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WPIC 2.06 Deadly Weapon—Definition as Element—Firearm or Explosive

11 WAPRAC WPIC 2.06Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 2.06 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
WPIC CHAPTER 2. Definitions
WPIC 2.06 Deadly Weapon—Definition as Element—Firearm or Explosive
[An explosive] [A firearm, whether loaded or unloaded,] is a deadly weapon.
NOTE ON USE
Use this instruction when the use of a deadly weapon, as defined in 9A.04.110(6), is an element of the crime charged and the only weapon alleged is a firearm or an explosive.
Because there are at present three statutory schemes involving definitions of “deadly weapon” or “firearm,” great care should be used in selecting the applicable instruction. The situations in which various instructions in this area should be used are set forth below:

  • • When a “deadly weapon” is part of an element of the crime, and the only weapon alleged is a firearm or an explosive, use the instruction above (WPIC 2.06). When the weapon alleged is other than a firearm or explosive, use WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives). For a case involving both a firearm under WPIC 2.06 and a weapon under WPIC 2.06.01, the two instructions may be combined.

  • • When an enhanced sentence is sought on the basis that the defendant was armed with a “deadly weapon” use WPIC 2.07 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General). When the only weapon alleged is a knife, use WPIC 2.07.01 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Knife). When the only weapon alleged is a firearm, use WPIC 2.07.02 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Firearm).

  • • When a “firearm” is part of an element of the crime, and the statute makes reference to the definition in RCW 9.41.010, use WPIC 2.10 (Firearm—Definition as Element).

  • • When an enhanced sentence is sought on the basis that the defendant was armed with a “firearm” use WPIC 2.10.01 (Firearm—Definition for Sentence Enhancement—Special Verdict).
Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).
Along with this instruction, use, as applicable, WPIC 2.03.01 (Substantial Bodily Harm—Definition), WPIC 2.24 (Threat—Definition), and WPIC 2.25 (Vehicle—Definition—Nontraffic Cases).
COMMENT
Statute. The instruction above and the instruction that follows, WPIC 2.06.01, are based upon the definition of “deadly weapon” in RCW 9A.04.110(6), which states in full:
“Deadly weapon” means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a “vehicle” as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
The courts have recognized that this statute creates two categories of deadly weapons: firearms and explosives (which are per se deadly weapons), and all other weapons. This dichotomy is explained as follows:
The State argues two classifications of deadly weapons are defined in RCW 9A.04.110(6). The first class of deadly weapons is specifically defined to include “any explosive or loaded or unloaded firearm.” A second class of deadly weapons is defined generally to “include any other weapon … [or] … instrument … which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” The State argues the first classification defines per se dangerous weapons and no analysis of willingness or present ability to use a firearm as a deadly weapon is needed. We agree. State v. Sabala, [44 Wn.App. 444, 448, 723 P.2d 5 (1986)].
State v. Hall, 46 Wn.App. 689, 694–95, 732 P.2d 524 (1987).
Organization of WPIC 2.06 and WPIC 2.06.01. The two categories of deadly weapons are each the focus of a separate pattern instruction. The instruction above is limited to firearms and explosives, which are per se deadly weapons pursuant to the opening clause in RCW 9A.04.110(6). The instruction that follows, WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives), addresses the remainder of the language in RCW 9A.04.110(6), which covers weapons other than firearms and explosives.
Firearms as deadly weapons under RCW 9A.04.110. Firearms, whether loaded or unloaded, are per se deadly weapons under RCW 9A.04.110(6).
Firearm—Definitional issue. The instruction above follows the statutory approach by using the term “firearm” but not defining it, when possession or use of a firearm is an element of the offense. The statute that defines “deadly weapon,” RCW 9A.04.110, does not define “firearm.” There are no cases indicating whether the definition of “firearm” set forth in RCW 9.41.010(9) would apply. See State v. Edwards, 17 Wn.App. 355, 563 P.2d 212 (1977) (former deadly weapon and firearm enhancement statutes, dictionary definition acceptable in absence of statutory definition of firearm).
If the firearm is pleaded as a sentencing enhancement, RCW 9.94A.533(3) provides that the definition of firearm of RCW 9.41.010 applies.
Explosives. A statutory definition of explosive is set forth in RCW 70.74.010(5).
[Current as of November 2018.]
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