State v. Faust, 21579-9-II

• Decision Date: 11 December 1998
• Docket Number: No. 21579-9-II,21579-9-II
• Citation: 93 Wn.App. 373,967 P.2d 1284
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Eric Wayne FAUST, Appellant.

Page 1284

93 Wn.App. 373

967 P.2d 1284

STATE of Washington, Respondent, v. Eric Wayne FAUST, Appellant.

No. 21579-9-II.

Court of Appeals of Washington Division 2.

Dec. 11, 1998.

Brent Basden, Port Angeles, for Appellant.

David Bruneau, Port Angeles, for Respondent.

ARMSTRONG, J.

On July 7, 1996, Eric Wayne Faust assaulted his wife over a several hour period. During the assault, Faust held a knife to her throat and pointed a .380 semi-automatic pistol at her. Faust was charged and convicted of second degree assault with a deadly weapon and a firearm in violation of RCW 9A.36.021; 9.94A.125; 9.41.010. His sentence included 36 months for the firearm enhancement. ¹ Faust challenges the 36-month enhancement, arguing that the gun did not meet the statutory definition of firearm because it was inoperable due to a mechanical defect. We conclude that the gun met the definition of a firearm under the statute even though it malfunctioned. We, therefore, affirm.

FACTS

Annette Faust testified that before the day of the assault her husband's gun had not been working. He told her that "it was jamming or something was wrong with it and The police tested the gun and could not get it to fire. They inserted the magazine into the gun that Faust had used and pulled back the slide. When the slide moved forward, the round jammed and would not go into the chamber. The officers used .380 caliber ammunition. They also tried, without success, to manually load a round into the chamber. An officer testified that it might be possible to fire the gun using smaller ammunition, such as a .32 caliber round. But the police did not test this theory and found only .380 caliber ammunition in the Faust home.

                it didn't work."   But, on the day of the assault, he told her that it had been repaired.  Initially, Annette did not believe that the gun had been repaired.  But when she saw that he had bullets and was putting the clip into the gun, she "got really, really scared" and thought that maybe he had gotten it fixed.  Although Faust had difficulty putting the clip into the gun, he did get the magazine closed after he dug around with the knife.  The gun jammed
                

Faust argues that a gun that is incapable of being fired during the crime due to mechanical defect is not a "firearm" for purposes of sentence enhancement.

Faust's sentence was enhanced under RCW 9.94A.310(3)(b), which provides a mandatory three-year sentence enhancement for second degree assault "[i]f the offender ... was armed with a firearm as defined in RCW 9.41.010." ² RCW 9.41.010(1) defines a firearm as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."

ANALYSIS

In construing a statute, we look to the intent of the Legislature. State v. Williams, 62 Wash.App. 336, 338, 813 P.2d 1293 (1991). To determine legislative intent, we first consider the language of the statute. Plain language does not require construction. State v. Wilson, 125 Wash.2d 212, 217, 883 P.2d 320 (1994). But a statute that is susceptible to two or more reasonable interpretations is ambiguous. State v. Sunich, 76 Wash.App. 202, 206, 884 P.2d 1 (1994); State v. Garrison, 46 Wash.App. 52, 54, 728 P.2d 1102 (1986). Thus, to determine the meaning of an ambiguous statute, we must look to other sources of legislative intent. See State v. Rhodes, 58 Wash.App. 913, 915-16, 795 P.2d 724 (1990) (citing 3 CHARLES DALLAS SANDS, STATUTORY CONSTRUCTION § 59.03 (4th ed.1986)).

Here, the definition of firearm is ambiguous. The language "a weapon or device from which a projectile or projectiles may be fired " clearly indicates that a firearm must be capable of firing a projectile at some point in time. But it is not clear whether the firearm must be operable at the time when the crime is committed. Therefore, we look to other sources to determine whether the Legislature intended to limit the firearm enhancement statute to a firearm that was operable at the time when the crime is committed.

The current penalty enhancements for offenders armed with firearms were enacted under the "Hard Time for Armed Crime Act." LAWS OF 1995, ch. 129 (Initiative Measure No. 159) (codified at RCW 9.94A.310). Although the drafters of the Act documented their findings and intent, the findings do not deal with whether a firearm must be operable during the commission of the crime. With regard to guns, the drafters specifically found that "[c]urrent law also fails to distinguish between gun-carrying criminals and criminals carrying knives or clubs." LAWS OF 1995, ch. 129, § 1(1)(d). By increasing penalties, the people of Washington intended to "[d]istinguish between the gun predators and criminals carrying other deadly weapons and provide greatly increased penalties for gun predators...." LAWS OF 1995, ch. 129, § 1(2)(c). ³

But because the Hard Time for Armed Crime Act incorporates the definition of "firearm" used in the "Uniform Firearms Act" (codified at RCW 9.41 et seq.), two additional principles of statutory construction are useful. First, where a statute is unclear, we may resort to contemporaneous construction to determine legislative intent. Bernard v. Benson, 58 Wash. 191, 194-95, 108 P. 439 (1910). Second, because the Legislature is presumed to know of the decisions of the Washington Supreme Court, the court's prior use or interpretation of a term will be considered in ascertaining the meaning of a statute. Gimlett v. Gimlett, 95 Wash.2d 699, 702, 629 P.2d 450 (1981); Miller v. Paul Revere Life Ins. Co., 81 Wash.2d 302, 308, 501 P.2d 1063 (1972).

Before 1983, "firearm" was not defined under the Uniform Firearms Act. ⁴ Instead, Former RCW 9.41.010(1) simply provided: " 'Short firearm' or 'pistol' as used in RCW 9.41.010 through 9.41.160 means any firearm with a barrel less than twelve inches in length." Former RCW 9.41.010(1) (1971). But in April of 1983, the Legislature amended the Uniform Firearms Act and added the following definition: " '[f]irearm' as used in this chapter means a weapon or device from which a projectile may be fired by an explosive such as gunpowder." LAWS OF 1983, ch. 232, § 1(3).

Just two months earlier, the Washington Supreme Court decided State v. Pam, 98 Wash.2d 748, 659 P.2d 454 (1983), overruled on other grounds by State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988). In Pam, the court said:

Under RCW 9.41.025,[ ⁵] the State must prove the presence of a "firearm," which is defined under WPIC 2.10 as a "weapon from which a projectile may be fired by an explosive such as gun powder." A gun-like object incapable of being fired is not a "firearm" under this definition.

Pam, 98 Wash.2d at 753-54, 659 P.2d 454 (footnote omitted) (emphasis added).

In Pam, four witnesses testified that the defendant had a gun or shotgun when he robbed an auto parts store. The weapon fell apart as he was fleeing. The police recovered "the wooden firestock of 'what appeared to be a shotgun' " but no bullets were recovered. Pam, 98 Wash.2d at 751, 754, 659 P.2d 454.

The issue in Pam was whether the trial court committed harmless error in failing to instruct the jury on the reasonable doubt standard for the deadly weapon and firearm sentence enhancements. Pam, 98 Wash.2d at 752, 659 P.2d 454. The court concluded that the error was not harmless because the jury could have had a reasonable doubt as to the "operability of the weapon." Pam, 98 Wash.2d at 755, 659 P.2d 454. This language could be read as limiting the definition of firearm to a gun that was operable at the time of crime. But a careful reading of Pam reveals otherwise. The Pam court attempted to distinguish between a true firearm and a "gun-like object incapable of being fired," and cited State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980), for the rule that such a "gun-like object" was not a firearm. Pam, 98 Wash.2d at 753-54, 659 P.2d 454.

In Tongate, the defendant was convicted of first degree robbery with a special finding that he was armed with a deadly weapon. The jury was instructed that a firearm was a deadly weapon and that: "The prosecution is not required to prove that a pistol, revolver or other type of firearm was loaded or even that it was capable of being fired." Tongate, 93 Wash.2d at 753, 613 P.2d 121. But the jury was not instructed that the State had to prove the deadly weapon enhancement beyond a reasonable doubt. On appeal, Tongate argued this was error. The State argued, in part, that the error was harmless because to convict of first degree robbery, the jury necessarily found that the defendant was armed with a deadly weapon.

The court rejected this argument because the first degree robbery statute could be violated either by being armed with a deadly weapon, or by displaying "what appear[ed] to be a firearm...." Tongate, 93 Wash.2d at 755, 613 P.2d 121. Thus, the court concluded that the jury could have convicted the defendant of robbery if it found that he had a toy gun, but it could not have found the deadly weapon enhancement unless it found "the presence of a deadly weapon in fact." Tongate, 93 Wash.2d at 755, 613 P.2d 121. In this context, the court used interchangeably the terms "toy gun" and "a gun-like but nondeadly object." Tongate, 93 Wash.2d at 755, 613 P.2d 121. And the trial court's instruction that a firearm deadly weapon need not be loaded or even capable of being fired was not challenged. In short, the Tongate language relied upon by Pam did not limit the definition of a firearm to one capable of being fired during the crime. Rather, the distinction was between a toy gun and a gun "in fact." Moreover, the unchallenged instruction in Tongate made clear that an unloaded gun, or one incapable of being fired, was still a deadly weapon within the meaning of the statute.

In conclusion, when the Legislature adopted the definition of a firearm in 1983, the Washington Supreme Court had clearly set out the definition of firearm in both Tongate and Pam. And the definition...