Opinion
No. 60959-9-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-00575-1, Kenneth L. Cowsert, J., entered December 4, 2007.
Affirmed by unpublished per curiam opinion.
A court may enhance a sentence if a defendant was armed with a deadly weapon "at the time of the commission of the crime." Because Matthew Korzelius was armed at the time he unlawfully entered the victim's home, the trial court properly imposed a deadly weapon enhancement to his sentence. We affirm.
RCW 9.94A.602.
Early in the morning of February 13, 2007, M.C., a minor, was home alone and awoke to the sound of intruders in her house. She called 911. When police arrived and searched the home, they found Korzelius hiding in a closet. Korzelius did not cooperate with the officers' orders. He threw objects at the officers from the closet. The situation continued to escalate, and the officers eventually gained control of Korzelius by shooting and wounding him.
Korzelius had a knife sheath on him. He had carried a knife into the house with a blade more than three inches long. The officers found the knife in a bedroom at the other end of the house from the closet where they found Korzelius. The knife was not accessible to Korzelius when he assaulted the officers.
The State charged Korzelius with two counts of first degree burglary. Count I alleged that Korzelius committed burglary, elevated to first degree by virtue of being armed with a deadly weapon (a knife). Count II alleged that Korzelius committed burglary, elevated to first degree by virtue of having committed assault during the course of the burglary. Pursuant to RCW 9.94A.602, each count also carried a sentencing enhancement allegation that Korzelius "was armed with a deadly weapon other than a firearm, to wit: a knife."
Clerk's Papers at 39-40.
Following a bench trial, the court issued an oral ruling on November 30, 2007. The court entered written findings of fact and conclusions of law on January 25, 2008.
As to count I, the trial court found Korzelius guilty of the lesser-included offense of residential burglary. The court concluded, "there is no evidence that the defendant used the knife for any purpose. Thus, the court does not find that the State has proved that the defendant was armed for purposes of the `armed' element of the [first degree] burglary statute." Nevertheless, the court found beyond a reasonable doubt that Korzelius was armed with a deadly weapon for purposes of the sentencing enhancement.
Clerk's Papers at 4-5.
The trial court also found Korzelius guilty of count II based on his assault of the officers during the commission of the burglary. The court found beyond a reasonable doubt that the defendant was armed with a deadly weapon when he committed the first degree burglary for purposes of the sentencing enhancement. The court concluded that "[i]t is legally irrelevant that [Korzelius] put the knife down at some point before he committed the assault which elevated the crime from a residential burglary to a first degree burglary."
Clerk's Papers at 6.
The court found that both counts were part of the "same criminal conduct" under RCW 9.94A.589. The judgment and sentence indicates that the court imposed no sentence as to count I "because of merger."
The court imposed a 48-month sentence for count II, plus 24 months for the deadly weapon enhancement, for a total of 72 months.
The trial court denied Korzelius's motion to reconsider its decision on the deadly weapon sentencing enhancement. Korzelius appeals.
DEADLY WEAPON SENTENCING ENHANCEMENT
Korzelius argues that the trial court erred by imposing a deadly weapon sentencing enhancement to his first degree burglary conviction. He argues that he could not have been "armed" for purposes of RCW 9.94A.602 because he was not armed at the time he assaulted the officers. We hold that he was armed for purposes of the enhancement because he was armed while in the process of committing burglary under count II.
We review a trial court's findings of fact for substantial evidence. We review conclusions of law de novo. Unchallenged findings of fact are verities on appeal.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
We review questions of statutory interpretation de novo. When the statute's meaning is plain, we give effect to that plain meaning as an expression of legislative intent.
State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003).
Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
A court may enhance a sentence if a defendant was armed with a deadly weapon while committing a crime. RCW 9.94A.602, the deadly weapon sentence enhancement statute, provides:
In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime. . . .
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: . . . any knife having a blade longer than three inches. . . .
RCW 9.94A.602 (emphasis added).
RCW 9.94A.602 (emphasis added).
Under the statutory scheme, the sentencing enhancement applies if the defendant "was armed with a deadly weapon at the time of the commission of the crime." The crime here is first degree burglary, not the assault of the officers. A person is guilty of first degree burglary under the relevant portion of the statute, "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 . . . (b) assaults any person."
RCW 9.94A.602.
The court found Korzelius guilty because he unlawfully entered a building, and, while in the building, he assaulted police officers. The trial court applied the sentencing enhancement because Korzelius was armed with a deadly weapon — a knife with a blade longer than three inches — at the time he unlawfully entered the building, and for some portion of the time he remained therein. While it is undisputed that Korzelius was not armed at the time he committed assault, the State did not have to prove that Korzelius was armed during each and every element of the crime of burglary. It was only necessary for the State to prove that he was armed at the time of the commission of the crime of burglary. The time of the commission of the crime includes the time that he unlawfully entered the home. The trial court did not err.
Korzelius argues that an offender must be armed with a deadly weapon "at the time of the commission of the specific crime" in order to become eligible for a sentence enhancement. The specific crime here was first degree burglary, elevated to the first degree because "the defendant . . . did assault a person" in the course of the burglary. Korzelius argues that the sentencing enhancement should therefore only apply if he had been armed with a deadly weapon at the time he assaulted the police officers. We do not interpret the phrase "the crime" to encompass such a segmented, moment-by-moment view of criminal activity. Nor does any case authority that we have found.
Korzelius also argues that the enhancement was improper because the trial court found that there was not enough evidence to convict him of first degree burglary on count I. But the definition of "deadly weapon" for purposes of an element of a crime is different from the definition provided by the sentencing enhancement statute. RCW 9A.04.110(6), which defines deadly weapon for purposes of first degree burglary, defines the term with respect to "the circumstances in which" the weapon "is used, attempted to be used, or threatened to be used." In contrast, RCW 9.94A.602 includes a list of per se deadly weapons. Korzelius's knife was per se a deadly weapon. It had a blade longer than three inches. This difference in definitions was the basis on which the trial court reduced count I while at the same time concluding that the sentencing enhancement was proper.
We also reject Korzelius's challenge to the sentencing enhancement on grounds that there was an insufficient nexus between the deadly weapon and the crime. It is true that a person is "armed" while committing a crime if he or she can easily access and readily use a weapon and if a nexus connects the defendant, the weapon, and the crime. As explained above, the relevant crime is the burglary, not any one particular element of the burglary. The cases that Korzelius cites for support involve situations where the sentencing enhancement was applied after police found weapons in searching the defendant's home or vehicle. In such situations, the court was concerned with avoiding punishment for the mere possession of an otherwise lawful item:
State v. Neff, 163 Wn.2d 453, 462, 181 P.3d 819 (2008).
See Neff, 163 Wn.2d 453 (officers found three handguns in defendant's garage, a suspected methamphetamine manufacturing laboratory, during search with warrant); State v. Barnes, 153 Wn.2d 378, 103 P.3d 1219 (2005) (officer found handgun in defendant's vehicle during search incident to DUI arrest and rifle in defendant's trunk after search with warrant); State v. Samaniego, 76 Wn. App. 76, 882 P.2d 195 (1994) (officers found knife with a 4-inch blade in defendant's car during search incident to arrest); State v. Schelin, 147 Wn.2d 562, 55 P.3d 632 (2002) (officers found a firearm hanging from a nail on the wall in defendant's home during consent search).
This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired. . . ." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.
Neff, 163 Wn.2d at 462 (citations omitted).
Neff, 163 Wn.2d at 462 (citations omitted).
Here, the defendant did not have mere possession of a weapon. He brought a deadly weapon with him when he unlawfully entered the house, committing the crime of burglary.
DOUBLE JEOPARDY
The State correctly concedes that the trial court should not have entered judgment of conviction with regard to count I: Residential Burglary against Korzelius. That charge properly merges with count II.
We vacate the judgment and sentence to the extent of the conviction on count I and remand for correction of the judgment and sentence and commitment order. We otherwise affirm.