Opinion
No. 36203-1-II.
June 24, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03361-4, Thomas P. Larkin, J., entered April 6, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
Michael Fletcher Knaus appeals following his convictions of first degree assault, first degree burglary, first degree unlawful possession of a firearm, and first degree unlawful possession of a controlled substance, with firearm sentencing enhancements. He claims only that the State failed to show a nexus between his possession of a firearm and his possession of a controlled substance and asks this court to strike that enhancement. We affirm.
A violation of RCW 9A.36.011(1)(a).
A violation of RCW 9A.52.020(1)(a).
A violation of RCW 9.41.040(1)(a).
A violation of RCW 69.50.4013.
A violation of RCW 9.41.010.
Facts
The trial court entered the following unchallenged findings of fact and conclusions of law following a bench trial:
I.
That on July 21, 2006 an Information was filed charging the defendant with Count I, Assault in the First Degree; Count II Assault in the First Degree; Count III Burglary in the First Degree; Count IV Unlawful Possession of a Firearm in the First Degree and Count V Unlawful Possession of a Controlled Substance in the First Degree. Counts I, II, III and V included Firearm Sentence Enhancements. On the same date defendant was present for arraignment on the charges in Pierce County Superior Court and entered pleas of not guilty.
II.
On July 20, 200[6], defendant assaulted Robert Blakely inside Blakely's Puyallup area home at approximately 3:45 a.m. Robert Blakely was sleeping and was roused by his wife, Frances Blakely, who indicated that someone was inside their bedroom. Robert Blakely observed a person kneeling[,] then standing[,] next to Frances' side of the bed. Robert and Franc[e]s Blakely identified the intruder as Michael Knaus. Robert Blakely lunged at defendant and a struggle commenced. Frances Blakely was able to flee to an adjoining living room and kitchen. Robert Blakely noted that defendant was holding a silver firearm. A shot was fired from the handgun upon first contract between Robert Blakely and defendant. The struggle continued and 10-15 seconds later a second shot was fired. Both shots were fired by defendant. Neither shot hit a person. During the struggle Robert Blakely made efforts to unload the revolver while defendant tried to keep the revolver loaded. Defendant pulled the hammer back, making the revolver a single action weapon. Robert Blakely tried to take the revolver away from defendant while defendant tried to maintain control over the gun and to turn the barrel of the revolver toward Robert Blakely. Eventually Robert Blakely was able to take the gun away from defendant and throw it toward the living room. Shortly thereafter deputies arrived and defendant was arrested inside the Blakely[s'] bedroom.
III.
On July 20, 2006, defendant burglarized the residence of Robert and Frances Blakely. The Blakely[s] testified that they did not know defendant and had not given him permission to be inside their residence or their vehicles. After defendant was arrested deputies noted that some of the Blakelys' property was placed on the floor near the front door of the residence. The Blakelys denied that they placed the property there. A screen had been removed from an open kitchen window and other property had been stacked outside the open kitchen window. Defendant was in possession of keys to one of the Blakely[s'] vehicles when arrested. The Blakelys discovered that their vehicle had been prowled during the night prior to defendant's arrest. Defendant was wearing a head cover, gloves and was in possession of at least two multi-tool devices that included screwdrivers, knife blades and small pry attachments.
IV.
On July 20, 2006, defendant unlawfully possessed a firearm. While inside the Blakely residence defendant found Robert Blakely's handgun. The gun had been under Robert Blakely's side of the Blakely[s'] bed and was holstered. Defendant moved inside the Blakely residence with the gun for an unknown period of time until he was detected on Frances Blakely's side of the bed. The gun was no longer holstered. Defendant struggled with Robert Blakely to maintain possession of the firearm. Defendant admitted by written stipulation that he had previously been adjudicated guilty as a juvenile of a serious offense.
V.
Qualified technicians tested the firearm and determined it to be a fully functional .357 caliber revolver. The trigger pull was calculated to be approximately 3 to 3 1/4 pounds single action, and 10 1/2 to 11 pounds double action.
VI.
On July 20, 2006, defendant possessed a controlled substance, namely methamphetamine. A baggie containing a small quantity of suspected methamphetamine was located in a pouch or fanny pack that defendant was wearing when he was arrested inside the Blakely[s'] residence.
VII.
A qualified forensic technician with the Washington State [P]atrol Crime Lab tested the contents of the baggie found in defendant's fanny pack or pouch and confirmed the presence of the Schedule I controlled substance methamphetamine.
VIII.
At the close of evidence defendant moved to dismiss count II for insufficient evidence. The court granted defendant's motion.
IX.
At the close of eviden[ce] defendant moved to dismiss the gun enhancement associated with count V for insufficient evidence. The court denied defendant's motion.
X.
All of the events described in FOF II, III, IV and VI, above, occurred in the State of Washington. From the foregoing Findings of Fact, the Court makes the following Conclusions of Law.
CONCLUSIONS OF LAW I.
That the Court has jurisdiction of the parties and subject matter.
II.
That all relevant events or at least one element of the crime occurred in Pierce County.
III.
That MICHAEL FLETCHER KNAUS is guilty beyond a reasonable doubt of the crime of Assault in the First Degree as charged in Count I and that he was armed with a firearm at the time of the commission of the crime.
IV.
That MICHAEL FLETCHER KNAUS is guilty beyond a reasonable doubt of the crime of Burglary in the First Degree as charged in Count III and that he was armed with a firearm at the time of the commission of the crime.
V.
That MICHAEL FLETCHER KNAUS is guilty beyond a reasonable doubt of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count IV.
VI.
That MICHAEL FLETCHER KNAUS is guilty beyond a reasonable doubt of the crime of Unlawful Possession of a Controlled Substance as charged in Count V and that he was armed with a firearm at the time of the commission of the crime.
Clerk's Papers (CP) at 11-16. The sentencing court imposed standard range sentences for these offenses, totaling 361 months of incarceration.
The court imposed 229 months for count I, 102 months for count III, 54 months for count IV, and 18 months for count V. Additionally, the court imposed 60-month firearm enhancements on counts I and III, and imposed a 12 month enhancement on count V.
analysis
Knaus makes a single claim on appeal, arguing that the State failed to show a nexus between the methamphetamine and the firearm to support a firearm enhancement on count V.
A defendant is armed with a firearm during the commission of an offense if (1) "the weapon [is] readily accessible and easily available" for offensive or defensive purposes and (2) "there [is] some connection between the defendant, the weapon, and the crime. State v. Easterlin, 159 Wn.2d 203, 206, 149 P.3d 366 (2006) (citing 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)). The connection between the defendant, the weapon, and the crime is definitional and not an element of the offense. Easterlin, 159 Wn.2d at 206. Thus, a defendant challenging whether this connection existed is challenging the sufficiency of the evidence. Where the defendant actually, instead of constructively, possesses a firearm, the State will rarely need to prove more than actual possession unless some unique circumstance so requires. Easterlin, 159 Wn.2d at 209 n. 3 (giving examples of such circumstances, including possession of a ceremonial weapon for religious purposes or a kitchen knife in a picnic basket). "[T]he State does not have to produce direct evidence of the defendant's intent." Easterlin, 159 Wn.2d at 210. See also State v. Eckenrode, 159 Wn.2d 488, 494, 150 P.3d 1116 (2007) (sufficient evidence where defendant was armed and marijuana manufacturing operation pervaded home). But see State v. Brown, 162 Wn.2d 422, 431, 173 P.3d 245 (2007) (evidence did not show intent or willingness to use firearm lying on bed to further the crime).
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), this court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Here there was sufficient evidence for a trier of fact to conclude that there was a connection between Knaus, the weapon, and his possession of methamphetamine. He brought drugs into the residence, took possession of a handgun he found within the house, wrestled with the owner in an attempt to maintain possession of it, and fired it twice. Knaus used the firearm to facilitate his crimes and to prevent his apprehension. A rational trier of fact could conclude that, even though he committed other serious offenses as well, he used the weapon to prevent his apprehension because possessing methamphetamine would cause additional criminal punishment. Although analyzing the evidence under a different rubric, the Easterlin court held that actual possession of a firearm is almost always sufficient to show a nexus and that Easterlin's statements that he possessed drugs and was armed was sufficient for a trier of fact to find that he was armed to protect his drugs. 159 Wn.2d at 210. The facts here are no less compelling.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and HUNT, J., concur.