       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                            No. 81373-1-I
                       Respondent,
                                            DIVISION ONE
               v.
                                            UNPUBLISHED OPINION
 BRIAN STEPHEN GANTT, AKA
 BRIAN S. GANTT,

                       Appellant.


       SMITH, J. — Brian Gantt appeals his convictions for residential burglary,

obstructing a police officer, malicious mischief in the third degree, and two counts

of felony violation of a no-contact order. He asserts that (1) there was insufficient

evidence to convict him of malicious mischief, (2) the trial court erred by giving an

inference instruction on the malicious mischief charge, and (3) the court erred

when it denied his request for a voluntary intoxication instruction.

       We conclude that a reasonable jury could have found that the State

proved the elements of malicious mischief beyond a reasonable doubt. And

because an inference of malice followed more likely than not from the evidence

presented at trial, the trial court did not err in providing the inference instruction.

Finally, because the record presents no evidence that Gantt’s intoxication

impaired his ability to form the requisite mental states for the crimes with which

he was charged, the trial court correctly denied Gantt’s request for a voluntary

intoxication instruction. Moreover, none of the additional issues that Gantt raises




 Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81373-1-I/2


in his statement of additional grounds for review (SAGR) have merit. Therefore,

we affirm.

                                       FACTS

       Gantt and C.S. were in a relationship and have a three-year-old son,

C.N.S. On August 8, 2017, the Pierce County Superior Court entered a no-

contact order, which prohibited Gantt from communicating with C.S. And on

October 6, 2017, the Puyallup Municipal Court entered a similar no-contact order

prohibiting Gantt from contacting C.S. except to arrange the visitation exchange

for C.N.S. Both orders prohibited Gantt from being within 1,000 feet of C.S., or

her home, school, or place of employment. The municipal court order expired on

October 6, 2019, and the superior court order expires on August 8, 2022.

       On or about May 7, 2018, before going to bed, C.S. locked the sliding

glass door to her newly constructed apartment. However, she did not try “to

open [the door] while it was locked.” Sometime early the next morning, C.S.

heard a noise in her living room. She went to her living room and saw Gantt,

“upset, distraught, practically crying, mumbling stuff that [C.S.] didn't understand.”

C.S. also believed that Gantt was intoxicated and “out of it.” C.S. told Gantt to

leave “[b]ecause [she] didn't want him to get in trouble.” In response, Gantt “took

a bottle of pills out of his pocket and swallowed them,” telling C.S. “just to let him

die.” After about 30 minutes, Gantt began to lose consciousness, and C.S.

stepped outside and called the police. She informed the operator that Gantt was

in her home, uninvited, intoxicated, and had swallowed a bottle of pills. While on

the phone, C.S. noticed that the windshield wiper on her car, which was parked




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No. 81373-1-I/3


outside of her apartment, was broken. She informed dispatch because she

“assumed [Gantt] did it.”

       Pierce County Sheriff’s Deputies Adam Pawlak and Ryan Olivarez

responded to the call and arrived at C.S.’s apartment just before 5:00 a.m. The

apartment’s front door was ajar, and the deputies announced themselves before

entering. Upon entrance, the deputies saw “a male lying on the couch” and

asked Gantt “if he was Brian.” Gantt answered no. But C.S. informed the

deputies otherwise. Gantt then ran out of the apartment through the sliding door.

The deputies chased after him, identifying themselves as police and telling Gantt

to stop. Gantt “started to put his hand towards his pocket, and . . . Deputy

Olivarez deploy[ed] his Taser.” Gantt fell, and the deputies handcuffed him. He

told Deputy Pawlak that “he took 30 Benadryl with alcohol in an attempt to kill

himself.”

       Later, C.S. noticed the lock to her “sliding glass door was on the floor.”

She attempted to put the lock back into the door, but it was missing a screw.

After searching the apartment and being unable to find the screw, she put the

lock back in the door. However, without the screw, the lock did not work. C.S.

testified at trial that she believed the door “never locked properly.”

       The State later charged Gantt by amended information with residential

burglary, obstructing a law enforcement officer, malicious mischief in the third

degree, and two counts of felony violation of a domestic violence court order.

       At trial, the court gave the State’s requested jury instruction number 30

(malice instruction): “Malice and maliciously mean an evil intent, wish, or design




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to vex, annoy, or injure another person. Malice may be, but is not required to be,

inferred from an act done in willful disregard of the rights of another.” But at the

conclusion of the parties’ presentation of evidence, the trial court denied Gantt’s

request for a voluntary intoxication instruction because “there was the smell of

alcohol and no other evidence of alcohol usage that would direct the State’s

attention to the fact that voluntary intoxication was going to be used as a

defense.”

       The jury convicted Gantt as charged. At sentencing, the trial court

determined that Gantt “was experiencing suicidal ideation on or about” the date

of the events. The court therefore found “[s]ubstantial and compelling reasons

[to] justify an exceptional sentence below the standard range” on all counts. The

court imposed “a total sentence of 48 months.” Gantt appeals.

                                     ANALYSIS

                            Sufficiency of the Evidence

       Gantt contends that the State did not present sufficient evidence of

malicious mischief. We disagree.

       Under RCW 9A.48.090, “[a] person is guilty of malicious mischief in the

third degree if he or she: (a) Knowingly and maliciously causes physical damage

to the property of another.” “‘Malice’ and ‘maliciously’ shall import an evil intent,

wish, or design to vex, annoy, or injure another person.” RCW 9A.04.110(12).

And “[m]alice may be inferred from an act done in willful disregard of the rights of

another.” RCW 9A.04.110(12).

       Under the due process clause, the State was required to prove the




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No. 81373-1-I/5


elements of malicious mischief “beyond a reasonable doubt.” U.S. CONST.

amend. XIV; State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018). “When

a defendant challenges the sufficiency of the evidence” presented to meet this

burden, they “admit[ ] the truth of all of the State’s evidence.” State v. Cardenas-

Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). “In such cases, appellate

courts view the evidence in the light most favorable to the State, drawing

reasonable inferences in the State’s favor.” Cardenas-Flores, 189 Wn.2d at 265-

66. And “[e]vidence[, when viewed in such a light,] is sufficient to support a guilty

verdict if any rational trier of fact . . . could find the elements of the charged crime

beyond a reasonable doubt.” Cardenas-Flores, 189 Wn.2d at 265. We review

de novo whether the State presented sufficient evidence to support a conviction.

State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

       Here, and contrary to Gantt’s contention that the only evidence the State

presented was Gantt’s presence in the apartment, the State produced the

following evidence: (1) the destruction of property, i.e., the lock’s displacement

from the door itself and the lock’s missing screw, (2) testimony that the door lock

had not been lying on the floor before Gantt entered the home and was on the

floor after Gantt arrived, (3) C.S.’s testimony that she had locked the door before

going to bed, (4) Gantt’s entrance into C.S.’s home through the door that was

shut, (5) Gantt’s knowledge of the existing domestic violence protection orders,

and (6) Gantt’s presence in C.S.’s home. And this evidence was sufficient to

support the determination that Gantt committed the act with willful disregard of

C.S.’s rights, i.e., Gantt entered C.S.’s home through the closed door of her




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No. 81373-1-I/6


apartment, against the law and without invitation. From this evidence, the jury

was allowed to infer malice. Specifically, the jury could rationally infer that Gantt

was in C.S.’s home with, at the least, the intent to vex or annoy C.S. Thus, the

State presented sufficient evidence for a rational juror to conclude beyond a

reasonable doubt that Gantt knowingly and maliciously caused physical damage

to C.S.’s door.

       Similarly, the State presented sufficient circumstantial evidence regarding

the broken windshield wiper—including that (1) the windshield wiper was not

broken before C.S. went to bed, (2) C.S.’s testimony that the windshield wiper

was broken when she went outside to call the police, (3) C.S. and Gantt had an

altercation earlier on the evening of May 6, and (4) someone had urinated on

C.S.’s front door between the time she went to bed and when Gantt arrived at her

home. And the jury therefore could infer malicious intent. Thus, viewing this

evidence in the light most favorable to the State, a reasonable jury could

conclude beyond a reasonable doubt that Gantt maliciously and knowingly

damaged C.S.’s windshield wiper.

       In short, the State produced sufficient evidence for both theories of

malicious mischief in the third degree.

                                Inferential Instruction

       Gantt contends that the trial court erred when it provided the malice

instruction to the jury because it “improperly relieved the state from having to

prove every element beyond a reasonable doubt.” We disagree.

       “The state may not circumvent its burden of persuasion[, described




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No. 81373-1-I/7


above,] through exclusive use of a permissive inference.” State v. Brunson, 128

Wn.2d 98, 107, 905 P.2d 346 (1995). “A permissive inference suggests to the

jury a possible conclusion to be drawn if the State proves predicate facts, but

does not require the jury to draw that conclusion.” State v. Ratliff, 46 Wn. App.

325, 330, 730 P.2d 716 (1986). And “‘when permissive inferences are only part

of the State’s proof supporting an element and not the sole and sufficient proof of

such element, due process is not offended if the prosecution shows that the

inference more likely than not flows from the proven fact.’” State v. Cantu, 156

Wn.2d 819, 826, 132 P.3d 725 (2006) (internal quotation marks omitted) (quoting

State v. Deal, 128 Wn.2d 693, 700, 911 P.2d 996 (1996)). To this end, “[f]or a

trier of fact to draw inferences from proven circumstances, the inferences must

be ‘rationally related’ to the proven facts.” State v. Jackson, 112 Wn.2d 867,

875, 774 P.2d 1211 (1989) (quoting State v. Jeffries, 105 Wn.2d 398, 442, 717

P.2d 722 (1986)). Specifically, “‘[t]he jury is permitted to infer from one fact the

existence of another essential to guilt, if reason and experience support the

inference.’” Jackson, 112 Wn.2d at 875 (quoting Tot v. United States, 319 U.S.

463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943)).

       Ratliff is instructive. There, two officers arrested Keith Ratliff when they

saw him shoplift from a deli. Ratliff, 46 Wn. App. at 326. The officers placed

Ratliff in a police van and went back into the deli. Ratliff, 46 Wn. App. at 326.

When they returned to the van, the “window between the prisoner holding area

and the cab was broken,” the police radio was broken and wires were

disconnected, and an officer’s jacket was in the holding area. Ratliff, 46 Wn.




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No. 81373-1-I/8


App. at 326. The State charged Ratliff with malicious mischief in the second

degree. Ratliff, 46 Wn. App. at 326. At trial, the court instructed the jury “that it

could infer malice ‘from an act done in willful disregard of the rights of another.’”

Ratliff, 46 Wn. App. at 329-30. On appeal, we concluded that “[u]nder the facts

of this case, there was a rational connection between the proven fact[s],” i.e., the

broken window, the jacket in the holding area, and the damaged radio, “and the

inference of malice.” Ratliff, 46 Wn. App. at 331. Specifically, we held that the

facts were “more consistent with malicious intent than with Ratliff’s claim that he

wanted to use the radio to call help.” Ratliff, 46 Wn. App. at 331.

       Similarly, here, the trial court instructed the jury: “Malice may be, but is not

required to be, inferred from an act done in willful disregard of the rights of

another.”1 The State produced the following evidence at trial: C.S.’s testimony

that (1) she locked the door before she went to bed, (2) the door was intact when

C.S. went to bed, (3) after Gantt entered C.S.’s home, a piece of the door’s lock

was broken, displaced, and on the floor, (4) the door was open after Gantt

entered, and (5) Gantt entered C.S.’s home, intoxicated and with the intention of

harming himself. And regardless of whether or not the lock was already broken,

Gantt damaged the lock further—by displacing it from the door—when he

entered the home. Like in Ratcliff, there is a rational connection between these

proven facts, i.e., the displaced lock and opened door, and the inference of

malice. Thus, the facts are consistent with Gantt knowingly and maliciously



       1This instruction is consistent with 11 Washington Practice: Washington
Pattern Jury Instructions: Criminal 2.13 (4th ed. 2016) (WPIC), RCW 9A.48.090,
and RCW 9A.04.0110(12).


                                           8
No. 81373-1-I/9


entering C.S.’s home and damaging her door.

       Gantt disagrees and relies on Jackson for a multitude of propositions.

None are persuasive. In Jackson, a police officer noticed Jackson kicking at the

door of a shop. 112 Wn.2d at 870. As the officer approached Jackson, Jackson

walked away. Jackson, 112 Wn.2d at 870. The shop incurred damage to the

door and the door frame, and the State later charged Jackson with attempted

second degree burglary. Jackson, 112 Wn.2d at 870. The court gave an

instruction allowing for an inference that “‘[a] person who attempts to enter or

remain unlawfully in a building may be inferred to have acted with intent to

commit a crime.’” Jackson, 112 Wn.2d at 872. Our Supreme Court held that

“where the State pleads and proves only attempted burglary,” an inferential

instruction “is improper.” Jackson, 112 Wn.2d at 876 (emphasis added).

Specifically, the instruction improperly shifted the burden to the defendant

because more than two inferences could be drawn from the facts proven at trial:

“(1) attempted burglary or (2) vandalism or malicious destruction” and “an

inference can not [sic] follow that there was intent to commit a crime within the

building just by the defendants’ shattering of the window in the door.” Jackson,

112 Wn.2d at 876.

       First, Gantt contends that Jackson requires that the inference that is made

be supported beyond a reasonable doubt by the act done. But the court in

Jackson discussed the beyond a reasonable doubt standard in relation to a

presumption. See Jackson, 112 Wn.2d at 876 (“For a criminal statutory

presumption to meet the test of constitutionality the presumed fact must follow




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No. 81373-1-I/10


beyond a reasonable doubt from the proven fact.”) (emphasis added). Here, on

the other hand, the court gave a permissive inference. Thus, the appropriate

standard was more likely than not. See Ratliff, 46 Wn. App. at 329-31 (applying

the more likely than not standard for a permissive inference instruction identical

to WPIC 2.13, the same instruction used to instruct the jury here).

       Second, Gantt contends that like in Jackson, where two inferences could

be drawn from the facts proven at trial, here, two inferences also can be made:

(1) the lock was already broken or (2) Gantt broke the lock. But here, the State

produced many facts allowing for an inference. As discussed above, broken or

not, the lock was in place prior to Gantt’s entry into C.S.’s home, and after Gantt

entered the home, the lock was displaced, damaged, and on the ground. And

the inference that can be drawn has nothing to do with the lock’s functionality.

Rather, there is only one reasonable inference that can be deduced from the

facts proven at trial, i.e., a malicious intent: the intent to vex or annoy C.S. Thus,

reason and experience support the inference of malice from these proven facts.

And Gantt’s reliance on Jackson in this regard is misplaced.

       Additionally, Gantt relies on Jackson in support of his proposition that

“there were no reasonable inferences regarding the windshield wiper because

simply being present in the apartment does not imply Gantt maliciously damaged

C.S.’s property outside the apartment.” However, as discussed above, C.S.

testified that someone urinated on C.S.’s front door, that her vehicle’s windshield

wiper was not broken on May 6, that C.S. and Gantt got into an altercation

outside of her home that evening, and that the windshield wiper was broken after




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No. 81373-1-I/11


Gantt’s appearance in C.S.’s home. An inference of malice was rationally related

to these proven facts. Thus, Gantt’s contention fails.

                          Voluntary Intoxication Instruction

       Gantt asserts that he was entitled to a voluntary intoxication instruction.

We disagree.

       “A defendant is not entitled to an instruction . . . for which there is no

evidentiary support.” State v. Phillips, 9 Wn. App. 2d 368, 383, 444 P.3d 51,

review denied, 194 Wn.2d 1007 (2019). And “[t]o obtain a voluntary intoxication

instruction, the defendant must show (1) one of the elements of the crime

charged is a particular mental state, (2) there is substantial evidence that the

defendant ingested an intoxicant, and (3) evidence that his ingestion of an

intoxicant affected his ability to acquire the required mental state for the crime.”

State v. Classen, 4 Wn. App. 2d 520, 536, 422 P.3d 489 (2018). “In other words,

the evidence ‘must reasonably and logically connect the defendant's intoxication

with the asserted inability to form the required level of culpability to commit the

crime charged.’” State v. Kruger, 116 Wn. App. 685, 691-92, 67 P.3d 1147

(2003) (quoting State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549

(1996)). We review a trial court’s rejection of a requested jury instruction for an

abuse of discretion. State v. Priest, 100 Wn. App. 451, 454, 997 P.2d 452

(2000).

       Both parties concede that Gantt’s charged crimes require particular mental

states. Thus, the first requirement for the requested instruction is present.

       However, Gantt failed to provide evidence of the second or third




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No. 81373-1-I/12


requirement. To this end, Gabryschak is instructive. There, police were

dispatched to Scott Gabryschak’s mother’s apartment due to yelling.

Gabryschak, 83 Wn. App. at 251. Gabryschak refused to let the officers into the

home and attempted to run from the officers while being escorted to their vehicle.

Gabryschak, 83 Wn. App. at 251, 254-55. Gabryschak was later charged with,

among other things, malicious mischief in the third degree. Gabryschak, 83 Wn.

App. at 252. At trial, testimony from the officers who responded to the scene and

from Gabryschak’s mother included that Gabryschak was “‘very intoxicated,’”

“‘had a couple of drinks,’” and was “‘too drunk to drive.’” Gabryschak, 83 Wn.

App. at 253. But we held that “[a] person can be intoxicated and still be able to

form the requisite mental state.” Gabryschak, 83 Wn. App. at 254. And because

the facts at trial indicated that Gabryschak understood the situation with the

police, we concluded that the trial court did not err in rejecting the request for a

voluntary intoxication instruction. Gabryschak, 83 Wn. App. at 255.

       Here, C.S. testified that Gantt appeared intoxicated and was “mumbling”

and “distraught” when he entered her home. The deputies also testified that

Gantt smelled of alcohol. But “[s]imply showing that someone has been drinking

is not enough.” Kruger, 116 Wn. App. at 692. And Gantt responded to the

deputies when asked if he was Gantt, and he lied to the officers about who he

was. Like in Gabryschak, these facts “indicat[e] that [Gantt] fully understood the

nature of the requests.” 83 Wn. App. at 254-55. Gantt, like the defendant in

Gabryschak, also ran from the deputies, which “indicat[es] that he was well

aware that he was under arrest.” See Gabryschak, 83 Wn. App. at 254-55.




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No. 81373-1-I/13


Furthermore, Gantt told C.S. not to call the police, which indicates that he was

aware that he was not allowed at C.S.’s home. In short, while there is some

evidence that Gantt was intoxicated, there is no evidence that the intoxication

impaired his ability to form the requisite criminal intent for any of the charged

crimes. And “‘[i]t is well settled that to secure an intoxication instruction in a

criminal case there must be substantial evidence of the effects of alcohol on the

defendant’s mind or body.’” State v. Gallegos, 65 Wn. App. 230, 237-38, 828

P.2d 37 (1992) (alteration in original) (quoting Safeco Ins. Co. v. McGrath, 63

Wn. App. 170, 179, 817 P.2d 861 (1991)). As there was no such evidence here,

the trial court properly denied Gantt’s request for the voluntary intoxication

instruction.

       Gantt disagrees and cites Kruger. There, Daniel Kruger showed up at

Jennifer Kuntz’s house drunk and acting “obnoxious and rude.” Kruger, 116 Wn.

App. at 688. After Kuntz called the police, an officer showed up and tried to

speak with Kruger who, after being followed to the side entrance of Kuntz’s home

and trying to open the door, swung a beer bottle at the officer. Kruger, 116 Wn.

App. at 688-89. In attempting to subdue Kruger, “[p]epper spray had little effect,”

and “[a]t the jail, Mr. Kruger began vomiting.” Kruger, 116 Wn. App. at 689, 692.

“The State charged Kruger with third degree assault,” and Kruger’s counsel failed

to request a voluntary intoxication instruction. Kruger, 116 Wn. App. at 689, 690.

On appeal, the court concluded that Kruger was entitled to a voluntary

intoxication instruction because there was “ample evidence of his level of

intoxication on both his mind and body.” Kruger, 116 Wn. App. at 692.




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No. 81373-1-I/14


Specifically, Kruger was physically ill, he experienced a “blackout,” and

compliance techniques “had little effect,” which “is usually the case when one is

highly intoxicated. Kruger, 116 Wn. App. at 689, 692. Here, there was no similar

evidence. Thus, Gantt’s reliance on Kruger is misplaced.

       Gantt also contends that State v. Walters, 162 Wn. App. 74, 255 P.3d 835

(2011), supports his proposition that a jury may infer from evidence of his

physical manifestations that Gantt was unable to form the required mental states.

In Walters, James Walters consumed “at least seven beers and two other shots

of alcohol” at a bar where he was formerly employed. 162 Wn. App. at 78.

Later, when an officer attempted to retrieve stolen property from Walters, Walters

resisted arrest. Walters, 162 Wn. App. at 79. During the altercation, Walters had

“slurred speech, droopy, bloodshot eyes,” swayed, and failed to “respond to pain

compliance techniques.” Walters, 162 Wn. App. at 83. The State later charged

Walters with third degree theft. Walters, 162 Wn. App. at 79. And prior to trial,

the trial court denied Walters’ request for a voluntary intoxication instruction.

Walters, 162 Wn. App. at 79. On appeal, the court held that there was “sufficient

physical evidence of intoxication to entitle Walters to a voluntary intoxication

instruction.” Walters, 162 Wn. App. at 82-83. As discussed above, we have very

little evidence that Gantt consumed alcohol, and none similar to that provided in

Walters. And to the extent Gantt relies on the evidence that he took Benadryl,

this came after the commission of all crimes, i.e., he had already entered C.S.’s

apartment and the windshield wiper was broken prior to when he took the

medication. Such evidence is therefore irrelevant. Thus, Walters is




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No. 81373-1-I/15


distinguishable.

                         Statement of Additional Grounds

       In his pro se SAGR, Gantt raises a number of additional contentions,

including (1) miscalculation of his offender score, (2) ineffective assistance of

counsel, (3) failure to call an exculpatory witness, and (4) illegal search and

seizure. None are persuasive.

       First, Gantt contends that his offender score was miscalculated because

two juvenile convictions should have “washed out.” The juvenile convictions that

the State counted in Gantt’s offender score included second degree robbery.2 At

sentencing, the court determined that for prior offenses, Gantt had an offender

score of four points. Because second degree robbery was a violent offense, it

counted for two points. RCW 9.94A.525(9), (21). And because it is a violent

offense, it did not wash out unless Gantt “had spent ten consecutive years in the

community without committing any crime that subsequently result[ed] in a

conviction.” RCW 9.94A.525(2)(b). The only such period of near 10 years was

between 2002 and 2012. There, on January 30, 2002, Gantt was convicted of

driving with a suspended license, and then on April 17, 2012, he was

subsequently convicted of the same crime. However, Gantt committed the crime

for the second conviction on July 9, 2011. Thus, Gantt had no period of 10 years

without a new conviction, and the third degree robbery conviction did not wash

out. In calculating his offender score, Gantt had an additional conviction for




       2At the sentencing hearing, the State did not include the second degree
assault conviction in the offender score.


                                         15
No. 81373-1-I/16


violation of a domestic violence no-contact order that counted as two points.

RCW 9.94A.525(21)(a). Therefore, the court’s offender score of four points for

Gantt’s prior convictions was proper and did not include the first offense.

        Second, Gantt contends that his trial counsel was ineffective because he

did not call a key witness, A.S., and failed to obtain a speedy trial. But Gantt

does not explain how A.S.’s testimony would have been key, and in any event, “a

decision to call or not to call a witness is a matter of legitimate trial tactics and will

not support a claim of ineffective assistance of counsel.” State v. Warnick, 121

Wn. App. 737, 746, 90 P.3d 1105 (2004). And Gantt does not point to any

evidence in the record, nor have we found any, to indicate that the trial court

improperly continued Gantt’s trial. See State v. Hatt, 11 Wn. App. 2d 113, 150,

452 P.3d 577 (2019) (“Continuances appropriately granted by the court are

excluded from the calculation of time to trial and extend the allowable trial date to

30 days after the end of the excluded period.” (citing CrR 3.3(b)(5), (e)(3), (f))),

review denied, 195 Wn.2d 1011 (2020). Therefore, Gantt’s second ground for

relief fails.

        Third, Gantt contends that there was exculpatory testimony from C.S. that

Gantt had a key to C.S.’s apartment. The statement for probable cause does

indicate that C.S. told the deputies that Gantt entered the home with a key, which

Gantt made for himself. However, C.S. did not testify to that fact at trial. Instead,

she testified that the back door was open but had been shut when she went to

bed. And therefore, the record before us and before the jury indicates something

contrary to Gantt’s contention. Thus, Gantt’s third ground fails.




                                           16
No. 81373-1-I/17


       Finally, Gantt contends that the officers’ entry into the apartment

constituted an illegal search and seizure. Specifically, he contends that he was a

“co-habitant” of the apartment and that the police did not make contact “with

[C.S.] in person before entering the apartment.” There is no evidence in the

record that Gantt was a cohabitant of the home. More importantly, pursuant to

the two no-contact orders, Gantt was not allowed to be within 1,000 feet of C.S.’s

apartment and Gantt was on notice that he could “be arrested even if any person

protected by [the no-contact] order . . . allow[ed him] to violate the order’s

provisions.” Furthermore, C.S. called 911, and the deputies’ entry therefore was

warranted. Thus, Gantt’s final claim for relief fails.

       For the foregoing reasons, we affirm Gantt’s judgment and sentence.




WE CONCUR:




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