(concurring in the dissent) — I agree with Justice Sanders’ dissent to the extent that it concludes the evidence in this case was insufficient under Valdobinos3 and its progeny to support the application of a deadly weapon enhancement. I write separately because the State also failed to prove that Mark Schelin was armed with a “deadly weapon” under the statute authorizing the special *578verdict.4 The statute provides in relevant part: “a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.” Former RCW 9.94A.125 (1983) (emphasis added).5
The State presented no evidence that Schelin used the revolver seized from his home in any manner likely to produce death. On the contrary, because the revolver was seized after Schelin’s arrest, some 10 or 15 feet away from Schelin, the State’s only argument was that Schelin could have accessed it had he chosen to resist his arrest. However, the uncontroverted testimony of the detectives at Schelin’s trial was that Schelin did not resist his arrest, did not attempt to reach his gun, and did not unholster his gun. Report of Proceedings (RP) at 123, 137, 181. The officers could not even say whether Schelin appeared at the foot of the basement stairs from the same room in which the gun was stored. RP at 209.
The question whether Schelin could have armed himself with the seized firearm is irrelevant. The statute requires evidence establishing that the weapon was used in a manner likely to produce or easily and readily producing death. Even when viewed in the light most favorable to the State, the evidence presented at Schelin’s trial was insufficient to prove that the manner in which he used the seized *579firearm classified it as a deadly weapon under former RCW 9.94A.125.
Madsen, J., concurs with Johnson, J.
State v. Valdobinos, 122 Wn.2d 270, 858 P.2d 199 (1993).
Justice Ireland is entirely correct that 11 Washington Pattern Jury Instructions: Criminal 2.07.02 (2d ed. 1994) (WPIC) defines a firearm as a per se deadly weapon for sentence enhancement. However, WPIC 2.07.02 does not take into account our earlier line of cases holding enhanced punishment requires proof beyond a reasonable doubt that the deadly weapon is operable. See State v. Pam, 98 Wn.2d 748, 659 P.2d 454 (1983), overruled on other grounds by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989); State v. Mathe, 35 Wn. App. 572, 668 P.2d 599 (1983), aff’d, 102 Wn.2d 537, 688 P.2d 859 (1984). These cases were decided under former RCW 9.95.040 (1981), but the guiding principles they relied upon have not been rejected by this court.
Recodified as RCW 9.94A.602 by Laws of 2001, ch. 10, § 6.