To: MICHELLE WHELAN
From: ATTORNEY CRIMINAL LAW DEPARTMENT
Re: R v Mr. Vincent Coleman
STATEMENT OF FACTS
On August 16, 2021, the police arrested Mr. Vincent Coleman for the federal offense of
possession of stolen property and possession of a firearm. Vincent Coleman was a security
guard serving at Suburban Outfitters Clothing Store located in Terrace Heights. The
management noticed that there was an increase in the number of missing clothes from the
store. The management installed hidden security cameras to investigate the issues raised.
Through the hidden security cameras, the management of Suburban Outfitters Clothing Store
observed that Mr. Vincent Coleman had taken items without paying for them on several
occasions. The management reported the matter to Terrace Heights Police Department. As
the police searched his premises, he stepped out and stood two feet away from his open door.
No police officer remained outside with Mr. Coleman while they were searching his house.
You have asked me the kind of sentence he will receive if he is convicted of this crime.
During his service as a security guard, Mr. Coleman had a loaded firearm which he was
required to unload and store in the nightstand in his bedroom once he got home. On August
16, 2021, Mr. Coleman, having completed his duty at the store at 6.00 pm, headed home and
arrived home around 6.45 pm. Shortly after, at 6.47 pm, the police arrived at Mr. Vincent
Coleman’s residence with a search warrant to inspect his house for items taken from
Suburban Outfitters Clothing Store without payment or permission from the management.
Mr. Coleman answered the door and was asked to step outside by the police, searching his
premises. He stepped out and stood two feet away from his open door. No police officer
remained outside with Mr. Coleman while they were searching his house.
While searching, the police saw much clothing from Suburban Clothing Store, most of which
still had price tags attached to them. Further, about 10 minutes after the police begun
searching his house, they found a loaded firearm placed on a table located near Mr.
Coleman’s front door. At the time, the police were neither aware of the existence of the table
nor the gun. However, in his defense of the loaded firearm, Mr. Coleman stated that he had
slightly placed the gun on the table before answering the door.
ISSUE STATEMENT
Wash, Rev, Code 9.41.025, the firearm statute since repealed, is different from the deadly
weapon statute. The matters relating to the two issues are decided in the sentencing court for
the former and parole board for the latter, respectively. First, Mr. Coleman had a firearm
since he served as a security guard. As the police searched his house, they found the firearm
on his premises. The offense of possession of the stolen property and having a loaded firearm
carries a significant penalty, resulting in the accused being sent to prison by the court.
Second, Mr. Coleman, the police arrived at Mr. Coleman’s doorstep two minutes shortly after
he got into his house. Therefore, he lacked sufficient time to unload his firearm. Thirdly, Mr.
Coleman remained few meters outside his open door as instructed by the police despite no
police officer to guard him.
DISCUSSION
Citizens have a fundamental right to bear arms. 1 The constitutional right to bear arms is
subject to reasonable state regulation mainly enforced by the police service. This right,
however, does not prohibit the application of the Deadly Weapon Enhancement Act by the
1 The United States Constitution art 24.
court in the sentencing of a defendant. The court pronounced this position in the Rupe case. 2
In the State of Washington, the police power is the official firearms regulating authority. The
right to own a gun under the constitution does not extend to facilitating the commission of a
crime.
To regulate the use of firearms, Washington State enacted the Deadly Weapon Enhancement
State that essentially increases the sentences of defendants found to have armed firearms or
deadly weapons at the time of the commission of the crimes. The Statute stipulates that both
loaded and unloaded firearms constitute deadly weapons, and the state must prove each case
involving a deadly weapon beyond a reasonable doubt. The Statute further provides that for
the defendant to be considered armed, there must be a direct connection between the weapon
and the crime committed.
Regarding possession of a firearm or a deadly weapon, there are two forms of possession.
Actual possession entails the direct physical of the item in question, while constructive
possession entails the ability of the defendant to exercise control and dominion over the item.
In-State v Simonson, 3 the court held that a defendant possesses a deadly weapon if he owns
the firearm or weapon and exercises control over the weapon.
In determining the existence of constructive possession in a case, the state must rely on two
tests as laid down by the Statute. First, the state must prove that the deadly weapon used by
the defendant was easily accessible either for defensive or offensive purposes. The second
test is that there must be a connection between the crime committed by the defendant and the
deadly weapon in question.
2 Rupe 707 WA (2)
3 91 Wash, App, 874, 881, 960 P.2d955, 959 (1998).
The general rule as laid down by the courts in determining whether the defendant was armed
or not is that: A defendant is armed if a deadly weapon is easily accessible during the
commission of a crime, but mere constructive possession is insufficient.
In addressing the offense of Mr. Coleman’s possessing a deadly weapon at the time of his
arrest, the court in State v Valdovinos 4 that a defendant is armed if, at the time of the
commission of the offense, a deadly weapon was easily accessible to the defendant either for
defensive or offensive purposes. In the case, the defendant Valdobinos was arrested for
possession of cocaine. The police discovered that he had an unloaded rifle under a bed in his
mobile home during his arrest. Valdovinos challenged the application of the deadly weapon
enhancement on his sentence of possession of cocaine. Having relied on the Deadly Weapon
Enhancement, the court held that the defendant was not armed during the commission of the
offense. The court noted that the loaded rifle was under the bed in the defendant’s mobile
home at the time of the commission of the crime, and it was therefore not easily accessible. 5
The tests implored by the court in the determination of the case include the following; first,
whether the defendant had possession of the firearm or deadly weapon. The second is the
accessibility test.
The court in State v Gurske 6 addressed the weapon-defendant test required in establishing the
connection between the defendant and the weapon. In-State v Taylor 7 The court established
that proximity proves that the weapon was easily accessible to the defendant at the time of the
commission of the crime. In the case, an unloaded gun and an ammunition clip sat on a table
next to the defendant. The suitable application of the proximity test is that the weapon must
4 122 Wash, 2d 270, 858 P.2d 199 (1993).
5 Ibid.
6 80 Wash L. Rev. 165.
7 74 Wash. App. 111. 872 P. 2d 53 (1994).
have existed few meters away from where the defendant stood. This application substantively
satisfies the weapon-defendant test. 8
The mere presence of a deadly weapon at the crime scene does not establish that a
defendant was armed.
To prove the relationship between the weapon and the defendant beyond a reasonable doubt,
three factors are the nature of the crime committed by the defendant, the nature and type of
weapon used by the defendant, and the circumstances under which the weapon was found,
thus playing a part towards the commission of the crime by the defendant.
In State v Sabala 9 the defendant was arrested and charged for having heroin with the intent to
deliver it. Additionally, the defendant was also charged with possession of a firearm or a
deadly weapon at the time of his arrest. In his defense, the defendant stated that the meaning
of a firearm or a deadly weapon as provided in the Deadly Weapon Enhancement Act did not
apply to his present case. The trial court had erred in sentencing him under the Act. The
appellate court upheld the trial court’s judgment. The court found that the defendant had a
loaded gun positioned underneath his seat at the commission of the offense. It was quickly
accessible for either defensive or offensive purposes. Further, the court opined that the
proximity between the weapon and the defendant satisfies the weapon-defendant proximity
established in State v Taylor. 10 . 11
In-State v Ague-Masters 12 the defendant was charged with the unlawful manufacture of
methamphetamine in the presence of a minor while armed with a deadly weapon. The trial
court found him guilty of the offense, and the court relied on the Deadly Weapon
8 Schelin, 147 Wash. 2d at 574.
9 44 Wn, App 444 (1986).
10 Supra note 4.
11 Supra note 6.
12 138 Wn, App 86 (2007).
Enhancement Act in sentencing the defendant. The defendant appealed the trial court’s
decision in the appellate court. At the time of his arrest, the police officers were conducting
their official duties when they saw a car associated with a person who had an outstanding
arrest warrant. He was arrested and charged with the crimes listed above. The defendant
appealed this decision. He noted that the prosecution lacked sufficient evidence to support his
conviction on possessing a deadly weapon in the manufacturing process. He further
contended that the evidence produced by the prosecution did not prove that he was armed for
the commission of the crime. The appellate court affirmed and adopted the decision made by
the trial court.
In-State v Gurske 13 the defendant was stopped over by the police while driving with a
suspended license. The police arrested him and impounded his truck. The police discovered a
zipped backpack in the car that contained a loaded pistol, magazine, and three grams of
methamphetamine. The court relied on the Deadly Weapons Enhancement Act in the
sentencing because the loaded handgun was close to the defendant. Additionally, this
enhanced his sentence for the possession of a controlled substance. The defendant appealed in
the appellate court. The defendant claimed that the mere presence of the loaded pistol in his
truck does not necessarily mean that he was armed. In the determination of the case, the court
applied the possession tests. In the given case, the possession applicable was constructive
because he could exercise control over the weapon. The court established that the loaded
firearm was easily accessible to the defendant at the time of the commission of the crime. The
appellate court affirmed the decision of the trial court that Gurske was armed because the
backpack was in his truck contained a loaded firearm, had guns, and it lay within an arm’s
reach to the driver’s seat.
13 Supra note 5.
In the present case concerning Mr. Coleman, he is charged with possessing the stolen
property and having a firearm or a deadly weapon. As indicated in the statement of facts part
of this memorandum, Mr. Coleman worked as a security guard at the Suburban Clothing
Centre. He had a loaded gun which he was supposed to unload upon getting home. After
obtaining a search warrant, the police searched his house and discovered his loaded firearm
on a table next to the front door. Being armed or not is a question of law and fact. In Schelin
case, 14 the court outrightly stated that a person is armed if a weapon is easily accessible to the
defendant for use either offensively or defensively. Additionally, as laid down by the court in
State v Valdovinos 15 and State v Easterlin 16 there must exist a nexus between the defendant
and the weapon in that there is the proximity between the two. Similarly, in the case of Mr.
Coleman, there is no evidence of the existence of proximity between the weapon and the
defendant for the use of offensive or defensive purposes.
In determining whether Mr. Coleman was armed, the following factors should be addressed.
The first is the nature of the crime. The crime the defendant is charged with is the possession
of the stolen property. The second factor is the nature of the weapon. The weapon in question
is the loaded firearm that the defendant had access to by being a security guard at the clothing
store. The third factor is the proximity between the weapon and the defendant. The defendant
had not moved from where he stood as the police searched. Therefore, given the
circumstances of the case, Mr. Coleman will not be sentenced based on the Deadly Weapons
Enhancement Act.
14 State v Schelin 147 Wn 2d 562 (2002).
15 Supra note 4.
16 159 Wn. 2d 203, 208-209 (2006).
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