nexus requirement in Washington

2007See, e.g., State v. Willis, 153 Wash.2d 366, 374 , 103 P.3d 1213 (2005). ¶ 4 In this case, the defendant did not seek a nexus instruction.

2007See, e.g., State v. Willis, 153 Wn.2d 366, 374 , 103 P.3d 1213 (2005). ¶4 In this case, the defendant did not seek a nexus instruction.

2020The nexus requirement “serves to place ‘parameters … on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession’ of drugs.” Sassen Van Elsloo, 191 Wn.2d at 827 (alteration in original) (quoting Gurske, 155 Wn.2d at 140 ). 17 No. 53151-8-II To determine whether there was a nexus, we review “‘the nature of the crime, the type of weapon, and the circumstances under which the weapon [was] found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer).’” Gurske, 155 Wn.2d at 142 (q

2016To apply the nexus requirement, we look to the “nature of the crime, the type of weapon, and the circumstances under which the weapon is found.” State v. Schelin, 147 Wn.2d 562, 570 , 55 P.3d 632 (2002).

2007See, e.g., State v. Willis, 153 Wash.2d 366, 374 , 103 P.3d 1213 (2005). ¶ 4 In this case, the defendant did not seek a nexus instruction.

2007See, e.g., State v. Willis, 153 Wn.2d 366, 374 , 103 P.3d 1213 (2005). ¶4 In this case, the defendant did not seek a nexus instruction.

2016To apply the nexus requirement, we look to the “nature of the crime, the type of weapon, and the circumstances under which the weapon is found.” State v. Schelin, 147 Wn.2d 562, 570 , 55 P.3d 632 (2002).

2008State v. Schelin, 147 Wn.2d 562, 567-68 , 55 P.3d 632 (2002); State v. Valdobinos, 122 Wn.2d 270, 282 , 858 P.2d 199 (1993). ¶26 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.

2005This matter is not before us on appeal. [4] Although Easterlin claims that the nexus requirement applies, he does not differentiate between constructive and actual possession for purposes of the nexus analysis. [5] Easterlin relies, in part, on our decision in State v. Holt, 119 Wash.App. 712 , 82 P.3d 688 (2004).

2005This matter is not before us on appeal. [4] Although Easterlin claims that the nexus requirement applies, he does not differentiate between constructive and actual possession for purposes of the nexus analysis. [5] Easterlin relies, in part, on our decision in State v. Holt, 119 Wash.App. 712 , 82 P.3d 688 (2004).

2021Id. at 827 ; see also State v. Barnes, 153 Wn.2d 378, 383 , 103 P.3d 1219 (2005) (“The mere presence of a deadly weapon at the crime scene is insufficient to show that the defendant is ‘armed.’”).

2016The jury also heard 27 State v. Valdobinos. 122 Wn.2d 270, 282 , 858 P.2d 199 (1993); State v. Brown. 162 Wn.2d 422, 431 , 173 P.3d 245 (2007). 28 State v. Barnes. 153 Wn.2d 378, 383 , 103 P.3d 1219 (2005). -13- No. 73163-7-1/14 Stewart's confrontational statement about Miller where he said, "[T]hat's the asshole that tried to stop me." A defendant is entitled to a jury instruction if substantial evidence in the record supports his theory.29 We do not find substantial evidence in the record to support the nexus instruction.

2007Here, the evidence shows that the burglars were interrupted when the homeowner returned home, highlighting the potential for violence that exists when a firearm is taken during a burglary of a residence. ¶ 52 The concurrence also undercuts its own misstatements regarding the purpose of the deadly weapons enhancement by quoting State v. Johnson 94 Wash.App. 882, 896 , 974 P.2d 855 (1999), where the Court of Appeals noted that the enhancement is aimed at preventing the potential for violence that is more dangerous to the victim, bystanders, or police if the defendant is armed while committing th

2007Here, the evidence shows that the burglars were interrupted when the homeowner returned home, highlighting the potential for violence that exists when a firearm is taken during a burglary of a residence. ¶52 The concurrence also undercuts its own misstatements regarding the purpose of the deadly weapons enhancement by quoting State v. Johnson, 94 Wn.

2021Id. at 827 ; see also State v. Barnes, 153 Wn.2d 378, 383 , 103 P.3d 1219 (2005) (“The mere presence of a deadly weapon at the crime scene is insufficient to show that the defendant is ‘armed.’”).

2016The jury also heard 27 State v. Valdobinos. 122 Wn.2d 270, 282 , 858 P.2d 199 (1993); State v. Brown. 162 Wn.2d 422, 431 , 173 P.3d 245 (2007). 28 State v. Barnes. 153 Wn.2d 378, 383 , 103 P.3d 1219 (2005). -13- No. 73163-7-1/14 Stewart's confrontational statement about Miller where he said, "[T]hat's the asshole that tried to stop me." A defendant is entitled to a jury instruction if substantial evidence in the record supports his theory.29 We do not find substantial evidence in the record to support the nexus instruction.

2009See Quill, 504 U.S. at 314 (“[W]e have not, in our review of other types of taxes, articulated the same physical-presence requirement that Bella Hess established for sales and use taxes.”).

2009See Quill, 504 U.S. at 314 , 112 S.Ct. 1904 ("[W]e have not, in our review of other types of taxes, articulated the same physical-presence requirement that Bellas Hess established for sales and use taxes.").

2007State v. Simonson, 91 Wash.App. 874, 877, 882-83 , 960 P.2d 955 (1998) (defendant in jail when police found a loaded pistol, which had recently been dropped outside a methamphetamine lab, and other evidence suggesting that defendant and an accomplice had been manufacturing methamphetamine for six weeks and during some or all of that time had seven guns on the premises, with at least four kept loaded, in order to protect the manufacturing site). ¶ 49 Finally, when determining the nexus between the weapon and the crime, we must examine "`the nature of the crime, the type of weapon, and the circu

2007State v. Simonson, 91 Wn.

2025The nexus requirement serves to place “‘parameters . . . on the determination of when a defendant is armed, especially in the instance of a continuing crime.’” Id. at 827 (quoting State v. Gurske, 155 Wn.2d 134, 140 , 118 P.3d 333 (2005)).

2020The nexus requirement “serves to place ‘parameters … on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession’ of drugs.” Sassen Van Elsloo, 191 Wn.2d at 827 (alteration in original) (quoting Gurske, 155 Wn.2d at 140 ). 17 No. 53151-8-II To determine whether there was a nexus, we review “‘the nature of the crime, the type of weapon, and the circumstances under which the weapon [was] found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer).’” Gurske, 155 Wn.2d at 142 (q

2016In so holding, the Supreme Court adopted this court’s formulation of the nexus test: “ ‘[T]he crucial factor governing nexus is whether the activities performed in this state on behalf of the taxpayer are significantly associated with the taxpayer’s ability to establish and maintain a market in this state for the sales.’ ” Id. at 250 (quoting Tyler Pipe, 105 Wn.2d at 323 ). ¶22 This court’s B&O cases are consistent with the Supreme Court’s interpretation of Norton.

2016In so holding, the Supreme Court adopted this court’s formulation of the nexus test: “ ‘[T]he crucial factor governing nexus is whether the activities performed in this state on behalf of the taxpayer are significantly associated with the taxpayer’s ability to establish and maintain a market in this state for the sales.’ ” Id. at 250 (quoting Tyler Pipe, 105 Wn.2d at 323 ). ¶22 This court’s B&O cases are consistent with the Supreme Court’s interpretation of Norton.

2025The nexus requirement serves to place “‘parameters . . . on the determination of when a defendant is armed, especially in the instance of a continuing crime.’” Id. at 827 (quoting State v. Gurske, 155 Wn.2d 134, 140 , 118 P.3d 333 (2005)).

2007Likewise, in Schelin we said that the nexus test "as expressed in Johnson" would enable a jury to infer that Schelin "was using the weapon to protect his basement marijuana grow operation." 147 Wash.2d at 574 , 55 P.3d 632 . [3] These cases demonstrate that the defendant's intent or willingness to use the rifle is a condition of the nexus requirement that does, in fact, appear in Washington cases. [4] *251 ¶ 27 The dissent states, but does not apply, the principle that "`where the weapon is not actually used in the commission of the crime, it must be there to be used. '" Dissent at ___, 173 P.

2017See O'Neal, 159 Wn.2d at 504-05, 507; Eckenrode, 159 Wn.2d at 492, 496 .

2008State v. Eckenrode, 159 Wn.2d 488, 491 , 150 P.3d 1116 (2007) (citing Willis, 153 Wn.2d at 374 ). ¶23 Additionally, in this case, the record shows overwhelming evidence to find a connection between the crime, Thompson, and the gun.

2016The jury also heard 27 State v. Valdobinos. 122 Wn.2d 270, 282 , 858 P.2d 199 (1993); State v. Brown. 162 Wn.2d 422, 431 , 173 P.3d 245 (2007). 28 State v. Barnes. 153 Wn.2d 378, 383 , 103 P.3d 1219 (2005). -13- No. 73163-7-1/14 Stewart's confrontational statement about Miller where he said, "[T]hat's the asshole that tried to stop me." A defendant is entitled to a jury instruction if substantial evidence in the record supports his theory.29 We do not find substantial evidence in the record to support the nexus instruction.

2007Likewise, in Schelin we said that the nexus test "as expressed in Johnson" would enable a jury to infer that Schelin "was using the weapon to protect his basement marijuana grow operation." 147 Wash.2d at 574 , 55 P.3d 632 . [3] These cases demonstrate that the defendant's intent or willingness to use the rifle is a condition of the nexus requirement that does, in fact, appear in Washington cases. [4] *251 ¶ 27 The dissent states, but does not apply, the principle that "`where the weapon is not actually used in the commission of the crime, it must be there to be used. '" Dissent at ___, 173 P.

2009App. at 52 (stating that substantial nexus has never turned on whether an out-of-state company engages in direct selling activities); see also In re Orvis Co., 86 N.Y.2d 165 , 654 N.E.2d 954 , 630 N.Y.S. 2d 680 , cert. denied, 516 U.S. 989 (1995) (holding that there is no requirement under Quill and commerce clause jurisprudence requiring that an out-of-state company’s sales representative be engaged in solicitation of sales or in sales transactions to satisfy the substantial nexus requirement).

2009Vermont Information Processing, Inc. v. Dep't of Taxation and Finance, 516 U.S. 989 , 116 S.Ct. 518 , 133 L.Ed.2d 426 (1995) (holding that there is no requirement under Quill and commerce clause jurisprudence requiring that an out-of-state company's sales representative be engaged in solicitation of sales or in sales transactions to satisfy the substantial nexus requirement).