunition supply device. According to the statute:

"Machine gun" means any firearm known as a machine gun, mechanical rifle, submachine gun, or any other mechanism or instrument not requiring that the trigger be pressed for each shot and having a reservoir clip, disc, drum, belt, or other separable mechanical device for storing, carrying, or supplying ammunition which can be loaded into the firearm, mechanism, or instrument, and fired therefrom at the rate of five or more shots per second.

RCW 9.41.010(7) (emphasis added). The trial court interpreted this provision to require "a firearm that has a clip."² RP at 13.

¶ 10 The State challenges the dismissal on three grounds: (1) it was unnecessary to prove the presence of an ammunition supply device; (2) even if this showing were required, there was evidence of such a device; and (3) even without the device, there was sufficient evidence of machine gun-specific parts to convict Carter under RCW 9.41.190(1).

II. STATUTORY LANGUAGE

¶ 11 The State argues that RCW 9.41.010(7)'s language on "and having" an ammunition supply device requires "any firearm into which a magazine could be inserted and which could then fire five or more shots per second" and does not require the physical presence of an ammunition supply device. Br. of Appellant at 8.

¶ 12 In construing a statute, we look to the legislature's intent. State v. Faust, 93 Wash.App. 373, 376, 967 P.2d 1284 (1998) (citing State v. Williams, 62 Wash.App. 336, 338, 813 P.2d 1293 (1991)). While "plain language does not require construction," Faust, 93 Wash.App. at 376, 967 P.2d 1284 (citing State v. Wilson, 125 Wash.2d 212, 217, 883 P.2d 320 (1994)), "a statute that is susceptible to two or more reasonable interpretations is ambiguous." Faust, 93 Wash.App. at 376, 967 P.2d 1284 (citing State v. Sunich, 76 Wash.App. 202, 206, 884 P.2d 1 (1994)). Under the rule of lenity, when a criminal statute is ambiguous and the legislative intent is insufficient to clarify it, the ambiguity must be resolved in favor of the accused. In the Matter of the Pers. Restraint of Hopkins, 137 Wash.2d 897, 901, 976 P.2d 616 (1999); State v. Padilla, 95 Wash.App. 531, 534 n. 2, 978 P.2d 1113 (1999) (citing In re Post Sentencing Review of Charles, 135 Wash.2d 239, 250 n. 4, 955 P.2d 798 (1998)).

¶ 13 The State's proffered definition conflicts with the statute's plain language. The primary definitions of the verb have are: "a: to hold in possession as property"; "b: to hold, keep, or retain"; "c: to consist of'; "d: CARRY, BEAR, SUPPORT"; and "e: to be possessed by." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1039 (2002). None of these definitions construes "have" as meaning "capable of taking," as the State argues. CP at 30. Rather, all five imply an actual possessory or ownership relationship between two specific entities. Definition c, which is the most applicable to inanimate objects, would suggest that the ammunition supply device must be a component part of the firearm. Thus, the State's broad interpretation exceeds the bounds of "having." RCW 9.41.010(7).

¶ 14 Moreover, the State's definition does not fit the legislature's intent. In amending the firearms statutes, the legislature's intent was to reduce violence by "keeping all firearms out of the hands of certain individuals and certain firearms out of the hands of all individuals." State v. Padilla, 95 Wash.App. 531, 534-35, 978 P.2d 1113 (1999) (citing LAWS OF 1994, 1st Sp. Sess. ch 7, § 101). The statute itself is clear that the feature of machine guns that motivated the legislature to keep them out of the hands of unlicensed individuals is the capacity for automatic fire; in the words of the statute, the ability to fire "at the rate of five or more shots per second." RCW 9.41.010(7). But without some means of storing and supplying ammunition to the firing mechanism, bullets must be loaded into the weapon individually and the weapon is incapable of automatic fire, rendering it no more dangerous than a single-shot firearm. Thus, the State's interpretation conflicts with both the statute's plain language and legislative intent.

¶ 15 We also examine how close the relationship between the device and the gun must be for the gun to "have" an ammunition supply device. RCW 9.41.010(7). Certainly the interpretation the State imputes to the trial court, that the clip must be inserted into the gun, defies legislative intent. Under such a restrictive definition, a criminal could hold the gun in one hand and the clip in the other and not possess a machine gun, a result that would fail to reduce crime by keeping machine guns out of the hands of unlicensed persons.

¶ 16 An interpretation that better serves...