State v. Brown

¶38

Madsen, J.

(dissenting) —According to the majority, a person who brings a gun to a burglary is armed with a firearm during the commission of the burglary. But, a person who steals or attempts to steal a gun during the burglary is not armed during the commission of the burglary. Because this is an absurd result, I dissent.

¶39 In a series of cases this court has held that the State must present evidence of a nexus of the defendant, the weapon, and the crime to sustain a firearm enhancement. Although there is ample evidence of nexus in this case when all reasonable inferences are viewed in favor of the State, the majority adds a new condition to the nexus requirement, holding that it is not satisfied unless there is evidence that the defendant intended to or was willing to use the weapon in furtherance of the offense. This condition cannot be reconciled with legislative intent or with our prior cases, none of which set forth such a requirement. This new condition, which has been rejected by nearly every court that has considered the issue, will make it virtually impossible to prove a defendant was armed in many cases where the legislature’s enactments and our existing case law would demand such a finding.

*439¶40 Applying its new rule here, the majority reverses both the first degree burglary conviction and the firearm enhancement, even though the trial court found the defendant broke into a stranger’s home, ransacked the victim’s bedroom, took the victim’s AK-47 rifle out of the victim’s closet, and placed it on the victim’s bed in preparation for its theft and complained later that the guns would have brought a good price had the defendant and his partner not been interrupted in their burglary.

¶41 The majority opinion fails to follow our case law, fails to draw all inferences in favor of the State, and reaches a result that ignores the statutes. I dissent.

ANALYSIS

¶42 Mickey Brown was 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. He was tried in a bench trial, at the close of which the trial court found him guilty of first degree burglary. The court also imposed a firearm sentence enhancement.

¶43 The majority concludes that there is insufficient evidence of a nexus between the defendant, the weapon, and the crime, and accordingly the determination that Mr. Brown was armed was incorrect and his burglary conviction and the firearm enhancement must be reversed. There is ample evidence of the required nexus, contrary to the majority’s view.

¶44 A defendant is armed with a deadly weapon if it is easily accessible and readily available for use for either offensive or defensive purposes. State v. Barnes, 153 Wn.2d 378, 383, ¶ 15, 103 P.3d 1219 (2005); State v. Gurske, 155 Wn.2d 134, 137, ¶ 8, 118 P.3d 333 (2005); 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. Gurske, 155 Wn.2d at 140-41, ¶ 15, 142, ¶ 19; State v. Schelin, 147 Wn.2d 562, 567-70, 575, 55 P.3d 632 (2002). *440However, the word “nexus” need not be included in jury instructions as long as the instructions convey that requirement. State v. Willis, 153 Wn.2d 366, 374, ¶ 23, 103 P.3d 1213 (2005). A challenge to the sufficiency of the evidence requires viewing the evidence in the light most favorable to the State, with all reasonable inferences drawn in favor of the State. State v. Hosier, 157 Wn.2d 1, 8, ¶ 9, 133 P.3d 936 (2006).

¶45 Viewing the inferences most favorably to the State as is required, there is sufficient evidence to establish a nexus between the defendant, the weapon, and the crime. Craig Ambacher testified that he kept his AK-47 rifle in the closet and he was certain that it was in the closet when he left the house the morning of the burglary. When he interrupted the burglary, he found the rifle, along with a gun clip, on the bed in the master bedroom a short distance from the closet. He also found things in disarray in the master bedroom because it had been ransacked. Verbatim Report of Proceedings (Feb. 11,12, and June 5, 2002) (VRP) at 19-21, 32. Likewise, the responding deputy sheriff testified that there was a rifle on the bed in the master bedroom. VRP at 43. Ambacher also testified that videocassette recorders normally stored under the bed were pulled out and things that had been in the nightstand next to the bed had been emptied out and rifled. VRP at 25. He testified that the burglars collected items throughout the house and placed them for ready removal from the house. E.g., VRP at 22-26. There was ample evidence that Brown was one of the burglars. In addition, a witness who was with Brown and his accomplice after the burglary heard one of them say the guns were nice and wished they could have gotten them, and testified that she heard Brown say that he thought he could have obtained a lot of money for them.

¶46 These facts support the inference that either Brown or his accomplice removed the rifle from the closet and *441placed it on the bed,6 thus establishing the nexus between the defendant and the weapon. These facts also 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, for example, if they had been interrupted by the homeowner or a law enforcement officer while they were still in the house committing the crime of burglary. See, e.g., State v. Merritt, 247 N.J. Super. 425, 431, 589 A.2d 648 (App. Div. 1991) (where the perpetrators of a burglary handled weapons as they were removing them, the “weapons would have been readily available for the burglars to use if the victim or the police had interrupted them while they were committing the offense”). The facts also support the inference that the two intended to steal the rifle and sell it because it would have been profitable to do so, further establishing a link between the defendant and the weapon, as well as establishing, along with other evidence showing that Brown and Lenny Brown were the burglars, a connection between the defendant and the crime.

¶47 It makes no difference that the gun did not belong to either defendant and was not actually used during the burglary, in preparation for the burglary, or in flight from the burglary. The first degree burglary statute provides in part that an individual is guilty of first degree burglary “if, with intent to commit a crime . . . therein, he or she enters *442or remains unlawfully in a building and if. . . while in the building... the actor or another participant in the crime ... is armed with a deadly weapon.” RCW 9A.52.020(1). The statute does not require that a defendant own or bring the weapon into the building, nor does it require that he or she actually use a deadly weapon during the commission of the crime of burglary to be armed. Rather, “where the weapon is not actually used in the commission of the crime, it must be there to be used.” Gurske, 155 Wn.2d at 138, ¶ 11 (emphasis added).

¶48 Depending upon the circumstances, a weapon that is obtained during the course of a burglary may be easily accessible and readily available for use regardless of whether the weapon belongs to the defendant or is a weapon stolen during a burglary. During a burglary “ ‘[a] gun can be used . . . for the purpose of frightening, intimidating or controlling people.’ ” State v. Speece, 56 Wn. App. 412, 417, 783 P.2d 1108 (1989) (quoting State v. Faille, 53 Wn. App. 111, 115, 766 P.2d 478 (1988)).

¶49 Viewing the inferences from the facts most favorably to the State, the evidence is sufficient to show that the rifle was easily accessible and readily available for use for either offensive or defensive purposes during the course of Brown’s commission of the crime of burglary, and was clearly sufficient to show the required connection between Brown, the rifle, and the offense of burglary. As the trial court concluded, “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.” VRP at 196. The majority erroneously concludes- there is insufficient evidence of a nexus, or connection, between the defendant or an accomplice, the weapon, and the crime. The evidence belies the majority’s startling statement that in this case the defendant or his accomplice “merely touched a weapon.” Majority at 433; see also id. at 435 n.5.

¶50 The concurrence also misrepresents my analysis, saying that it means that a “nexus exists whenever the *443criminal so much as touches a firearm during the commission of a crime.” Concurrence at 436. The concurrence also apparently believes that mere theft of a weapon would satisfy the nexus requirement, again misrepresenting this opinion. Id.

¶51 Not so. It is not the mere fact of theft of a firearm that suffices to satisfy the nexus requirement, nor the mere touching of a weapon. Here, the evidence shows that the burglars were interrupted when the homeowner returned home, highlighting the potential for violence that exists when a firearm is taken during a burglary of a residence.

¶52 The concurrence also undercuts its own misstatements regarding the purpose of the deadly weapons enhancement by quoting State v. Johnson, 94 Wn. App. 882, 896, 974 P.2d 855 (1999), where the Court of Appeals noted that the enhancement is aimed at preventing the potential for violence that is more dangerous to the victim, bystanders, or police if the defendant is armed while committing the crime. Concurrence at 436.

¶53 When a burglar takes a weapon, it is that much easier for the burglar to get away with the crime, and that much easier for the crime to escalate. It is not actual violence alone that the legislature perceived as necessitating the statutes’ enhancing penalties or degrees of offenses when the defendant is armed, it is also the potential for violence.

¶54 The majority concludes, however, that there is no evidence of the defendant’s intent or willingness to use the rifle in furtherance of the crime. Majority at 432. But in doing so, the majority adds a condition to the nexus requirement that does not appear in any of this court’s prior cases.

¶55 Evidence of willingness to use a firearm as a deadly weapon is not required for purposes of first degree burglary. State v. Hall, 46 Wn. App. 689, 695, 732 P.2d 524 (1987); accord Speece, 56 Wn. App. at 418. “Possession of a deadly weapon tends to escalate the possibility of violence by *444anyone discovering a burglary in progress.” Faille, 53 Wn. App. at 115. Evidence of intent to use the weapon or of willingness to use it is also not required to satisfy the “nexus” requirement, as it has been adopted by this court. None of our cases require proof of intent to use a firearm or evidence of willingness to do so in furtherance of the crime.

¶56 The requirement also does not accord with legislative intent. The burglary and sentence enhancement statutes are not directed solely at people who actually use or intend to use deadly weapons to commit their crime or who exhibit willingness to do so. The legislature intended “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.” Gurske, 155 Wn.2d at 138, ¶ 11 (emphasis added). When enacting the “Hard Time for Armed Crime Act” of 1995 (Initiative Measure 159), the legislature recognized that armed criminals pose a threat to public safety and “can turn any crime into serious injury or death.” Laws of 1995, ch. 129, § l(l)(a) (Initiative Measure 159). The legislature intended to deter armed crime, protect victims from armed crime, and protect the police. See Gurske, 155 Wn.2d at 139, ¶ 12. “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.' " Id. (quoting Laws of 1995, ch. 129, § l(l)(b) (Initiative Measure 159)).

¶57 The legislature’s goals are implicated whether the defendant actually intended to use the weapon or was willing to do so. The majority has improperly added a requirement that the statutes do not contain and that is unnecessary to meet legislative goals. And in claiming that our prior cases in fact demonstrate such a requirement, the majority misstates the analyses in the cases it cites. In neither State v. Eckenrode, 159 Wn.2d 488, 494, ¶ 14, 150 P.3d 1116 (2007), nor Schelin, 147 Wn.2d at 574, did the court *445say that there must be evidence that the defendant actually intended to use the weapon or was willing to do so. That was never an issue. Instead, in both cases at the cited pages, the court was addressing the question whether there was sufficient evidence of a connection between the weapon and the crime. .

¶58 The majority also reasons that the rifle was merely valuable property. Majority at 432. Legislative goals are implicated whether the defendant brings the weapon to the scene of the crime or steals it and thereby has it available for use during the course of a burglary. See, e.g., Williams v. State, 517 So. 2d 681, 682 (Fla. 1988) (purpose of mandatory minimum sentence is “to discourage the possession of a firearm at any time during the course of a criminal endeavor”; sentence properly imposed where the defendant possessed firearms stolen during the course of a burglary); State v. Herbert, 601 N.W.2d 210 (Minn. Ct. App. 1999) (for purposes of sentence enhancement, a person who arms himself with a firearm stolen during a burglary is armed at the time of the offense; the danger the sentence enhancement statute seeks to address, increased risk of violence, arises not only when a burglar carries a firearm onto the premises, but also when a firearm is obtained during the course of the offense); Creasy v. Commonwealth, 9 Va. App. 470, 473, 389 S.E.2d 316 (1990) (mandatory minimum sentence based on the use or display of a weapon in committing a felony was properly imposed where the defendant was convicted of use of a firearm in the commission of a burglary where firearm stolen during burglary; the purpose of the sentence is to deter violent criminal conduct and “the danger and risk of violent criminal conduct persists until the crime is completed in fact”).7

*446¶59 In several cases the Court of Appeals has affirmed determinations that a defendant who stole or attempted to take a weapon during a burglary was armed. See, e.g., Hall, 46 Wn. App. 689; Speece, 56 Wn. App. 412; Faille, 53 Wn. App. 111. In these cases the court’s focus appropriately has been on whether the weapon was easily accessible and readily available for offensive or defensive use, not on whether the weapon was an object of the burglary.

¶60 It makes no difference that the defendant here did not actually take the weapon. Whether Brown failed to complete the theft because he was interrupted by the victim’s return does not mean that Brown was not armed. The evidence shows that Brown or his accomplice took the rifle from the closet, placed it on the bed, and intended to take it with them. The witness’s testimony describing their wish that they could have gotten the weapon, and her testimony that she heard Brown say that he thought he could have obtained a lot of money for the weapon, shows they wanted to take the rifle with them but were thwarted when the victim interrupted the course of the burglary. The fact they left a pistol under the bed where it was stored either means they did not notice it or that they did not intend to take it, unlike the rifle. It certainly does not mean, as the majority reasons, majority at 432-33, that their actions with respect to the rifle did not implicate the legislature’s concerns.8

*447¶61 More importantly, the relevant inquiry is whether Brown was armed, not whether he actually took the weapon. The evidence shows that Brown was armed.

¶62 The majority’s analysis departs from our prior cases on the law, conflicts with the statutes and their underlying legislative goals, and utterly fails to give effect to the basic principle that evidence and the inferences from the evidence are viewed most favorably to the State.

¶63 The majority is also out of step with the overwhelming majority of courts considering the issue, which have held that a defendant is armed if he or she enters a building unarmed and then acquires a firearm as “loot.” See, e.g., Pardue v. State, 571 So. 2d 333 (Ala. 1990) (a burglar is armed with a deadly weapon where he acquires a gun as loot during the burglary); Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992) (individual who broke into locked rooms and stole several firearms committed burglary while armed with a firearm); People v. Loomis, 857 P.2d 478 (Colo. App. 1992) (a defendant who steals a weapon during the course of a burglary may be found to have been armed if he or she had immediate access to the weapon during the offense); Hardee v. State, 534 So. 2d 706 (Fla. 1988) (defendant who steals a firearm during a burglary may be convicted of armed burglary); Meadows v. Commonwealth, 551 S.W.2d 253 (Ky. Ct. App. 1977) (defendant who broke into a residence and stole a firearm was armed with a deadly *448weapon, and therefore was guilty of first degree burglary); Hayes v. Commonwealth, 698 S.W.2d 827 (Ky. 1985) (a defendant who enters a building unarmed and steals a firearm becomes armed with a deadly weapon); State v. Crews, 968 S.W.2d 763 (Mo. Ct. App. 1998) (a defendant is armed if he equips himself with a firearm for the purpose of stealing it); Merritt, 247 N.J. Super. at 430-31 (the term “armed” connotes not only possession but also immediate access to a weapon; under this definition, a person may become armed with a weapon obtained in a burglary; “[o]nce obtained during the course of the offense, a weapon may be as readily accessible to the perpetrator as if he had brought it to the scene initially”); State v. Luna, 99 N.M. 76, 653 P.2d 1222 (Ct. App. 1982) (a person who becomes armed with a firearm taken as loot during a burglary may be convicted of burglary while armed with a deadly weapon); State v. McCaskill, 321 S.C. 283, 285-86, 468 S.E.2d 81 (Ct. App. 1996) (one is armed for purposes of first degree burglary if a firearm is easily accessible and readily available for offensive or defensive purposes; where defendant and other participants committed a residential burglary and the evidence supported the inference that at some time during the course of the burglary one of them took possession and control over a firearm, “the weapon was just as available to the burglar for offensive or defensive use as if the burglar had himself brought the weapon to the burglary for the purpose of committing the crime”; defendant was armed for purposes of first degree burglary); Britt v. State, 734 P.2d 980 (Wyo. 1987) (the defendant became armed with a deadly weapon where, during the course of a burglary, he and others stole firearms; defendant was properly convicted of aggravated burglary); see also Montana v. Ray, 2003 MT 171, 316 Mont. 354, 71 P.3d 1247 (a defendant is armed with a weapon when he or she steals a loaded weapon during the course of a burglary); cf. State v. Padilla, 1996-NMCA-72, 122 N.M. 92, 920 P.2d 1046 (a defendant arms himself with a deadly weapon when he steals a knife during a burglary but does not threaten to use or use the knife). But see State v. Befford, 148 Ariz. 508, 715 *449P.2d 761 (1986) (prosecution must show that the defendant had the willingness or present ability to use the weapon).9

¶64 Many of these courts correctly reason that the risks of potential violence “are as fully present when the burglar steals a firearm from within the building as when the burglar arrives already armed.” Wesolic, 837 P.2d at 133; see also Loomis, 857 P.2d at 481 (even if a burglar did not intend to use the weapon, its use might follow if he or she is confronted by the police, the property owner, or a bystander; thus, the potential for danger may be escalated when the burglar becomes armed with a deadly weapon); Meadows, 551 S.W.2d at 256 (“[c]ertainly the possession of a deadly weapon inside a dwelling or any other building during the course of a burglary or while fleeing therefrom is ‘indicative of . . . potential dangerousness’ ” (alteration in original) (quoting Appellant’s Br.)); Britt, 734 P.2d at 982 (possession of a firearm inside a building or while fleeing from a building “certainly tends to escalate a dangerous situation”).

¶65 Finally, a defendant does not have to be armed at the time of the arrest to be found to have been armed during the commission of the offense. State v. O’Neal, 159 Wn.2d 500, 504, 150 P.3d 1121 (2007).10 The State does not have to establish with mathematical precision the specific time and place that a firearm was readily available and easily accessible, provided that it was at the time the crime was committed. Id. Accordingly, just because a defendant is not found at the scene of the crime with the weapon is not a *450ground to conclude the defendant was not armed at the time the crime was committed.

CONCLUSION

¶66 The evidence is clearly sufficient to support the trial court’s finding and conclusion that Brown was “armed” for purposes of first degree burglary and the sentence enhancement. In reaching a contrary conclusion, the majority completely fails to consider the evidence in the light most favorable to the State as is required.

¶67 Even more alarming, the majority also requires evidence that the defendant intended or was willing to use the weapon in furtherance of the crime. Under our cases this has never been a condition that must be satisfied for the defendant to be found armed at the time of commission of a crime. The majority’s sub silentio overruling of our prior cases addressing the nexus requirement will make it virtually impossible to prove a defendant was armed in too many cases to contemplate. The majority’s analysis is absolutely irreconcilable with the people’s initiative to the legislature that the legislature enacted as the Hard Time for Armed Crime Act.

¶68 I dissent.

Bridge, Owens, and Fairhurst, JJ., concur with Madsen, J.

Whether Brown or his accomplice moved the rifle and clip makes no difference. First, as to the firearm sentence enhancement, under former RCW 9.94A.510(3) (2000) (recodified as RCW 9.94A.533(3)), an enhanced sentence is required “if the offender or an accomplice was armed with a firearm.” (Emphasis added.) As to the first degree burglary statute, RCW 9A.52.020(1), a person may be convicted of first degree burglary if “with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon.” (Emphasis added.) Thus, although, as Mr. Brown points out, the evidence at trial does not establish whether he or his accomplice removed the rifle from the closet or which of them placed it on the bed, this does not matter. The evidence at trial supports the conclusion that Brown was a participant in the burglary and that during the course of the burglary, either he or his accomplice moved the rifle from the closet and placed it on the bed.

This risk of violence and escalating danger exists if the deadly weapon is an unloaded firearm. Whether a firearm is loaded or unloaded, it can be used to frighten, intimidate, and control others. Creasy, 9 Va. App. at 473. In addition, others may not know the weapon is unloaded, and in a volatile situation the property owner or a law enforcement officer may respond with deadly force to the perceived danger posed by an individual with a gun. The statutory definition of “deadly weapon,” which applies to the burglary statutes, includes an unloaded *446firearm. RCW 9A.04.110(6) (“[i]n this title unless a different meaning plainly is required . . . “Deadly Weapon’ means any . . . loaded or unloaded firearm”). The same is true for purposes of determining whether an individual is armed for the purpose of sentence enhancements. The court noted in Schelin, 147 Wn.2d at 567 n.2, that a firearm is considered a deadly weapon whether it is loaded or unloaded. See also, e.g., State v. Sullivan, 47 Wn. App. 81, 85, 733 P.2d 598 (1987) (an unloaded firearm is a deadly weapon per se); see 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.07.02, at 46 (2d ed. Supp. 2005).

It also does not matter, contrary to Mr. Brown’s argument, that the gun was not moved during the burglary to a centralized location generally accessible to the defendant where other stolen items were stored as well. He relies on Hall, 46 Wn. App. at 695-96, where the guns were removed from the house and placed in the defendant’s trunk, and Faille, 53 Wn. App. at 112, 114-15, where guns removed from the house were stored in bushes outside the house. He says that here the rifle was merely removed from the closet and placed on the bed where it was no more accessible than it was in the closet. He adds that there was no evidence the rifle *447ever left the room where the homeowner kept it, it was in one bedroom of a two-story house, and there was no evidence that he or Lenny Brown spent a significant amount of time near the rifle.

The evidence shows that Brown or Lenny Brown placed the rifle on the bed in the course of committing the crime of burglary, establishing a reasonable inference that the weapon was easily accessible and readily available during commission of the crime. This is not a case, such as in Valdobinos, where there was no evidence that the rifle had been used or was readily available for use during the commission of a crime against a victim or other person. Gurske, 155 Wn.2d at 140, ¶ 13 (discussing Valdobinos). Rather, this case is more like Willis, where the court held that evidence that the defendant handled the weapon in the car on the way to commit a burglary and broke down the door of the residence to be burglarized, and that police found the weapon in the vehicle, was sufficient to establish that the defendant was armed in the commission of the crime. Willis, 153 Wn.2d at 368, ¶ 14, 375, ¶¶ 26-27.

Befford has been superseded by a statute clarifying the legislature’s intent that “armed” means to “knowingly possess.” See State v. Tabor, 184 Ariz. 119, 907 P.2d 505, 506 (Ct. App. 1995).

Many courts have held that whether the firearm is loaded or unloaded is immaterial either because there is a specific state statute that includes unloaded firearms within the definition of deadly weapon, as in this state, or because the particular court reasons that the risk of escalating danger and violence exists whether the firearm is loaded or unloaded. E.g., Loomis, 857 P.2d at 481-82; Hardee, 534 So. 2d 706; Luna, 99 N.M. 76; see also Crews, 968 S.W.2d 763 (because the legislature defined a “deadly weapon” as any firearm, whether loaded or unloaded, it is immaterial whether the defendant loaded the firearm or knew that it was loaded).