                                                                                                           LED
                                                                                                 O' . 1 - OF APPEALS
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                                                                                                       DIVISION II

                                                                                              2O14 APR - 8       AM 8: 53

                                                                                              STATE OF WASHINGTON

                                                                                              BY
       IN THE COURT OF APPEALS OF THE STATE OF WAN                                                             iWGTON

                                                           DIVISION II

STATE OF WASHINGTON,                                                                       No. 43188 -2 -II


                                          Respondent,


          v.



FRED CARL DURGELOH,                                                                 UNPUBLISHED OPINION


                                          Appellant.


          HUNT, J. —         Fred Carl Durgeloh appeals his enhanced standard range sentences and jury

convictions for two counts of second degree assault while armed with a firearm, two counts of

felony harassment with a firearm enhancement, and one count of second degree unlawful
possession of a        firearm. He argues that the trial court ( 1) violated his right to due process when


it   accepted a stipulation       to    a prior offense without              his   unequivocal   oral    assent; (   2) denied his


right to a fair trial when it refused to give his proposed lesser included instruction on unlawful

                                                                                      1
display    of a weapon;         and (    3)    violated        RCW 9. 94A.701( 9)         when it imposed a sentence that


exceeded       the statutory    maximum.              In   a   Statement   of   Additional Grounds ( SAG), Durgeloh also


asserts that the State failed to present sufficient evidence of second degree assault and unlawful

possession and that the police conducted a warrantless search and seizure.


          We affirm Durgeloh' s convictions and sentences.




1
     The legislature    amended     RCW 9. 94A.701 in 2010. LAws OF 2010,                        ch.    224, § 5;    ch.   267, § 11;
LAWS      OF   2009,   ch.   375, § 5;        ch.   28, § 10.    The amendments did not alter the statute in any way
relevant    to this    case;   accordingly,         we cite     the   current version of the statute.
No. 43188 -2 -II



                                                                           FACTS


                                                                         I. CRIMES


           Fred Carl Durgeloh' s caregiver alerted the Cowlitz County Sheriff' s Office that Durgeloh

could    be     suicidal.       Deputies Ryan Cruser and Kimberly Moore drove to Durgeloh' s home to

check on him, knocked on the rear door, and announced that they were from the sheriff' s office,

but   no   one     answered.          Through a window, Officer Cruser saw Durgeloh armed with a gun;


Cruser told him to "              put   the   gun         down."           2 Verbatim Report            of   Proceedings ( VRP) at 115.


Instead, Durgeloh came out onto the porch; pointed the gun in the officers' direction; told them

he had     a gun with a          bullet in it; held the              gun    up   higher;   pulled     the hammer back;         and said, "    See,


now    it' s   cocked. ...         You   need   to leave."               2 VRP at 165.


           Durgeloh returned inside the house, placed a 911 call, and told the dispatcher that the


officers were         trespassing,       to "[ g]   et    them       out of   here,"    and, "   They    will       die."   2 VRP   at   208. Five


minutes        later, Durgeloh        again called                 911   insisting   that the    officers were         trespassing. This time

                                                                                                             2; (
he told the       police       dispatcher ( 1) to "[ g] et [ the              officers]      out of   here "         2) " If [the officers] walk

                                                         3;
on    my   porch,     they' re going       to die"             and ( 3) to "[    t]ell [ the officers] to respect their lives" and that


 when they walk through the front door, my back porch door, that yes, I do have a loaded . 45

and   that     yes,   I'   m   going to hold it               at   them."    2 VRP      at   212.     The officers overheard Durgeloh


making these statements to the 911 dispatcher and, after observing Durgeloh point the gun in

their direction, requested backup units.




22 VRP at210.

32VRPat211.
No. 43188 -2 -II



          A Special Weapons And Tactics ( SWAT) team                              arrived.   Eventually, police negotiators

talked Durgeloh out of his               home,       unarmed;     and    the deputies      placed   him     under arrest.      Moore


obtained a warrant         to    search   the    residence.       During   the   search,    SWAT       officers    found " a box of


45 shells that had a few rounds missing from it" and a . 45 caliber Ruger semiautomatic handgun

in Durgeloh' s bed. Clerk' s Papers ( CP) at 2.

                                                              II. PROCEDURE


          The State charged Durgeloh with ( 1) two counts of second degree assault ( Counts 1 and

2),   each with a firearm enhancement, for intentionally assaulting officers Cruser and Moore with
                                                     4; (
a    handgun, RCW 9A.36. 021( 1)(               c)          2) unlawful possession of a firearm in the second degree


 Count 3),      RCW 9. 41. 040( 2)( a)( i)5; and ( 3) two counts of felony harassment, each with a firearm

enhancement (         Counts 4     and    5),   for knowingly threatening to kill officers Cruser and Moore with

a    handgun.     Former RCW 9A.46. 020( 2)( b) ( 2003).                   The trial court ordered Durgeloh to undergo


a mental       health   evaluation   to determine his capacity to form                an   intent to   commit      the   crimes.   The


mental health examiner concluded that Durgeloh was able to understand his actions and capable

of forming " a mental state of intent" to commit the charged crimes. CP at 34.




4
      The legislature      amended         RCW 9A.36. 021            in 2011.       LAWS     OF     2011,    ch.     166, §   1.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
 current version of the statute.


 5
     The legislature     amended     RCW 9. 41. 040 in 2009               and    2011. LAWS       OF   2009,   ch.   293, § 1; LAWS
 OF    2011,   ch.       The amendments did not alter the statute in any way relevant to this case;
                     193, § 1.

 accordingly, we cite the current version of the statute.



                                                                     3
No. 43188 -2 -II


                                                                   A. Trial


           At trial, Moore and Cruser testified about the facts already set forth; Deputy Brady

Spaulding     and    Captain     Corey       David Huffine           also     testified.        The jury heard the audio recordings

of Durgeloh' s 911 calls, and Durgeloh' s live testimony.

           Durgeloh, his attorney, and the prosecutor all signed a written stipulation to the existence

of   the   predicate    offense          underlying the      unlawful possession of a                  firearm   charge.   6 A colloquy

ensued about         Durgeloh'       s   understanding        of   the   stipulation,           after which the trial court read it to




6 More specifically, this stipulation provided:
                     The State, Defendant' s Attorney, and Defendant hereby agree that the
           following facts shall be stipulated to at trial for consideration on all issues that
           may be before the court and jury:
                                1.        That    on    or   about   July          11,    2009, the defendant had
                     previously been convicted of the crime of Violation of a Protection
                     or    No Contact Order             Restraining           the Person – Domestic violence,

                      and that this crime was against a family or household member and
                      occurred after July 1, 1993.
CP at 49.


7 2 Verbatim Report of Proceedings at 216 -18:
                       TRIAL COURT]: ....                    Mr. Durgeloh, you' ve had an opportunity to talk
           about     the    stipulation      of   fact regarding the —a                   violation   of a protection or no-

            contact order.       And that         you' ve     been previously              convicted of      that.   And do you

           have any questions about that?
                      MR. DURGELOH:                     Just that it was my understanding that when we did
           that, that that was not in effect. And I thought that there was papers showing that,
            because my         concern        was      well, I grew up being a hunter and a
                                                       that I   still —

            fisherman and I didn' t want to lose my rights to be able to hunt.
                    TRIAL COURT]:         Okay. So you understand what this stipulation is
            saying, is that on July 1 lth, 2009, you' d been previously convicted of a crime of
            either   no- contact          order   or    violation        of    a   protection      order?     And that was a
            domestic       violence        offense     that occurred          after      July   1st, 1993.   Are you agreeing
            that that' s accurate?
                      MR. DURGELOH: I —I don' t remember, but yes
                        DURGELOH' S                COUNSEL]:                  And Your Honor, justjust for the
            record[,]      the guilty plea form from District Court does reflect that he was advised

                                                                          4
No. 43188 -2 -II



the jury. Consistent with this stipulation, Durgeloh did not object when the State moved to admit

certified copies of Durgeloh' s prior guilty plea, judgment, and sentence.

        Nevertheless, Durgeloh moved to dismiss the unlawful possession of a firearm charge,


arguing that " the State has not shown the required elements to move forward" because the State

was required, but failed, to show that the previous court presiding over Durgeloh' s prior

misdemeanor         conviction        had   notified   him " orally   and     in writing" that he could not possess a


firearm,     as required     by   RCW 9. 41. 047( 1)(      a).   2 VRP   at   224.     The State presented evidence that


Durgeloh had             signed   a   plea    agreement     informing       him   of    this   requirement.   Ruling that

Durgeloh' s having received written notice of the consequences of his prior guilty plea was

sufficient, the trial court denied his motion to dismiss the firearm possession charge.


            Durgeloh then moved to dismiss the two felony harassment charges and their

accompanying firearm sentencing                   enhancements.          He    argued     that because "   neither [ officer




testified] that     they    thought    they   were     going to be killed," the      evidence was     insufficient. 2 VRP


at   229.        The trial court denied the motion, ruling that Durgeloh' s statements and actions,

combined          with    Deputies Cruser        and     Moore' s testimonies,         showed that the officers had a


reasonable fear that Durgeloh would carry out his threats to kill them.




            of   the loss   of rights.      I think it' s perfectly possible that he doesn' t remember or
            recall that at this point, Your Honor, but that is what the record reflects.

                         STATE]:       Well, I don' t necessarily agree that' s what the record reflects,
            but
                         TRIAL COURT]: The stipulation is what it is.
                         STATE]:      That he got convicted.
                         DURGELOH' S COUNSEL]: Yes.



                                                                  5
No. 43188 -2 -II



             Durgeloh testified that,               when   Moore    and   Cruser   initially   approached    his   residence, "   they

said   that       they' re    the   sheriff, "     8 and he realized that they were Cowlitz County Deputy Sheriffs.
He also acknowledged that he had made the 911 phone calls.

                                                           B.   Jury Instructions

             Durgeloh proposed a jury instruction on the lesser included offense of unlawfully
                                    9
displaying          a weapon,           to   which    the State   objected.   The trial court denied Durgeloh' s request.


The trial court gave the jury two other instructions relating to the charge of unlawful possession

of a firearm. Jury instruction 13 ( elements) provided:

                          A person commits the crime of unlawful possession of a firearm in the
             second degree when he knowingly has a firearm in his possession or control and
             he has previously been convicted of a Violation of a Protection Order or No-
             Contact Order restraining the person against a family or household member,
             which crime occurred on or after July 1, 1993.

CP     at   74.    Jury   instruction 15 ( " to        convict ") provided:




82VRPat240.

9
    This proposed lesser included instruction provided:
                          To convict the defendant of the crime of unlawfully displaying a weapon,
             each of the following elements of the crime must be proved beyond a reasonable
             doubt:
                             1) That on or about July 11, 2009, the defendant displayed a firearm;
                           2)   That         the    defendant     exhibited   the    weapon       in   a   manner,    under

             circumstances, and at a time and place that manifested an intent to intimidate
             another or warranted alarm for the safety of other persons; and
                     3) That this act occurred in the State of Washington, County of Cowlitz.
                          If you find from the evidence that each of these elements has been proved
             beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                          On the         other      hand, if,   after   weighing     all   the   evidence,   you have      a

             reasonable doubt as to any one of these elements, then it will be your duty to
      return a verdict of not guilty.
 CPat55.




                                                                          6
No. 43188 -2 -II



                To convict the defendant of the crime of unlawful possession of a firearm
        in the second degree, each of the following elements of the crime must be proved
        beyond a reasonable doubt:


                   1) That on or about July 11, 2009, the defendant knowingly had a firearm
        in his possession or control;


                 2) That the defendant had previously been convicted of violation of a
        protection order -domestic violence against a family or household member, which
        crime occurred on or after July 1, 1993; and

                   3) That the possession or control of the firearm occurred in the State of
         Washington.


                 If you find from the evidence that each of these elements has been proved
         beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

                On the other hand, if, after weighing all of the evidence, you have a
         reasonable doubt as to any one of these elements, then it will be your duty to
         return a verdict of not guilty.


CPat76.

                                                                                                 10
         Durgeloh     objected   to   jury   instruction 14,   which   defined " possession,    "     and to instruction


15,   which provided    the   elements of unlawful possession of a              firearm. He argued that the State


had failed to present evidence that the previous court presiding over his prior stipulated

misdemeanor conviction had orally apprised him that he was prohibited from possessing

firearms.   The trial court overruled his objection, ruling that when Durgeloh had signed his prior

guilty plea, the written notice of the consequences had provided sufficient notice.

                                               C. Verdict and Sentence


         The   jury   found Durgeloh guilty          of all    five   counts,   as   charged.   It also returned four


 special verdicts finding that he had been armed with a firearm when he committed the assaults


 10CPat76.



                                                               7
No. 43188 -2 -II



and    the harassments.           The trial court ordered a competency evaluation, which found Durgeloh

competent to be sentenced.


            The trial court sentenced Durgeloh to 22 months of confinement on both Counts 1 and 2

 second     degree    assault),     12 months plus one day on Count 3 ( firearm possession), and 12 months

on    Counts 4      and   5 ( two   felony    harassment     counts).      The trial court added firearm enhancements


of    36   months    to his   sentences       for Counts 1   and    2,    and   18   months   for Counts 4   and     5.   The trial

                                                                                                                11
court ran     the   standard sentences         concurrently    and       the   enhancements    consecutively.         During the

sentencing hearing, the court engaged in a colloquy about the resultant total number of months of

confinement, which the parties and the court agreed would be 120 months.

            The trial     court   did   not   discuss community custody. The written judgment and sentence,


however,       included 18 months of community custody in addition to the 120 months of

confinement. Durgeloh appeals his convictions and sentences.

                                                         ANALYSIS


                                                       I. STIPULATION


            Durgeloh first argues that the trial court violated his right to due process under both the

Washington and federal constitutions when it accepted his stipulation that he had a prior

misdemeanor conviction, which thereby relieved the State from proving the predicate offense
element       of    Count 3,      unlawful     possession    of a    firearm.        Durgeloh contends that, because his



 11
      See CP   at   110. RCW 9. 94A. 533( 3)(       Notwithstanding any other provision of law,
                                                      e) provides: "

 all firearm enhancements under this section are mandatory, shall be served in total confinement,
 and shall run consecutively to all other sentencing provisions, including other firearm or deadly •
 weapon      enhancements."             The legislature amended RCW 9. 94A.533 in 2009, 2011, 2012, and
 2013. The amendments did not alter the statute in any way relevant to this case; accordingly, we
 cite the current version of the statute.




                                                                    8
No. 43188 -2 -II



response during his colloquy with the trial court was equivocal, his assent to the stipulation was

therefore not knowing, intelligent, and voluntary. We disagree. The record shows that Durgeloh

waived or abandoned this claim when he signed the stipulation after conferring with his counsel.

           The State charged Durgeloh with second degree unlawful possession of a firearm, CP at

4 -5, because a previous misdemeanor guilty plea to violation of a domestic violence protection

order rendered         him ineligible to             possess a      firearm. At trial, Durgeloh, his defense counsel, and


the prosecutor signed a Stipulation of Fact agreeing that Durgeloh had been previously convicted

of this predicate offense. The State presented certified copies of this prior guilty plea, judgment,

and sentence; and Durgeloh did not object to their admission into evidence.

           Durgeloh does           not      dispute that he         pled   guilty to this    prior predicate offense.         Instead, he


argues that ( 1) the trial court here did not engage in a sufficiently detailed colloquy to determine

whether he knowingly, voluntarily, and intelligently assented to his stipulation before admitting

it into    evidence;      and (    2)    as   a result,        the trial   court   denied him     a   fair trial.   Durgeloh failed to

                                                                                                                                             12
preserve     this    claim   for   appeal and           does    not meet    the    preservation exceptions of        RAP 2. 5(   a)(   3).


           Furthermore, Durgeloh not only failed to object to admission of the stipulation below, but

also expressly agreed to and signed the stipulation to the fact of his prior conviction and its

prohibiting him from possessing                           a   firearm.      This stipulation fulfilled the State' s burden of



12
     Although Durgeloh cloaks his claim in constitutional terms, actually he is contesting whether
he knowingly entered into this factual stipulation, which, according to our Supreme Court, is
subject     to   a   lower   standard         than      waivers of constitutional rights:             Even in   a criminal case, "           due
process would not require the trial court to ensure that a defendant understands the rights waived
by   a   factual     stipulation as      long      as   the stipulation      is   not   tantamount to a guilty      plea."   In re Det. of
Moore, 167 Wn.2d 113, 120, 216 P. 3d 1015 ( 2009).                                  The stipulation here was not tantamount to
a guilty plea because the State still had to meet its burden to prove the other elements of the
unlawful         possession        of   a     firearm         charge.      Thus, under Moore, no constitutional right was
implicated.          167 Wn.2d      at      120.
No. 43188 -2 -II



proving    a predicate offense            for the   charge of unlawful possession of a       firearm. 13   The trial court' s

colloquy with Durgeloh showed that, despite his expressed concerns, he ultimately agreed to the

substance and accuracy of the stipulation about his prior guilty plea, the existence of which he
                          14
does    not   dispute.           Based on both Durgeloh' s failure to preserve this claimed error and his


stipulation below, we do not further consider this new due process challenge.

                               II. REQUESTED LESSER INCLUDED OFFENSE INSTRUCTION


          Durgeloh next argues that the trial court violated his right to a fair trial under both article

1, section 3 of the Washington Constitution and the Fourteenth Amendment to the United States

Constitution when it refused to give his proposed lesser included jury instruction on unlawful

display    of a weapon,           instead    of second     degree   assault.    Durgeloh contends that every second

degree assault charged under RCW 9A.36.021( 1)( c) necessarily includes the lesser offense of


13
     RCW 9. 41. 040 provides, in part:
           2)(   a)   A   person ...       is guilty of the crime of unlawful possession of a firearm in
          the    second        degree, if the    person ...   owns, has in his or her possession, or has in
          his or her control any firearm:
           i) After having previously been convicted [ of] any of the following crimes when
          committed by one family or household member against another, committed on or
          after July 1, 1993: ...     violation of the provisions of a protection order or no
          contact order.

Durgeloh stipulated to having been convicted of violating a no contact order after July 1, 1993,
which     fulfilled this        element of       the   unlawful possession of a       firearm   charge.    Durgeloh' s prior

guilty   plea     to this      conviction     included the    following   provision: "     I understand that I may not
possess, own, or have under my control any firearm unless my right to do so is restored by a
court    of record and           that I   must   immediately    surrender      any   concealed pistol     license. [ Former]
RCW 9. 41. 040 [( 2006)]."                Ex. 13.


 14 Furthermore, Durgeloh cites no authority for his implicit argument that, in addition to
accepting his written assent, the trial court was required to obtain his personal oral acquiescence
to the    stipulation      that he signed.          And the certified copies of Durgeloh' s guilty plea in the prior
predicate offense also contained Durgeloh' s written acknowledgement that he was prohibited
from possessing a firearm, further demonstrating that Durgeloh understood the consequences of
his prior conviction.



                                                                 10
No. 43188 -2 -II



unlawful display of a firearm and, therefore, unlawful display is legally a lesser included offense
                                                                                15
to   second    degree     assault under     RCW 9A. 36. 021( 1)(          c).        This argument fails.


                                                        A. Standard of Review


             We   review a claim of         denial       of constitutional rights          de   novo.   State v. Stone, 165 Wn.


App.    796, 810, 268 P. 3d 226 ( 2012) (                    citing State v. Drum, 168 Wn.2d 23, 31, 225 P. 3d 237

 2010)).      A defendant is entitled to a jury instruction on a lesser included offense if (1) each of
the   elements of        the lesser offense        is   a   necessary   element of      the     offense charged ( "   legal prong ");

and ( 2) the evidence in the case supports an inference that the defendant committed the lesser

crime   to the     exclusion of      the   greater crime ( "factual         prong "). State v. Workman, 90 Wn.2d 443,


447 -48, 584 P. 2d 382 ( 1978) ( citations omitted); see State v. Berlin, 133 Wn.2d 541, 546 -47, 947


P. 2d 700 ( 1997). "            We review de, novo the legal prong of a request for a jury instruction on a

lesser included          offense."    State   v.   LaPlant, 157 Wn.         App. 685, 687,          239 P. 3d 366 ( 2010) ( citing


State   v.   Walker, 136 Wn.2d 767, 772, 966 P. 2d 883 ( 1998)).                         But we review " the factual prong of

a request      for   a   jury   instruction   on a       lesser included        offense"    for   abuse of   discretion. LaPlant,


157 Wn. App. at 687 ( citing Walker, 136 Wn.2d at 771 -72).

             Here, the State agrees that unlawful display of a firearm meets the first, legal prong of the

Workman test —that               each element of unlawful weapon display is a necessary element of second

degree assault with a firearm. Thus, we address only the second, factual prong of the test.




 15 See Br. of Appellant at 19 ( citing State v. Fernandez- Medina, 141 Wn.2d 448, 455, 6 P. 3d
 1150 ( 2000)).




                                                                    11
No. 43188 -2 -II



                                               B. Unlawful Display of a Weapon

        The State charged Durgeloh with two counts of second degree assault under RCW

9A.36. 021( 1)(       c)   based    on   his   having    pointed    a   loaded handgun     at   two   officers.       This statute


requires    the       State    to   prove      that   Durgeloh      used    a   deadly   weapon       to "`   put[]    another in

                                    16
apprehension          of harm. "'        State   v.   Byrd, 125 Wn.2d 707, 712, 887 P. 2d 396 ( 1995) (                 emphasis




added) (   quoting State v. Frazier, 81 Wn.2d 628, 631, 503 P. 2d 1073 ( 1972)).

        In contrast, RCW 9. 41. 270, which defines the lesser charge of unlawful display of a

weapon, provides, in part:


           1)        It shall be unlawful for any person to carry, exhibit, display, or draw any
        firearm .            or any other weapon apparently capable of producing bodily harm, in
        a manner, under circumstances, and at a time and place that either manifests an
        intent to intimidate another or that warrants alarm for the safety of other persons.
           2)    Any person violating the provisions of subsection ( 1) above shall be guilty of
        a gross misdemeanor... .



           3)    Subsection ( 1) of this section shall not apply to or affect the following:
           a)    Any act committed by a person while in his or her place of abode or fixed
        place of business.


Unlawful display of a deadly weapon would have required the State to prove only that Durgeloh

displayed        a   firearm in      a   manner       that "   manifest[ ed]    an intent to intimidate another or that


warrant[ ed] alarm            for the safety     of other persons."        RCW 9. 41. 270( 1) (   emphasis added).




           The State argues that ( 1) the second, factual prong of the Workman test is not met here

because the evidence does not raise an inference that only the lesser included/inferior degree


16 RCW 9A.36. 021( 1)( c) provides:
            1)  A person is guilty of assault in the second degree if he or she, under
           circumstances not amounting to assault in the first degree:

            c)   Assaults another with a deadly weapon[.]



                                                                    12
No. 43188 -2 -II



offense       was        committed          to the   exclusion         of   the   charged      offense,     as    Fernandez- Medina, 141


Wn.2d        at   455     requires; and (         2) the   evidence     does      not support such an            inference here. We agree


with the State.


             Under the               Workman test'         s   factual prong, Durgeloh must show that the evidence


 support[ s] an inference that the lesser offense was committed instead of the greater offense."


State   v.    Karp, 69          Wn.        App.   369, 376, 848 P. 2d 1304 ( 1993) (               citing State v. Bergeson, 64 Wn.

App.     366, 369, 824 P. 2d 515 ( 1992)).                         The evidence here does not raise an inference that


Durgeloh committed unlawful display of a weapon instead of second degree assault under RCW

9A.36. 021( 1)(           c).   Durgeloh did not merely display a weapon; he intentionally pointed his loaded

handgun           at    the officers        and   threatened to        kill them.        Comparing the statutory descriptions of

these two crimes, we note that the lesser weapon display involves only " intent to intimidate" on

the   part of          the   actor or "      alarm" for personal safety, but second degree assault requires putting

another       in       actual " apprehension"          of      harm,   not mere " alarm."           Compare RCW 9. 41. 270( 1)           and




RCW 9A. 36. 021( 1)(                 c),   respectively.


             Furthermore; because Durgeloh threatened the                               officers " at     his   place of abode,"   he cannot


be guilty of unlawful display of a weapon because unlawful display of a firearm does not apply

to "[   a]   ny   act committed             by    a person while       in his     or   her   place of abode."        RCW 9. 41. 270( 3)( a).


At trial, the State did               not contest     that Durgeloh          was on     his   porch, an area "[      p] lainly open to the

public."          3 VRP         at   268.    Instead, the State         asserted, and         the trial    court   agreed17, that Durgeloh


was     in his '         place       of abode '      and, thus, unlawful display of a firearm could not be a lesser


 17
   Relying primarily on State v. Haley, 35 Wn. App. 96, 98, 665 P. 2d 1375 ( 1983), the trial court
ruled that the purpose of RCW 9. 41. 270( 3)( a) was to promote the public' s sense of safety and
expectation of privacy in the home and made the following findings: ( 1) that Durgeloh' s porch




                                                                             13
No. 43188 -2 -II



included    offense of second          degree    assault under   the facts here.    Br. of Resp' t at 9 ( quoting RCW

9. 41. 270( 3)( a)).

          We hold, therefore, that ( 1)              the facts do not support that Durgeloh committed only

unlawful     display    of a       firearm; ( 2) thus, the requested instruction here did not meet the first


Workman test prong; and ( 3) the trial court did not err in refusing to give his requested lesser

included instruction.


                                                         III. SENTENCING


          Durgeloh      next       argues    that ( 1)   his sentences for second degree assault with firearm


enhancements, felony harassment with firearm enhancements, and unlawful possession of a

firearm    exceeded      the RCW 9A.20. 021( 1)( b)             120 -month statutory maximum because the trial

court imposed 120 months of total confinement, followed by 18 months of community custody;

and ( 2) RCW 9. 94A.701( 9) required the trial court to reduce his community custody so that the

total of community custody and period of confinement do not exceed the statutory maximum.

Durgeloh mischaracterizes the trial court' s low -
                                                 end standard -
                                                              range confinement sentences, none


of which come close to the applicable statutory maximums.


          Generally,         a standard range       sentence    is   not   appealable.    RCW 9. 94A. 585( 1);       State v.


 Williams, 149 Wn.2d 143, 146, 65 P. 3d 1214 ( 2003). Nevertheless, we review de novo the trial a


trial court' s sentencing determination " for the correction of legal errors or abuses of discretion."



was " not    an   area exposed        to the   public "; (2)   that the porch was "      attached   to the home" "   about a

hundred     yards      off   the   main     roadway," with " lots of trees "; and ( 3) that " the deck where the
 actions occurred ...          were ...       in the place of abode." 3 VRP at 273, 274, 275, 277. For these
 reasons, the trial court refused Durgeloh' s request to instruct on the lesser included offense of
 unlawful display of a firearm.



                                                                 14
No. 43188 -2 -I1



Williams,      149 Wn.2d         at     147.     Because Durgeloh asserts sentencing errors, we review the

sentences for legal error. We find none.

         The trial court sentenced Durgeloh as follows:

         Counts 1       and     2:    22 months of confinement for each of the two second degree assault


convictions, the low end of the standard sentence . range for these class B felonies, with an

additional 36 -month firearm sentence enhancement for each count.

         Count 3:         12 months and one day of confinement for the unlawful firearm possession

conviction, the low end of the standard sentence range for this class C felony.

           Counts 4       and    5:     12 months of confinement for each of the two felony harassment

convictions, also the low end of the standard sentence range for these class C felonies, with an

additional       18 -month firearm         sentence   enhancement       for   each count.    The trial court ran all the


sentences for the underlying crimes concurrently; and, as statutorily required, it ran the firearm

sentencing enhancements consecutively to each corresponding underlying sentence and to each

other.'$     The trial court also imposed 18 months of community custody on counts 1 and 2.

            We    agree    with       Durgeloh that ( 1)         RCW    9A.20. 021( 1)( b)    establishes   a   120 -month


maximum sentence for class B felonies such as second degree assault; and ( 2) if an offender' s



18 Although not an issue in this appeal, we note that during the sentencing hearing, the trial court
mistakenly       said   that the 4      firearm   enhancements      totaled 98 months       of confinement.     See 3 VRP
at   403 -04.      Although defense counsel correctly noted that these enhancements totaled 108
months, the prosecutor said that the court' s 98 -month calculation was correct; ultimately all
agreed      to this 98 -month total.            See 3 VRP   at   403 -04.   When the trial court added this 98 -month
enhancement total to the longest standard range sentence for the underlying crimes, 22 months, it
calculated a total confinement of 120 months and entered it on the judgment and sentence form
in the   allocated spot on page            6.    The correct total, however, should have been 130 months and a
 day   of    confinement.             Although neither party seeks relief from this apparently inadvertent
 addition error, they may wish to ask the trial court to correct this scrivener' s error after we
 mandate the case.



                                                                  15
No. 43188 -2 -II



standard range term of confinement for a class B felony combined with the offender' s later term

of community custody exceeds this 120 -month statutory maximum, the trial court must reduce

the term of community custody to stay within the 120 -month maximum.19 But we disagree with
Durgeloh that the trial court exceeded the applicable statutory maximum here.

        We    evaluate     the   maximum         sentence   for   each   count   separately.   State v. Thomas, 150


Wn.2d 666, 669 -74, 80 P. 3d 168 ( 2003).               None of Durgeloh' s individual sentences approach, let


alone   exceed,    their   applicable      statutory     maximums (       not even with their respective firearm


enhancements      running consecutively to the              sentences     for the underlying       crimes):   Durgeloh' s


longest sentences ( for counts 1 and 2, second degree assault) each include 22 -month low -
                                                                                          end

standard -range sentences, with an additional 36- months for the firearm enhancement; these

resultant concurrent totals of 58 months of confinement fall far below the RCW 9A.20. 021

statutory 120 -month       maximum        for these     class   B felonies.   Thus, when the trial court appended


the 18 -month community custody term to Counts 1 and 2, the combined terms of confinement

and   community custody          still   fell   well   below the 120 -month statutory          maximum:       40 months


without the firearm        enhancements          and   76 months even         with the    enhancements.       Durgeloh' s


challenges to his standard range sentences fail.

             IV. STATEMENT         OF    ADDITIONAL GROUNDS:              SUFFICIENCY OF THE EVIDENCE


         In his SAG, Durgeloh asserts two additional grounds for relief. He first asserts that the

State did   not prove all    the   elements of second           degree   assault with a   deadly   weapon.    Second, he


asserts that the State did not prove all the elements of felony harassment, RCW 9A.46.020( 2)( b),




 19 See Br. of Appellant at 23 -24 ( citing RCW 9. 94A.701( 9) and State v. Boyd, 174 Wn.2d 470,
472 -73, 275 P. 3d 321 ( 2012)).



                                                                16
No. 43188 -2 -I1


because the State failed to present sufficient evidence that his threat to kill was unlawful.

Neither claim merits reversal of his convictions.

                                                       A. Standard of Review


         When determining whether evidence is sufficient to support a conviction, we review "the

evidence in the light most favorable to the State" to determine whether " any rational trier of fact

could   have found [ the defendant]                guilt[ y]   beyond    a reasonable   doubt."   State v. Salinas, 119


Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                        We   must   draw " all reasonable inferences from the


evidence ...        in favor        of    the State"   and interpret them " most strongly against the defendant."

Salinas, 119 Wn. 2d            at    201.     We defer to the trier of fact on issues of conflicting testimony,

witness credibility, and the persuasiveness of the evidence.                      State v. Thomas, 150 Wn.2d 821,

                                                                                                                   20
874 -75, 83 P. 3d 970 ( 2004) ( citing State              v.   Cord, 103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985)).


                                                   B. Second Degree Assault


         Durgeloh is correct that second degree assault requires specific intent to create reasonable

fear   and   apprehension            of   bodily injury. He contends that, because both deputies stated that

Durgeloh      could not see          them, (    1) he was not pointing the gun at anyone; and ( 2) therefore, he

could not have had a specific intent to create reasonable fear and apprehension of bodily injury.

Durgeloh      cites   State     v.   Eastmond, 129 Wn.2d 497, 919 P. 2d 577 ( 1996),                overruled on   other




grounds      by   State   v.   Brown, 147 Wn.2d 330, 340, 58 P. 3d 889 ( 2002), for the proposition that a


jury may infer specific intent to create fear from the defendant' s pointing a gun at a victim.




20
     Abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
 158 L. Ed. 2d 177 ( 2004).




                                                                    17
No. 43188 -2 -II



          Reviewing the evidence in the light most favorable to the State, Salinas, 119 Wn.2d at

201,    we reject    Durgeloh'   s assertion.           First, there is no authority to support Durgeloh' s implicit

assertion that the State was required to prove that he pointed the gun directly at the officers in

order to prove second degree assault with a deadly weapon. Eastmond stands for the proposition

that pointing a gun at a victim is but one way for a jury to infer specific intent; it is not the only

way. Eastmond, 129. Wn.2d              at   500. Intent "'      can be inferred as a logical probability from all the

facts   and circumstances.'            State v. Yarbrough, 151 Wn. App. 66, 87, 210 P. 3d 1029 ( 2009)

 quoting State v. Wilson, 125 Wn.2d 212, 217, 883 P. 2d 320 ( 1994)).

          Second, the evidence was sufficient for the jury to conclude that he had the requisite

specific   intent, based    on   his   repeated statements              to the 911 dispatcher that "[ the deputies] will


die"    and   that   he would    shoot      them,       statements      that the deputies   overheard.   2 VRP at 128.


Durgeloh' s statements to the 911 dispatcher and to the officers were direct evidence of his clear


intent to threaten the officers with death if they did not leave his property.

                                                    C. Felony Harassment

           Citing RCW 9A. 16. 020, Durgeloh asserts that his threat to use force against the officers

was lawful. This statute provides, in part:


           The use, attempt, or offer to use force upon or toward the person of another is not
           unlawful in the following cases:

           3)   Whenever    used   by       a   party   about   to be injured ...   in preventing or attempting
           to prevent an offense against his or her person, or a malicious trespass, or other
           malicious interference with real or personal property lawfully in his or her
           possession.

RCW 9A. 16. 020.


           Durgeloh first asserts that he did not know that the persons in whose direction he was


pointing his     gun were   law   enforcement officers:              He contends that " the officers did not do a good



                                                                   18
No. 43188 -2 -II



enough    job      of   identifying [ themselves], they              parked [ their] cars out of sight and           hid[] behind Mr.


Durgeloh'      s   truck   and car.       At no time could Mr. Durgeloh have seen the officers or have known

that   they for     sure were officers."            SAG    at   4.    The    evidence    clearly       counters   this   assertion.   The


jury could infer Durgeloh' s knowledge that the individuals in his yard were police officers from

 1) his first 911 call, demanding that the dispatcher remove the officers from his property or else

he   would shoot         them; and ( 2)     his   second    911      call, which    he began      by telling the     dispatcher, " Get


the    cops out of       my   yard now.      They    have   no right       to be in my    yard.    I    never called     them."   2 VRP


at 210.


          In addition, the officers testified that they drove marked police cars up Durgeloh' s

driveway,      parked      them     in front   of   his house,       and   identified themselves          as sheriffs     deputies. We


do    not question        the   jury' s   apparent    finding    that the     officers   credibly testified to these facts.           We


hold, therefore,           that the jury had a reasonable basis for finding that Durgeloh knew the

individuals on his property were police officers.

          Nor does Durgeloh succeed in showing that his display of force against the officers was

lawful. Our Supreme Court has held,


              A] lthough               being unlawfully arrested has a right . . . to use
                                a person    who      is
          reasonable and proportional force to resist an attempt to inflict injury on him or
          her during the course of an arrest, that person may not use force against the
          arresting officers if he or she is faced only with a loss of freedom.

State    v.   Valentine, 132 Wn.2d 1, 21, 935 P. 2d 1294 ( 1997).                               Furthermore, "       a person cannot




respond with criminal               conduct,"     even    to illegal       police   behavior.     State v. Mann, 157 Wn. App.

428, 438, 237 P. 3d 966 ( 2010) ( citing Valentine, 132 Wn.2d                              at   21).     At the time of the incident


here, there was no suggestion that the officers were going to arrest Durgeloh or to harm him in




                                                                        19
No. 43188 -2 -II



any way;      on    the contrary,   they   arrived   to   conduct               suicidal
                                                                    a " welfare /            check"   in response to


Durgeloh' s caretaker' s call for assistance. 2 VRP at 106.

        Durgeloh has         not    demonstrated that his threat to        use   force      was   lawful.   We hold,


therefore, that RCW 9A. 16. 020 does not provide Durgeloh with a defense to his threat to use

force against Deputies Moore and Cruser.

                                       D. Suppression of Firearm Evidence


        In his " Supplemental"          SAG, filed on May 23, 2013, Durgeloh asks us to find that " the

gun   taken      from [ his] house [   without]   a warrant   to be the fruit    of   the   poisonous   tree."   Suppl.


SAG    at   6.     We do not consider this claim because he filed it too late and without court


permission or additional extension beyond the original February 4, 2013 extension authorized by

our court clerk.       Because this filing does not comply with RAP 10. 10, we do not further address

it.


        We affirm Durgeloh' s convictions and sentences.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is

so ordered.




We concur:




                                                            20
