                                                         Filed
                                                   Washington State
                                                   Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    Division Two

                                         DIVISION II                                       July 6, 2016

 STATE OF WASHINGTON,                                               No. 47332-1-II

                               Respondent,                   UNPUBLISHED OPINION

        v.

 STEVEN K. EDWARDS,

                               Appellant.

       BJORGEN, C.J. — Steven Edwards appeals two of his four convictions—one for first

degree assault, the other for first degree burglary. He argues that the convictions were not

supported by sufficient evidence. Edwards also filed a statement of additional grounds (SAG),

arguing that a sentencing enhancement for being armed with a firearm during the commission of

his crimes led to the imposition of a clearly excessive sentence. We hold that sufficient evidence

supported Edwards’ convictions and that his sentence was not clearly excessive. Accordingly,

we affirm.

                                             FACTS

       In October 2013, Peter Lahmann approached his truck, parked in southeast Tacoma, and

saw Edwards and a female near the vehicle. The two saw Lahmann and immediately fled.

Lahmann inspected the truck, discovered that his cell phone was missing, and took off in pursuit.

       As he ran after Edwards and the female, Lahmann heard gunshots, though he did not

initially recognize the sound. He then saw Edwards pointing a firearm at him. Edwards said,

“I’m going to kill you if you don’t quit following me.” Report of Proceedings (RP) at 208.

Edwards then proceeded to fire at Lahmann.
No. 47332-1-II


       Two men drove up to Lahmann in a different truck and asked him if Edwards was

shooting at him. He said yes, asked them to call the police, and ran off after Edwards again.

Edwards continued to fire at Lahmann, and several people nearby witnessed the shooting.

       Lahmann eventually lost sight of Edwards and the female. However, the men in the truck

saw the two enter a nearby garage-apartment and told Lahmann. The police arrived, and

Lahmann and the men in the truck directed them to the garage. When confronted by police,

Edwards admitted he had stolen Lahmann’s cell phone. He was arrested, and police

subsequently searched the garage-apartment. They found the cell phone as well as a

semiautomatic handgun, which matched a bullet casing found in the street.

       Edwards’ mother resided in the garage-apartment to which he fled. Edwards was

prohibited by a protection order from coming within 500 feet of her residence or having contact

with her. Despite that order, he had been with his mother at the residence earlier in the day.

       The State charged Edwards with first degree assault, first degree robbery, first degree

burglary, and unlawful possession of a firearm. For each charge except that of unlawful

possession, the State also charged Edwards with a sentencing enhancement for the use of a

firearm in the commission of the crime. The jury found Edwards guilty on all counts and found

that he committed the crimes with a firearm.

       The State sought a high-end sentence of 678 months’ confinement. Because Edwards

had a prior conviction with a firearm sentencing enhancement, each of the three enhancements

added 120 months to his sentence, for a total of 360 months. The sentencing court imposed an

exceptional downward sentence of 420 months’ confinement, which included 60-month

concurrent sentences for each underlying crime in addition to the 120-month enhancements.

       Edwards appeals his convictions for assault and burglary and his sentence.



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                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Edwards challenges the sufficiency of the evidence underlying his convictions for first

degree assault and first degree burglary. He argues that the evidence presented at trial did not

support the necessary finding of intent for either crime. We disagree.

       Evidence is sufficient to support a criminal conviction if any rational jury could have

found the elements of the crime beyond a reasonable doubt. State v. Richie, 191 Wn. App. 916,

925, 365 P.3d 770 (2015). In evaluating sufficiency, we view the evidence in the light most

favorable to the State, assuming the truth of the State’s evidence and drawing all reasonable

inferences from that evidence. Id. We consider circumstantial evidence as reliable as direct

evidence, and we do not disturb the jury’s resolution of conflicting testimony and evaluation of

witness credibility or persuasiveness. State v. Lawson, 185 Wn. App. 349, 354, 340 P.3d 979

(2014), cert. denied, 136 S. Ct. 1177 (2016).

       “A person acts with intent or intentionally when he or she acts with the objective or

purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). This intent

“may be inferred from the [defendant’s] conduct where it is plainly indicated as a matter of

logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

A.     Burglary: Intent

       Edwards argues that the evidence before the jury was insufficient to prove that he

intended to commit a crime while unlawfully entering or remaining in his mother’s residence.

We disagree.

       To find that Edwards committed first degree burglary, the jury was required to find that

he, “with intent to commit a crime against a person or property therein, . . . enter[ed] or



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remain[ed] unlawfully in a building” while armed with a deadly weapon. RCW 9A.52.020(1).

Edwards does not dispute that he entered his mother’s residence and remained therein in

violation of a valid protection order, or that he was armed with a deadly weapon at the time.

       The State’s evidence must independently show both unlawful entry and the defendant’s

intent to commit a crime. State v. Stinton, 121 Wn. App. 569, 573, 89 P.3d 717 (2004).

However, a defendant charged with burglary

       who enters or remains unlawfully in a building may be inferred to have acted with intent
       to commit a crime against a person or property therein, unless such entering or remaining
       shall be explained by evidence satisfactory to the trier of fact to have been made without
       such criminal intent.

RCW 9A.52.040. This permissive inference of intent is allowed if the jury finds that it is more

likely than not, given the evidence. Stinton, 121 Wn. App. at 764.

       Violation of a protection order can be the predicate crime for a burglary. Stinton, 121

Wn. App. at 576. Where such an order separately prohibits entry to the protected party’s

residence and contact with the protected party, one may commit burglary by entering the

residence with the intent to contact the protected party. Id. at 575-77. Here, the protection order

separately prohibited Edwards from coming near or having contact with his mother and from

coming within or remaining within 500 feet of her residence.

       Edwards argues that the evidence did not show that he entered his mother’s residence

with the intent to have contact with her. However, his mother testified that she was at the

residence with Edwards the morning of the incident and that when he left the residence she was

still inside. Viewed in the light most favorable to the State, this testimony allows for a

reasonable inference that Edwards believed his mother was still at the house. Given such a

belief, one could similarly infer that he intended to come near or make contact with his mother at




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the residence. These inferences were sufficient for the jury to apply the permissive inference that

Edwards intended to come near or contact his mother in violation of the protection order.

       Edwards also argues that his intent may not be inferred from evidence that is patently

equivocal, citing State v. Jackson, 112 Wn.2d 867, 774 P.2d 1211 (1989). Jackson, however,

dealt with a conviction for attempted burglary and held that an inference of intent to commit a

crime within a building cannot rest only on the defendants’ shattering of a window in the door.

112 Wn.2d at 876. Significantly, the court held that “[i]n order to give an instruction that an

inference of an intent to commit a crime existed in a burglary case, there must be evidence of

entering or remaining unlawfully in a building.” Jackson, 112 Wn.2d at 876. Here, the evidence

shows that Edwards entered and remained in his mother’s residence unlawfully, in violation of

the no-contact order. Thus, Jackson does not bar the inference that Edwards entered the

residence intending to contact his mother.

       For these reasons, we hold that the evidence was sufficient to support a finding that

Edwards entered the residence with the intent to commit a crime separate from the entry itself.

B.     Assault: Intent

       Edwards argues that the evidence before the jury was insufficient to establish his intent to

inflict great bodily harm on Lahmann. We disagree.

       To find that Edwards committed first degree assault, the jury was required to find that he

“[a]ssault[ed] another with a firearm or any deadly weapon or by any force or means likely to

produce great bodily harm or death,” and that he did so with intent to inflict “great bodily harm.”

RCW 9A.36.011(1)(a). Edwards does not dispute that he fired a firearm at Lahmann.

       A jury may infer that a defendant intended to, at least, inflict great bodily harm on the

victim where the evidence shows that the defendant fired a firearm at the victim. State v. Mann,



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No. 47332-1-II


157 Wn. App. 428, 439, 237 P.3d 966 (2010). Here, several different witnesses testified that

they saw Edwards fire his weapon at Lahmann multiple times as Edwards fled. In addition,

police found a firearm in the garage-apartment to which Edwards fled and matched it to bullet

casings found along the path of his flight. This evidence was sufficient to establish beyond a

reasonable doubt that Edwards fired at Lahmann and therefore sufficiently supports an inference

that he intended to inflict great bodily harm.

       Further, Lahmann testified that Edwards verbally threatened to kill him if he continued

his pursuit. A defendant’s threat to kill the victim is powerful circumstantial evidence that later

dangerous conduct toward that victim was intended to be deadly. See State v. Gallo, 20 Wn.

App. 717, 729, 582 P.2d 558 (1978). While Edwards contends that both his threat and the shots

he fired were intended only to scare Lahmann, we must view the evidence in the light most

favorable to the State. Viewed in that light, the evidence is sufficient to establish beyond a

reasonable doubt that Edwards intended to inflict great bodily harm on Lahmann.

                            II.     SAG CLAIM: EXCESSIVE SENTENCE

       In his SAG, Edwards argues that the addition of 360 months to his sentence as a result of

the three firearm enhancements is excessive. He points out that he previously received only an

18-month enhancement for using a firearm in the course of a prior offense. We hold that

Edwards’ sentence was required by statute and is not clearly excessive.

       A sentence is clearly excessive if it is clearly unreasonable or its length “‘shocks the

conscience’” in light of the record. State v. Knutz, 161 Wn. App. 395, 410-11, 253 P.3d 437

(2011) (quoting State v. Kolesnik, 146 Wn. App. 790, 805, 192 P.3d 937 (2008)). We review a

sentencing court’s imposition of an exceptional sentence for an abuse of discretion. Knutz, 161




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Wn. App. at 410. A court abuses its discretion by exercising its authority on untenable grounds

or for untenable reasons. Id.

       Edwards appears to believe that the disparity between his earlier 18-month enhancement

and his current 120-month enhancements indicates an excessive sentence. However, in both

cases Edwards was properly sentenced under the applicable statutes.

       RCW 9.94A.533(3) governs sentencing enhancements for the use of firearms in the

commission of a crime.1 The statute requires enhancements of five years (60 months) for the use

of a firearm in a class A felony, RCW 9.94A.533(3)(a), and 18 months for the use of a firearm in

the commission of a class C felony, RCW 9.94A.533(3)(c). The statute also provides that any

such sentencing enhancement shall be doubled if the defendant has previously been sentenced

for a deadly weapon enhancement. RCW 9.94A.533(3)(d).

       In 2008, Edwards was convicted of 15 counts of second degree identity theft and 2 counts

of unlawful possession of a controlled substance. Eighteen months were added to his sentence

for his use of a firearm in the commission of one of the counts of identity theft. Second degree

identity theft is a class C felony, RCW 9.35.020, and therefore under RCW 9.94A.533(3)(c)

eighteen months was the applicable enhancement. However, first degree burglary, first degree

assault, and first degree robbery are all class A felonies. RCW 9A.52.020(2); RCW

9A.36.011(2); RCW 9A.56.200(2). Therefore, under RCW 9.94A.533(3)(a), five years is the

applicable enhancement to Edwards’ current sentence. Because Edwards was previously

convicted of a firearm sentencing enhancement, that time is doubled under RCW




1
 Our legislature has amended RCW 9.94A.533 three times since the sentencing in this case.
However, none of the amendments altered the relevant portions of subsection 3.
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No. 47332-1-II


9.94A.533(3)(d), resulting in a statutorily required enhancement of ten years (one hundred

twenty months).

       Edwards received three separate firearm sentencing enhancements of 120 months. Under

RCW 9.94A.533(3)(e), the sentencing court was required to impose these as consecutive

additions to Edwards’ sentence, to be served subsequently to his four concurrent 60-month

sentences for the underlying crimes. The sentencing court did not abuse its discretion by

imposing the consecutive sentencing enhancements as required by statute.

       Further, Edwards’ total sentence is not one that shocks the conscience in light of the

record. Taking into account the lengthy additions required for the firearm enhancements, the

sentencing court imposed an exceptional downward sentence for the underlying crimes,

imposing the mandatory minimum 60 months’ confinement for Edwards’ assault conviction and

imposing concurrent 60-month terms for his other convictions. RCW 9.94A.540(1)(b).2

       Given the strictures of the applicable statutes and the resulting length of Edwards’

enhanced sentences, the sentencing court’s decision to impose a sentence below the statutory

range for Edwards’ underlying crimes significantly mitigated the severity of his sentence. We

cannot say that Edwards’ lengthy resulting sentence shocks the conscience in light of the record

before us. His sentence was the result of his decision to use a firearm to commit serious crimes

despite a court order that he not possess such a weapon. Moreover, Edwards’ extensive criminal

history supports the imposition of harsh punishment. Despite these factors, the sentencing court

imposed a sentence far below the 678 months’ confinement requested by the State. We hold that

Edwards’ 420-month sentence, while severe, is not clearly excessive.




2
 As with RCW 9.94A.533, our legislature has amended RCW 9.94A.540 since the sentencing in
this case. The amendments were not to any language relevant here.
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                                        CONCLUSION

       Edwards’ convictions for first degree burglary and first degree assault were supported by

sufficient evidence. His sentence, enhanced due to his use of a firearm in the commission of his

crimes, was not clearly excessive. We affirm the challenged convictions and sentence.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                    BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




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