State v. Schelin
| Citation | 147 Wn.2d 562,147 Wash.2d 562,55 P.3d 632 |
| Decision Date | 17 October 2002 |
| Docket Number | No. 70710-3.,70710-3. |
| Parties | STATE of Washington, Respondent, v. Mark Logan SCHELIN, Petitioner. |
| Court | United States State Supreme Court of Washington |
Douglas Phelps, Spokane, for Petitioner.
Steven Tucker, Spokane County Prosecutor, Kevin Korsmo, Deputy, Andrew Metts, Deputy, Spokane, for Respondent.
This court granted review of a Court of Appeals' decision affirming application of a deadly weapon sentencing enhancement pursuant to former RCW 9.94A.310 (2000). The defendant was convicted of manufacturing marijuana and manufacturing marijuana with intent to deliver. Finding the defendant was in close proximity to a deadly weapon that he could have easily and readily used for offensive or defensive purposes in connection with his marijuana grow operation, we affirm the Court of Appeals.
On August 21, 1996, a search warrant was executed at the home of Mark Logan Schelin (Schelin) shared with his girl friend, Mutsako Lundquist. The police knocked at Schelin's door, and Lundquist permitted them to enter and search their two-bedroom home, which contained a partial basement. When police entered the home, Schelin was in the basement at the bottom of the stairs. Police ordered Schelin to walk up the stairs, and he was then handcuffed.
When officers searched the basement, they found a loaded revolver stored in a holster, hanging from a nail on a wall, approximately 6 to 10 feet away from where Schelin had been standing.
The basement contained two rooms and a laundry room. In one of the rooms, police discovered 70 rooted marijuana plants and 50 starter plants.1 In another room, which Schelin identified as his bedroom, large amounts of harvested marijuana, dried marijuana leaves, scales, packaging materials, weapons, a militia handbook, $50,000 in gold coins, and cash were found.
Schelin was read his constitutional rights, but chose to waive those rights. He admitted to living in the home, growing marijuana, and owning the gold coins, cash, and firearms.
Schelin was arraigned and charged with possession of a controlled substance with intent to manufacture (marijuana). The charges were subsequently amended to charge him with possession of a controlled substance with intent to manufacture (marijuana) while armed with a deadly weapon (firearm) and possession of a controlled substance with intent to deliver (marijuana) while armed with a deadly weapon (firearm).
The trial court granted Schelin's pretrial motion to suppress the militia handbook and all weapons except the gun holstered on the wall in the basement near the bedroom and grow operation.
Schelin's defense was that the marijuana was for his own personal use in treating Delayed Stress Syndrome (DSS). Schelin testified he experienced guilt from not having faced actual combat during an army tour of duty in Vietnam. Schelin claimed his DSS caused him to regularly experience ringing in his ears that was relieved by marijuana use. Schelin testified the ringing in his ears prevented him from fully understanding his constitutional rights and led to his waiving those rights.
With regard to the loaded revolver, Schelin testified that his girl friend was frightened of her ex-husband. Schelin explained that the gun was used to protect his home from invasion by Lundquist's estranged spouse and that he kept the gun near his bedroom in the event the home was broken into at night.
Schelin was convicted on April 9, 1998 of one count of possession of a controlled substance with intent to manufacture and one count of possession of a controlled substance with intent to deliver. By special verdict, the jury also found Schelin "armed" with a deadly weapon as to both counts pursuant to former RCW 9.94A.125 (1983). Schelin was sentenced to 45 months of confinement, including 18 months for the weapon enhancements.
The Court of Appeals affirmed Schelin's conviction, the deadly weapon enhancement, and the sentence. State v. Schelin, 104 Wash.App. 48, 14 P.3d 893 (2000).
The sole issue is whether Schelin was "armed" during the commission of his crimes for purposes of the deadly weapon sentencing enhancement authorized by former RCW 9.94A.310(3).
"Whether a person is armed is a mixed question of law and fact." State v. Mills, 80 Wash.App. 231, 234-35, 907 P.2d 316 (1995). In the case before us, Schelin does not dispute that a deadly weapon was hanging near where he had been standing. Thus, we determine whether the facts are sufficient, as a matter of law, to prove that Schelin was armed. This is a question of law to be reviewed de novo. Id.
Former RCW 9.94A.125 authorizes finding a special verdict as to whether a defendant is "armed" with a deadly weapon at the time of the commission of the crime. In relevant part, the statute provides:
In 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 jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant ... was armed with a deadly weapon at the time of the commission of the crime.
Further, the statute also defines a deadly weapon as follows:
For purposes of this section, a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon:... pistol, revolver, or any other firearm
. . . .
Id. (emphasis added).
The jury was informed by instruction 21 that "[a] pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded" and that "[a] person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use." Clerk's Papers (CP) at 176. Instruction 22 further informed the jury that a deadly weapon is "an instrument which has the capacity to inflict [death] and from the manner in which it is used is likely to produce or may easily or readily produce death." CP at 177.2
Defining "Armed"
Schelin contends that the trial court should have dismissed the deadly weapon allegation against him because the State did not meet its burden of proving he was "armed" during the commission of manufacturing and possessing with intent to deliver marijuana. The test for determining when a defendant is "armed" under former RCW 9.94A.125 was articulated by this court in State v. Valdobinos, 122 Wash.2d 270, 282, 858 P.2d 199 (1993). In Valdobinos, police discovered an unloaded .22 rifle under the defendant's bed while executing a warrant to search for evidence of illegal drug sales. Drugs and money were also found under the bed. The Valdobinos court held that "[a] person is `armed' if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes." Id.
Applying this test, the Valdobinos court ruled that evidence of an unloaded rifle under a bed "without more" was insufficient to show a defendant is "`armed' in the sense of having a weapon accessible and readily available for offensive or defensive purposes." Id. The Valdobinos court clearly established that mere constructive possession is insufficient to prove a defendant is "`armed' with a deadly weapon during the commission of a crime" as required by former RCW 9.94A.125. Id.
In addition to the test announced in Valdobinos, subsequent cases have refined the nexus required in a constructive possession case. Under a two-part analysis, there must be a nexus between the weapon and the defendant and between the weapon and the crime.
In formulating its test, the Valdobinos court relied on State v. Sabala, 44 Wash.App. 444, 723 P.2d 5 (1986). In Sabala, a drug possession case, the court concluded that a defendant in constructive possession of a deadly weapon under the driver's seat of the car he or she is driving is armed because the defendant has an "easily accessible and readily available weapon" at his or her disposal. Id. at 448, 723 P.2d 5.
Mills furthers the analysis by assuring that parameters are placed on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession. State v. Mills, 80 Wash.App. 231, 235-37, 907 P.2d 316 (1995). In Mills, the defendant was arrested near his home, and while in custody, the officers found a motel key Mills had attempted to hide between the patrol car seat cushions. After obtaining a warrant for the motel room, a search yielded methamphetamine and a pistol in a pouch lying beside the narcotics. The court found no evidence that the defendant had been present at the motel room on the date stated in the charging document. Id. at 237, 907 P.2d 316.
The Mills court considered two constructive possession cases, State v. Call, 75 Wash. App. 866, 880 P.2d 571 (1994), and State v. Taylor, 74 Wash.App. 111, 872 P.2d 53 (1994).
In Call, police recovered three handguns while executing a search warrant for evidence of narcotics sales. The defendant's proximity to the drugs recovered was not set forth in the facts of that case, but the defendant entered the bedroom where the guns were found and returned "unarmed." "Based on these facts, the Call court concluded that the evidence was insufficient to prove that the defendant had easy access to the guns." Mills, 80 Wash.App. at 236, 907 P.2d 316 (citing Call, 75 Wash.App. at 869, 880 P.2d 571).
The Mills court noted by contrast that in Taylor, the defendant was "armed" within the meaning of former RCW 9.94A.125. In that case, police entered defendant Taylor's apartment to conduct...
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