The State of Washington, Respondent, v. Mickey William Brown, Petitioner, 162 Wash. 2d 422

¶1 C. Johnson, J. Following a bench trial, defendant Mickey William Brown was convicted of intimidating a witness and first degree burglary while armed with a deadly weapon, a firearm. The Court of Appeals affirmed the convictions, holding that although Brown was charged in the language of an outdated version of the witness intimidation statute, that language was unnecessary to a charge under the present statute and could be disregarded as surplusage.

The Court of Appeals also upheld the trial court’s determination that Brown was armed with a deadly weapon during commission of the burglary because a rifle that was taken from the victim’s closet and placed on a bed was readily available and accessible while Brown and an accomplice ransacked the victim’s house, including the bedroom where the gun was found.

We reverse Brown’s conviction for witness intimidation and reverse the holding that Brown was armed with a deadly weapon during the commission of burglary and was improperly convicted of first degree burglary, and we reverse imposition of a deadly weapon sentence enhancement. FACTS ¶2 On August 6, 2001, Craig Ambacher returned to his residence and discovered that it had been burglarized. Although rooms had been ransacked and many of his belongings were gathered at various points in the house, nothing was missing.

He found a rear sliding door open and believed he had interrupted a burglary. ¶3 Ambacher found his unloaded AK-47 rifle on the bed in the master bedroom a short distance from the closet where it was normally kept. An ammunition clip for a different rifle was lying on the bed next to the rifle. The nightstand had been emptied out, as had a chest of drawers. Ambacher owned a 9 mm pistol he kept under his bed, along with VCRs (videocassette recorders). The VCRs had been pulled out, but not the pistol. f 4 At the time of the burglary, Melissa Hill was living with the Browns.

Hill saw Brown and Lenny Brown, the defendant’s cousin, return home after the burglary. When she joined them in the basement of the Browns’ home, she heard them talking about having burglarized a house. The defendant said they had been caught in the middle of the burglary. She testified that she heard one of the two men say that the guns were nice and he wished they could have gotten them, and that Brown said he thought he could get a lot of money for the guns. ¶5 Hill testified that Brown told her that she would “pay” if she spoke to the police.

She believed this threat was a credible threat against her personal safety and a threat of violence. She testified that Brown was mad and yelling and that Lenny Brown defended her and told Brown to stop yelling and to calm down. ¶6 Upon discovering that the house had been burglarized, the victim, Ambacher, went to the front of the house and wrote down the license plate number of Brown’s car, left on the street across from Ambacher’s house, and the license plate number of a car he saw used to retrieve Brown’s car.

The license plate numbers led the investigating police officers to Brown and Lenny Brown, as well as to Melissa Hill, who was a key witness for the State against Brown at his trial. f 7 As a result of his threat against Hill, Brown was charged with intimidating a witness. The information charged this offense in language appearing in a 1994 former version of RCW 9A.72.110 — language that was deleted by the legislature when it amended the statute in 1997.

Brown was also charged with first degree burglary based on the fact that he or another participant in the crime was armed with a deadly weapon, a firearm, i.e., the AK-47 rifle found on the bed in the victim’s home. ¶8 Brown waived the right to a jury trial, and the trial court found him guilty of the offenses charged. Among other things, the court concluded that “the gun lying on the bed would make the gun readily accessible to those who were in the process of ransacking this [master bed]room looking for bounty.” Verbatim Report of Proceedings (Feb. 12, 2002) at 196.

The court imposed concurrent sentences for the witness intimidation and first degree burglary convictions and imposed a firearm sentence enhancement. ¶9 Brown appealed. He argued the evidence was insufficient to support his conviction for intimidating a witness, that he was not armed for purposes of first degree burglary or the sentence enhancement, that his offender score was miscalculated, and that he received ineffective assistance of counsel.

Acting on his own, Brown filed a statement of additional grounds for review raising a number of issues, some of them involving challenges to the denial of his posttrial motions. ¶10 In an unpublished opinion, the Court of Appeals concluded that ineffectiveness of counsel had not been established, affirmed the convictions and the firearm sentence enhancement, and found the issues raised in Brown’s statement of additional grounds for review to be without merit. However, because the State conceded that Brown’s offender score had been incorrectly calculated, the Court of Appeals remanded for resentencing. State v.

Brown, noted at 129 Wn. App. 1004, 2005 Wash. App. LEXIS 2090. ANALYSIS ¶11 Brown first contends that his conviction for intimidating a witness must be reversed because it is not supported by sufficient evidence. A defendant’s challenge to the sufficiency of the evidence requires the reviewing court to view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, ¶ 9, 133 P.3d 936 (2006); State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” Hosier, 157 Wn.2d at 8, ¶ 9; Salinas, 119 Wn.2d at 201. “A claim of insufficiency admits the truth of the State’s evidence” and all reasonable inferences. Salinas, 119 Wn.2d at 201. ¶12 RCW 9A.72.110 provides in part:

(1) A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to: (

a) Influence the testimony of that person; (

b) Induce that person to elude legal process summoning him or her to testify; (

c) Induce that person to absent himself or herself from such proceedings; or (

d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child. ¶13 Subsections (

a) through (

d) describe alternative means of committing the crime of intimidating a witness. State v. Boiko, 131 Wn. App. 595, 599, ¶ 10, 128 P.3d 143 (2006); State v. Chino, 117 Wn. App. 531, 539, 72 P.3d 256 (2003). ¶14 As noted, the information charged Mr.

Brown under a former version of RCW 9A.72.110: “That the defendant, MICKEY WILLIAM BROWN, in the State of Washington, on or about August 29, 2001, by use of a threat directed to Melissa Hill, a person that the defendant had reason to believe was about to be called as a witness in an official proceeding, did attempt [to] influence the testimony of such person.” Clerk’s Papers (CP) at 1-2 (emphasis added). Brown argues that the State must prove all the elements of the crime as charged, despite the information’s obvious reference to an outdated statute.

The Court of Appeals held, however, that because the statute had been amended to eliminate a requirement of a pending official proceeding, the words in the information referring to a witness in an official proceeding constituted a factual allegation that could be disregarded as surplusage rather than as stating an element of the crime. Brown contends that the Court of Appeals erred in holding that the language was surplusage. ¶15 Regardless whether the language was surplus-age, we conclude the evidence is insufficient to support Brown’s conviction.

When the outdated language referring to an official proceeding is disregarded, the information charges Mr. Brown with intimidating a current or prospective witness by attempting to influence the testimony of the witness by use of a threat. This is a valid charge under the current version of the statute, specifically RCW 9A.72.110-(1)(a). The problem, however, is that the State did not prove that Brown threatened Hill in an attempt to influence her testimony.

Rather, the only evidence presented, even when viewed most favorably to the State as required, shows that Brown threatened Hill in an attempt to prevent her from providing any information to the police. Further, the trial court did not enter any finding relating to an attempt to influence Hill’s testimony.

Thus, the evidence was insufficient to support the crime that the State did charge, with or without the “surplusage.” ¶16 Accordingly, his conviction must be reversed because the evidence does not support a conviction for intimidating a current or prospective witness through an attempt to influence her testimony by use of a threat — the only one of the four alternative statutory means of committing the crime that the information can be read to charge. ¶17 Mr.

Brown next contends that the Court of Appeals failed to correctly apply the “nexus test” to determine whether he was armed for purposes of both his conviction for first degree burglary and the firearm sentence enhancement. The Court of Appeals concluded that the trial court’s findings were sufficient to show that Brown was armed. The trial court found: The defendant removed a gun, a 7.62 mm rifle, from the closet and placed the rifle on the bed in the master bedroom, a distance of six to seven feet from the closet. The defendant placed a gun clip near the rifle, although the clip did not match the rifle.

The gun was not loaded at any time during the burglary. The rifle was accessible to the defendant and his accomplice during the course of the burglary, particularly while the defendant sorted through the dresser drawers of the bedroom. The defendant and accomplice were interrupted during the course of the burglary by the sound of the homeowner’s return, and the opening of his electric garage door. CP at 15.

A close review of the testimony does not support the trial court’s findings and conclusions. ¶18 The testimony from the homeowner established only that the rifle had been moved from the closet to a bed and nothing more. Testimony from the prosecution witness, Hill, comes closest to testifying about the weapons. She testified she heard Brown or Lenny Brown talking about guns. She testified that they expressed a desire to have gotten the guns.

She did not testify to hearing anything indicating that either of them moved the rifle or knew of its existence during the crime. ¶19 Viewed most favorably to the State, the evidence supporting the first degree burglary charge and weapons enhancement and whether Brown was armed comes from the homeowner, whose testimony established that a rifle was moved from the closet to the bed, along with other property.

The issue thus becomes whether under these facts, where a weapon was moved during a burglary, that evidence is sufficient to establish that a defendant is armed. ¶20 Our cases have recognized that the mere presence of a deadly weapon at the scene of the crime, mere close proximity of the weapon to the defendant, or constructive possession alone is insufficient to show that the defendant is armed. State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005); State v. Schelin, 147 Wn.2d 562, 567, 570, 55 P.3d 632 (2002); State v. Gurske, 155 Wn.2d 134, 138, 118 P.3d 333 (2005).

A person is armed with a deadly weapon if it is easily accessible and readily available for use for either offensive or defensive purposes. State v. Easterlin, 159 Wn.2d 203, 208-09, 149 P.3d 366 (2006); Barnes, 153 Wn.2d at 383; Gurske, 155 Wn.2d at 137; State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993). And there must be a nexus between the defendant, the crime, and the weapon. Easterlin, 159 Wn.2d at 209; Gurske, 155 Wn.2d at 140-41, 142; State v. Willis, 153 Wn.2d 366, 373, 103 P.3d 1213 (2005); Schelin, 147 Wn.2d at 567-70, 575.

To apply the nexus requires analyzing “the nature of the crime, the type of weapon, and the circumstances under which the weapon is found.” Schelin, 147 Wn.2d at 570. ¶21 Here, the crime was burglary and the type of weapon was a rifle at the scene. However, the circumstance under which the weapon was found does not support a conclusion that Brown was “armed” as intended by the legislature. Specifically, when the homeowner arrived, the rifle was found on the bed after Brown and his accomplice had left the scene.

Also, Brown and/or his accomplice evidently had removed property from under the bed but left a pistol in that same location untouched. No evidence exists that Brown or his accomplice handled the rifle on the bed at any time during the crime in a manner indicative of an intent or willingness to use it in furtherance of the crime. In fact, Hill’s testimony indicates that the weapon here was regarded as nothing more than valuable property. ¶22 The dissent relies too heavily on evidence that either Brown or his accomplice moved the rifle onto the bed.

The dissent argues the facts “show a connection between the weapon and the crime, because during the course of committing the crime of burglary, one of the defendants had the rifle in hand and could have used it for offensive or defensive purposes.” Dissent at 441.

The dissent is essentially arguing that any actual possession of a deadly weapon during an ongoing crime shows a nexus between the weapon and the crime. ¶23 Showing that a weapon was accessible during a crime does not necessarily show a nexus between the crime and the weapon. “[T]he mere presence of a weapon at a crime scene may be insufficient to establish the nexus between a crime and a weapon.” Schelin, 147 Wn.2d at 570.

Likewise, “ £[s] imply 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.’ ” Schelin, 147 Wn.2d at 570 (quoting State v. Johnson, 94 Wn. App. 882, 895, 974 P.2d 855 (1999)). “[A] person is not armed merely by virtue of owning or even possessing a weapon; there must be some nexus between the defendant, the weapon, and the crime.” State v.

Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007). ¶24 Our analysis in Schelin underscores that proximity alone does not establish a nexus between the crime and the weapon. In Schelin, the defendant hung a loaded pistol from a basement wall near where defendant had a marijuana grow operation. When police arrived, they found Schelin standing near the pistol. The “direct evidence concerning Schelin’s location at the time police officers entered his home” supported a finding “that Schelin had constructive possession of an easily accessible and readily available deadly weapon.” Schelin, 147 Wn.2d at 574.

However, as a separate matter, “[w]hether Schelin was ‘armed’ . . . requires the court to establish that a nexus existed.” Schelin, 147 Wn.2d at 574. To establish the nexus between the crime and a weapon, one should examine the nature of the crime, the type of weapon or weapons, and the circumstances under which the weapon is found.

Applied to the facts of this case, this analysis shows why it is not determinative that the defendant or his accomplice merely touched a weapon in the course of a crime. ¶25 The dissent also argues that inquiry into the defendant’s intent or willingness to use the rifle is a condition in the nexus requirement that does not appear in any of this court’s prior cases. We disagree.- ¶26 In Eckenrode, police responded to Eckenrode’s report of an intruder in his home. Police arrived and swept the house, finding inside the home a loaded rifle, an unloaded pistol, and evidence of a marijuana growing operation.

Police arrested Eckenrode in his front yard, “far from his weapons.” Reviewing the facts, we said: The rifle was loaded at the time, and Eckenrode testified that the pistol was as well. Eckenrode also had a police scanner, which, together with his manufacturing operation, raises the inference that he was monitoring police activity against the chance he might be raided. Finally, evidence of the drug manufacturing operation pervaded the house. A jury could readily have found that the weapons were there to protect the criminal enterprise. Eckenrode, 159 Wn.2d at 494 (emphasis added).

Likewise, in Schelin we said that the nexus test “as expressed in Johnson” would enable a jury to infer that Schelin “was using the weapon to protect his basement marijuana grow operation.” 147 Wn.2d at 574. These cases demonstrate that the defendant’s intent or willingness to use the rifle is a condition of the nexus requirement that does, in fact, appear in Washington cases. ¶27 The dissent states, but does not apply, the principle that “ ‘where the weapon is not actually used in the commission of the crime, it must be there to be used! ” Dissent at 442 (quoting Gurske, 155 Wn.2d at 138).

Here the facts suggest that the weapon was merely loot, and not there to be used. Evidence that the rifle was briefly in a burglar’s possession, without more, does not make Brown armed within the meaning of the sentencing enhancement statutes. f 28 Though the use of a weapon in the commission of a crime is not constitutionally protected, adherence to the nexus analysis is also important in harmonizing the mandatory sentence enhancements with the constitutional right to bear arms. See Schelin, 147 Wn.2d at 575 (right to bear arms could be negatively impacted without temporal nexus requirement).

Brown’s right to bear arms is not implicated here. But the sentencing enhancement applies to a broad array of felonies. RCW 9.94A.533(3). Requiring both that the weapon be readily available and easily accessible, as well as a nexus based on the facts of the case, limits the definition of being “armed” to those situations the statutes are aimed at controlling. None of those statutory concerns are implicated under these facts. CONCLUSION ¶29 We reverse the Court of Appeals. The deadly weapon enhancement and first degree burglary conviction are vacated, as is the conviction for witness intimidation.

Alexander, C.J., and Sanders, Chambers, and J.M. Johnson, JJ., concur. Former RCW 9A.72.110(1)(a) (1994) provided in part that “[a] person is guilty of intimidating a witness if a person directs a threat to a former witness because of the witness’ testimony in any official proceeding, or if, by use of a threat directed to a current witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding . . . he . . . attempts to . . . [influence the testimony of that person.” (Emphasis added.) The statute was amended in 1997 to its current version.

Laws of 1997, ch. 29, § 1. As originally enacted, the statute criminalized only threats directed to a person the defendant had reason to believe was about to be called as a witness in an official proceeding. Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.72.110. It was amended in 1982 to include threats made to one whom the defendant has reason to believe may have information relevant to a criminal investigation. Laws of 1982, 1st Ex. Sess., ch. 47, § 18. In 1985, it was amended to include threats to former witnesses. Laws of 1985, ch. 327, § 2.

The legislature cited several “key reasons” for sentencing armed individuals more harshly, including, “[f]orcing 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). Similarly, in State v. Simonson, the defendant kept seven guns, including shotguns and an assault rifle, in a trailer he lived in while producing methamphetamine. At least four of the weapons were loaded.

The court concluded that a reasonable inference for keeping so many loaded weapons was that the defendant had the weapons “to defend the manufacturing site in case it was attacked.” 91 Wn. App. 874, 883, 960 P.2d 955 (1998). The dissent cites a New Jersey Superior Court decision for the proposition that a nexus between the gun and crime is shown if the weapon could have been used for offensive or defensive purposes. Dissent at 441 (citing State v. Merritt, 247 N.J. Super. 425, 431, 589 A.2d 648 (App. Div. 1991)).

In Merritt, the court found that “the majority of courts . . . have held that a person who steals a weapon may be found to have been armed, without showing that he actually used or intended to use the weapon, so long as he had immediate access to the weapon during the offense.” 247 N.J. Super. at 430-31. Merritt is inapposite because it did not involve application of a nexus requirement. The dissent also argues that the majority of courts hold that a defendant is armed if he or she enters a building unarmed and then acquires a firearm as loot. Dissent at 446-48. These cases are also not on point.

None involves a defendant who is both charged with a deadly weapon sentence enhancement as well as first degree burglary. This means that none of those decisions involved the application of a nexus requirement between the gun and the crime. Hence, they do not support the view that possession of a firearm alone during an ongoing crime establishes the nexus between the gun and the crime. Furthermore, several of these cases rely on State v. Hall, 46 Wn. App. 689, 732 P.2d 524 (1987) or State v. Faille, 53 Wn. App. 111, 766 P.2d 478 (1988). See Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992); State v.

McCaskill, 321 S.C. 283, 468 S.E.2d 81 (1996); People v. Loomis, 857 P.2d 478, 482-83 (Colo. App. 1992); State v. Ray, 2003 MT 171, 316 Mont. 354, 71 P.3d 1247. For the reasons noted above, Faille and Hall are not determinative here because in those cases weapons were removed from the homes. The dissent argues that “[(legislative goals are implicated whether the defendant brings the weapon to the scene ... or steals it.” Dissent at 445 (citing Williams v. State, 517 So. 2d 681, 682 (Fla. 1988); State v. Herbert, 601 N.W.2d 210 (Minn. Ct. App. 1999); Creasy v. Commonwealth, 9 Va.

App. 470, 473, 389 S.E.2d 316 (1990)). In Williams, the defendant was discovered while burglarizing a pawn shop. He had loaded weapons at his feet and an unloaded pistol “on his person.” In Herbert, the defendant admitted to burglary and theft of several guns. In Creasy, the defendant shot and killed the resident during a burglary. The facts in these three cases differ in varying degrees from those in this case, as do the statutory frameworks supporting the crimes charged — none involve a weapons enhancement statute like Washington’s.

These cases are not convincing proof that the Washington legislature intended the weapons enhancement to apply to instances where a deadly weapon is merely touched during the course of a crime.