(dissenting)—I dissent due to the posture of this case. Petitioner did not file a report of the trial proceedings and very little of the record is before us. The lack of a record presents several problems.
First, there is no evidence to support the majority's reversal of the lower court's judgments. In the absence of the facts submitted to the jury, it is impossible to know whether the verdict should be vacated. For instance, according to a pretrial brief, there was evidence that it was in fact petitioner who approached Barry, petitioner's codefendant, regarding the possibility of robbing the pharmacy and that the night before the robbery petitioner had a revolver similar to the one used in the robbery. Since no report of the proceedings is available for us, there is no way to know whether this or additional evidence relating to petitioner's knowledge of the gun was admitted at trial. If all the facts were before us, the error found by the majority may very well have been found harmless.
Second, it is impossible to determine whether petitioner objected to the instruction in question, thus preserving the issue on appeal. RAP 2.5(a). The grounds for his objection, if any, is important but unascertainable. Instruction 7 states in its entirety:
A person commits the crime of robbery in the first degree when in the commission of a robbery or in immediate flight therefrom he or she is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon.
The term "firearm" includes any gun. The term "deadly weapon" includes any pistol, revolver, rifle or *121other "firearm".
For the purposes of this instruction, the law provides that if one of two participants is armed with a firearm and/or deadly weapon, then both are considered to be so armed.
(Italics mine.) Clerk's Papers, at 16. The instruction does not instruct the jury as to sentence enhancement pursuant to RCW 9.95.040. It only relates to the crime of first degree robbery. Without a report of proceedings it is not possible to determine whether petitioner objected to the instruction as it applied to the crime of robbery or the deadly weapon statute. It is equally impossible to determine whether he proposed a different instruction relating to RCW 9.95.040. Unfortunately, the majority's determination that instruction 7 was erroneous may create unnecessary doubt as to its validity in its true context, i.e., instructing the jury as to first degree robbery.
These problems are only two among many created by deciding a case in a legal vacuum as the majority has done. Since the petitioner bears the burden of producing a record sufficient to show error in the proceedings, and has failed to do so, I would dismiss his appeal and affirm his conviction. I, therefore, dissent.
Brachtenbach, C.J., and Stafford, J., concur with Dim-MICK, J.