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WPIC 2.10.01 Firearm—Definition for Sentence Enhancement—Special Verdict

11 WAPRAC WPIC 2.10.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 2.10.01 (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 2.10.01 Firearm—Definition for Sentence Enhancement—Special Verdict
For purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime [in Count ].
[A person is armed with a firearm if, at the time of the commission of the crime, the firearm is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the firearm and the defendant [or an accomplice]. The State must also prove beyond a reasonable doubt that there was a connection between the firearm and the crime. In determining whether these connections existed, you should consider, among other factors, the nature of the crime and the circumstances surrounding the commission of the crime, including [the location of the weapon at the time of the crime] [the type of weapon] [(fill in other relevant circumstances)].]
[If one participant in a crime is armed with a firearm, all accomplices to that participant are deemed to be so armed, even if only one firearm is involved.]
A “firearm” is a weapon or device from which a projectile may be fired by an explosive such as gunpowder.
NOTE ON USE
This instruction should be used when there is a special allegation that the defendant was armed with a firearm at the time of the commission of a crime pursuant to RCW 9.94A.533(3).
Do not use the second paragraph in a case in which the weapon was actually used and displayed during the commission of the crime.
For a discussion of the relationship of this instruction to other instructions defining “firearm” and “deadly weapon” see the Note on Use and Comment to WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive).
If applicable, the third paragraph should be used together with WPIC 10.51 (Accomplice—Definition).
Use this instruction with WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) and WPIC 190.02 (Special Verdict Form—Firearm).
COMMENT
RCW 9.41.010(11).
See also the Comment to WPIC 2.10 (Firearm—Definition as Element) regarding the firearms enhancement statute.
Operability of firearm. The Court of Appeals has held that a sentence may be enhanced under RCW 9.94A.825 even if the prosecution does not prove that the firearm was operable. State v. Tasker, 193 Wn.App 575, 593–94, 373 P.3d 310 (2016) (extensive discussion of the various cases on this issue); State v. Faust, 93 Wn.App. 373, 967 P.2d 1284 (1998) (malfunctioning firearm). Noting that unloaded guns meet the statutory definition of firearm, the court observed: “If an unloaded gun can be loaded, a malfunctioning gun can be fixed.” State v. Faust, 93 Wn.App. at 381, 967 P.2d 1284. The Faust court distinguished between real guns that malfunction (which qualify as “firearms”) and toy guns or other “gun-like objects” (which do not qualify as “firearms”). State v. Faust, 93 Wn.App. at 379–81, 967 P.2d 1284 (construing State v. Pam, 98 Wn.2d 748, 659 P.2d 454 (1983)).
Under Faust, then, the firearm sentence enhancement applies when the prosecution proves beyond a reasonable doubt the existence of a “true firearm” (as opposed to a “gun-like object”)—the prosecution need not further prove the weapon's operability. For a discussion of related cases, see the Comment to WPIC 2.10 (Firearm—Definition as Element) (discussing, in the context of firearm offenses under RCW Chapter 9.41, whether temporarily inoperable firearms qualify as firearms under RCW 9.41.010(11)).
Armed with a firearm. For a related discussion, see the Comment to WPIC 2.07 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General).
[Current as of November 2018.]
End of Document