* State Of Washington, Respondent V. Arturo Rios, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50035-3-II
Respondent,
v.
ARTURO GOMEZ RIOS, PUBLISHED OPINION
Appellant.
SUTTON, J. — Arturo Gomez Rios appeals the sentencing court’s order requiring him to
register as a felony firearm offender under RCW 9.41.333. Rios argues that the jury’s verdict did
not establish that he was convicted of a felony firearm offense because it is unclear if the jury
found him guilty of a firearm offense. Because the jury’s general verdict is unclear as to the
threshold question of whether Rios committed a “felony firearm offense,” we hold that the
sentencing court erred by applying the discretionary factors and ordering Rios to register as a
felony firearm offender. Consequently, we reverse and remand to the sentencing court to strike
the requirement that Rios register as a felony firearm offender.
FACTS
On January 4, 2017, the State charged Rios with second degree assault. Specifically, the
information alleged that “on or about December 30, 2016, [Rios] did intentionally assault Jorge
Topete with a deadly weapon to wit: a handgun and/or a knife.” Clerks Papers (CP) at 1.
At trial, three eyewitnesses testified that Rios assaulted Topete with a firearm. Officer
Chad Pearsall, testified that when he arrested Rios, he found a knife on Rios’s person, Rios denied
Filed
Washington State
Court of Appeals
Division Two
December 18, 2018
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No. 50035-3-II
2
using a gun, and Rios claimed to “only use a knife.” Verbatim Report of Proceedings (VRP) (Feb.
22, 2017) at 62, 66-67. Officer Pearsall’s description of the knife was similar in color and shape
to the eyewitnesses’ descriptions of the firearm used during the assault. No firearm was recovered
in the area.
During its closing argument, the State argued that
[defense counsel] may point out to you, as he brought out from the witnesses, that
the knife is kind of squared off, too, right. He may suggest to you that it was the
knife, not the gun. All right. And so I — I just need to address that briefly. Look
at your definition of a deadly weapon because, remember, the charge is assault in
the second degree, which means an assault with a deadly weapon, not a gun. A gun
is [a] deadly weapon, but it’s not the only one. Okay. A gun is always a deadly
weapon. Other things can be deadly weapons.
VRP (Feb. 23, 2017) at 143-44. Then, in rebuttal, the State argued that “it doesn’t matter if it’s a
gun or a knife, all right, because either one is a deadly weapon.” VRP (Feb. 23, 2017) at 156.
The jury was instructed that to find Rios guilty of second degree assault, it must find that
the State proved beyond a reasonable doubt that Rios assaulted Topete with a deadly weapon.1
The jury returned a general verdict of guilty as charged, but the verdict form did not specify
whether the deadly weapon Rios was armed with was a firearm or a knife.
At sentencing, the State requested that the court order Rios to register as a felony firearm
offender under RCW 9.41.330. Defense counsel objected and argued that the court should not
order Rios to register as a felony firearm offender because the jury’s verdict did not indicate
whether the jury found that Rios was armed with a firearm during the commission of the crime as
1 The trial court instructed the jury that, “[d]eadly weapon means any weapon, device or
instrument, 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. A firearm, whether
loaded or unloaded, is a deadly weapon.” CP at 44.
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No. 50035-3-II
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required under RCW 9.41.330(1). The court ruled that Rios was convicted of a felony firearm
offense, ordered him to register as a felony firearm offender, and stated in its ruling that it
considered Rios’s criminal history and propensity for violence.
Rios appeals the sentencing court’s order requiring him to register as a felony firearm
offender.
ANALYSIS
Rios argues that the sentencing court erred by requiring him to register as a felony firearm
offender under RCW 9.41.330(1) because the evidence is insufficient to find that he was convicted
of a felony firearm offense. We agree.
I. LEGAL PRINCIPLES
A defendant may be ordered to register as a felony firearm offender under RCW 9.41.333
only if he or she was convicted of a felony firearm offense. RCW 9.41.330(1) provides that
“whenever a defendant in this state is convicted of a felony firearm offense . . . the court must
consider whether to impose a requirement that the person comply with the registration
requirements of RCW 9.41.333 and may, in its discretion, impose such a requirement.” A “felony
firearm offense” is defined as “[a]ny felony offense that is a violation of [this chapter] . . . [or]
[a]ny felony offense if the offender was armed with a firearm in the commission of the offense.”
Former RCW 9.41.010(8)(a), (e) (LAWS OF 2015 ch. 1, § 2).2
2 RCW 9.41.010(10)(a), (e).
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No. 50035-3-II
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II. REGISTRATION REQUIREMENT NOT SUPPORTED BY VERDICT
Rios argues that the jury’s general verdict is not sufficient for the sentencing court to
impose a requirement that he register as a felony firearm offender because if the jury found that he
was armed with a knife, and not a firearm, as a deadly weapon, then his conviction does not qualify
as a felony firearm offense. We agree.
Here, the evidence at trial was that either a knife or a firearm was used in the commission
of the crime and the jury returned a general verdict that Rios was guilty of using a deadly weapon
in the assault. Further, the prosecutor argued in closing and rebuttal arguments that it did not
matter whether Rios was armed with a knife or a firearm, and that either deadly weapon would
suffice to find Rios guilty of second degree assault beyond a reasonable doubt. The jury found
Rios guilty as charged of second degree assault with a deadly weapon, but it did not find that Rios
was armed with a firearm in the commission of the offense. It is unclear from the jury’s general
verdict whether the jury found that Rios was armed with a firearm or a knife during the commission
of the crime.
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No. 50035-3-II
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Because the jury’s general verdict is unclear as to the threshold question of whether Rios
committed a “felony firearm offense,” we hold that the sentencing court erred by applying the
discretionary factors and ordering Rios to register as a felony firearm offender. Consequently, we
reverse and remand to the sentencing court to strike the requirement that Rios register as a felony
firearm offender.
SUTTON, J.
We concur:
MAXA, C.J.
PRICE, P.T.J.
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