State v. Schelin

147 Wash. 2d 562
CourtWashington Supreme Court
DecidedOctober 17, 2002
DocketNo. 70710-3
StatusPublished
Cited by80 cases

This text of 147 Wash. 2d 562 (State v. Schelin) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schelin, 147 Wash. 2d 562 (Wash. 2002).

Opinions

Ireland, J.

— 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.

FACTS

Background

On August 21, 1996, a search warrant was executed at the home of Mark Logan Schelin (Schelin) shared with his [564]*564girl 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.

Procedural History

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.

[565]*565Schelin’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 Wn. App. 48, 14 P.3d 893 (2000).

ISSUE

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) (1995).

ANALYSIS

Standard of Review

“Whether a person is armed is a mixed question of law and fact.” State v. Mills, 80 Wn. App. 231, 234-35, 907 [566]*566P.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.

Enhancement Statute

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.

Former RCW 9.94A.125.

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).

Jury Instructions

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 [567]*567[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,

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Cite This Page — Counsel Stack

Bluebook (online)
147 Wash. 2d 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schelin-wash-2002.