The State of Washington, Respondent, v. Samuel William Gurske, Petitioner, 155 Wash. 2d 134

fl Madsen, J. Petitioner Samuel William Gurske contends that his deadly weapon sentence enhancement is invalid because the pistol found in a backpack in his truck was not readily available, and therefore he was not armed at the time of the commission of the crime of possession of a controlled substance. We agree and reverse the Court of Appeals. Facts ¶2 The parties stipulated to the facts. On August 2, 2001, a Pullman, Washington, police officer stopped Gurske for making an illegal left turn. The officer asked Gurske for his driver’s license, vehicle registration, and insurance information. Mr.

Gurske said he did not have his wallet with him, but he provided the vehicle registration for his pickup truck. He also gave his name, address, and date of birth. The officer conducted a driver’s check through the local police database and learned that Gurske’s Idaho driver’s license had been suspended. The officer arrested Gurske for driving while his license was suspended, handcuffed him, searched him, and placed him in the back of his patrol car. ¶3 A second officer arrived. Pursuant to city police procedure, the officers conducted an inventory search before impounding Gurske’s truck.

One of the officers began the inventory on the driver side, seeing nothing on the driver’s seat, he pulled the front seat forward and saw a black backpack sitting directly behind the driver [’]s seat. The backpack was within arm[’]s reach from the driver’s position. However, the backpack was not removable by the driver without first either exiting the vehicle or moving into the passenger seat location. [The Officer] unzipped the top, main portion of the backpack and saw a Coleman torch.

Upon moving the torch the Officer saw what appeared to be a gun holster. [The Officer] removed this object from the backpack and found a black 9mm pistol in the holster. The pistol was unloaded, but a fully loaded magazine for the pistol was found in the backpack. Clerk’s Papers at 16. After removing the backpack from the truck, the officer also found three grams of methamphetamine and Mr. Gurske’s wallet in the backpack. ¶4 Gurske was charged with possession of a controlled substance (methamphetamine), a class C felony, while armed with a deadly weapon.

Following a bench trial on the stipulated facts, the trial court found Gurske guilty. In addition to a standard range sentence, the court imposed an 18 month sentence enhancement based on its finding that Gurske was armed with a deadly weapon while committing the crime. ¶5 Gurske appealed, arguing the deadly weapon sentence enhancement was improperly imposed. The Court of Appeals affirmed the conviction and sentence in a split decision. State v. Gurske, 120 Wn. App. 63, 83 P.3d 1051 (2004), review granted, 152 Wn.2d 1013, 101 P.3d 108 (2004).

The dissenting judge reasoned that the sentence enhancement was improper because Gurske could not access the backpack without exiting the truck or moving into the passenger seat; therefore, the weapon was not easily accessible and readily available, and accordingly Gurske was not armed. Gurske, 120 Wn. App. at 67-68 (Schultheis, J., dissenting). Analysis ¶6 Gurske contends that the stipulated facts do not prove beyond a reasonable doubt that he was armed with a deadly weapon while possessing methamphetamine.

The State argues that the trial court did not err in imposing the deadly weapon enhancement. ¶7 RCW 9.94A.602 (formerly RCW 9.94A.125), provides in relevant part that [i]n 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 court shall make a finding of fact of whether or not the accused . . . was armed with a deadly weapon at the time of the commission of the crime .... ¶8 A firearm is a deadly weapon. RCW 9.94A.602.

A person is “armed” within the meaning of the statute “ ‘if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes.’ ” State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). There must be a nexus between the defendant, the crime, and the weapon. Schelin, 147 Wn.2d at 568. f 9 Gurske maintains that the stipulated facts show only that the pistol was in close proximity to him, not that it was easily accessible and readily available.

He argues that proximity or constructive possession alone is insufficient to establish that he was armed. ¶10 Gurske is correct that mere proximity or mere constructive possession is insufficient to establish that a defendant was armed at the time the crime was committed. “[T]he mere presence of a weapon at a crime scene” in and of itself “may be insufficient to establish the nexus between a crime and a weapon,” and thus insufficient to show that the defendant was armed. Schelin, 147 Wn.2d at 570.

Further, our holding in Valdobinos that the weapon must be easily accessible and readily available “clearly established that mere constructive possession is insufficient to prove a defendant is ‘ “armed” with a deadly weapon during the commission of a crime.’ ” Id. at 567 (quoting Valdobinos, 122 Wn.2d at 282). ¶11 Instead, the weapon must be easily accessible and readily available for use, either for offensive or defensive purposes. This requirement means that where the weapon is not actually used in the commission of the crime, it must be there to be used.

In adopting the “easily accessible and readily available” test, we recognized that being armed is not confined to those defendants with a deadly weapon actually in hand or on their person. This is consistent with the legislature’s obvious intent to punish those who are armed during the commission of a crime more severely than those who are unarmed because the risk of serious harm to others is greater. This greater risk exists whether the defendant actually has a weapon in hand or the weapon is easily accessible and readily available.

When the legislature enacted the “Hard Time for Armed Crime Act of 1995” (Initiative 159), it expressly recognized that “[ajrmed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death.” Laws of 1995, ch. 129, § l(l)(a) (Initiative Measure No. 159). f 12 The accessibility and availability requirement also means that the weapon must be easy to get to for use against another person, whether a victim, a drug dealer (for example), or the police.

The use may be for either offensive or defensive purposes, whether to facilitate the commission of the crime, escape from the scene of the crime, protect contraband or the like, or prevent investigation, discovery, or apprehension by the police. See Schelin, 147 Wn.2d at 572-73 (noting the deadly weapon statute is directed at more than the protection of the police, the legislature also intended to deter armed crime and to protect victims from armed crime).

The legislature has expressly recognized that armed individuals engaged in criminal conduct might use a deadly weapon for “several key reasons including: Forcing the victim to comply with their demands; injuring or killing anyone who tries to stop the criminal acts; and aiding the criminal in escaping.” Laws of 1995, ch. 129, § l(l)(b) (Initiative Measure No. 159).

For this reason, the plurality in Schelin declined to state an absolute rule regarding the time when the defendant must be armed during the commission of the crime, i.e., when the crime is being committed or when police discover the crime is being committed. Schelin, 147 Wn.2d at 572-73. In the case of a possession offense, for example, a weapon could be used to obtain drugs (by theft or otherwise), to protect the drugs, or to prevent investigation or apprehension by the police at the time they discover the drugs or seek to execute a warrant.

Regardless of the offense, whether the defendant is armed at the time a crime is committed cannot be answered in the same way in every case. ¶13 Valdobinos and Schelin illustrate this point. In Valdobinos, one of the defendants argued that a deadly weapon enhancement was improperly imposed. He had been arrested at his home after offering to sell drugs to an undercover agent and removed from the residence. Valdobinos, 122 Wn.2d at 273. The residence was then “cleared” and the home searched pursuant to a warrant. Id. During the search, cocaine was found, and a rifle was discovered in the bedroom under the bed.

Id. at 274. There was no evidence the rifle had been used or was readily available for use to facilitate the commission of a crime, i.e., against a victim or some other person, and no evidence that it was readily available for defensive purposes against anyone, and more particularly, no evidence that it was available to use against the officers who arrived to effect the arrest and execute the search warrant.

At the time the rifle was discovered, the defendant had already been arrested and removed from the scene, with no indication that he had been near the bed or bedroom or had been heading toward the bedroom — or any other evidence to show that the defendant was “ ‘armed’ in the sense of having a weapon accessible and readily available for offensive or defensive purposes.” Id. at 282. ¶14 In contrast, in Schelin, when officers executing a search warrant entered the defendant’s home, he was in the basement at the bottom of the stairs. Schelin, 147 Wn.2d at 564.

The basement contained two rooms and a laundry room, and in one room police discovered marijuana plants and in the other harvested marijuana and related items. Id. Officers also discovered a loaded revolver in a holster hanging from a nail on a wall about 6 to 10 feet away from where the defendant had been standing.

On these facts we held that the weapon was easily accessible and readily available for use against the police in an escape attempt or to protect the contraband or to prevent apprehension for possession of the marijuana. ¶15 The nexus requirement refines the analysis and serves to place “parameters ... on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession” of drugs. Schelin, 147 Wn.2d at 568.

Without a nexus between the defendant, the crime, and the weapon, “courts run the risk of punishing a defendant under the deadly weapon enhancement for having a weapon unrelated to the crime.” State v. Willis, 153 Wn.2d 366, 372, ¶18, 103 P.3d 1213 (2005) (citing State v. Johnson, 94 Wn. App. 882, 895, 974 P.2d 855 (1999)). First, there must be a nexus between the defendant and the weapon. Again, Valdobinos and Schelin are instructive.

In Valdobinos, as explained, the defendant was not in close proximity to the weapon when it was discovered, nor was there any evidence that he had been at a time when availability for use for offensive or defensive purposes was important. In Schelin, however, the defendant was close to the easily accessible and readily available weapon at the time the police entered the house. ¶16 Cases decided by the Court of Appeals are also instructive. In State v. Mills, 80 Wn.

App. 231, 907 P.2d 316 (1995), after finding methamphetamine in the defendant’s car, an officer arrested him and placed him in the back of a patrol car where he was seen making furtive movements. A search of the patrol car then yielded a motel key. Pursuant to a search warrant, police then searched the motel room to which the key belonged and found more methamphetamine and a pistol in a pouch beside the drugs. The defendant was convicted of possession of a controlled substance with intent to deliver while armed with a deadly weapon. The Court of Appeals reversed the deadly weapon enhancement.

Although it found a nexus between the weapon and the drugs, the required nexus between the defendant and the weapon was not present; there was no physical proximity to the weapon at a time when availability for use for offensive or defensive purposes was critical. Id. at 237. |17 In Johnson, when police entered the defendant’s apartment the defendant was running from the living room toward the bathroom. After police handcuffed and placed the defendant at a table between the living and dining room, they asked him if there were any weapons in the apartment.

The defendant said that there was a loaded gun in the coffee table in the living room some five to six feet away. Johnson, 94 Wn. App. at 888. The Court of Appeals reversed the deadly weapon enhancement, reasoning that there was no realistic possibility that the defendant could access the gun while sitting handcuffed five to six feet away. Id. at 894. It is also significant that at the time the police entered, the defendant was leaving the living room — he made no movement toward the table where the gun was located.

Thus, although there was physical proximity — at least as much as in Schelin — there was no evidence from which the trier of fact could infer that the weapon was easily accessible and readily available for use for either offensive or defensive purposes and there was insufficient nexus between the defendant and the weapon. ¶18 In State v. Sabala, 44 Wn.

App. 444, 723 P.2d 5 (1986), where the “easily accessible and readily available” test was first adopted in Washington, the defendant, who had been under surveillance since he had purchased heroin, was stopped while driving his car, and a search of his person yielded heroin in his sock. In a search of the car pursuant to consent, police found a loaded gun under the driver’s seat with the grip easily accessible to the driver. Id. at 445, 448. The defendant did not dispute that the gun was his, and it was easily visible to one leaning into the car. Id. at 448.

Although Sabala does not contain a “nexus” analysis, it is also instructive because there was clearly a nexus between the defendant and the weapon — after purchasing heroin, which was on his person, the defendant was sitting in the driver’s seat from which the weapon was easily accessible and readily available for use against the officer who stopped him. f 19 There must also be a nexus between the weapon and the crime.

The mere presence of a weapon at the crime scene may be insufficient. “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).” Schelin, 147 Wn.2d at 570. ¶20 Here, the stipulated facts state the backpack was within arm’s reach, but not whether the pistol was within Gurske’s reach. The backpack was behind the driver’s seat, which the police pulled forward before accessing the backpack.

The backpack was not removable by the driver unless he exited the truck or moved into the passenger seat. The backpack was zipped, and a torch was on top of the pistol. The facts do not indicate whether Gurske could unzip the backpack, remove the torch, and remove the pistol from the driver’s seat where he was sitting at the time he was stopped by the police officer. They do not state that he made any movement toward the backpack.

Nor is there any evidence whatsoever that Gurske had used or had easy access to use the weapon against another person at any other time, i.e., when he acquired or was in possession of the methamphetamine. ¶21 The State argues, however, that the trier of fact could infer that Gurske could reach over or around the driver’s seat and obtain the weapon and thus this case is like Sabala, where the gun was under the driver’s seat, easily accessible and readily available, and State v. Taylor, 74 Wn.

App. 111, 872 P.2d 53 (1994), where at the time the police entered to execute a search warrant the defendant was sitting on a couch next to the coffee table where the gun was located. But while there was physical proximity of the pistol, the methamphetamine, and Gurske, there is simply nothing in the stipulated facts here giving rise to the inference that Gurske could reach over or around the driver’s seat and access the weapon from the driver’s seat.

To support the deadly weapon sentence enhancement the evidence, here the stipulated facts, viewed in the light most favorable to the State, must be sufficient for any rational trier of fact to find that the defendant was armed with a deadly weapon at the time of the commission of the crime. Cf. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003) (sufficiency of evidence standard for conviction of crime).

There is insufficient evidence to show that the pistol was easily accessible and readily available for use for offensive or defensive purposes, unlike Sabala, Taylor, and Schelin. f 22 As Gurske contends, the stipulated facts do not show beyond a reasonable doubt that he was armed with a deadly weapon at the time of commission of the crime. Accordingly, the deadly weapon enhancement was improper. ¶23 The Court of Appeals decision is reversed and this matter is remanded for resentencing. Alexander, C.J., and C. Johnson, Bridge, Owens, and Fairhurst, JJ., concur.

If the defendant is armed at the time the crime is committed, an 18 month sentence enhancement “shall be added to the standard sentence range” for a class C felony (with exceptions not relevant here). RCW 9.94A.533(3)(c). The statute will be cited hereafter as RCW 9.94A.602. The lead opinion in State v. Schelin, 147 Wn.2d 562, 55 P.3d 632 (2002) is a plurality opinion, but the “easily accessible and readily available” and “nexus” requirements are holdings of the court. See State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993); Schelin, 147 Wn.2d at 566-70 (plurality), 576-77 (Alexander, C.J., concurring).