State v. Neff ( 2008 )

¶54 (concurring in part, dissenting in part) — I agree with the lead opinion that “Neff did not knowingly waive his right to appeal.” Lead op. at 461. However, because the lead opinion fails to properly analyze the substance of his appeal, I must dissent.

Sanders, J.

¶55 Analyzing Neff’s firearm enhancement, the lead opinion correctly opines:

The State may not punish [Roy] Neff for owning guns, for keeping them loaded, or for keeping them easily accessible. However, it could enhance his drug manufacturing sentence where it proved beyond a reasonable doubt that Neff used them to defend his drug operation.

Lead op. at 465. However I disagree “a rational fact finder could have so found” on these facts. Id.

¶56 The lead opinion’s conclusion is at odds with the facts stipulated, as well as the legal authorities upon which it relies. The lead opinion begins by claiming, “we will affirm if sufficient evidence supports the conviction beyond a reasonable doubt, construing the facts in the State’s favor.” Id. at 461 (citing State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003)). DeVries, however, involved a contested trial, not a trial on stipulated facts. Here we are as able to review these facts as the trial court; in doing so we are not at liberty to vary them but must accept them at face value. See State v. Rowe, 93 Wn.2d 277, 280, 609 P.2d 1348 (1980) (holding facts and conclusions of the trial court based on a written record are reviewed de novo).⁸

¶57 The lead opinion claims the operative facts are these:

When they searched Neff’s garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage’s rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State’s favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds.

Lead op. at 464. Elsewhere the lead opinion acknowledges Neff was not in the garage when police arrived. Id. at 456-57.

¶58 There is no basis in this record to support an inference that a pistol hanging from a tool belt in the garage rafters was within “easy reach” of someone in the garage. In fact the police did not even see the pistol during the initial warrantless search of the garage, a fact inconsistent with it being in “easy reach.” Clerk’s Papers (CP) at 204. Where the State fails to present evidence of a material fact, the court must continue to presume the defendant’s innocence regarding that fact. State v. Crediford, 130 Wn.2d 747, 759, 927 P.2d 1129 (1996) (“every person accused of a crime is constitutionally endowed with an overriding presumption of innocence, a presumption that extends to every element of the charged offense”). Since the State bears the burden to prove the guns were within “easy reach,” the State’s failure to present any evidence to that effect requires us to assume the guns were not within “easy reach” to maintain Neff’s presumption of innocence.

¶59 Citing State v. Schelin, 147 Wn.2d 562, 567-68, 55 P.3d 632 (2002) and State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993), the lead opinion articulates the rule that “[a] person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime.” Lead op. at 462. The lead opinion goes on to state in a continuing crime, like a drug manufacturing operation, “a nexus obtains if the weapon was ‘there to be used,’ which requires more than just the weapon’s presence at the crime scene.” Id. (quoting State v. Gurske, 155 Wn.2d 134, 138, 118 P.3d 333 (2005)). I would add, to prove a firearm was used to commit a crime, the State must prove the individual was armed with a deadly weapon at the time of the commission of the crime, because punishment based solely on the possession of a firearm violates our constitutional right to bear arms. See State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007).

¶60 I would apply the aforementioned legal principles as follows. First, there is simply no evidence that Neff could easily access and readily use a weapon for two reasons: (1) he was not in the building where the weapons were located and (2) even if he had been, the evidence fails to prove they were easily accessible. Two of the guns were locked in the safe, which was in turn locked within the garage, and there is no evidence that Neff even had the keys to the safe. But even if he did, guns stored behind two sets of locks are not “easily accessible and readily usable.”⁹ As to the pistol hanging from the rafters, there is simply no evidence that it was easily accessible, and the inference is to the contrary. We have no business excusing the State from carrying its burden to prove a critical fact.

¶61 The second element to be proved by the State is the nexus connecting the defendant, the weapon, and the crime, which must be proved with more “than just the weapon’s presence at the crime scene.” Lead op. at 462. However, for the reasons stated above, that is all we have. A citizen exercising his right to keep and bear arms has to keep the arms someplace — and what better place than locked in a safe or out of reach on a high rafter? Neff had no actual possession of these firearms, he did not actually use the firearms to facilitate the crime in any way, and he simply exercised his constitutional right to keep and bear arms.¹⁰ In the words of the statute, he was not “armed.” RCW 9.94A.533(3).

¶62 Finally, the lead opinion’s analysis leads to absurd results. Under its view Neff was “armed” at all times, even while running errands around the city without his weapon at his side. He would be “armed” in the lead opinion’s view even if he spent a couple nights in jail for an unrelated misdemeanor. In terms of the rationale behind the firearm enhancement, it is hard for me to conceive of how “the risk of serious harm to others is greater,”¹¹ when an individual does not even have the firearm immediately available for use against another person. But the lead opinion opens the door to this absurd result by holding a person may be “armed” even though he is not near the weapon with which he is supposedly armed and the weapon is in a locked safe or out of reach in a rafter. While the lead opinion gives the constitutional right to bear arms lip service, it seems to do in fact what it eschews in principle: enhance a sentence merely because a gun is present at the scene of the crime.

¶63 The lead opinion also goes beyond prior precedents of this court. We have previously opined whether proximity to the weapon is a requirement for a firearm enhancement.

In Valdobinos,[¹²] . . . the defendant was not in close proximity to the weapon when it was discovered, nor was there any evidence that he had been at a time when availability for use for offensive or defensive purposes was important. In Schelin,[¹³] however, the defendant was close to the easily accessible and readily available weapon at the time the police entered the house.

Gurske, 155 Wn.2d at 141. By ignoring the relative positions of the defendant and the firearms, the court has turned its back on facts it previously found determinative. Simply put, the court allows the State to punish Neff for simply owning firearms, which is his constitutional right.

¶64 In addition to relaxing the “easily accessible” requirement, the lead opinion also relaxes the nexus requirement, requiring little more than constructive possession of a weapon. The lead opinion holds the simple presence of a security camera is sufficient to create a nexus between the firearm and the manufacture of methamphetamine. The lead opinion allows the judge to “infer from the [security cameras] that Neff used the guns to protect his drug operation.” Lead op. at 464. However, the facts failed to prove the camera system was functional, nor was there evidence demonstrating Neff intended to use, or actually used, the cameras to physically protect his lab.¹⁴ Unlike the police scanners found in State v. O’Neal, 159 Wn.2d 500, 150 P.3d 1121 (2007) and Eckenrode, 159 Wn.2d 488, a security camera can be used for purposes other than monitoring the actions of police officers. The evidence presented fails to demonstrate facts sufficient to support an inference Neff used the cameras to protect his operation and certainly fails to demonstrate he planned to use the firearms in concert with the cameras to protect the operation. And, as a matter of stipulated fact, we know he did not.

¶65 An individual does not waive his right to bear arms simply because he may commit a criminal act. Rather, the State must prove beyond a reasonable doubt the individual was armed to further the criminal act and not for some other reason. However today’s opinion allows judges and juries to infer an individual is armed whenever he stores firearms, without evidence of accessibility, even where the defendant is not in the same building as the firearms. It further allows the fact finder to infer the firearms are used to protect a criminal enterprise whenever the defendant owns unrelated equipment which may be used to protect the enterprise. Neff may have manufactured methamphetamine, but it takes the lead opinion to manufacture a firearm enhancement.

¶66 Accordingly I concur in part and dissent in part.

Reconsideration denied June 24, 2008.

8 As the lead opinion points out, the stipulated facts relied upon by the trial court judge also included live testimony regarding the initial warrantless search of the garage but not the later execution of the search warrant. Although facts garnered through live testimony are subject to more deferential review, little testimony related to the issue here. See State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

9 No Washington court has held a gun in a safe is “easily accessible” to a defendant. In State v. O’Neal, 159 Wn.2d 500, 503, 150 P.3d 1121 (2007), the defendants had more than 20 guns, most of which were located in two safes, only one of which was locked. The court did not consider whether the defendants were armed with these weapons, examining only the accessibility of the two weapons not held in the safe. Id. at 504. However, as we have previously held, a gun contained in a backpack behind the driver’s seat is not readily accessible. Gurske, 155 Wn.2d at 137. It is hard to conceive how a weapon in a locked safe and under a desk is more accessible than a gun held in a backpack behind the driver’s seat.

10 The Supreme Court, like this court, has required “more than mere possession” of a firearm to punish a defendant under a similar federal firearms law. Bailey v. United States, 516 U.S. 137, 143, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). The Court, appropriately, distinguishes between the active employment of a weapon and the storage of a weapon, which “would . . . embolden or comfort the offender” because of “its availability for intimidation, attack, or defense.” Id. at 149. While recognizing the value of storage to a criminal enterprise, the Court held only the active employment of the weapon was “using” the weapon to facilitate a drug operation. Id. at 148-49. Although the federal version of the statute punishes “use” of a gun during a felony, and not the criminal’s being “armed” during the felony, the Court’s distinction seems to accurately address the danger envisioned by the Washington statute. Namely, the danger an individual would actively brandish a weapon to facilitate a crime, not the inchoate risk of future use stemming from mere possession.

11 Gurske, 155 Wn.2d at 138.

12 Valdobinos, 122 Wn.2d 270.

13 Schelin, 147 Wn.2d 562.

14 The lead opinion incorrectly indicates the police officer “testified” the cameras and serpentine driveway “were for countersurveillance.” Lead op. at 457. The officer indicated in his report, not testimony, the cameras could be used for countersurveillance but provided no evidence Neff used them for this purpose. CP at 216.