06 Jul State v. Tasker – Firearm Enhancement
Division 3 of the Court of Appeals was presented with the issue of whether, in order to support a firearm enhancement, the State must prove that the firearm was operable at the time of the crime. In this case the firearm was never fired in front of the victim and was never recovered. This issue has been addressed in both Division 1 and Division 2 in the past, with different outcomes. Division 2 has found there must be evidence to prove the firearm was operable while Division 1 focused on whether there was sufficient evidence to prove there was a “real firearm.” Ultimately the Tasker court chose to follow the reasoning outlined under Division 2.
The court had to address a prior WA Supreme Court case that appeared to reach a different conclusion. The WA Supreme Court case Recuenco stated that “in order to prove a firearm enhancement, the State must introduce facts upon which the jury could find beyond a reasonable doubt the weapon in question falls under the definition of ‘firearm’: ‘a weapon or device from which a projectile may be fired by an explosive such as gunpowder.’” State v. Recuenco, 163 Wn.2d at 437. The Tasker court discussed this statement but ultimately found the statements to be nonbinding dicta.
Ultimately the court held that for the firearm to qualify under the enhancement, a device must be capable of being fired, either instantly or with reasonable effort and within reasonable time. Evidence that a device appears to be a real gun and is being wielded in committing a crime is sufficient circumstantial evidence that it is a firearm.
The reality of this outcome is that there now appears to be split between the Divisions as to the appropriate standard and it is likely a matter that will have to be ultimately readdressed by the State Supreme Court to make a final decision.