Mainsail
Member
The Ruling
IN THE SUPREME COURT OF THE STATE OF
WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 76100-1
)
v. ) En Banc
)
DON GLEN ECKENRODE, )
)
Petitioner. )
_____________________________ ) Filed January 25, 2007
CHAMBERS, J. -- In the "Hard Time for Armed Crime Act" of 1995,
the people of the State of Washington recognized that "[a]rmed criminals
pose an increasing and major threat to public safety and can turn any crime
into serious injury or death." Laws of 1995, ch. 129, § 1(1)(a) (Initiative 159
(I-159)). Accordingly, under I-159, defendants who commit armed crimes
generally receive enhanced sentences. Id.
Our constitution also guarantees the right to bear arms. Const. art. I,
§ 24. Over the years we have tried to harmonize both legal commands to
ensure that people are not punished merely for exercising this
constitutional right. To this end, to establish that a defendant was armed
for purposes of the sentencing enhancement, the State must prove that a
State of Washington v. Eckenrode (Don Glen), No. 76100-1
weapon was easily accessible and readily available for use and that there
was a nexus or connection between the defendant, the crime, and the
weapon. E.g., State v. Gurske, 155 Wn.2d 134, 138-39, 118 P.3d 333
(2005); State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
But we have not vacated sentencing enhancements merely because
a jury was not instructed that there had to be such a nexus. There is
another principle that bears on our review: whether any alleged
instructional error could have been cured at trial. We have found that the
defendant's failure to ask for the nexus instruction generally bars relief on
review on the ground of instructional error. See, e.g., State v. Willis, 153
Wn.2d 366, 374, 103 P.3d 1213 (2005).
In this case, the defendant did not seek a nexus instruction. We
have reviewed the record, and there was sufficient evidence to find a
connection between the crime, the defendant, and the gun, and to find that
the gun was readily available and easily accessible for offensive and
defensive use. Accordingly, we affirm the imposition of the firearms
enhancement.
FACTS
One afternoon, Pierce County 911 dispatch received a frantic call
from Don Glen Eckenrode, reporting that an intruder was in his house.
Eckenrode also alerted the dispatcher that he himself was armed and was
prepared to shoot the intruder. Eckenrode then hung up on the dispatcher.
2
State of Washington v. Eckenrode (Don Glen), No. 76100-1
Four well armed Pierce County Sheriff's Deputies responded within
minutes. But by that time, Eckenrode and his housekeeper were sitting on
lawn chairs in his front yard. Apparently confident that any danger had
passed, Eckenrode was playing a video game.
The deputies swept the house for intruders. None were found, but
deputies did notice what appeared to be methamphetamine, dried
marijuana, a loaded rifle, an unloaded Ruger pistol, and the overwhelming
smell of growing marijuana. On the strength of these observations, a
warrant was obtained and the home was searched more vigorously. Among
the many other signs of a marijuana growing operation scattered
throughout the house, deputies found 55 marijuana plants in various stages
of growth and a ledger appearing to record marijuana sales.
While still outside in his front yard, far from his weapons in the
house, Eckenrode was arrested. He was later charged with manufacturing
marijuana, unlawful possession of methamphetamine, and unlawful
possession of marijuana with intent to deliver, all while armed with a
firearm. Despite his testimony asserting unwitting possession, he was
convicted by a jury of unlawful manufacture and possession of marijuana.
The jury also found by special verdict that he was armed on both counts,
subjecting him to sentencing enhancements. RCW 9.94A.533(3), (4), .602.
At the Court of Appeals, Eckenrode challenged the firearm
enhancement instructions for the first time on the ground they did not
3
State of Washington v. Eckenrode (Don Glen), No. 76100-1
explicitly require the jury to find a nexus between him, his weapon, and his
crime. See State v. Eckenrode, noted at 117 Wn. App. 1086, 2003 Wash.
App. LEXIS 1721, *22-24. The Court of Appeals reached the merits of his
argument and found that the jury instructions, read as a whole, adequately
conveyed the requirement that there be such a nexus and affirmed. Id. at
*24. It affirmed again after an initial remand, State v. Eckenrode, noted at
123 Wn. App. 1013 (2004), and we took review. State v. Eckenrode, 155
Wn.2d 1024, 126 P.3d 820 (2005).
ANALYSIS
A. Firearms Enhancements
A person is potentially subject to a deadly weapons enhancement if
armed while committing a crime. RCW 9.94A.533(3), (4), .602. Again, the
legislative findings of the hard time for armed crime initiative specifically
state that armed criminals were creating an increasing threat to public
safety, turning any crime into one where serious injury or death to the
victims, the public, or the police was a possibility. Laws of 1995, ch. 129, §
1(1)(a) (I-159); see also Gurske, 155 Wn.2d at 138-39.
The statutes relating to weapons enhancements do not define what it
means to be armed. See RCW 9.94A.533, .602. After consideration we
held that "[a] person is 'armed' if a weapon is easily accessible and readily
available for use, either for offensive or defensive purposes." State v.
Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993); see also,
4
State of Washington v. Eckenrode (Don Glen), No. 76100-1
generally, Jeffrey R. Kesselman, Excuse Me, Are You "Using" That Gun?
The United States Supreme Court Examines 18 U.S.C.§ 924 (c)(1) in
Bailey v. United States, 30 Creighton L. Rev. 513 (1997) (surveying "use"
of a weapon in the context of the federal firearms enhancement). But a
person is not armed merely by virtue of owning or even possessing a
weapon; there must be some nexus between the defendant, the weapon,
and the crime. Barnes, 153 Wn.2d at 383; Valdobinos, 122 Wn.2d at 282.
Courts are especially careful in this area because of the
constitutional right to bear arms. U.S. Const. amend. II; Const. art. I, § 24;
see also State v. Rupe, 101 Wn.2d 664, 703-08, 683 P.2d 571 (1984)
("constitutionally protected behavior cannot be the basis of criminal
punishment;" thus, courts must be protective of the right to bear arms
during criminal trials implicating gun possession); State v. Johnson, 94 Wn.
App. 882, 892-97, 974 P.2d 855 (1999) (inappropriate to send deadly
weapon enhancement to the jury without some showing of both
accessibility and nexus). But we are also mindful of the legislative purpose
in creating the deadly weapons enhancement: to recognize that armed
crime, including having weapons available to protect contraband, imposes
particular risks of danger on society. Gurske, 155 Wn.2d at 138-39.
The lack of the word "nexus" does not render the generally used
enhancement instructions per se inadequate. E.g., Willis, 153 Wn.2d at
374. Because Eckenrode did not ask for such a nexus instruction, he is not
5
State of Washington v. Eckenrode (Don Glen), No. 76100-1
entitled to seek relief on the ground of instructional error. When a
defendant seeks such an instruction, it may well be appropriate to give it.
See, e.g., id. But our primary task in this case is to determine whether the
evidence was sufficient to uphold the jury's special verdict. As long as any
rational trier of fact could have found that he was armed, viewing the
evidence in the light most favorable to the State, sufficient evidence exists.
State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003); State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
We find there was sufficient evidence to uphold the jury's conclusion
that a weapon was easily accessible and readily available. Eckenrode
himself told the 911 operator that he had a loaded gun in his hand and that
he was prepared to shoot an intruder.
There was also sufficient evidence of a connection between
Eckenrode, the weapon, and his drug manufacturing operation to uphold
the verdict. The rifle was loaded at the time, and Eckenrode testified that
the pistol was as well. Eckenrode also had a police scanner, which
together with his manufacturing operation raises the inference that he was
monitoring police activity against the chance he might be raided. Finally,
evidence of the drug manufacturing operation pervaded the house. A jury
could readily have found that the weapons were there to protect the
criminal enterprise. See State v. Simonson, 91 Wn. App. 874, 883, 960
P.2d 955 (1998) (holding that a nexus exists if the weapons were there to
6
State of Washington v. Eckenrode (Don Glen), No. 76100-1
protect an active methamphetamine manufacturing operation).
Eckenrode asserts his case is on all fours with Gurske, where this
court vacated a deadly weapons enhancement on the ground the State had
not actually proved that the gun was easily accessible and readily available
for use. But in Gurske, all the State proved was that the defendant
possessed an inaccessible weapon. Gurske, 155 Wn.2d at 144. The
State did not attempt to prove that the weapon found in Gurske was readily
accessible at any relevant time or that there was any connection between
the weapon and the crime. As we have said before, it is simply not enough
to prove possession. Valdobinos, 122 Wn.2d at 282.
Nor is this case similar to Johnson, 94 Wn. App. 822. There, all the
State proved was the mere presence of a weapon in the home of the
defendant at the time drug crimes were committed. That is not sufficient;
there has to be some facts presented that could lead a jury to infer that
there was a connection between the defendant, the weapon, and the crime.
Here, again, the evidence was sufficient for a judge to submit to, and for a
rational jury to find, that connection. In this case, the defendant told the
911 operator he was holding a loaded weapon, a police scanner was found
in the home, and there was pervasive evidence that much of the house was
used for drug production.
Eckenrode argues that there was no direct evidence that any
weapons were, in fact, there to protect any illicit business, as opposed to
7
State of Washington v. Eckenrode (Don Glen), No. 76100-1
merely expressions of Eckenrode's quiet enjoyment of his article I, section
24 right to bear arms. But there is considerable circumstantial evidence
that the weapons were there to protect the criminal enterprise and that they
were readily accessible and available. "Some circumstantial evidence is
very strong, as when you find a trout in the milk." Henry David Thoreau,
Journal, Nov. 11, 1850, in Journal of Henry D. Thoreau 2:94 (Bradford
Torrey & Francis H. Allen eds. 1962) (quoted in The Oxford Dictionary of
American Legal Quotations 133 (Fred R. Shapiro ed. 1993)); see also
Rogers Potato Serv., L.L.C. v. Countrywide Potato, L.L.C., 152 Wn.2d 387,
392, 97 P.3d 745 (2004) (noting that circumstantial evidence can support a
judgment).
However, as much as there was sufficient evidence in this case, we
agree with Eckenrode that it is conceivable that some defendants could be
receiving firearms enhancements for possession of weapons that actually
have nothing to do with any crime. The knives in the kitchen drawer or the
hunting rifle on the wall might be readily and easily available but
unconnected to any criminal enterprise, and courts should be careful to
stay within the guidelines of RCW 9.94A.6021 when instructing juries on
what might qualify as a deadly weapon for purposes of weapons
enhancements. While this is not the case before us, there may be
1 "[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."
8
State of Washington v. Eckenrode (Don Glen), No. 76100-1
situations where the jury instructions used would not allow the defendant to
argue his or her theory of the case and thus be inadequate. Cf. Barnes, 153
Wn.2d at 382; Willis, 153 Wn.2d at 374 n.2 ("This is not to say that
including such language would be error. Depending on the facts of the
case, such language might assist the jury in reaching its decision."). In
some cases, it would be the better practice to specifically instruct the jury
that the defendant is "armed" only if there is some nexus or connection
between the defendant, the weapon, and the crime. This may be most
important. See generally State v. Schelin, 147 Wn.2d 562, 576-77, 55
P.3d 632 (2002) (Alexander, C.J., concurring). The jury, as the trier of fact,
is in the best position to determine whether there is a connection.
But, again, in a sufficiency of the evidence challenge, the burden is
on the defendant to establish that the evidence was in fact insufficient, even
with all inferences from the evidence drawn in favor of the State. Schelin,
147 Wn.2d at 573. Eckenrode has not met this burden. Accordingly, we
affirm imposition of the firearms enhancement.
B. Inconsistent Opinions
Eckenrode also argues, essentially, that the Court of Appeals
violated his equal protection, due process, and fair trial rights by affirming
his conviction in an unpublished opinion despite the seemingly controlling
precedent of an arguably contrary published opinion, State v. Holt, 119 Wn.
App. 712, 82 P.3d 688 (2004) (overruled in part by State v. Easterlin, 126
9
State of Washington v. Eckenrode (Don Glen), No. 76100-1
Wn. App. 170, 107 P.3d 773 (2005)). Holt held that "nexus" language must
appear in the jury instructions on the theory that otherwise, the State was
relieved of its obligation to prove an essential element of the crime. Holt,
119 Wn. App. at 728 (citing State v. Eastmond, 129 Wn.2d 497, 503, 919
P.2d 577 (1996) (effectively overruled by State v. Brown, 147 Wn.2d 330,
340, 58 P.3d 889 (2002)). But even assuming that the appellate court
below committed an error, which it did not, Eckenrode cites no authority
establishing that a court, acting as a court, violates a defendant's rights
merely by making a mistake. His proper remedy is further appellate
review, which he has received.
CONCLUSION
In order to harmonize the legitimate state interest in imposing
enhanced sentences on those who commit armed crimes and the
constitutional guaranty of the right to bear arms, the State must establish a
connection between the defendant, the crime, and the weapon. The lack of
the words "nexus" or "connection" does not per se render a weapons'
enhancement instruction inadequate. We recognize that the jury may be in
the best position to determine if there was the required connection, but
Eckenrode failed to request the instruction he now complains was missing
and gives us no reason to reach this issue.
Substantial evidence supports the jury's special verdict. Thus, we
affirm imposition of the firearms enhancements.
10
IN THE SUPREME COURT OF THE STATE OF
WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 76100-1
)
v. ) En Banc
)
DON GLEN ECKENRODE, )
)
Petitioner. )
_____________________________ ) Filed January 25, 2007
CHAMBERS, J. -- In the "Hard Time for Armed Crime Act" of 1995,
the people of the State of Washington recognized that "[a]rmed criminals
pose an increasing and major threat to public safety and can turn any crime
into serious injury or death." Laws of 1995, ch. 129, § 1(1)(a) (Initiative 159
(I-159)). Accordingly, under I-159, defendants who commit armed crimes
generally receive enhanced sentences. Id.
Our constitution also guarantees the right to bear arms. Const. art. I,
§ 24. Over the years we have tried to harmonize both legal commands to
ensure that people are not punished merely for exercising this
constitutional right. To this end, to establish that a defendant was armed
for purposes of the sentencing enhancement, the State must prove that a
State of Washington v. Eckenrode (Don Glen), No. 76100-1
weapon was easily accessible and readily available for use and that there
was a nexus or connection between the defendant, the crime, and the
weapon. E.g., State v. Gurske, 155 Wn.2d 134, 138-39, 118 P.3d 333
(2005); State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
But we have not vacated sentencing enhancements merely because
a jury was not instructed that there had to be such a nexus. There is
another principle that bears on our review: whether any alleged
instructional error could have been cured at trial. We have found that the
defendant's failure to ask for the nexus instruction generally bars relief on
review on the ground of instructional error. See, e.g., State v. Willis, 153
Wn.2d 366, 374, 103 P.3d 1213 (2005).
In this case, the defendant did not seek a nexus instruction. We
have reviewed the record, and there was sufficient evidence to find a
connection between the crime, the defendant, and the gun, and to find that
the gun was readily available and easily accessible for offensive and
defensive use. Accordingly, we affirm the imposition of the firearms
enhancement.
FACTS
One afternoon, Pierce County 911 dispatch received a frantic call
from Don Glen Eckenrode, reporting that an intruder was in his house.
Eckenrode also alerted the dispatcher that he himself was armed and was
prepared to shoot the intruder. Eckenrode then hung up on the dispatcher.
2
State of Washington v. Eckenrode (Don Glen), No. 76100-1
Four well armed Pierce County Sheriff's Deputies responded within
minutes. But by that time, Eckenrode and his housekeeper were sitting on
lawn chairs in his front yard. Apparently confident that any danger had
passed, Eckenrode was playing a video game.
The deputies swept the house for intruders. None were found, but
deputies did notice what appeared to be methamphetamine, dried
marijuana, a loaded rifle, an unloaded Ruger pistol, and the overwhelming
smell of growing marijuana. On the strength of these observations, a
warrant was obtained and the home was searched more vigorously. Among
the many other signs of a marijuana growing operation scattered
throughout the house, deputies found 55 marijuana plants in various stages
of growth and a ledger appearing to record marijuana sales.
While still outside in his front yard, far from his weapons in the
house, Eckenrode was arrested. He was later charged with manufacturing
marijuana, unlawful possession of methamphetamine, and unlawful
possession of marijuana with intent to deliver, all while armed with a
firearm. Despite his testimony asserting unwitting possession, he was
convicted by a jury of unlawful manufacture and possession of marijuana.
The jury also found by special verdict that he was armed on both counts,
subjecting him to sentencing enhancements. RCW 9.94A.533(3), (4), .602.
At the Court of Appeals, Eckenrode challenged the firearm
enhancement instructions for the first time on the ground they did not
3
State of Washington v. Eckenrode (Don Glen), No. 76100-1
explicitly require the jury to find a nexus between him, his weapon, and his
crime. See State v. Eckenrode, noted at 117 Wn. App. 1086, 2003 Wash.
App. LEXIS 1721, *22-24. The Court of Appeals reached the merits of his
argument and found that the jury instructions, read as a whole, adequately
conveyed the requirement that there be such a nexus and affirmed. Id. at
*24. It affirmed again after an initial remand, State v. Eckenrode, noted at
123 Wn. App. 1013 (2004), and we took review. State v. Eckenrode, 155
Wn.2d 1024, 126 P.3d 820 (2005).
ANALYSIS
A. Firearms Enhancements
A person is potentially subject to a deadly weapons enhancement if
armed while committing a crime. RCW 9.94A.533(3), (4), .602. Again, the
legislative findings of the hard time for armed crime initiative specifically
state that armed criminals were creating an increasing threat to public
safety, turning any crime into one where serious injury or death to the
victims, the public, or the police was a possibility. Laws of 1995, ch. 129, §
1(1)(a) (I-159); see also Gurske, 155 Wn.2d at 138-39.
The statutes relating to weapons enhancements do not define what it
means to be armed. See RCW 9.94A.533, .602. After consideration we
held that "[a] person is 'armed' if a weapon is easily accessible and readily
available for use, either for offensive or defensive purposes." State v.
Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993); see also,
4
State of Washington v. Eckenrode (Don Glen), No. 76100-1
generally, Jeffrey R. Kesselman, Excuse Me, Are You "Using" That Gun?
The United States Supreme Court Examines 18 U.S.C.§ 924 (c)(1) in
Bailey v. United States, 30 Creighton L. Rev. 513 (1997) (surveying "use"
of a weapon in the context of the federal firearms enhancement). But a
person is not armed merely by virtue of owning or even possessing a
weapon; there must be some nexus between the defendant, the weapon,
and the crime. Barnes, 153 Wn.2d at 383; Valdobinos, 122 Wn.2d at 282.
Courts are especially careful in this area because of the
constitutional right to bear arms. U.S. Const. amend. II; Const. art. I, § 24;
see also State v. Rupe, 101 Wn.2d 664, 703-08, 683 P.2d 571 (1984)
("constitutionally protected behavior cannot be the basis of criminal
punishment;" thus, courts must be protective of the right to bear arms
during criminal trials implicating gun possession); State v. Johnson, 94 Wn.
App. 882, 892-97, 974 P.2d 855 (1999) (inappropriate to send deadly
weapon enhancement to the jury without some showing of both
accessibility and nexus). But we are also mindful of the legislative purpose
in creating the deadly weapons enhancement: to recognize that armed
crime, including having weapons available to protect contraband, imposes
particular risks of danger on society. Gurske, 155 Wn.2d at 138-39.
The lack of the word "nexus" does not render the generally used
enhancement instructions per se inadequate. E.g., Willis, 153 Wn.2d at
374. Because Eckenrode did not ask for such a nexus instruction, he is not
5
State of Washington v. Eckenrode (Don Glen), No. 76100-1
entitled to seek relief on the ground of instructional error. When a
defendant seeks such an instruction, it may well be appropriate to give it.
See, e.g., id. But our primary task in this case is to determine whether the
evidence was sufficient to uphold the jury's special verdict. As long as any
rational trier of fact could have found that he was armed, viewing the
evidence in the light most favorable to the State, sufficient evidence exists.
State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003); State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
We find there was sufficient evidence to uphold the jury's conclusion
that a weapon was easily accessible and readily available. Eckenrode
himself told the 911 operator that he had a loaded gun in his hand and that
he was prepared to shoot an intruder.
There was also sufficient evidence of a connection between
Eckenrode, the weapon, and his drug manufacturing operation to uphold
the verdict. The rifle was loaded at the time, and Eckenrode testified that
the pistol was as well. Eckenrode also had a police scanner, which
together with his manufacturing operation raises the inference that he was
monitoring police activity against the chance he might be raided. Finally,
evidence of the drug manufacturing operation pervaded the house. A jury
could readily have found that the weapons were there to protect the
criminal enterprise. See State v. Simonson, 91 Wn. App. 874, 883, 960
P.2d 955 (1998) (holding that a nexus exists if the weapons were there to
6
State of Washington v. Eckenrode (Don Glen), No. 76100-1
protect an active methamphetamine manufacturing operation).
Eckenrode asserts his case is on all fours with Gurske, where this
court vacated a deadly weapons enhancement on the ground the State had
not actually proved that the gun was easily accessible and readily available
for use. But in Gurske, all the State proved was that the defendant
possessed an inaccessible weapon. Gurske, 155 Wn.2d at 144. The
State did not attempt to prove that the weapon found in Gurske was readily
accessible at any relevant time or that there was any connection between
the weapon and the crime. As we have said before, it is simply not enough
to prove possession. Valdobinos, 122 Wn.2d at 282.
Nor is this case similar to Johnson, 94 Wn. App. 822. There, all the
State proved was the mere presence of a weapon in the home of the
defendant at the time drug crimes were committed. That is not sufficient;
there has to be some facts presented that could lead a jury to infer that
there was a connection between the defendant, the weapon, and the crime.
Here, again, the evidence was sufficient for a judge to submit to, and for a
rational jury to find, that connection. In this case, the defendant told the
911 operator he was holding a loaded weapon, a police scanner was found
in the home, and there was pervasive evidence that much of the house was
used for drug production.
Eckenrode argues that there was no direct evidence that any
weapons were, in fact, there to protect any illicit business, as opposed to
7
State of Washington v. Eckenrode (Don Glen), No. 76100-1
merely expressions of Eckenrode's quiet enjoyment of his article I, section
24 right to bear arms. But there is considerable circumstantial evidence
that the weapons were there to protect the criminal enterprise and that they
were readily accessible and available. "Some circumstantial evidence is
very strong, as when you find a trout in the milk." Henry David Thoreau,
Journal, Nov. 11, 1850, in Journal of Henry D. Thoreau 2:94 (Bradford
Torrey & Francis H. Allen eds. 1962) (quoted in The Oxford Dictionary of
American Legal Quotations 133 (Fred R. Shapiro ed. 1993)); see also
Rogers Potato Serv., L.L.C. v. Countrywide Potato, L.L.C., 152 Wn.2d 387,
392, 97 P.3d 745 (2004) (noting that circumstantial evidence can support a
judgment).
However, as much as there was sufficient evidence in this case, we
agree with Eckenrode that it is conceivable that some defendants could be
receiving firearms enhancements for possession of weapons that actually
have nothing to do with any crime. The knives in the kitchen drawer or the
hunting rifle on the wall might be readily and easily available but
unconnected to any criminal enterprise, and courts should be careful to
stay within the guidelines of RCW 9.94A.6021 when instructing juries on
what might qualify as a deadly weapon for purposes of weapons
enhancements. While this is not the case before us, there may be
1 "[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."
8
State of Washington v. Eckenrode (Don Glen), No. 76100-1
situations where the jury instructions used would not allow the defendant to
argue his or her theory of the case and thus be inadequate. Cf. Barnes, 153
Wn.2d at 382; Willis, 153 Wn.2d at 374 n.2 ("This is not to say that
including such language would be error. Depending on the facts of the
case, such language might assist the jury in reaching its decision."). In
some cases, it would be the better practice to specifically instruct the jury
that the defendant is "armed" only if there is some nexus or connection
between the defendant, the weapon, and the crime. This may be most
important. See generally State v. Schelin, 147 Wn.2d 562, 576-77, 55
P.3d 632 (2002) (Alexander, C.J., concurring). The jury, as the trier of fact,
is in the best position to determine whether there is a connection.
But, again, in a sufficiency of the evidence challenge, the burden is
on the defendant to establish that the evidence was in fact insufficient, even
with all inferences from the evidence drawn in favor of the State. Schelin,
147 Wn.2d at 573. Eckenrode has not met this burden. Accordingly, we
affirm imposition of the firearms enhancement.
B. Inconsistent Opinions
Eckenrode also argues, essentially, that the Court of Appeals
violated his equal protection, due process, and fair trial rights by affirming
his conviction in an unpublished opinion despite the seemingly controlling
precedent of an arguably contrary published opinion, State v. Holt, 119 Wn.
App. 712, 82 P.3d 688 (2004) (overruled in part by State v. Easterlin, 126
9
State of Washington v. Eckenrode (Don Glen), No. 76100-1
Wn. App. 170, 107 P.3d 773 (2005)). Holt held that "nexus" language must
appear in the jury instructions on the theory that otherwise, the State was
relieved of its obligation to prove an essential element of the crime. Holt,
119 Wn. App. at 728 (citing State v. Eastmond, 129 Wn.2d 497, 503, 919
P.2d 577 (1996) (effectively overruled by State v. Brown, 147 Wn.2d 330,
340, 58 P.3d 889 (2002)). But even assuming that the appellate court
below committed an error, which it did not, Eckenrode cites no authority
establishing that a court, acting as a court, violates a defendant's rights
merely by making a mistake. His proper remedy is further appellate
review, which he has received.
CONCLUSION
In order to harmonize the legitimate state interest in imposing
enhanced sentences on those who commit armed crimes and the
constitutional guaranty of the right to bear arms, the State must establish a
connection between the defendant, the crime, and the weapon. The lack of
the words "nexus" or "connection" does not per se render a weapons'
enhancement instruction inadequate. We recognize that the jury may be in
the best position to determine if there was the required connection, but
Eckenrode failed to request the instruction he now complains was missing
and gives us no reason to reach this issue.
Substantial evidence supports the jury's special verdict. Thus, we
affirm imposition of the firearms enhancements.
10
