State v. Myles

• Decision Date: 06 September 1994
• Docket Number: No. 32229-0-I,32229-0-I
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Dalona S. MYLES, Appellant.

Page 643

75 Wn.App. 643

879 P.2d 968

The STATE of Washington, Respondent, v. Dalona S. MYLES, Appellant.

No. 32229-0-I.

Court of Appeals of Washington,

Division 1.

Sept. 6, 1994.

Reconsideration Denied Oct. 6, 1994.

Suzanne Elliott, Washington Appellate Defender, Seattle, for appellant.

Carol Spoor, King County Deputy Prosecutor, Seattle, for respondent.

BECKER, Judge.

Dalona Myles appeals her conviction for carrying a dangerous weapon. She was arrested at a Seattle intersection at about 1 a.m. The arresting officer, who had been called out to a disturbance at that location, observed two groups of people on opposite sides of the street yelling and swearing at each other. Sixteen-year old Myles responded rudely to the officer's inquiry as to what was going on. Myles appeared to be rummaging in her outside coat pockets for something. The officer patted her down for weapons and found a fixed-blade paring knife, approximately 3 inches long. The knife was not where the officer had observed Myles' hands, but in the left inside pocket of Myles' coat. Myles was charged with carrying a dangerous weapon in violation of RCW 9.41.250. She was convicted as charged and sentenced to 2 months of community supervision and 8 hours of community service.

RCW 9.41.250, first adopted in 1909, now provides:

Every person who shall manufacture, sell or dispose of or have in his possession any instrument or weapon of the kind usually known as slung shot, sand club, or metal knuckles, or spring blade knife, or any knife the blade of which is automatically released by a spring mechanism or other mechanical device, or any knife having a blade which opens, or falls, or is ejected into position by the force of gravity, or by an outward, downward, or centrifugal thrust or movement; who shall furtively carry with intent to conceal any dagger, dirk, pistol, or other dangerous weapon; or who shall use any contrivance or device for suppressing the noise of any firearm, shall be guilty of a gross misdemeanor.

(Emphasis added.) Myles challenges her conviction on two grounds: she contends "furtively carry with intent to conceal any ... other dangerous weapon" is unconstitutionally vague as applied to her, and alternatively, she argues the evidence is insufficient to support her conviction. We conclude that the evidence is insufficient and reverse.

Except when a vagueness challenge to a statute involves First Amendment rights, we must evaluate the statute as applied to the particular facts of the case, rather than for facial vagueness. Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990). Even if there are some hypothetical situations to which the statute may not apply, the particular facts of the case may come within a "hard core" of circumstances that the statute unquestionably governs. See Douglass t 182-83, 795 P.2d 693; Bellevue v. Miller, 85 Wash.2d 539, 541, 536 P.2d 603 (1975).

A statute is presumed constitutional. The party challenging the statute carries the burden of proving it unconstitutional beyond a reasonable doubt. State v. Halstien, 122 Wash.2d 109, 118, 857 P.2d 270 (1993). A statute is vague and violates due process if, beyond a reasonable doubt, it (1) does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Douglass, 115 Wash.2d at 178, 795 P.2d 693.

The phrase "other dangerous weapon" in the statute is sufficiently definite as applied to Myles' paring knife. The similar term "deadly weapon"--defined in RCW 9.94A.125 as an implement which has the capacity to inflict death, used in a way such that it is likely to produce or may easily and readily produce death--has been held to include a pocketknife of similar length. State v. Cook, 69 Wash.App. 412, 417, 848 P.2d 1325 (1993). A fixed-blade paring knife of whatever length is sufficiently like the specific objects "dagger" and "dirk", named in the statute, that neither an ordinary citizen nor a police officer would have trouble understanding that under certain circumstances, such a knife may be a "dangerous weapon." See State v. O'Neil, 24 Wash.2d 802, 807, 167 P.2d 471 (1946) (observing that a knife may be a dangerous weapon), overruled on other grounds, State v. Ng, 110 Wash.2d 32, 48, 750 P.2d 632 (1988).

The more difficult question is whether the statute, as applied to Myles, adequately defines the circumstances that made her carrying of the knife criminal rather than innocent. RCW 9.41.270(1), upheld against a vagueness challenge in State v. Maciolek, 101 Wash.2d 259, 269, 676 P.2d 996 (1984), provides that it is a crime to carry certain weapons "in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons." The statute at issue here lacks any similar requirement that the defendant be observed using the implement to intimidate or otherwise warrant alarm.

An intent element in an enactment may provide a sufficient limit on police discretion, avoiding vagueness under the second part of the test in Douglass. Tacoma v. Luvene, 118 Wash.2d 826, 847, 827 P.2d 1374 (1992). However, "intent to conceal" in RCW 9.41.250 is insufficiently limiting because concealing is not inherently criminal.

If the statute has any constitutional core, it must center around the word "furtive". "Furtive" as an adjective is synonymous with such words as stealthy and surreptitious. Black's Law Dictionary 676 (6th ed. 1990); Webster's Third New International Dictionary 924 (1969). The word "furtive" describes activity that expresses hidden motives. Furtive movements may be among the circumstances...