WA Courts Rule: Not an Auto w/o the Mag
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Appellant, NO. 32514-4-II
v.
PUBLISHED OPINION
MARCUS A. CARTER,
Respondent.
Van Deren, J. -- The State appeals the dismissal of a machine gun possession charge,
contrary to RCW 9.41.190(1) and .010(7), against Marcus Alton Carter. The trial court
dismissed the charge because the State lacked sufficient evidence to prove that an ammunition
supply device, defined by RCW 9.41.010(7), was present at the scene. The State argues that the
statute does not require it to show the presence of an ammunition supply device and that the trial
court erred in disregarding its evidence that such a device was present. Because RCW
9.41.010(7) contemplates a weapon accompanied by an ammunition supply device and because
the State did not respond with an affidavit containing evidence of an ammunition supply device,
the trial court did not err in dismissing the State's case on Carter's Knapstad1 motion. We affirm
and construe the trial court's dismissal to be without prejudice.
1 State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
NO. 32514-4-II
FACTS
Carter was the chief instructor of a certification course for firearms safety instructors.
Two investigators from the Pierce County Prosecuting Attorney's office, Bruce Jackson and
Frank Clark, attended the course. As part of the instruction, Carter asked the students to
familiarize themselves with a firearm and prepare for practical training presentations. These
included demonstrating how to operate the weapon.
From the available firearms, Jackson selected a Colt AR-15 rifle that Carter had identified
as his personal rifle. Having owned an AR-15 since the seventies, Jackson was familiar with its
normal functions. He noticed that the safety/selector switch was not characteristic of the AR-15,
instead it resembled one from a military M-16 that could be moved to a full automatic fire
position. He then opened the weapon and found a non-standard "auto sear block," which
suggested that the weapon had been modified to fire as a machine gun. Clerk's Papers (CP) at 2.
He also noticed that the standard hammer had been replaced with a M-16 hammer.
After class, Jackson and Clark asked Carter if he had modified the rifle for automatic fire.
He admitted that he had. When they told him that possessing such a weapon was illegal, he
offered to demonstrate that it would not function in automatic mode but said that he needed to
"get some ammunition first." CP at 45. During the investigators' ensuing attempts to confiscate
the rifle, Carter insisted on his constitutional right to bear arms, and his teenage son claimed that
the law against possession of automatic firearms was stupid because semi-automatic fire was more
accurate and effective, while automatic fire "just sprayed a lot of bullets everywhere." CP at 48.
Jackson and Clark eventually seized the rifle without an ammunition supply device. The
Washington State Patrol Crime Laboratory examined it and found that it contained "the following
parts from an M16 rifle--Safety (selector),
2
NO. 32514-4-II
Disconnector, Trigger, Hammer, and Bolt Carrier." CP at 32. Examiners also test-fired it after
they inserted an ammunition supply device and determined that it was capable of automatic fire at
an average rate of 787 rounds per minute.
The State charged Carter under RCW 9.41.190(1) and .010(7) for possession of a
machine gun. The trial court initially suppressed the weapon as unlawfully seized, and we
affirmed. State v. Carter, noted at 112 Wn. App. 1046 (2002). The Supreme Court reversed and
remanded for trial. State v. Carter, 151 Wn.2d 118, 129-30, 85 P.3d 887 (2004).
Carter then brought a Knapstad motion to dismiss on the ground that the rifle did not
meet the statutory definition of a machine gun because it did not have a '"reservoir clip, disc,
drum, belt, or other separable mechanical device for storing, carrying, or supplying ammunition
which can be loaded into the firearm, mechanism, or instrument, and fired therefrom at the rate of
five or more shots per second."' CP at 52 (quoting RCW 9.41.010(7)). In its response to this
motion, the State did not deny the absence of an ammunition supply device, but argued, instead,
that this showing was unnecessary. At the motion hearing, however, the State offered an e-mail
exchange between Jackson and a prosecutor in which Jackson said there were magazines present
at the scene.
The trial court determined that the State had to show the presence of an ammunition...
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