The State of Washington, Respondent, v. Mark Logan Schelin, Petitioner, 147 Wash. 2d 562

Ireland, J. — This court granted review of a Court of Appeals decision affirming application of a deadly weapon sentencing enhancement pursuant to former RCW 9.94A-.310 (2000). The defendant was convicted of manufacturing marijuana and manufacturing marijuana with intent to deliver. Finding the defendant was in close proximity to a deadly weapon that he could have easily and readily used for offensive or defensive purposes in connection with his marijuana grow operation, we affirm the Court of Appeals.

FACTS Background On August 21, 1996, a search warrant was executed at the home of Mark Logan Schelin (Schelin) shared with his girl friend, Mutsako Lundquist. The police knocked at Schelin’s door, and Lundquist permitted them to enter and search their two-bedroom home, which contained a partial basement. When police entered the home, Schelin was in the basement at the bottom of the stairs. Police ordered Schelin to walk up the stairs, and he was then handcuffed.

When officers searched the basement, they found a loaded revolver stored in a holster, hanging from a nail on a wall, approximately 6 to 10 feet away from where Schelin had been standing. The basement contained two rooms and a laundry room. In one of the rooms, police discovered 70 rooted marijuana plants and 50 starter plants. In another room, which Schelin identified as his bedroom, large amounts of harvested marijuana, dried marijuana leaves, scales, packaging materials, weapons, a militia handbook, $50,000 in gold coins, and cash were found.

Schelin was read his constitutional rights, but chose to waive those rights. He admitted to living in the home, growing marijuana, and owning the gold coins, cash, and firearms. Procedural History Schelin was arraigned and charged with possession of a controlled substance with intent to manufacture (marijuana). The charges were subsequently amended to charge him with possession of a controlled substance with intent to manufacture (marijuana) while armed with a deadly weapon (firearm) and possession of a controlled substance with intent to deliver (marijuana) while armed with a deadly weapon (firearm).

The trial court granted Schelin’s pretrial motion to suppress the militia handbook and all weapons except the gun holstered on the wall in the basement near the bedroom and grow operation. Schelin’s defense was that the marijuana was for his own personal use in treating Delayed Stress Syndrome (DSS). Schelin testified he experienced guilt from not having faced actual combat during an army tour of duty in Vietnam. Schelin claimed his DSS caused him to regularly experience ringing in his ears that was relieved by marijuana use.

Schelin testified the ringing in his ears prevented him from fully understanding his constitutional rights and led to his waiving those rights. With regard to the loaded revolver, Schelin testified that his girl friend was frightened of her ex-husband. Schelin explained that the gun was used to protect his home from invasion by Lundquist’s estranged spouse, and that he kept the gun near his bedroom in the event the home was broken into at night.

Schelin was convicted on April 9, 1998 of one count of possession of a controlled substance with intent to manufacture and one count of possession of a controlled substance with intent to deliver. By special verdict, the jury also found Schelin “armed” with a deadly weapon.as to both counts pursuant to former RCW 9.94A.125 (1983). Schelin was sentenced to 45 months of confinement, including 18 months for the weapon enhancements. The Court of Appeals affirmed Schelin’s conviction, the deadly weapon enhancement, and the sentence. State v. Schelin, 104 Wn. App. 48, 14 P.3d 893 (2000).

ISSUE The sole issue is whether Schelin was “armed” during the commission of his crimes for purposes of the deadly weapon sentencing enhancement authorized by former RCW 9.94A.310(3) (1995). ANALYSIS Standard of Review “Whether a person is armed is a mixed question of law and fact.” State v. Mills, 80 Wn. App. 231, 234-35, 907 P.2d 316 (1995). In the case before us, Schelin does not dispute that a deadly weapon was hanging near where he had been standing. Thus, we determine whether the facts are sufficient, as a matter of law, to prove that Schelin was armed. This is a question of law to be reviewed de novo. Id.

Enhancement Statute Former RCW 9.94A.125 authorizes finding a special verdict as to whether a defendant is “armed” with a deadly weapon at the time of the commission of the crime. In relevant part, the statute provides: In a criminal case wherein there has been a special allegation and evidence establishing that the accused . . . was armed with a deadly weapon at the time of the commission of the crime, . . . the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant. . . was armed with a deadly weapon at the time of the commission of the crime.

Former RCW 9.94A.125. Further, the statute also defines a deadly weapon as follows: For purposes of this section, 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. The following instruments are included in the term deadly weapon: . . . pistol, revolver, or any other firearm .... Id. (emphasis added).

Jury Instructions The jury was informed by instruction 21 that “[a] pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded” and that “[a] person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use.” Clerk’s Papers (CP) at 176. Instruction 22 further informed the jury that a deadly weapon is “an instrument which has the capacity to inflict [death] and from the manner in which it is used is likely to produce or may easily or readily produce death.” CP at 177.

Defining “Armed” Schelin contends that the trial court should have dismissed the deadly weapon allegation against him because the State did not meet its burden of proving he was “armed” during the commission of manufacturing and possessing with intent to deliver marijuana. The test for determining when a defendant is “armed” under former RCW 9.94A.125 was articulated by this court in State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993). In Valdobinos, police discovered an unloaded .22 rifle under the defendant’s bed while executing a warrant to search for evidence of illegal drug sales.

Drugs and money were also found under the bed. The Valdobinos court held that “[a] person is ‘armed’ if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes.” Id. Applying this test, the Valdobinos court ruled that evidence of an unloaded rifle under a bed “without more” was insufficient to show a defendant is “ ‘armed’ in the sense of having a weapon accessible and readily available for offensive or defensive purposes.” Id.

The Valdobinos court clearly established that mere constructive possession is insufficient to prove a defendant is “ ‘armed’ with a deadly weapon during the commission of a crime” as required by former RCW 9.94A.125. Id. Nexus of Weapon to Defendant and Crime In addition to the test announced in Valdobinos, subsequent cases have refined the nexus required in a constructive possession case. Under a two-part analysis, there must be a nexus between the weapon and the defendant and between the weapon and the crime. In formulating its test, the Valdobinos court relied on State v. Sabala, 44 Wn.

App. 444, 723 P.2d 5 (1986). In Sabala, a drug possession case, the court concluded that a defendant in constructive possession of a deadly weapon under the driver’s seat of the car he or she is driving is armed because the defendant has an “easily accessible and readily available” weapon at his or her disposal. Id. at 448. Mills furthers the analysis by assuring that parameters are placed on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession. Mills, 80 Wn. App. at 235-37.

In Mills, the defendant was arrested near his home, and while in custody, the officers found a motel key Mills had attempted to hide between the patrol car seat cushions. After obtaining a warrant for the motel room, a search yielded methamphetamine and a pistol in a pouch lying beside the narcotics. The court found no evidence that the defendant had been present at the motel room on the date stated in the charging document. Id. at 237. The Mills court considered two constructive possession cases, State v. Call, 75 Wn. App. 866, 880 P.2d 571 (1994), and State v. Taylor, 74 Wn. App. 111, 872 P.2d 53 (1994).

In Call, police recovered three handguns while executing a search warrant for evidence of narcotics sales. The defendant’s proximity to the drugs recovered was not set forth in the facts of that case, but the defendant entered the bedroom where the guns were found and returned “unarmed.” “Based on these facts, the Call court concluded that the evidence was insufficient to prove that [the defendant] had easy access to the guns.” Mills, 80 Wn. App. at 236 (citing Call, 75 Wn. App. at 869). The Mills court noted by contrast that in Taylor, the defendant was “armed” within the meaning of former RCW 9.94A.125.

In that case, police entered defendant Taylor’s apartment to conduct a search pursuant to a warrant. A weapon and ammunition were found in a leather bag, next to narcotics, near where the defendant was sitting. Mills, 80 Wn. App. at 236. The Taylor court considered proximity as key to determining whether the defendant was “armed” with a deadly weapon. After reviewing these cases, the Mills court concluded that although there was an inference that Mills used a deadly weapon to protect his drugs, there was no nexus established between the defendant and the weapon on the charging date.

The court reasoned that “[h]ere, where Mills would have needed to travel several miles to retrieve his weapon, we cannot say that he was ‘armed’ for purposes of the enhancement statute.” Id. at 237. In State v. Johnson, 94 Wn. App. 882, 893, 974 P.2d 855 (1999), the court focused not only on the nexus between the defendant and the weapon, but also articulated the need for a nexus between the weapon and the crime. In Johnson, police executed a search warrant in defendant Matthew Johnson’s apartment.

When police entered the apartment, Johnson was seen running from the living room toward the bathroom before another person was observed throwing objects out of the bedroom window. Police pulled Johnson away from the hallway between the living room and bathroom, put him down on the floor, and advised him of his constitutional rights. While handcuffed, Johnson waived his rights and responded to police questioning, revealing that he maintained a loaded gun in a coffee table compartment some five to six feet away from where he was then sitting.

At trial, Johnson testified he was in bed, half-asleep in the bedroom, when he heard police knocking and announcing their eventual entry. Thus, Johnson argued he could not have been “armed” with a deadly weapon at the time police discovered his drug possession crimes. The Johnson court required the State to prove proximity to the weapon and to show that a sufficient nexus between the weapon, the crime, and the defendant existed to establish that the defendant was “armed” for purposes of former RCW 9.94A.125.

The Court of Appeals reasoned: “Simply constructively possessing a weapon on the premises sometime during the entire period of illegal activity is not enough to establish a nexus between the crime and the weapon.” Johnson, 94 Wn. App. at 895. We agree that the mere presence of a weapon at a crime scene may be insufficient to establish the nexus between a crime and a weapon. If an assault with a beer bottle occurs in a kitchen, a defendant is not necessarily “armed” with a deadly weapon because knives are kept in the kitchen.

One should examine the nature of the crime, the type of weapon, and the circumstances under which the weapon is found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer). Temporal Nexus Test This court was also asked to review seemingly inconsistent applications of nexus tests by the court of appeals concerning the deadly weapon sentence enhancement. The case of State v. Simonson, 91 Wn. App. 874, 960 P.2d 955 (1998), review denied, 137 Wn.2d 1016 (1999), was criticized in Johnson, and in the Court of Appeals decision in Schelin, as inconsistent with precedent.

In Simonson, police responded to the scene of an exploded methamphetamine laboratory maintained in a green trailer. The defendant, Simonson, had lived on the same property in a nearby silver trailer with his girl friend, Susan Robinson. However, on the day of the explosion, Simonson was in jail on unrelated charges. The first person to arrive at the scene saw Robinson emerge from the silver trailer, badly burned. A few minutes later, emergency personnel found a loaded handgun in the mud outside the green trailer. According to the police, the weapon had just been dropped because it did not have dew or rust on it.

Based on this information, police obtained a search warrant for the silver trailer near where the methamphetamine laboratory was located. That search yielded a number of firearms found in the bedroom, in a cabinet above the bed, behind a table at the opposite end of the bed, and also behind the bedroom television on another table. The search also uncovered 10,000 pseudoephedrine pills in the bedroom. Simonson was convicted of unlawfully manufacturing a controlled substance, in addition to six counts of first degree unlawful possession of a firearm.

The defendant was also found, by special verdict, to have been “armed” with a deadly weapon at the time of the unlawful manufacture. Division Two of the Court of Appeals found as follows: Taken in the light most favorable to the State, the evidence here shows that Simonson and Robinson were committing a continuing offense, manufacturing methamphetamine, over a six-week period of time. During some or all of that time, they kept seven guns on the premises.

It is reasonable to infer that not less than four were kept in a loaded condition, for it is obvious that Robinson did not load them after being burned in the explosion. It is also reasonable to infer that the purpose of so many loaded guns was to defend the manufacturing site in case it was attacked. We conclude that the evidence is sufficient to support the deadly weapon enhancement. Simonson, 91 Wn. App. at 883.

The Johnson court criticized Division Two’s analysis in Simonson, stating: “Simonson abandons the proximity rationale for one that allows the court to find a defendant ‘armed’ with a deadly weapon where a weapon is present on the premises during a crime that continues over a period of time.” Johnson, 94 Wn. App. at 895. The critique continues: The Simonson court concluded that the mere presence of loaded guns on Simonson’s premises during the six-week period he was manufacturing methamphetamines was sufficient to find he was armed at the time of his offense.

The court reached this conclusion even though the defendant was in jail at the time police discovered the meth lab and therefore was nowhere near the seven weapons they found in his trailer. Id. (footnote omitted). This bitter critique of Simonson recited in Johnson was shared by the Court of Appeals in Schelin. However, the critique comes from a superficial analysis of Simonson which fails to account for the accomplice liability which was present in Simonson.

Although Simonson was in jail, his accomplice, Robinson, continued the operation as evidenced by her being in the explosion of the green trailer where the methamphetamine laboratory was housed. Robinson maintained and protected the operation with deadly weapons constructively possessed by Simonson. The Simonson court found that the evidence showed both Simonson and Robinson were committing a continuing offense. From Simonson, it is clear that a jury is entitled to find that a defendant and accomplice can commit a single continuing offense even though one is not physically close to the operation.

The jury was entitled to find that Simonson committed the offense of manufacturing methamphetamine by himself, or by aiding and abetting Robinson’s continuing manufacture of the drug while he was imprisoned. In either event, Robinson was an accomplice. The deadly weapon enhancement statute specifically provides, “if [a jury finds] the defendant guilty, [the jury shall] also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.” Former RCW 9.94A.125 (emphasis added).

Importantly, the Simonson court did not abandon establishing a nexus between the crime, weapon, and defendant or accomplice. The Simonson court clarified only that the defendant or an accomplice must be in proximity to a deadly weapon at the time a crime is committed. This conclusion is consistent with Valdobinos and Mills. A deadly weapon must be accessible and readily available, and a nexus must be established between the defendant (or an accomplice) and the weapon, and the crime.

The Court of Appeals in Schelin was concerned about whether the critical time for analysis should be determined by the time when the offense is committed or when police discover a crime has been committed. This discussion is misdirected as there is no reason to believe the Legislature intended the statute to solely protect police. It is equally likely that the statute is intended to deter armed crime and to protect victims from armed crimes, as well as to protect police during investigations of crimes.

APPLICATION Sufficiency of the Evidence When analyzing a sufficiency of the evidence claim, the court will draw all inferences from the evidence in favor of the State and most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). The evidence presented at trial in the instant case established that the defendant was within feet of a deadly weapon when police entered his home. Further, Schelin testified that the deadly weapon was easily accessible and readily available.

Specifically, Schelin testified: [Defense counsel]: Why did you have that gun in the bedroom? [Schelin]: That gun defends my family from my girlfriend’s ex-husband. 3 Report of Proceedings (RP) at 393. [Prosecutor]: . . . It’s hanging from the holster in that bedroom, right? [Schelin]: Yes . . . It’s hanging from the nail on the wall at the side of the door . . .

It’s not on the door; it’s in a corner. [Prosecutor]: It’s very close to the door, isn’t that right? [Schelin]: Yes. [Prosecutor]: Is it safe to say then, if that boyfriend came over in 1996, that gun was very accessible to you to protect your family? [Schelin]: If I needed it I could go get it... . 3 RP at 402-03 More specifically, Schelin clarified: [Prosecutor]: So you indeed could remove that gun quickly from the holster if you needed it? [Schelin]: Yes. [Prosecutor]: While it’s hanging on the wall? [Schelin]: Yes. 3 RP at 405-06.

Given the direct evidence concerning Schelin’s location at the time police officers entered his home, the jury was entitled to find him constructively “armed.” Furthermore, the jury was entitled to find, pursuant to the jury instructions, that the weapon was “easily accessible and readily available for use, either for offensive or defensive purposes at that time.” CP at 176. The evidence established that Schelin had constructive possession of an easily accessible and readily available deadly weapon when police discovered him in his home. See Sabala, 44 Wn. App. at 447.

Whether Schelin was “armed” for purposes of former RCW 9.94A.125, however, requires the court to establish that a nexus existed between him, the weapon, and the crime. The use of the Mills nexus test enables this court to determine whether Schelin was constructively “armed” with a deadly weapon within former RCW 9.94A.125. Mills, 80 Wn. App. at 233. Under Mills, a nexus which connects the defendant in proximity with the weapon and the crime is required to find a deadly weapon enhancement. Id. at 236 n.l.

Turning to the facts here, the evidence established Schelin was in close proximity to a loaded gun which he constructively possessed to protect his marijuana grow operation. When we apply the nexus test, as expressed in Johnson, the inferences support a conclusion that Schelin was “armed.” Schelin admitted to being in close proximity to an “easily accessible and readily available” deadly weapon. The jury was entitled to infer he was using the weapon to protect his basement marijuana grow operation.

Schelin stood near the weapon when police entered his home and could very well have exercised his apparent ability to protect the grow operation with a deadly weapon, to the detriment of the police. Schelin argues that application of this analysis is overreaching and violates his constitutional right to bear arms. While Schelin’s right to bear firearms in his home is constitutionally protected, that right ceases when the purpose of bearing firearms is to further the commission of a crime. See Sabala, 44 Wn. App. at 449.

Requiring a nexus between the defendant, the crime, and the weapon protects against violation of the right to bear arms. The jury was entitled to find Schelin was armed pursuant to former RCW 9.94A.125. Given the jury’s finding, the deadly weapon sentence enhancement applied against Schelin’s convictions for manufacturing marijuana with the intent to deliver was mandatory. Public Policy Concerns The State urges this court to further consider the broad implications of a temporal requirement with regard to former RCW 9.94A.125.

The State contends that including a temporal requirement for application of former RCW 9.94A.125 will result in less protection for the general public and will exclude the use of the deadly weapon sentence enhancement in cases involving continuing crimes. This argument, however, is not persuasive. The requirement of a nexus to connect a defendant to a deadly weapon, and the weapon to the crime, guards against a deadly weapon enhancement being found whenever constructive possession is established.

With no such temporal nexus requirement, the exercise of the constitutional right to bear arms could be negatively impacted.

SUMMARY Former RCW 9.94A.310(3) authorizes the court to add sentencing enhancements when a defendant is “armed” with a deadly weapon during the commission of certain crimes. A defendant is “armed” when he or she is within proximity of an easily and readily available deadly weapon for offensive or defensive purposes and when a nexus is established between the defendant, the weapon, and the crime. The Court of Appeals decision is affirmed. Smith, Bridge, and Owens, JJ., concur. Detective Marvin Hill testified that one marijuana plant has a street value of up to $2,000.

Although the state must prove that the defendant is “armed” with a deadly weapon, a firearm is considered a deadly weapon whether loaded or unloaded. See 11 Washington Pattern Jury Instructions: Criminal 2.07.02, at 37 (2d ed. 1994) (stating “For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime ... [a] pistol, revolver or any other firearm is a deadly weapon whether loaded or unloaded.”); see also State v. Sullivan, 47 Wn.

App. 81, 85, 733 P.2d 598 (1987) (holding unloaded firearm was a deadly weapon per se); State v. Samaniego, 76 Wn. App. 76, 79, 882 P.2d 195 (1994) (holding a knife with a four-inch blade was a deadly weapon per se).