The State of Washington, Respondent, v. Sheldon Dwight Easterlin, Petitioner, 159 Wash. 2d 203

¶1 — “Armed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death.” “Hard Time for Armed Crime Act.” Laws of 1995, ch. 129, § l(l)(a) (Initiative 159). Reducing armed crime is a laudable goal. Chambers, J. ¶2 But neither the initiative nor the legislature has defined “armed,” and this seemingly simple question of whether a defendant was in fact armed, and more importantly how to determine whether a defendant was armed, has come before us time and time again.

It presents a particularly difficult question when the defendant had only constructive possession over a weapon. ¶3 After much consideration, we have developed a two pronged approach for determining whether a defendant was armed. The weapon must have been readily accessible and easily available, and there must have been some connection between the defendant, the weapon, and the crime. State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005); State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993). ¶4 That has not been the end of the debate.

Until recently, it has not been clear whether the connection itself is an essential element that the State must prove or merely definitional. See generally Barnes, 153 Wn.2d at 383; State v. Schelin, 147 Wn.2d 562, 55 P.3d 632 (2002). ¶5 We have concluded that the connection between the weapon, the defendant, and the crime is definitional, not an essential element of the crime. E.g., Barnes, 153 Wn.2d at 383; State v. Gurske, 155 Wn.2d 134, 138-39, 118 P.3d 333 (2005).

Instead, the connection is merely a component of what the State must prove to establish that a particular defendant was armed while committing a particular crime. ¶6 So far, we have been presented with these questions mostly in constructive possession cases. In this case, Sheldon Dwight Easterlin had a gun on his lap and cocaine in his sock when he was approached by the police. He subsequently pleaded guilty to unlawful possession of a controlled substance with a firearms enhancement, among other things.

He now challenges the imposition of the firearms enhancement on the ground he did not know that the State had to prove a connection between his weapon and his crime, and thus he contends his plea was not valid. Alternatively, he argues that the State provided insufficient evidence of such a connection to sustain his plea. The Court of Appeals rejected his challenges. State v. Easterlin, 126 Wn. App. 170, 107 P.3d 773 (2005). We accepted review, State v. Easterlin, 155 Wn.2d 1021, 126 P.3d 1279 (2005), and affirm. FACTS ¶7 At about 2:40 am one morning, police received a call about a suspicious car.

Officers responded and found Easterlin asleep in the driver’s seat with a 9 mm pistol in his lap and a loaded 9 mm magazine on the seat next to him. An officer reached through an open window and seized the gun, waking Easterlin. Subsequent investigation revealed that Easterlin had cocaine in his sock and a prior felony conviction, making his possession of the gun illegal. ¶8 Easterlin pleaded guilty to unlawful possession of cocaine and unlawful possession of a firearm.

In his statement of defendant on plea of guilty, he specifically acknowledged that “I possessed a controlled substance and I had a firearm with me.” Clerk’s Papers at 13. ¶9 During the plea hearing, the trial court inquired into Easterlin’s understanding of the charges and their potential consequences. This conversation touched specifically on the question before us: THE COURT: You understand the elements of that crime that the State would have to prove if the case were to go to trial? THE DEFENDANT: Yes. THE COURT: And you understand the sentence that can be imposed by the Court on that case? THE DEFENDANT: Yes.

THE COURT: ... 7 should say that the unlawful possession of a controlled substance was while armed with a firearm and adding additional time to the presumptive sentence. THE DEFENDANT: Yes, I do, ma’am. Verbatim Report of Proceedings at 9-10 (emphasis added). The trial judge also explicitly assured herself that Easterlin understood she could sentence him anywhere in the standard range and that he would have no right to appeal that sentence. Easterlin still pleaded guilty and was sentenced to the maximum standard sentence, with a firearms enhancement.

He now appeals the acceptance of his plea and the imposition of the enhancement. ANALYSIS A. Essential Elements and Firearms Enhancements ¶10 A trial judge has an obligation not to accept a guilty plea without “first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea” and that a factual basis for it exists. CrR 4.2(d).

Easterlin claims that the trial judge failed to do this because, he says, she did not establish that he knew that there had to be a connection between his crime and his weapon before he could be deemed to be armed. See In re Pers. Restraint of Hews, 108 Wn.2d 579, 589-92, 741 P.2d 983 (1987); CrR 4.2(d).

The State contends, and we agree, that his argument is predicated on the mistaken belief that the connection between the gun, the crime, and the defendant is itself an essential element of being armed. ¶11 We take this opportunity to summarize our relevant holdings. “A person is ‘armed’ if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes” and there is a connection between the defendant, the weapon, and the crime. Valdobinos, 122 Wn.2d at 282; Barnes, 153 Wn.2d at 383.

However, the connection between the defendant, the weapon, and the crime is not an element the State must explicitly plead and prove. See State v. Willis, 153 Wn.2d 366, 374, 103 P.3d 1213 (2005) (holding that the jury need not be specifically instructed to find whether there is a connection between the defendant, the weapon, and the crime); see also Gurske, 155 Wn.2d at 138-39 (same); Barnes, 153 Wn.2d at 383 (same).

Instead, it is essentially definitional. f 12 The State urges us to hold that in cases of actual possession of a weapon, it is never obligated to establish a connection on the theory that a person in possession of a weapon is clearly “armed” within common understanding. The Court of Appeals agreed, and we accepted review primarily to determine whether this is necessarily always correct. The State is likely correct that in actual possession cases, it will rarely be necessary to go beyond the commonly used “readily accessible and easily available” instruction.

However, the instructions in a particular case must be adequate to permit the parties to argue their theories of the case. State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968) (citing Smith v. McDaniel, 53 Wn.2d 604, 610, 335 P.2d 582 (1959)). Depending on the evidence, it would not be error and would perhaps be appropriate for the court to instruct the jury there be a connection between the weapon and the crime to allow the parties to argue their theories of the case. ¶13 Easterlin has not met his burden of establishing that his plea was invalid because he did not understand the nature of the charge. B.

Sufficiency of the Evidence f 14 Easterlin also challenges the sufficiency of the evidence that formed the factual basis for the acceptance of his plea. He is correct that the trial judge may not accept a plea without first being satisfied that there is a factual basis for it. CrR 4.2(d); State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991). However, evidence beyond a reasonable doubt is not required; the trial judge was merely obligated to find sufficient evidence for a jury to determine Easterlin was armed. Id. ¶[15 In this case, an officer saw a gun on Easterlin’s lap.

That is more than sufficient for the trial judge to find a connection between Easterlin and the weapon. f 16 There was also ample evidence from which a trier of fact could find Easterlin was armed to protect the drugs. See State v. Simonson, 91 Wn. App. 874, 883, 960 P.2d 955 (1998) (holding that a nexus exists if the weapons were there to protect an active methamphetamine manufacturing operation). Easterlin’s statement on plea of guilty specifically admitted, in his own words, that he was armed and that he possessed a controlled substance.

Even without his statement, there was more than sufficient evidence to uphold a jury’s determination that he was armed in connection with a crime. ¶17 Easterlin contends that there was no evidence that the weapon was there to protect his drug possession as opposed to mere self-protection. But the State does not have to produce direct evidence of a defendant’s intent. So long as the facts and circumstances support an inference of a connection between the weapon, the crime, and the defendant, sufficient evidence exists. Cf. Rogers Potato Serv., LLC v. Countrywide Potato, LLC, 152 Wn.2d 387, 392, 97 P.3d 745 (2004).

In this case, that inference is clearly supportable. f 18 Easterlin has not met the burden he undertook. Accordingly, we affirm imposition of the firearms enhancement. CONCLUSION f 19 Easterlin pleaded guilty, and he bears the burden of proving his plea was not knowing, voluntary, and intelligent. He has not met this burden. Nor has he met his burden of establishing that there was an insufficient factual basis for the trial judge to accept his guilty plea. Accordingly, we affirm the Court of Appeals on alternative grounds. Alexander, C.J., and C. Johnson, Bridge, Owens, Fairhurst, and J.M. Johnson, JJ., concur.

Madsen, J., concurs in result. The procedural posture of this case is unusual. Easterlin asks that we reverse his conviction and remand his case to the trial court so that he can move to withdraw his plea to the firearms enhancement. A court will allow a defendant to withdraw a plea if he or she can show withdrawal is necessary to avoid a manifest injustice. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). But even if he were to prevail on the merits, it is far from clear to us that he would be entitled to withdraw only one portion of his plea.

A plea agreement is a bargain, and generally, a defendant is not entitled to change only one part of that bargain. See State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003) (recognizing that, generally, a plea agreement is a package deal). The arguments before us have been couched in terms of whether the trial court erred in accepting the plea, not in terms of whether Easterlin should be allowed to withdraw some portion of his plea. Our disposition makes it unnecessary for us to resolve these perplexities. We recognize that this was not so clear at the time Easterlin filed his appeal. See State v. Holt, 119 Wn.

App. 712, 728, 82 P.3d 688 (2004) (holding the connection is an element) (citing State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996) (effectively overruled by State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002)). Holt was effectively overruled by Division Two of the Court of Appeals, not coincidentally, in this case. See Easterlin, 126 Wn. App. at 173 n.5.

For example, if a defendant is in possession of a ceremonial weapon, such as a Sikh’s kirpan that he is required to carry by religious commandment, or of a prop, or of a kitchen knife in a picnic basket, or is a farmer who carries a .22 caliber rifle in a gun rack, or has some object that merely could be used as a weapon, it may be appropriate to allow him to argue to the trier of fact that he is not “armed” as meant by Washington law and to allow the trier of fact to make that determination.