Washington Law Review
Less Is Not More: Evidence of Mere Proximity in State v. Gurske Does Not Render the Defendant Armed under Washington's Deadly Weapon Special Verdict Statute
In State v. Gurske, Division III of the Washington State Court of Appeals affirmed the application of Washington State's Deadly Weapon Special Verdict statute to Samuel Gurske's conviction for possession of methamphetamine. The Deadly Weapon Special Verdict statute enhances the sentence of a defendant who commits a crime while "armed" with a deadly weapon. In Gurske, the parties stipulated that a backpack holding Gurske's pistol and drugs lay within arm's reach of the driver's position. From this fact, the trial judge determined that Gurske was armed while he was in possession of methamphetamine. Under Washington State Supreme Court precedent, however, a court must apply two tests in constructive possession cases like Gurske to determine whether the defendant is armed. First, the weapon must be easily accessible and readily available for use (the "easily accessible" test). Second, there must be a nexus between the weapon and the defendant (weapon-defendant nexus) and between the weapon and the crime (weapon-crime nexus). The Gurske court determined that Gurske's proximity to the weapon satisfied the easily accessible test. Again relying on the proximity between the defendant, the weapon, and the drugs, the Gurske court determined that proximity also satisfied the nexus test. Although proximity may satisfy the easily accessible test and the weapon-defendant nexus, a plurality of the Washington State Supreme Court in State v. Schelin explicitly required more than proximity to satisfy the weapon-crime nexus. According to Schelin, courts should consider three factors: the nature of the crime, the type of weapon, and the circumstances under which police discovered the weapon. These three factors identify evidence that may permit an inference that a defendant used a weapon in furtherance of the commission of a crime. Assuming that the State also presented evidence satisfying the easily accessible test and the weapon-defendant nexus, the addition of this inference establishes a defendant as armed. In light of the three Schelin factors, the Gurske evidence does not support the inference that Gurske used the weapon in furtherance of his drug crime. The trial judge, therefore, mistakenly found a weapon-crime nexus, and Division III erroneously affirmed the trial judge's application of the sentence enhancement. On appeal, the Washington State Supreme Court should reverse the application of the Deadly Weapon Special Verdict statute to Gurske's conviction for possession of methamphetamine.
Kelly B. Fennerty,
Notes and Comments,
Less Is Not More: Evidence of Mere Proximity in State v. Gurske Does Not Render the Defendant Armed under Washington's Deadly Weapon Special Verdict Statute,
80 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol80/iss1/4