State v. StephensState v. Stephens
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Defendant Marlon K. Stephens appeals from his conviction of second-degree assault. He also challenges the sentence imposed by the trial judge under
Complaining witnesses, Richard Heieck and Norman Jahnke, called at the home of Joyce Belcher on October 17, 1976. One of her children answered the door and told the men that she wаs not at home. Heieck and Jahnke then left the residence; however, they returned 15 minutes later. On their second visit, Jahnke went to the door while Heieck waited in the automobile. The door was opened by the defendant, who told Jahnke to leave. Apparently unbeknownst to Heieck and Jahnke, defendant had moved in with Belcher.
Jahnke returned to the car and told Heieck that defendant had been rude to him. Heieck responded tо this information by going to the house, where he jnet defendant on the front porch. Although defense and prosecution witnesses gave conflicting testimony concerning the interaction between defendant and Heieck, it is clear that at some point Heieck pushed Stephens, and that Stephens reacted by entering the residence and slamming the door.
Hearing what they believed to be the sound of a gun being loaded, Heieck left the porch and headed for the car with Jahnke, who had been standing on the front lawn of the residence. When they were a few feet from the vehicle, *550 defendant appeared on the porch brandishing a shotgun. Apparently, after telling Heieck and Jahnke to “get the hell out of here,” defendant fired the weapon. At the time of the shooting, Heieck was standing near the front door on the driver‘s side of the vehicle and Jahnke was positioned near the rear tire on the passenger‘s side. Although the radiator of the car was punctured, neither man was injured.
Heieck and Jahnke reported the incident to the Lewis County Sheriff‘s Department. Defendant was arrested at Belcher‘s home later in the day. After being informed of his Miranda rights, defendant admitted firing at the vehicle.
The defendant was charged with one count of second-degree assault against Heieck and Jahnke.
The mоtion was denied and the trial judge sentenced defendant to 10 years on the assault charge; he interpreted
Defendant‘s first three assignments of error all involve challenges to instruction No. 6A, which reads in part:
To convict the defendant of the crime of assault in the second degree eаch of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 17th day of October, 1976, the defendant knowingly assaulted Richard Heieck or Norman Jahnke with a weapon or other instrument or thing likely to produce bodily harm;
*551 (2) That the act occurred in Lewis County, Washington.
(Italics ours.)
Defendant claims that the use of the disjunctive in this instruction is erroneous. He theorizes that under this instruction, he could have been convicted if six members of the jury believed he assaulted Jаhnke, and six were convinced the assault was against Heieck. As Washington law does require that a unanimous verdict be returned in criminal cases, State v. Badda, 63 Wn.2d 176, 385 P.2d 859 (1963); State v. Rogers, 5 Wn. App. 347, 486 P.2d 1125 (1971), we agree with defendant‘s contention and find that the instruction was improper.
The prosecutor argues that the case of State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976) supports the use of this instruction. Arndt, however, merely reaffirmed the longstanding rule that when alternative means of committing a single crime are charged, and there is substantial evidence introduced to support each alternative, “unanimity of the jury as to the mode of commission is not required.” State v. Arndt, supra at 376; State v. Stuhr, 1 Wn.2d 521, 96 P.2d 479 (1939); State v. Talbott, 199 Wash. 431, 91 P.2d 1020 (1939); cf. State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974) (jury need not be unanimous in determining if defendant was principal or aider or abettor of crime to sustain conviction). In Arndt, which involved a charge of grand larceny-welfare fraud, disagreement among jurors concerning the precise manner in which the defendant perpetrated the crime did not change the fact that all jurors found that defendant had committed the charged crime. Here, instruction No. 6A, in effect, splits the transaction into separate crimes: an assault on Jahnke and an assault on Heieck. If the prosecutor intended to bring two counts of assault against defendant, he should have done so in the information — and unanimous juries would have been required to *552 support a conviction on each count. 1 We find the current situation to be intolerable, and hold that instruction No. 6A is impermissible.
Although the use of an improper instruction is presumed to be prejudicial, State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977), State v. Burnham, 19 Wn. App. 442, 576 P.2d 917 (1978), our review of the rеcord convinces us that the error here was harmless. Defendant‘s testimony unequivocally indicates that the assault was against Jahnke and Heieck as a unit. While explaining his reasons for firing at the vehicle, the defendant stated:
I meant business. I told them to leave, and they did not leave. So, I shot the car, and I meant business.
To show them that I was telling the truth, that I meant them to leave.
Clearly, defendant‘s actions were directed to both men. Defendant intended to scare them both away; for the purpose of shooting, he drew no distinction between the two men. In addition, the undisputed fact that Heieck and Jahnke were standing quite close together when this incident occurred, further strengthens our conviction that the jury must have found that the assault was directed at both men, and was not influenced by the use of the disjunctive in instruction No. 6A. Faced with this evidence, a juror‘s only reasonable option, if he beliеved any assault had been committed, was to find that such criminal act was directed at both Heieck and Jahnke. As a unanimous verdict was, of course, rendered in this case, we conclude that the entire jury must have reached this result. Any error involved in the giving of instruction No. 6A was, therefore, harmless.
In his remaining assignment of error, defendant chal
*553
lenges the imposition of the 20-year maximum prison term pursuant to the enhanced penalty provision of the uniform firearms act,
*554
We note initially that the uniform firearms act has had a long and troubled history.
3
Even in its third revision it is plagued by language that makes meaningful interpretation extremely difficult.
4
One of the more cryptic passages is the phrase, “not less than five years.” Standing alone, the
*555
phrase apparently puts no upper limit on the length of an enhanced prison sentence. In
Lewis,
we attempted to give
*556
meaning to that phrase. There the defendant used a firearm in the commission of a gross misdemeanor. We determined that the enhanced penalty of “not less than five years” raised the gross misdemeanor to the status of a felony for sentencing purposes. Because the enhancement statute specifies no mаximum penalty for such a felony, we felt bound to impose the sentencing provision of
Technically, a 20-year maximum enhanced sentence is defensible if one reads
We base our conclusion on two equitable principles employed in Workman: the rule of lenity and the rule giving specific statutes precedence over general statutes.
The rule of lenity is the judicial doctrine by which courts decline to interpret criminal statutes so as to increase the penаlty imposed, absent clear evidence of legislative intent to do otherwise. Simpson v. United States, 435 U.S. 6, 55 L. Ed. 2d 70, 78, 98 S. Ct. 909 (1978); State v. Workman, supra at 454. See also State v. Arndt, 87 Wn.2d 374, 385, 553 P.2d 1328 (1976); State v. Boyer, 4 Wn. App. 73, 76, 480 P.2d 257 (1971). Put another way, it is the rule that ‘“where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.‘” Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 54 L. Ed. 2d 538, 548, 98 S. Ct. 566 (1978); United States v. Bass, 404 U.S. 336, 347, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971); Rewis v. United States, 401 U.S. 808, 812, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971). See Simpson v. United States, supra at 14, 55 L. Ed. 2d at 78.
There is undeniable ambiguity concerning the scope of the open-ended, phrase “not less than five years,” because the phrase is unclear as to whether defendant‘s
*558
total sentence and actual prison time may exceed thе statutory maximum penalty for second-degree assault with a weapon,
In reaching this interpretation, we believe it is significant that the statute is so exacting as to the mandatory minimum terms (5, 7 1/2 and 15 years for first, second and third offenses, respectively), while at the same time silent as to a maximum term. Such a marked contrast suggests that the legislature purposely lеft out reference to the maximum term and instead assumed the mandatory enhanced penalty would be set within the time limits of the maximum sentence already imposed for the root crime.
The second equitable principle on which we rely is the rule of statutory construction that gives a specific statute precedence over a more general statute, absent a clear and definite legislative directive, where both are addressed to a common concern. State v. Workman, supra at 454; Simpson v. United States, supra at 14, 55 L. Ed. 2d 78. *559 See also 2A C. Sands, Statutes and Statutory Construction § 51.05 (4th ed. 1973).
Here, the specific statute is second-degree assault with a weapon,
It must be emphasized that this interpretation of the phrase, “not less than five years,” is not the only possible interpretation of the phrase. Because of the statute‘s ambiguity and the lack of evidence regarding legislative intent, however, we feel compelled to rely on these equitable principles to determine the formula for enhanced sentences under the firearms act.
We therefore hold that defendant‘s enhanced penalty under
*560 For the reasons noted, we affirm defendant‘s conviction, but remand the case to the trial court for resentencing consistent with this opinion.
Pearson, C.J., and Soule, J., concur.
Reconsideration denied February 21, 1979.
Review granted by Supreme Court May 4, 1979.
Notes
In both the original and amended informations filed by the prosecutor, the defendant is charged with one crime: assault in the second degree against Jahnke and Heieck.
“Any person who shall commit or attempt to commit any felony, or any misdemeanor or gross misdemeanor categorized herein as inherently dangerous, while armed with, or in the possession of any firearm, shall upon conviction, in addition to the penalty provided by statute for the crime committed without use or possession of a firearm, be imprisoned as herein provided:
“(1) For the first offense the offender shall be guilty of a felony and the court shall impose a sentence of not less than five years, which sentence shall not be suspended or deferred;
“(2) For a second offense, or if, in the case of a first conviction of violation of any provision of this section, the offender shall previously have been convicted of violation of the laws of the United States or of any other state, territory or district relating to the use or possession of a firearm while committing or attempting to commit a crime, the offender shall be guilty of a felоny and shall be imprisoned for not less than seven and one-half years, which sentence shall not be suspended or deferred;
“(3) For a third or subsequent offense, or if the offender shall previously have been convicted two or more times in the aggregate of any violation of the law of the United States or of any other state, territory or district relating to the use or possession of a firearm while committing or attempting to commit a crime, the offender shall be guilty of a felony and shall be imprisoned for not less than fifteen years, which sentence shall not be suspended or deferred;
“(4) Misdemeanors or gross misdemeanors categorized as ‘Inherently Dangerous’ as the term is used in this statute means any of the following crimes or an attempt to commit any of the same: Assault in the third degree, provoking an assault, interfering with a public officer, disturbing a meeting, riot, remaining after warning, obstructing firemen, petit larceny, injury to property, intimidating a public officer, shoplifting, indecent liberties, and soliciting a minor for immoral purposes.
“(5) If any person shall resist apprehension or arrest by firing upon a law enforcement officer, such person shall in addition to the penalty provided by statute for resisting arrest, be guilty of a felony and punished by imprisonment for not less than ten years, which sentence shall not be suspended or deferred.”
See State v. Boyer,
4 Wn. App. 73, 75-78, 480 P.2d 257 (1971) for an aсcount of the unproductive dialogue between the courts and the legislature regarding the two earlier versions of the uniform firearms act,
The uniform firearms act,
For example, the defendant in
State v. Boyer,
4 Wn. App. 73, 480 P.2d 257 (1971), raised the question of whether
Another problem arises because the statute is unclear as to whether the “inherently dangerous misdemeanors” listed in
Similarly, the statute is silent as to what is the proper maximum enhanced penalty to be imposed for a felony committed with a firearm. The statute states only that the penalty is to be “not less than five years.” The meaning of that phrase is at issue in this appeal.
There are at least two ways to interpret the phrase, “shall upon conviction, in addition to the penalty provided by statute for the crime committed without use or possession of a firearm“. It might mean the minimum mandatory jail time is to be served as part of the underlying term; or instead that it is to be added, or “stacked” onto the underlying term, with a resulting total sentence in excess of the statutory maximum penalty for the underlying crime. This question also is at issue in this appeal.
Although the statute prevents suspension or deferral of the enhanced penalty, its grammar is unclear as to whether the sentencing court properly may suspend or defer the penalty for the underlying crime itself. For purposes of this appeal we *555 assume, without holding, that the underlying sentence cannot be deferred оr suspended. To assume otherwise arguably would remove all meaning from the phrase “in addition to the penalty provided by statute for the crime committed without use or possession of a firearm.” (Italics ours.)
The statute lacks consistent parallel construction, so that it is unclear whether the disparate terms, “imprison” and “impose a sentence” have been used interchangeably. The preamble to
The statute is obsolete insofar as several of the “inherently dangerous misdemeanors” listed in (4) no longer exist in the present criminal code: e.g., “provoking an assault,” “disturbing a meeting,” and “obstructing firemen.” Others have been redefined or renamed: e.g., “interfering with a public officer,” which is replaced by
The statute also has caused confusion in the courts regarding the question of what felonies committed with firearms are subject to the enhanced penalty provisions of
“When a person is convicted of any felony, except treason, murder in the first degree, or carnal knowledge of a child under ten years, and a new trial is not granted, the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory, and shall fix the maximum term of such person‘s sentence only.
“The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term. If the law doеs not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years.”
The Senate Journal for the 1969 First Extraordinary Session, during which the firearms bill was enacted, indicates some senators were worried that a 5-year mandatory penalty might be too harsh in the case of some misdemeanors. Laws of 1969, 1st Ex. Sess., pp. 1325-27. The journals, however, do not indicate whether the legislators perceived that the phrase “not less than five years’ might be read to subject firearms felony offenders to the 20 years to life penalty provision.
We recognize that in some cases the mandatory five-year minimum sentence might be longer than the sentence for underlying crime:
e.g.,
in
State v. Lewis,
15 Wn. App. 172, 548 P.2d 587 (1976), where the defendant committed an “inherently dangerous” gross misdemeanor (1 year maximum penalty); or in the case of a class B felony (10 years maximum sentence) committed by a third-time offender (for whom