                                                                          FILED
                                                                       JUNE 29, 2017.
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 34001-5-111
                       Respondent,           )
                                             )
      v.                                     )
                                             )
ERIK CLIFFORD LUDEN,                         )         UNPUBLISHED OPINION
                                             )
                       Appellant.            )

      KORSMO, J. - Erik Luden appeals from his conviction for second degree murder

while armed with a deadly weapon. He challenges the deadly weapon enhancement,

arguing the evidence did not establish the kitchen pot was used as a deadly weapon. We

disagree and affirm.

                                         FACTS

      Mr. Luden killed his father, Virgil Luden, by beating the older man to death. A

cooking pot lay near the body. It was splattered with blood. In his telephone call to 911,

the younger Luden reported that he had struck his father with a pot.

      The forensic pathologist testified that the victim had been struck a minimum of 15

blunt-force blows, many of which were "consistent with being struck by a fist." There

also was one laceration of the scalp, along with an accompanying skull fracture, that
No. 34001-5-III
State v. Luden


could not be caused by a fist. Report of Proceedings (RP) at 298-299. The doctor noted

that it took "a lot of force to fracture" that area of the skull, which was "pretty well

protected." RP at 303-304. This specific injury could have been caused by a pot or some

other instrument.

       The jury found the defendant guilty of second degree murder while armed with a

deadly weapon. After the imposition of a high-end standard range sentence that included

an additional 24 months due to the deadly weapon finding, Mr. Luden timely appealed to

this court.

                                         ANALYSIS

       The sole issue presented by this appeal is the question of whether or not the

prosecution established that the pot was a deadly weapon. We conclude the evidence

permitted the jury to make that determination.

       In relevant part, the jury was instructed, in accordance with the statutory

definition, that a "deadly weapon is an implement or instrument that has the capacity to

inflict death and from which the manner it is used is likely to produce or may easily and

readily produce death." 1 RP at 351-352. We review an evidentiary sufficiency challenge

to see if there was evidence from which the jury could have found the elements of the

offense. Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);



       1
           The quoted language in the instruction was taken directly from RCW 9.94A.825.

                                              2
No. 34001-5-III
State v. Luden


State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will

consider the evidence in a light most favorable to the prosecution. Id. Credibility

determinations are for the trier of fact and are not subject to review. State v. Camarillo,

115 Wn.2d 60, 71, 794 P .2d 850 (1990).

       This highly deferential standard requires us to reject appellant's argument here.

He notes that most of the injuries were inflicted with his fists (and which we agree did

not constitute deadly weapons) and that one of those blows likely caused his father's

death. While we agree with those observations, they are largely beside the point. The

question for the jury was whether the pot was used in a manner that was likely to produce

death. The deadly weapon did not need to be the actual murder weapon, but only needed

to be used in a manner that it could have fulfilled that function. 2

       Here, the jury was presented with evidence that Erik Luden at least twice struck

his father with an instrument that fractured the skull in a location that the fists could not

have accomplished. The younger Luden told the 911 dispatcher that he had struck his

father with a pot. A blood splattered pot lay next to the body. The pathologist testified

that the pot, or something similar, could have caused the skull fracture. From these facts,

the jury was permitted to take Erik Luden at his word that he had struck his father with

the pot, thereby fracturing the skull. The evidence was sufficient to support the jury's


       2
        The deadly weapon enhancement is available in nonhomicide crimes. It need not
be a deadly weapon in fact in order to be used as a deadly weapon.

                                              3
No. 34001-5-111
State v. Luden


conclusion that he wielded the pot as a deadly weapon, even though it was not the likely

cause of death.

       The judgement is affirmed.

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

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

2.06.040.




WE CONCUR:




      Pennell, J.   '




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