Opinion
No. 36755-6-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-03444-0, Bryan E. Chushcoff, J., entered August 24, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and QuinnBrintnall, J.
Matt Joshua Wingate appeals the trial court's denial of his motion to modify his three firearm enhancement sentences, arguing that the trial court erred in imposing the firearm enhancements because the jury did not properly find that he was armed with a firearm at the time he committed the crimes. Because the jury found beyond a reasonable doubt that Wingate was armed with a firearm at the time he committed the underlying crimes, we affirm.
FACTS
The State charged Wingate with one count of first degree assault and three counts of second degree of assault, each with a firearm enhancement, committed on June 21, 2001. The information alleged that for each count, Wingate was armed with a firearm as defined in former RCW 9.41.010 (1997) during the commission of the crime.
Former RCW 9.41.010(1) defines "firearm" as: "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."
At trial, Wingate admitted on direct examination that he started carrying a "firearm" after he turned 21 and that he pulled his "firearm" out at the time of the incident. Several witnesses also testified that Wingate was armed with a gun at the time of the incident. And the handgun Wingate used at the time of the incident was admitted into evidence.
After the close of testimony, the court instructed the jury (1) that "[a] person commits the crime of Assault in the First Degree when, with intent to inflict great bodily harm, he intentionally assaults another with a firearm," Clerk's Papers (CP) at 13; (2) that "[a] person commits the crime of Assault in the Second Degree when he intentionally assaults another with a deadly weapon," CP at 24; (3) that deadly weapon includes any firearm; and (4) that the State must prove the presence of a deadly weapon at the time of the assault beyond a reasonable doubt. The instructions also required the jury to determine beyond a reasonable doubt, by special verdict, whether Wingate was armed with a firearm at the time he committed each crime. The jury was not instructed on the definition of "firearm," and Wingate did not object to the special verdict form or the jury instructions.
The jury found Wingate guilty of first degree assault and two counts of second degree assault on December 6, 2001. By special verdict, the jury found that Wingate was armed with a firearm during the commission of each crime, a finding which added time to Wingate's sentence under former RCW 9.94A.310 (2001), recodified as RCW 9.94A.533.
Wingate's standard sentence range was 261-303 months with the weapons enhancement. The trial court imposed a sentence below that range, at 192 months, running the enhancements consecutively.
Wingate appealed to the Washington Supreme Court, which reversed in part and remanded to the Court of Appeals. State v. Wingate, 155 Wn.2d 817, 122 P.3d 908 (2005) (reversing State v. Wingate, 123 Wn. App. 415, 98 P.3d 111 (2004)). We then affirmed Wingate's convictions but remanded for resentencing after finding that two of the four mitigating factors the trial court relied on during sentencing were not supported by sufficient evidence. State v. Wingate, noted at 133 Wn. App. 1027, 2006 WL 1681939 (June 20, 2006). At the resentencing hearing, Wingate moved to modify the firearm enhancements, arguing that he could be sentenced only under the deadly weapon enhancement provision. The court denied the motion, ruling that any error was harmless, and confirmed Wingate's prior sentence based on the two remaining valid factors. The court explained that there was no confusion by the jury that a firearm was involved with respect to each count: "I do think that the jury did find firearm, clearly, in the special verdict form." Report of Proceedings (Aug. 24, 2007) at 12. Wingate now appeals the trial court's order.
ANALYSIS
Wingate asserts that his sentence is improper under Blakely because the jury did not properly find that he was armed with a "firearm" and, consequently, the trial court could sentence him only for a deadly weapon enhancement under former RCW 9.94A.310(4), not the firearm enhancement provision.
Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that a jury must find the facts necessary to enhance a standard sentence).
Under former RCW 9.94A.310(3) and (4), a sentencing judge must increase the standard sentence range for offenders who commit their offenses while armed with a firearm or a deadly weapon. Former RCW 9.94A.310(3) mandates a firearm enhancement ranging from 18 months to five years. Former RCW 9.94A.310(4) requires a deadly weapon enhancement ranging from six months to two years.
Deadly weapon is defined as follows:
an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. . .[including a] Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.
RCW 9.94A.602.
In reviewing the trial court's reasons for imposing an exceptional sentence, we ask whether the record supports the trial court's exceptional sentence. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005) (citations omitted). We will uphold a trial court's reasons for imposing a sentence unless they are clearly erroneous. Law, 154 Wn.2d at 93 (citations omitted).
A trial court may properly impose a firearm sentence enhancement if (1) the defendant is put on notice of the enhancement, (2) a jury finds the facts necessary to impose the enhancement, and (3) the jury makes its findings beyond a reasonable doubt. See State v. Recuenco, 163 Wn.2d 428, 435-37, 180 P.3d 1276 (2008). Here, the trial judge was justified in imposing the firearm enhancements because all three requirements were met.
A. Notice of the Firearm Enhancement
Wingate argues first that the trial court could sentence him only for a deadly weapon enhancement because the State's charging documents are ambiguous. He maintains that the State did not put him on notice of the firearm enhancement because the information refers to former RCW 9.94A.310 generally, without specifically referring to the deadly weapon or the firearm subsection. Charging documents must include the essential elements of the crime charged, including sentence enhancements. Recuenco, 163 Wn.2d at 434 (citing In re Pers. Restraint of Bush, 95 Wn.2d 551, 554, 627 P.2d 953 (1981)). Although the information here does not contain the applicable subsection of RCW 9.94A.310, it does specifically allege, under each charge, that Wingate "was armed with a firearm" at the time he committed the crimes. CP at 51-52. Thus, the information plainly notified Wingate that the State was seeking a firearm, not a deadly weapon, enhancement under former RCW 9.94A.310.
B. Jury Finding
Next, Wingate maintains that the jury did not properly find that he was armed with a firearm at the time he committed the crimes and, as a result, that the trial court judge could not impose an enhanced firearm sentence. Any fact that increases the statutory maximum for a crime, including a firearm enhancement, must be submitted to the jury and proved beyond a reasonable doubt. Recuenco, 163 Wn.2d at 433 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The jury must find by special verdict that the defendant was armed with a firearm at the time the crime was committed in order to protect a defendant's right to a jury trial. Recuenco, 163 Wn.2d at 439 (citing former RCW 9.94A.125). After the jury makes its finding, a judge may impose a sentence based on "the facts reflected in the jury verdict or admitted by the defendant." Recuenco, 163 Wn.2d at 433 (citing Blakely, 542 U.S. at 303). As required by Recuenco, the jury found beyond a reasonable doubt, by special verdict, that Wingate was armed with a firearm at the time he committed first degree assault and the two counts of second degree assault. The trial court imposed the firearm enhancement based on the jury's special verdict finding that Wingate was armed with a firearm.
Although "firearm" was not specifically defined in the jury instructions, jury instructions are proper as long as they permit the parties to argue their case theories, do not mislead the jury, and properly inform the jury of the applicable law. Blaney v. Int'l Ass'n of Machinists And Aerospace Workers Dist., 151 Wn.2d 203, 210, 87 P.3d 757 (2004) (citing Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)). When requested, a trial court in a criminal case must define technical words and expressions used in jury instructions. State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546 (1997) (citations omitted). A term is technical if its legal definition differs from the common understanding of the word. See Brown, 132 Wn.2d at 611. Whether a term is technical is left to the trial court's discretion. Brown, 132 Wn.2d at 612 (citations omitted). Here, Wingate did not request a technical definition of "firearm," and the dictionary definition and the statutory definition are almost identical. The dictionary defines "firearm" as "a weapon from which a shot is discharged by gunpowder" and the statute defines "firearm" as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." Webster's Third New Int'l Dictionary 854 (2002 ed.); RCW 9.41.010(1). Furthermore, Wingate admitted using a firearm, and other witnesses confirmed this. We find no error in the court's instructions on this issue.
That "deadly weapon" was defined in the instructions, and "firearm" was not, does not support Wingate's argument that his enhancement was only a "deadly weapon" enhancement. The deadly weapon instruction was unrelated to the firearm enhancement and proper because the underlying second degree assault charges required the jury to find a deadly weapon.
C. Proof Beyond a Reasonable Doubt
To impose a firearm enhancement, the jury must find beyond a reasonable doubt that the defendant was armed with a firearm when committing the crime. Recuenco, 163 Wn.2d at 440. Here, the special verdict form instruction states, "In order to answer a special verdict form `yes,' you must unanimously be satisfied beyond a reasonable doubt that `yes' is the correct answer." CP at 31 (emphasis added). Each special verdict form asked: "Was [Wingate] armed with a firearm at the time of the commission of the crime. . .?" CP at 34, 39, 41. The jury responded, "Yes," to each form. CP at 34, 39, 41. Thus, the jury found the factual basis for each firearm enhancement beyond a reasonable doubt.
We hold that the trial court properly imposed the firearm sentence enhancements because the State gave Wingate notice of the enhancements and the jury found beyond a reasonable doubt that Wingate was armed with a firearm at the time he committed the crimes. Thus, we affirm the trial court's refusal to modify Wingate's sentences.
A majority of this court having determined that this opinion will not be printed in the Washington Appellate Reports, the opinion shall be filed for public record pursuant to RCW 2.06.040.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.