WPIC 2.07 Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General

Use this instruction for purposes of an enhanced sentence for being armed with a deadly weapon under RCW 9.94A.825 and RCW 9.94A.533(3) or (4).

Do not use the second paragraph in a case in which the weapon was actually used and displayed during the commission of the crime.

If using the instruction's final bracketed sentence, then fill in the blank line with a deadly weapon that is listed in RCW 9.94A.825. Do not fill in the blank line with any other weapon.

If the only weapon allegedly used by the defendant is a knife or a firearm, omit this instruction and use either WPIC 2.07.01 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Knife) or WPIC 2.07.02 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Firearm), respectively.

For a more complete discussion of the relationship of this instruction and other instructions in this section dealing with deadly weapons or firearms, see the Note on Use and Comment to WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive).

Use this instruction with WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) and WPIC 190.01 (Special Verdict Form—Deadly Weapon).

Use bracketed material as applicable. If the bracketed material on accomplices is used, use WPIC 10.51 (Accomplice—Definition) with this instruction. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

RCW 9.94A.825.

Armed—Definition. A defendant may be found to have been “armed” with a deadly weapon during the commission of a crime if the weapon was “easily accessible and readily available for use, either for offensive or defensive purposes.” State v. Willis, 153 Wn.2d 366, 103 P.3d 1213 (2005); State v. Barnes, 153 Wn.2d 378, 103 P.3d 1219 (2005); State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993).

Additionally, “under a two-part analysis, there must be a nexus between the weapon and the defendant and between the weapon and the crime.” State v. Schelin, 147 Wn.2d 562, 568, 55 P.3d 632 (2002) (addressing sufficiency of the evidence); State v. Barnes, 153 Wn.2d at 383, 103 P.3d 1219; State v. Willis, 153 Wn.2d at 374, 103 P.3d 1213. A jury instruction defining “armed with a deadly weapon” need not, however, use nexus language, as long as “the instruction informs the jury that it must find a relationship between the defendant, the crime, and the deadly weapon.” State v. Willis, 153 Wn.2d at 374 (“Express ‘nexus’ language is not required.”) In actual possession cases, “it will rarely be necessary to go beyond the commonly used ‘readily accessible and easily available’ instruction.” State v. Easterlin, 159 Wn.2d 203, 209, 149 P.3d 366 (2006). Nevertheless, depending on the evidence, “it would not be error and it would perhaps be appropriate” in a particular case to instruct the jury about the required connections in order for the parties to be able to argue their theory of the case. State v. Easterlin, 159 Wn.2d at 209; see also State v. Willis, 153 Wn.2d at 374 n.2 (upholding an instruction stating merely that “armed” means “[a firearm was] readily available for offensive or defensive purposes,” but noting that a more detailed discussion of the nexus requirement would not be error and would in some cases help jurors in their deliberations); State v. Barnes, 153 Wn.2d at 383 n.4; State v. Eckenrode, 159 Wn.2d 488, 496, 150 P.3d 1116 (2007) (plurality opinion, noting in dictum that “in some cases, it would be the better practice” to include nexus or connection language in the instructions).

Knowledge. The State is not required to prove that the defendant knew that a weapon was present. State v. Barnes, 153 Wn.2d at 386–87. The jury, however, may consider a defendant's lack of knowledge about the weapon as one of the factors in determining whether there was the necessary nexus among the defendant, the weapon, and the crime. State v. Barnes, 153 Wn.2d at 386–87, 103 P.3d 1219.

Deadly weapon—Definition. For a discussion of knives qualifying as deadly weapons for purposes of sentence enhancement, see the Comment to WPIC 2.07.01 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Knife). For a discussion of firearms qualifying as deadly weapons under RCW 9.94A.825, see the Comment to WPIC 2.07.02 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Firearm).

Burden of proof. The requirement in this instruction that the plaintiff prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime is based upon State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980). That case holds that possession of a deadly weapon under RCW 9.95.040 must be proved beyond a reasonable doubt and that the instruction submitting the issue to the jury must so state.

In State v. Fowler, 114 Wn.2d 59, 785 P.2d 808 (1990), reversed on other grounds, State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991), the court found that the inadvertent failure of the trial court to specifically instruct on the State's burden of proof in relation to a deadly weapon charge was harmless error under the facts of the case. The court held that when no reasonable doubt instruction is given at all, such an error is reversible per se. However, in cases in which the jury is instructed at least once on the State's burden of proof in a criminal case, the omission of further instruction when required shall be analyzed by looking at whether the error was harmless beyond a reasonable doubt.

Circumstantial evidence may be sufficient to prove that the object alleged to be a firearm, in fact, so qualifies. State v. Tasker, 193 Wn.App 575, 593–94, 373 P.3d 310 (2016) (no firearm was found, but testimony of the victim that there appeared to be a gun and that she heard a “clicking sound” when it was held to her head was sufficient to sustained the jury's finding).

Accomplices. RCW 9.94A.825 provides in pertinent part that “the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.” See also State v. Schelin, 147 Wn.2d at 572, 55 P.3d 632 (confirming that for cases involving accomplices, the “defendant or an accomplice must be in proximity to a deadly weapon at the time a crime is committed.” In State v. Bilal, 54 Wn.App. 778, 776 P.2d 153 (1989), the court held that the State is not required to prove that a defendant had actual knowledge that an accomplice was armed in order to enhance a sentence pursuant to former RCW 9.94A.125.

Double jeopardy. It is constitutionally permissible for the Legislature to define one element of a crime as possession of a deadly weapon and to also prescribe an increase in the defendant's sentence for possession of a deadly weapon. The courts have rejected the argument that the application of both statutes in one case violates the constitutional protection against double jeopardy. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); State v. Kelley, 168 Wn.2d 72, 226 P.3d 773 (2010).