State v. Hentz

663 P.2d 476, 99 Wash. 2d 538, 1983 Wash. LEXIS 1539
CourtWashington Supreme Court
DecidedMay 12, 1983
Docket48974-2
StatusPublished
Cited by48 cases

This text of 663 P.2d 476 (State v. Hentz) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hentz, 663 P.2d 476, 99 Wash. 2d 538, 1983 Wash. LEXIS 1539 (Wash. 1983).

Opinions

Dimmick, J.

Leumal Hentz was convicted of rape in the first degree, robbery in the first degree, intimidating a witness, kidnapping in the second degree, and taking a motor vehicle without permission. The Court of Appeals affirmed all convictions except rape. Both Hentz and the State filed petitions for review. Since we granted only the State's petition, the sole issue before us is the propriety of the conviction for rape in the first degree when an actual gun may not have been used. We reverse the Court of Appeals and hold, under the facts of this case, the conviction was proper.

I

The five convictions arose from two separate incidents. The rape, robbery and intimidation charges arose from the following facts:

The victim was walking home on South Tacoma Way. It was getting dark at the time. Hentz stopped and offered the victim a ride which she accepted. While he was driving, Hentz produced what the victim believed to be a gun. Hentz threatened to shoot her if she did not do as he said. Hentz then drove to his duplex apartment, again warned the victim to obey and took her inside. He had the gun with him at this time.

Hentz attempted to force the victim to dance with him and drink wine. When she resisted, he threw her on the couch, strangled her and then forced her to perform fellatio. He made the victim take off her blouse and he ripped off her bra. He took her jewelry and money. He said he would not let her go because she had seen his license plate. Fearing she was going to die, she ran screaming through the [540]*540screen door, as Hentz was preparing to barricade the front door. He chased her through the yard and when she saw a house with a light on she thrust her arm through a window to quickly attract the residents' attention.

When the police arrived at Hentz' apartment, neither he nor the victim's valuables could be found. However, they did find a plastic cap pistol which the victim identified. The pistol was encased in a genuine leather holster designed for .32 and .38 caliber pistols. The pistol is realistic in appearance except for a red plastic piece on the inside of the barrel end. At trial, the victim testified she knew nothing about guns and believed the pistol was real.

A cellmate of Hentz testified that Hentz had admitted the crimes to him. He also testified that Hentz said he had "fooled the cops" and would "beat" the charges against him because, among other things, the police had found the wrong gun. Hentz told his cellmate that he had used a real gun which he had borrowed from a friend at the military base where he was stationed.

Prior to trial, Hentz telephoned the victim threatening to harm her and her child if she did not drop the charges.

The kidnapping and taking the motor vehicle charges arose from an incident occurring 10 days earlier with a different victim wherein Hentz prodded the victim with an apparent gun which the victim felt, but did not see, as he announced, "This is a stickup."

The State did not charge the defendant with being armed with a deadly weapon for penalty enhancement purposes in relation to any of the five charges. Therefore the jury was not instructed that it must find the existence of a gun "in fact."

II

At issue is the interpretation of the first degree rape statute, RCW 9A.44.040(1), which provides in pertinent part as follows:

A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person [541]*541not married to the perpetrator by forcible compulsion where the perpetrator . . .
(a) Uses or threatens to use a deadly weapon . . .

The Court of Appeals held that this statute required the State to prove that a defendant possessed an actual deadly weapon during the rape. We do not agree with that interpretation of the statute.

We are to give statutory terms their plain and ordinary meaning. E.g., Strenge v. Clarke, 89 Wn.2d 23, 569 P.2d 60 (1977). The plain language of RCW 9A.44.040(1)(a) deals with two distinct concepts: use of a deadly weapon and the threat to use a deadly weapon. Hentz would have us hold that a threat to use a deadly weapon exists only when a defendant points an actual gun at the victim or holds a knife at her throat. He of necessity argues that use of a deadly weapon exists only if a defendant actually shoots, cuts or otherwise injures his victim. Such a proposition is untenable. Pointing a gun at someone is clearly "use" of that weapon, whereas "threat" is defined as the expression of an intention to inflict injury. Webster's Third New International Dictionary (1976).

In the instant case, Hentz threatened to "shoot" his victim if she did not cooperate. In addition, he displayed a realistic-looking pistol. Hentz' express verbal threat to "shoot" his victim necessarily implied that he had access to a firearm capable of killing or seriously injuring his victim. We have previously held that a firearm is unambiguously a deadly weapon. State v. Thompson, 95 Wn.2d 888, 897, 632 P.2d 50 (1981). In fact the statutory definition of deadly weapon specifically includes any loaded or unloaded firearm. RCW 9A.04.110(6). Thus, Hentz threatened to use a deadly weapon in perpetrating the rape in violation of RCW 9A.44.040(1). Since the threat to use a firearm is unambiguously a threat to use a deadly weapon, the trial court's failure to instruct the jury as to the definition of a deadly weapon was not error. The credible threat to use a deadly weapon in order to force a victim into submission is the conduct the Legislature intended to prohibit in RCW [542]*5429A.44.040(1) (a).

The Court of Appeals, Pearson, J., speaking for the court, has previously held, "First-degree rape does not require use or display of the weapon. Threat of such use is sufficient." State v. Ingham, 26 Wn. App. 45, 52, 612 P.2d 801 (1980).1 Such threat carried with it the implication of death or serious bodily harm to the victim. Although the Court of Appeals in the instant case attempts to distinguish Ingham, we determine that the facts of Ingham are indistinguishable from those at bar. Both cases involve the threatened use of a deadly weapon rather than actual use or possession. In Ingham the defendant and an accomplice blinded their rape victim with mace. When the victim began to scream, defendant told his accomplice, "You have that knife, use it. ” That threat was effective in producing silence even though the victim never saw or felt the knife nor was there any evidence at trial that the assailants were actually armed with a knife.

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Bluebook (online)
663 P.2d 476, 99 Wash. 2d 538, 1983 Wash. LEXIS 1539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hentz-wash-1983.