holding defendant was not armed with a deadly weapon for merely handling a rifle during a robbery
How later courts described this case
- holding defendant was not armed with a deadly weapon for merely handling a rifle during a robbery
- a person is armed for purposes of first-degree burglary enhancement only if the firearm is easily accessible and readily available for use
- adherence to judicially imposed nexus analysis harmonizes the imposition of mandatory deadly weapon/firearm sentence enhancements with the constitutional right to bear arms
Written by the judges who cited it.
The opinion
¶30
Sanders, J.
(concurring) — I concur in the majority. I write separately to highlight the deficiency in the dissent’s *436 reasoning that theft of a firearm ipso facto yields a firearm enhancement.
¶31 The dissent advocates a rule characterizing one as “armed” when a firearm is “easily accessible and readily available.” See dissent at 439, 441, 442, 445, 446 n.8, 448, 449. However, this is only one aspect of our analysis; there must also be a nexus between the defendant, the crime, and the weapon. See majority at 431. This court has never articulated a comprehensive definition of the nexus, but according to the dissent the nexus exists whenever the criminal so much as touches a firearm during the commission of a crime, or perhaps not even that. Dissent at 440-41. In other words, according to the dissent, a criminal is “armed” not only if a firearm is used to facilitate the crime but also if it is the object of the crime. Such a view robs the term “armed” of any meaningful nexus between the defendant, the crime, and the weapon where the presence of a firearm is incidental to, and independent of, the commission of the crime. Such a view also robs the term of its actual meaning. This is not to say a firearm as an object of crime cannot blossom into a firearm as a facilitator of crime. Under the facts of this case, however, such blossoming did not occur; the firearm remained merely a possible object of the crime. The dissent calls this an absurd result. Dissent at 438. To the contrary, the dissent’s reasoning leads to the absurd result.
¶32 To examine our firearm enhancement jurisprudence suffice to say:
The theory behind the deadly weapon enhancement is that a crime is potentially more dangerous to the victim, bystanders or the police if the defendant is armed while he is committing the crime because someone may be killed or injured. Thus, the crime is more serious than it would have been without the weapon. Where no officers, victims or bystanders are present, the potential danger is also absent, and the rationale for greater punishment based on greater danger to others does not apply. The underlying rationale can apply only where there is a possibility the defendant would use the weapon.
State v. Johnson, 94 Wn. App. 882, 896 , 974 P.2d 855 (1999).
*437 ¶33 We have held a firearm enhancement requires “a nexus to connect a defendant to a deadly weapon, and the weapon to the crime, guard [ing] against a deadly weapon enhancement being found whenever constructive possession is established.” State v. Schelin, 147 Wn.2d 562, 575 , 55 P.3d 632 (2002). “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. Gurske, 155 Wn.2d 134, 141 , 118 P.3d 333 (2005) (quoting State v. Willis, 153 Wn.2d 366, 372 , 103 P.3d 1213 (2005) (citing Johnson, 94 Wn. App. at 895 )).
¶34 Since adopting our nexus inquiry some have lost sight of the purpose of the inquiry: to determine whether a criminal is “armed” during the commission of a crime. To restore the term “armed” to its ordinary meaning, a nexus exists only when a criminal’s actual possession and possible use of a firearm creates a real danger of injury or death to a victim, bystander, or police officer. This definition of the required nexus also avoids infringing on the absolute right to keep and bear arms under article I, section 24 of the Washington Constitution. See, e.g., Schelin, 147 Wn.2d at 587-93 (Sanders, J., dissenting). As such, the deadly weapon enhancement is inapplicable absent actual possession and possible use of a deadly weapon to facilitate commission of a crime, causing a real danger of injury or death during its commission.
¶35 Here, the record indicates Mickey Brown or his accomplice contemplated stealing an unloaded firearm, as one of them moved it from a closet to a bed in a bedroom of a two-story house. There the firearm remained throughout the commission of the crime. For only the briefest of moments did Brown or his accomplice actually possess the firearm, and only then for stealing it — never for using it. At no time did Brown or his accomplice use the firearm to assist the criminal act or place any victim, bystander, or police officer in actual danger of injury or death.
*438 f36 The dissent would have us infer from the simple touching of a firearm during the commission of the crime that the firearm was used to facilitate the crime. Under this reasoning a burglar becomes “armed” when rifling through the silver drawer he touches a carving knife. However, we have stated, “[i]f 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.” Schelin, 147 Wn.2d at 570 . Similarly a burglar is not “armed” simply because he could have stolen a firearm. This is the absurd result avoided by the majority opinion to which the dissent’s opinion inexorably leads.
¶37 I concur.
J.M. Johnson, J., concurs with Sanders, J.