STATE v. FAILLE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 21291-5-I.

Attorney(S)

Rita Griffith of Washington Appellate Defender Association, for appellant. Seth R. Dawson, Prosecuting Attorney, and Cassandra Noble and Seth Aaron Fine, Deputies, for respondent.

Judges

WILLIAMS, J. (concurring)
SCHOLFIELD, C.J.

See more information ...

Smart Summary

Factual and Procedural Background

On August 7, 1987, Robert P. Faille and another individual unlawfully entered a residence and took four guns along with other property. The guns were unloaded at the time of the burglary and were placed in nearby bushes outside the residence. No ammunition was taken, and there was no intent to load the firearms. Faille testified that he checked to ensure the guns were unloaded for safety. Faille was charged with first degree burglary under RCW 9A.52.020(1)(a), which includes as an element being "armed with a deadly weapon" during the burglary. The Superior Court for Snohomish County found Faille guilty on November 4, 1987, after he waived his right to a jury trial and stipulated to the police reports. Faille appealed the conviction.

Legal Issues Presented

Whether a defendant is "armed with a deadly weapon" under RCW 9A.52.020(1)(a) when the firearms stolen during a burglary are unloaded, no ammunition is taken, and there is no intent to load the guns.
Whether unloaded guns, placed in a location readily accessible during the burglary, satisfy the statutory requirement of being "armed" for first degree burglary purposes.

Arguments of the Parties

Appellant's Arguments

Faille contended he was not "armed" because the guns were unloaded and no ammunition was taken during the burglary.
He argued there was no intent to load or use the firearms, and thus the statutory element of being armed with a deadly weapon was not met.

Respondent's Arguments

The State maintained that unloaded firearms are considered deadly weapons per se under Washington law.
The State argued that because the guns were taken and placed in nearby bushes, they were readily accessible and thus the defendant was "armed" within the meaning of the statute.
The State emphasized that possession of any firearm, loaded or unloaded, escalates the potential for violence and justifies enhanced penalties.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Hall, 46 Wn. App. 689, 732 P.2d 524 (1987)	Unloaded firearms are deadly weapons per se; being armed means the weapon is easily accessible and readily available for use.	The court relied on Hall to hold that the unloaded guns taken by Faille were deadly weapons and that their placement in accessible bushes meant Faille was "armed."
State v. Gotcher, 52 Wn. App. 350, 759 P.2d 1216 (1988)	"Armed" means the weapon is readily accessible and available for use.	Cited to clarify the statutory interpretation of "armed" in burglary cases.
State v. Randle, 47 Wn. App. 232, 734 P.2d 51 (1987)	Definition and scope of being "armed" with a deadly weapon during a crime.	Referenced to support the interpretation of "armed" as readily accessible weapons.
State v. Sabala, 44 Wn. App. 444, 723 P.2d 5 (1986)	Firearms, loaded or unloaded, are deadly weapons per se; "armed" means readily accessible for any purpose.	Used to reinforce the principle that possession of an unloaded firearm constitutes being armed.

Court's Reasoning and Analysis

The court began by recognizing that under RCW 9A.04.110(6), unloaded firearms are defined as deadly weapons per se. The statutory language requires that a defendant be "armed" with a deadly weapon during the burglary or immediate flight, meaning the weapon must be readily accessible and available for use. The court examined the facts that Faille removed the guns from the house and placed them in nearby bushes, making them accessible during the burglary.

Although the guns were unloaded and no ammunition was taken, the court reasoned that a firearm can be used for purposes other than firing, such as frightening or intimidating others. The statute's inclusion of unloaded firearms reflects a legislative policy not to distinguish between loaded and unloaded guns in criminal cases, recognizing the potential for violence and the risk posed by any firearm. The court also noted that a third party or police officer discovering the burglary might reasonably assume the guns were loaded, creating a dangerous situation.

Thus, the court concluded that Faille was "armed" within the meaning of the statute because the guns were readily accessible and available for use, even though unloaded and without ammunition. The court relied heavily on the precedent set in State v. Hall and related cases to support this interpretation.

Holding and Implications

The Court of Appeals affirmed the conviction of Robert P. Faille for first degree burglary, holding that he was "armed" with deadly weapons despite the firearms being unloaded and no ammunition being taken.

The direct consequence of this decision is that possession of unloaded firearms, when readily accessible during a burglary, satisfies the statutory element of being "armed" with a deadly weapon under RCW 9A.52.020(1)(a). This ruling upholds enhanced penalties for burglary involving firearms regardless of their loaded status or intent to use them. The opinion does not establish new precedent beyond reinforcing existing statutory interpretation and case law.

Show full summary ...

THE STATE OF WASHINGTON, Respondent, v. ROBERT P. FAILLE, Appellant.

[1] Weapons — Burglary — First Degree Burglary — Armed With Deadly Weapon — Weapons Being Stolen. A person who steals guns and places them in a location where they are readily accessible is "armed" with the guns, for purposes of RCW 9A.52.020(1)(a) which makes being armed with a deadly weapon an element of first degree burglary, even though the guns are unloaded, there is no intent to load the guns, and no ammunition is accessible.

WILLIAMS, J., concurs by separate opinion.

SCHOLFIELD, C.J.

The defendant, Robert P. Faille, appeals from a conviction for first degree burglary. We affirm.

FACTS

On August 7, 1987, Faille and another man entered a residence without permission. They took four guns and other property from the residence and stored all the items taken outside the residence in nearby bushes. The guns were not loaded when taken or recovered, nor did anyone load the guns during the burglary. Faille testified that for their safety, he checked each gun to make sure it was not loaded. Ammunition located in the house was not taken in the burglary.

By information filed August 28, 1987, Faille was charged with first degree burglary. Faille waived his right to a jury trial. He also stipulated to the admission of police reports which established the above facts.

The trial court found Faille guilty of first degree burglary. The court in its findings of fact, found that Faille did not possess any intent to load or use firearms. The court then made the following conclusions of law:

5. While in such dwelling or in immediate flight therefrom, defendant was armed with deadly weapons, to-wit: the guns he took in the burglary. (Conclusion of law)

1. An unloaded firearm is a deadly weapon, regardless of whether it is easily accessible or readily available for use. State v. Hall, 46 Wn. App. 689, [732] P.2d [524] (1987).

2. The trial court finds defendant guilty of First Degree Burglary as charged.

Judgment and sentence were entered on November 4, 1987. This appeal timely followed.

AVAILABILITY OR ACCESSIBILITY OF AN UNLOADED GUN

Faille argues that because the firearms he took during the burglary were unloaded and therefore not easily accessible nor readily available, and because he did not possess any intent to load or use them, he was not "armed with a deadly weapon" as required by RCW 9A.52.020(1)(a) for conviction of first degree burglary.

RCW 9A.52.020(1)(a) provides in part as follows:

Burglary in the first degree. (1) A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and if, in entering or while in the dwelling or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person therein.

The definition of "deadly weapon" is as follows:

"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[.]

RCW 9A.04.110(6).

The term "armed" in the statute means that the weapon is readily accessible and available for use. State v. Gotcher, 52 Wn. App. 350, 353, 759 P.2d 1216 (1988) (citing State v. Randle, 47 Wn. App. 232, 235, 734 P.2d 51 (1987), review denied, 110 Wn.2d 1008 (1988)).

In State v. Hall, 46 Wn. App. 689, 732 P.2d 524 (1987), Hall and a codefendant removed a stereo, rifle, handgun and ammunition for the rifle from a house they were burglarizing. The court held Hall was armed with a deadly weapon under RCW 9A.52.020(1) because the rifle and ammunition were easily accessible and available for use. State v. Hall, supra at 695-96.

Hall characterized explosives and firearms as deadly weapons per se. The court stated 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". . . . 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. For purposes of first degree burglary, the defendant is armed with a deadly weapon if a firearm is "easily accessible and readily available for use by the defendant for either offensive or defensive purposes." State v. Sabala, [ 44 Wn. App. 444, 723 P.2d 5 (1986)] at 448.

State v. Hall, supra at 694-95.

In Hall, the court reasoned that one of the purposes of providing greater punishment when a deadly weapon is involved in a crime is that there is a potential for inflicting violence. State v. Hall, supra at 695. Because the rifle and ammunition were easily accessible and available for use, there was a possibility of violence to anyone discovering the burglary in progress. State v. Hall, supra at 695.

In the present case, the guns taken by Faille and his companion are deadly weapons per se even though they were unloaded. See RCW 9A.04.110(6); State v. Hall, supra at 694-95. The more difficult question is whether Faille was "armed" within the meaning of RCW 9A.52.020(1)(a), i.e., whether the guns were readily accessible and available for use.

[1] Faille argues that he was not "armed" because the guns were not loaded, they took no ammunition, and did not intend to load the guns. Although there is no evidence that Faille knew there was ammunition in the house, we nevertheless find that Faille was "armed." Here, Faille removed the guns from the house and placed them outside in the bushes. Thus, during the burglary the guns were readily accessible. The facts are such that the guns were not available for use through firing a shell. However, a gun can be used, whether loaded or unloaded, for the purpose of frightening, intimidating or controlling people.

Furthermore, the statute defining deadly weapon as a loaded or unloaded firearm clearly expresses a legislative policy that we are not going to distinguish between loaded and unloaded weapons with respect to the use of guns in criminal cases. Possession of a deadly weapon tends to escalate the possibility of violence by anyone discovering a burglary in progress. A passer-by or police officer discovering the burglary in progress would probably assume the guns were loaded, thus creating a potentially volatile situation. The possibility of a defendant mistakenly believing a gun to be unloaded when in fact it is loaded provides further support for enhancing the penalty for burglary when a defendant possesses a firearm.

Accordingly, we hold that the guns were readily accessible and available for use, even though they were unloaded and there is no evidence that Faille knew there was ammunition in the house.

Faille's conviction is therefore affirmed.

WINSOR, J., concurs.

WILLIAMS, J. (concurring)

One who has equipped himself with a gun is "armed with a deadly weapon" notwithstanding ammunition is not immediately available. This is well established in Washington law. RCW 9A.04.110(6) expressly includes unloaded firearms in the definition of "deadly weapon." If the unloaded gun is "easily accessible and readily available for use by the defendant" for any purpose, then the defendant is "armed with a deadly weapon." State v. Hall, 46 Wn. App. 689, 695, 732 P.2d 524 (1987); State v. Sabala, 44 Wn. App. 444, 448, 723 P.2d 5 (1986). I therefore join in affirming the judgment.