State v. Fowler, 57800
| Decision Date | 25 October 1985 |
| Docket Number | No. 57800,57800 |
| Citation | 238 Kan. 213,708 P.2d 539 |
| Parties | STATE of Kansas, Appellee, v. Brian FOWLER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.
2. For purposes of sentencing under the mandatory firearm sentencing act (K.S.A. 21-4618), a "firearm," which was defined in State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980), as an object having the "design or capacity to propel a projectile by force of an explosion, gas, or other combustion," includes a .177 caliber pellet gun which is capable of discharging a pellet by force of the explosion of a carbon dioxide (CO sub2 ) cartridge.
Craig Shultz of Shultz & Webb, Chartered, Wichita, argued the cause and was on brief for appellant.
Kimberly Gee Vines, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on brief for appellee.
This is an appeal in a criminal action in which Brian Fowler (defendant-appellant) pled guilty to two counts of aggravated robbery (K.S.A. 21-3427) and was sentenced to the mandatory minimum sentence (five to twenty years for each count) and denied probation pursuant to K.S.A. 21-4618. The defendant contends the trial court erred in imposing sentence under K.S.A. 21-4618 because the pellet gun he used in the commission of the robbery was not a "firearm" for purposes of the statute.
There is no dispute that the weapon used by the defendant was a Crosman .177 caliber pellet gun. At a hearing held by the sentencing court to determine whether this weapon was a "firearm" as that term is used in K.S.A. 21-4618, a firearms expert testified regarding the operation of the weapon. Inside the handle of the gun is a carbon dioxide (CO sub2 ) cartridge which contains compressed gas. When the trigger is squeezed, the gas is discharged, forcing a pellet through the barrel. The expert noted that the sudden release of the compressed gas is a type of explosion. He further testified that the gun operated essentially the same as a pump air rifle.
The sentencing court ruled that the pellet gun was a "firearm" as that term is defined in State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980). Therefore, the court imposed a mandatory minimum sentence under K.S.A. 21-4618, and, by virtue of the same statute, denied the defendant's request for probation or suspension of sentence.
The sole issue on appeal is whether the pellet gun is a "firearm" within the provisions of K.S.A. 21-4618, which states in pertinent part:
"Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime." (Emphasis added.)
"Firearm" is not defined by statute. This court supplied a definition in State v. Davis, 227 Kan. 174, 605 P.2d 572, Syl. p 2:
"For purposes of sentencing under K.S.A. 1978 Supp. 21-4618, a 'firearm' is defined as an object having the design or capacity to propel a projectile by force of an explosion, gas, or other combustion."
This definition was reaffirmed in State v. Pelzer, 230 Kan. 780, 782, 640 P.2d 1261 (1982).
In Davis, we held a starter pistol is not a firearm within the definition. The starter pistol had a permanent plug in the barrel which prevented the firing of a projectile. We first held it was a dangerous weapon for purposes of raising the offense from robbery to aggravated robbery. (A subjective test was employed--did the victim believe that the weapon was dangerous?) However, since the gun was neither designed for nor capable of propelling a projectile it could not be considered a "firearm" within the meaning of K.S.A. 21-4618.
In Pelzer, this court applied the definition given in Davis in order to determine whether an inoperable (mechanically defective) handgun is a firearm. This court determined that since a "firearm" is to be determined by its design or capacity to propel a projectile, and since the gun had been designed to propel a projectile, the gun was a firearm. In reaching this decision, we noted:
230 Kan. at 782, 640 P.2d 1261.
The defendant in this case relies upon State v. Johnson, 8 Kan.App.2d 368, 657 P.2d 1139, rev. denied 233 Kan. 1093 (1983). In that case, the Court of Appeals held that a pneumatic (pump) air rifle designed for and capable of shooting BB's or .177 caliber pellets was not a firearm within the meaning of that term as stated in Davis and Pelzer. The court stated:
8 Kan.App.2d at 370, 657 P.2d 1139.
The defendant argues that, in light of the similarity between the weapon used by the defendant in the instant case and the weapon discussed in Johnson, the trial court erred by failing to follow Johnson. The defendant also argues that the trial court erred because criminal statutes must be strictly construed against the State and in favor of the defendant.
The State, on the other hand, argues that the gun used by the defendant in this case fits within the Davis definition because it had the "capacity to propel a projectile by force of ... gas ...." Further, expert testimony established that the sudden release of the CO sub2 creates a type of explosion.
It is true that penal statutes are to be strictly construed in favor of the defendant. State v. Rose, 234 Kan. 1044, 677 P.2d 1011 (1984). A criminal statute should not be extended by courts to embrace conduct not clearly included within the prohibition of the statute. However the rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature. See State v. Millett, 392 A.2d 521 (Me.1978).
In Davis, this court defined a previously undefined statutory term with the nature and purpose of the statute foremost in mind. See State v. Pelzer, 230 Kan. at 782, 640 P.2d 1261. See also Note, Sentencing, Probation and...
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