State v. Tongate
| Decision Date | 19 June 1980 |
| Docket Number | No. 46457,46457 |
| Citation | 93 Wn.2d 751,613 P.2d 121 |
| Parties | STATE of Washington, Respondent, v. Wayne Douglas TONGATE, Petitioner. |
| Court | Washington Supreme Court |
Elofson, Vincent, Hurst & Crossland, Anthony F. Menke, Yakima, for petitioner.
Jeffrey C. Sullivan, Robert Hackett, Jr., Yakima, for respondent.
A jury found petitioner Wayne Douglas Tongate guilty of first-degree robbery, with a special finding that he was armed with a deadly weapon. On appeal, petitioner argued that the State had the burden of proving beyond a reasonable doubt that he was armed with a deadly weapon. The Court of Appeals disagreed with this contention and in an unpublished opinion affirmed the conviction and the enhanced sentence required by RCW 9.95.040. We reverse the sentencing portion of the judgment.
After instructing the jury as to the offense charged, the trial court gave the following special verdict instruction:
In the event you find the defendant guilty, you will answer the special verdict in addition to the general verdict, which special verdict reads as follows:
We, the jury in the above entitled case, do return a special verdict as follows:
Was the defendant, WAYNE DOUGLAS TONGATE, armed with a deadly weapon at the time of the commission of this offense?
ANSWER:
"YES" "NO"
You are instructed that as a matter of law, the words "deadly weapon" include, but are not limited to any instrument known as a pistol, revolver, or any other firearm. 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.
By giving you this special verdict, the court does not mean to suggest what your verdict should be. This is for you to determine. In the event your verdict is not guilty you will ignore the special verdict entirely.
Petitioner objected to the instruction on the ground that its failure to indicate the standard of proof in effect relieved the State of its duty to prove the existence of a deadly weapon beyond a reasonable doubt. Reasoning that being armed with a deadly weapon at the time of the commission of a crime is not an element of the crime of first-degree robbery, the Court of Appeals held it need not be proved beyond a reasonable doubt. This is an issue of first impression in Washington.
It is beyond question that the State must prove beyond a reasonable doubt every element of the offense charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As the Court of Appeals noted, however, we have held that the deadly weapon enhancement statute, RCW 9.95.040, does not set forth the elements of a crime. State v. Jackson, 70 Wash.2d 498, 502, 424 P.2d 313 (1967); State v. Slaughter, 70 Wash.2d 935, 940, 425 P.2d 876 (1967). Rather, this provision provides for an enhanced penalty for an underlying offense based on a special verdict finding that must be considered by the Board of Prison Terms and Paroles.
The Court of Appeals correctly observed that the proof required to submit a deadly weapon special verdict to the jury need not be beyond a reasonable doubt. It is sufficient in a criminal case if "the trial court has a reasonable basis to believe from the evidence that the defendant was armed with a deadly weapon while in the commission of the felony charged". State v. Newman, 4 Wash.App. 588, 595, 484 P.2d 473, 478 (1971). The evidence is sufficient if a witness to the crime has testified to the presence of such a weapon, as happened here. Newman, at 595. The evidence may be circumstantial; no weapon need be produced or introduced. Slaughter, at 938-39; State v. Williams, 3 Wash.App. 336, 339, 475 P.2d 131 (1970). But whether the trial court has a reasonable basis to submit the special verdict to the jury is not at issue here.
Our cases involving other enhanced punishment statutes uniformly require proof beyond a reasonable doubt to establish the facts which, if proved, will increase a defendant's penalty. In State v. Murdock, 91 Wash.2d 336, 340, 588 P.2d 1143 (1979), for example, we held that the burden was on the State in a habitual criminal proceeding to prove each and every element beyond a reasonable doubt. Accord, State v. Furth, 5 Wash.2d 1, 11, 104 P.2d 925 (1940); State v. Harkness, 1 Wash.2d 530, 540, 543, 96 P.2d 460 (1939). Similarly, we have required that before a defendant could be subject to the increased penalty provided for by RCW 69.33.410(4) (), when a narcotics violation involves a transaction with a minor, the State must prove every essential element of the allegation beyond a reasonable doubt. State v. Nass, 76 Wash.2d 368, 370, 456 P.2d 347 (1969).
Since RCW 9.95.015 and 9.95.040 likewise provide for an enhanced penalty for one armed with a deadly weapon at the time of commission of the crime for which defendant is found guilty, the above cases are applicable. It follows that the jury must make its finding beyond a reasonable doubt. As Mr. Justice Cardozo expressed it, "The genius of our criminal law is violated when punishment is enhanced in the face of a reasonable doubt as to the facts leading to enhancement." People v. Reese, 258 N.Y. 89, 101, 179 N.E. 305, 308, 79 A.L.R. 1329 (1932).
The Court of Appeals reasoned that even if the reasonable doubt standard is required, it was met in this case because a conviction for first-degree robbery necessarily includes a finding that the defendant was armed with a deadly weapon. We disagree.
RCW 9A.56.200 provides, in relevant part:
(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly weapon; or
(c) Inflicts bodily injury.
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State v. Vladovic
...instruct the jury that it must be convinced beyond a reasonable doubt that he possessed such a weapon, as required by State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980). There is no question that real firearms were in fact used in the instant case. The victims saw the man in the green ma......
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...858 P.2d 199. The State must make this showing beyond a reasonable doubt to sustain a deadly weapon enhancement. State v. Tongate, 93 Wash.2d 751, 754, 613 P.2d 121 (1980). Our decision in Valdobinos was heavily influenced by the Court of Appeals opinion in State v. Sabala, 44 Wash.App. 444......
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...that during the commission of the crime a firearm was present, regardless of whether the firearm is located. State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980). While Moccardine could not be sure whether Engelstad brandished a firearm, he was positive "the other guy had a gun, [he] kn......
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State v. Engelstad, 30640-2-III
...... commission of a crime is sufficient to uphold a jury's. special verdict if a single witness testifies that during the. commission of the crime a firearm was present, regardless of. whether the firearm is located. State v. Tongate, 93. Wn.2d 751, 754, 613 P.2d 121 (1980). While Moccardine could. not be sure whether Engelstad brandished a firearm, he was. positive "the other guy had a gun, [he] knew it was a. gun." RP at 311. Dawn Flood testified Engelstad pulled a. gun and that "another guy ......
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Dead Wrong: Why Washington's Deadly Weapon Criminal Sentencing Enhancement Needs "enhancement"
...or other deadly weapon," but that the penal enhancement statute required the defendant to actually be armed); see also State v. Tongate, 613 P.2d 121 (Wash. 1980). 72. State v. Sabala, 723 P.2d 5 (Wash. Ct. App. 1986). 73. Id.at 6. 74. Id. 75. Id. 76. Id. 77. Id.at 8. 78. Id.at 7. The court......