                                                                         FILED 

                                                                     FEBRUARY 4, 2016 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 



              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 32508-3-111
                       Respondent,             )
                                               )
         v.                                    )
                                               )         OPINION PUBLISHED
ANTONIO ZAMUDIO, JR.,                          )         IN PART
                                               )
                      Appellant.               )

         SIDDOWAY, C.J. -    Antonio Zamudio, Jr. appeals his conviction and sentence

following a jury trial at which he was found guilty of second degree assault and fIrst

degree unlawful possession of a firearm, with a special finding that he was armed with a

firearm in committing the assault. He challenges the sufficiency of the State's evidence

to support the assault conviction and the firearm enhancement and, for the first time on

appeal, he contends that the State failed to demonstrate that convictions included in his

offender score had not washed out. He makes a related argument that his trial lawyer

provided ineffective assistance when he failed to challenge the offender score used by the

court.

         Case law permitting unpreserved sentencing errors to be raised for the first time on

appeal does not avail Mr. Zamudio, because he fails to demonstrate that any error was
No. 32508-3-111
State v. Zamudio


made. He likewise fails to demonstrate prejudice from the acts or omissions of his

lawyer. For those reasons, and because the State's evidence was sufficient, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       Brian Lumsden was standing in the parking lot of a truck stop in Rock Island,

Washington, on the night of November 12,2013, speaking with David Berndt, a trucker

he had just met, when a white Toyota Tundra truck pulling a utility trailer pulled into the

lot with its bright lights on. As the Toyota truck passed, Mr. Berndt asked the driver to

dim his lights. According to Mr. Lumsden, the truck's lights were "blinding us." Report

of Proceedings (RP) at 90.

       The driver of the Toyota truck, later identified as the defendant, Antonio Zamudio,

Jr., stopped his truck, got out, walked up to the two men, and asked if they had a problem.

Mr. Berndt answered that he just wanted Mr. Zamudio to dim his headlights. As

recounted by Mr. Lumsden, a seemingly innocuous exchange followed.

       It was apparently not innocuous from the point of view of Mr. Zamudio. After

first walking away, he turned around, walked up to Mr. Berndt, pulled out a pistol, and

held it "[a]bout six inches away from [Mr. Berndt's] face," asking again what his

problem was. RP at 93. After holding the gun to Mr. Berndt's face for "about thirty

seconds'" according to Mr. Lumsden (although Mr. Lumsden testified it "felt longer"),

Mr. Zamudio put the pistol away, got back into his truck, and pulled around front to the

fuel pumps. RP at 95.

                                             2

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ii   No. 32508-3-III
     State v. Zamudio
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            Having been informed that someone had pulled a gun on a person in the parking
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     lot, the proprietor of the truck stop notified the county sheriff, providing a description of


I
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     the truck and trailer and a license plate number. Based on that report, deputy sheriffs

     located Mr. Zamudio driving eastbound on State Highway 28, stopped him, and placed
I
I    him under arrest. In checking for any other passengers in his truck, they saw two
I
     firearms on the floor behind the passenger's seat that they left in place while obtaining a
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     search warrant. The firearms turned out to be a black Walther PPS .40 caliber handgun

     loaded with six live .40 caliber rounds and a .12 gauge Westerfield shotgun loaded with

     one shell in the chamber and three in the magazine tube.

            Mr. Zamudio had previously been convicted of a serious offense and was charged

     with first degree unlawful possession of a firearm, second degree assault, and second

     degree possession of stolen property. The information included a special allegation that

     he had been armed with a firearm in committing the assault.

            A jury found Mr. Zamudio guilty of second degree assault and unlawful

     possession of a firearm in the first degree. It returned a special verdict finding that Mr.

     Zamudio was armed with a firearm at the time of the assault.

            At the sentencing hearing, the trial court asked whether there was agreement as to

     criminal history. Mr. Zamudio's lawyer answered, "I believe we do, yes." RP at 251.

     But when the prosecutor identified the standard range for the assault count, explaining

     that it was based on "five prior adult felonies and two juvenile felonies," Mr. Zamudio's

                                                   3

No. 32508·3·111
State v. Zamudio


lawyer interrupted, stating, "I don't think that's accurate." RP at 251·52. After the two

lawyers conferred, the prosecutor told the court, "1 stand corrected," and requested a brief

recess to correct the paperwork to include Mr. Zamudio's 2001 conviction for attempting

to elude a pursuing police vehicle. RP at 252. There was no discussion at sentencing

about whether any of Mr. Zamudio's prior convictions had washed out. The defense

lawyer's interruption and correction resulted in an increase in Mr. Zamudio's offender

score from seven to eight.

       The State recommended a sentence at the high end of the standard range for each

count, explaining that Mr. Zamudio

       [h]as an extensive criminal history starting with juvenile felonies in '96 and
       unabated through 2005. 2005 he was sentenced to prison and got out and
       was only out maybe a year and a half, two years when this offense was
       committed.

RP at 254.

       The court ultimately imposed 70 months for the assault plus 36 months for the

enhancement, and 120 months for the unlawful possession of a firearm, to run

concurrently. Mr. Zamudio appeals.

                                       ANALYSIS

       Mr. Zamudio makes four assignments of error on appeal: (1) his offender score

was miscalculated, (2) he received ineffective assistance of counsel at sentencing, (3) the

State failed to prove that the firearm was "operable" for purposes of the firearm


                                             4

No. 32508-3-II1
State v. Zamudio


enhancement, and (4) the State failed to establish fear and apprehension on the part of the

named victim. Appellant's Br. at 1. We address the first two assignments of error, which

are related, and then tum to the third and fourth.

                      I. Right to challenge offender score calculation

       A defendant's offender score, together with the seriousness level of his current

offense, dictates the standard sentence range used in determining his sentence. RCW

9.94A.530(l). To calculate the offender score, the court relies on its determination of the

defendant's criminal history, which the Sentencing Reform Act (SRA), chapter 9.94A

RCW, defines as "the list of a defendant's prior convictions and juvenile adjudications,

whether in this state, in federal court, or elsewhere." RCW 9.94A.030(ll). Prior

convictions result in offender score "points" in accordance with rules provided by RCW

9.94A.525. Prior convictions will not be counted as points if, through crime-free time

spent in the community, they have "washed out" according to criteria provided by statute.

Presently, and at the time Mr. Zamudio was sentenced, class C prior felony convictions

other than sex offenses are not included in the offender score

       if, since the last date of release from confinement (including full-time
       residential treatment) pursuant to a felony conviction, if any, or entry of
       judgment and sentence, the offender had spent five consecutive years in the
       community without committing any crime that subsequently results in a
       conviction.

RCW 9.94A.525(2)(c).




                                              5

No. 32508-3-III
State v. Zamudio


       "In determining the proper offender score, the court 'may rely on no more

information than is admitted by the plea agreement, or admitted, acknowledged, or

proved in a trial or at the time of sentencing.'" State v. Hunley, 175 Wn.2d 901,909,287

P.3d 584 (2012) (quoting RCW 9.94A.530(2)). Sentencing information or facts are

'" admitted[ or] acknowledged ... at the time of sentencing'" for this purpose if they are

affirmatively admitted or acknowledged; the mere failure to object to a prosecutor's

assertions of criminal history does not constitute such an acknowledgment. State v.

Mendoza, 165 Wn.2d 913, 922, 205 P.3d 113 (2009) (quoting former RCW 9.94A.530(2)

(2005)).

       Our Supreme Court has held, as a limit on what can be effectively acknowledged

by a defendant, that "a defendant cannot agree to punishment in excess of that which the

Legislature has established." In re Personal Restraint o/Goodwin, 146 Wn.2d 861, 873­

74,50 P.3d 618 (2002). It has also recognized this type of sentencing error as a non-rule­

based exception to RAP 2.5(a), which provides, generally, that errors cannot be raised for

the first time on appeal. In announcing that a defendant cannot agree to legally excessive

punishment, the court observed that "[t]here are limitations on this holding," explaining:

       While waiver does not apply where the alleged sentencing error is a legal
       error leading to an excessive sentence, waiver can be found where the
       alleged error involves an agreement to facts, later disputed, or where the
       alleged error involves a trial court discretion.

Id. at 874 (alteration in original).


                                             6

I

II 
   No. 32508~3-III
I      State v. Zamudio
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                Goodwin involved legal error arising from a failure to treat prior
1



       convictions as washed out, but the court was applying a former statute that did not

I      base "wash outs" on a particular defendant's time spent crime-free in the

I
,
       community. Instead, former RCW 9.94A.030(l2)(b) (1989) provided that prior

       juvenile class Band C felony convictions no longer counted toward an offender

       score once a defendant turned 23. Goodwin, 146 Wn.2d at 867. From the date of

       birth and conviction history set forth in Goodwin's judgment and sentence, it was

       apparent that crimes the sentencing court had counted toward the offender score

       had washed out. The State conceded that this indisputable error had been made

       but argued that Goodwin ·had waived the issue by agreeing to the criminal history

       included in his statement on plea of guilty.

               Goodwin involved a collateral attack on a sentence, and it was important

       that Goodwin's judgment and sentence appeared invalid on its face so as to avoid

       the   one~year   time bar ofRCW 10.73.090. But cases following Goodwin have

       clarified that his clear showing that a sentencing error had been made-not just

       might have been made-was also critical to his right to raise the issue for the first

       time on appeaL In State v. Ross, 152 Wn.2d 220,231,95 P.3d 1225 (2004), a

       unanimous supreme court explained that "Goodwin turned on the fact that

       defendant's sentence contained obvious errors," and that "[t]o invoke the waiver

       analysis set forth in Goodwin, a defendant must [either] show on appeal or by way

                                                      7

I

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       No. 32508-3-111 

         State v. Zamudio 


Ii 	 
   of a personal restraint petition that an error of fact or law exists within the four

         comers of his judgment and sentence." (Emphasis added.) Accord, Mendoza, 165

         Wn.2d at 927-28 (citing Ross, 152 Wn.2d at 232, and adding that "[s]ince neither

         defendant could show ... an obvious error in his sentence, it was not

         miscalculated, and any objection to the inclusion of acknowledged criminal

         history was waived."); cf State v. Wilson, 170 Wn.2d 682,690 & n.4, 244 P.3d

         950 (2010) (suggesting that what is.critical is to demonstrate that an error has in

         fact been made, not that it can be found within the four comers of the judgment

         and sentence).

                Ross involved the consolidated cases of three criminal defendants, each of

         whom argued that the State had failed to prove the comparability of their out-of­

         state convictions to Washington State felony crimes. Each sought remand for

         resentencing. By the time of appeal, one defendant's case was moot and the other

         two defendants-Hunter and Legrone-asserted that their out-of-state crimes were

         not comparable to Washington crimes and should not have been counted, but

         could not demonstrate that in the record on appeal. The Ross court held that

         "Goodwin does not control the inquiry here." 152 Wn.2d at 231. It held that

         neither defendant had met a "threshold requirement" for arguing unpreserved

         sentencing error because "neither has shown that the sentencing court committed

         any arguable factual or legal error by including their prior out-of-state or federal

                                                        8

I

II    No. 32508-3-III 

      State v. Zamudio 


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      convictions in their offender score." Id. at 232 (alteration in original). Elsewhere, 


      it noted that in two key cases relied on in Goodwin, the defendants had "pointed to 

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   specific errors to support their claims." ld. at n.3 (citing State v. Majors, 94

      Wn.2d 354,616 P.2d 1237 (1980) and State v. Nitsch, 100 Wn. App. 512,997

I     P.2d 1000 (2000)).
I            The criminal history agreed to by the defense and reflected on Mr. Zamudio's
I
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      judgment and sentence consists of two juvenile adjudications in 1996 and 1999, and six

I     adult convictions for crimes committed between June 2001 and June 2004. Mr.

      Zamudio's juvenile adjudications and all of his adult convictions other than his 2005
I
      conviction were for class C felonies. Mr. Zamudio contends for the first time on appeal

      that because the current crimes were committed in November 2013 and his last prior

      conviction was for delivery of methamphetamine, for which he was sentenced in

      February 2005, all of his prior class C felonies had washed out and should not have been

      included in his offender score and the State failed to offer evidence otherwise. Br. of

      Appellant at 7.

             Not only has Mr. Zamudio failed to show that any of his class C felonies had

      washed out before he committed the current crimes on November 12,2013, but his

      suggestion that they might have washed out is dubious at best. Mr. Zamudio's most

      recent conviction as of the time of his sentencing in this case was for delivery of

      methamphetamine in violation ofRCW 69.50AOl(2)(b). He correctly argues that he was

                                                    9

No. 32508-3-III
State v. Zamudio


sentenced for the crime on February 2, 2005. Delivery of methamphetamine has a

seriousness level of II. Given that seriousness level and Mr. Zamudio's offender score of

6 at the time, his standard sentence range would have been 60 to 120 months. Even

assuming he was sentenced to the low end of the standard range, 60 months would not

have passed from the date of his sentence until February 2,2010. If released at that time,

he would not have spent five crime-free years in the community until February 2, 2015.

Thus, on the face of it, a wash out of Mr. Zamudio's class C felonies appears highly

unlikely. For the crimes to have washed out would require some combination of a low-

end or exceptional mitigated sentence, time spent in custody beginning shortly after his

crime, and significant earned release time or commutation of his sentence by the

governor.

      Ross is controlling. Because Mr. Zamudio does not demonstrate any sentencing

error, the right to raise unpreserved sentencing errors recognized in Goodwin does not

apply. We need not reach the parties' dispute over whether Mr. Zamudio's trial lawyer's

statements at the sentencing hearing constituted an acknowledgement.

      Affirmed.

      The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the'rules governing unpublished

opinions.




                                            10 

No. 32508-3-111
State v. Zamudio


                            II. Ineffective assistance of counsel

       Mr. Zamudio makes a related argument that he received ineffective assistance of

counsel because his trial lawyer failed to challenge the calculation of his offender score.

"A claim of ineffective assistance of counsel presents a mixed question of fact and law

reviewed de novo." State v. Sutherby, 165 Wn.2d 870, 883,204 P.3d 916 (2009). "In

order to prove ineffective assistance of counsel, a defendant must show that the attorney's

performance was deficient and that prejudice resulted." State v. Levy, 156 Wn.2d 709,

729, 132 P.3d 1076 (2006). A failure to demonstrate either deficient performance or

prejudice defeats an ineffective assistance claim. State v. McFarland, 127 Wn.2d 322,

334-35,899 P.2d 1251 (1995); see also Stricklandv. Washington, 466 U.S. 668, 700,104

S. Ct. 2052,80 L. Ed. 2d 674 (1984).

       As already discussed, nothing in the record demonstrates that any of Mr.

Zamudio's prior class C felony convictions would have washed out under RCW

9.94A.525(2)(c). Because Mr. Zamudio "points to no apparent invalidity on the face of

the judgment and sentence and falls short in his attempt to assert an incorrect offender

score," he has not shown that his counsel was ineffective in stipulating to his offender

score. See State v. Foster, 140 Wn. App. 266,277, 166 P.3d 726 (2007).

                     III. Evidence sufficiency: firearm enhancement

       Mr. Zamudio next argues that the State produced insufficient evidence to prove

the firearm enhancement imposed in connection with his second degree assault

                                             11 

Ii 


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        No. 32508-3-III
I
      State v. Zamudio


I

I       conviction. In deciding a defendant's challenge to the sufficiency of the evidence, we

        view the evidence in the light most favorable to the State and determine whether any

!
      rational trier of fact could have found the elements of the charged crime beyond a

        reasonable doubt. State v. Brown, 162 Wn.2d 422,428, 173 P.3d 245 (2007). "A claim

        of insufficiency admits the truth of the State's evidence and all inferences that reasonably

        can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992).

        Reviewing courts must defer to the trier of fact "on issues of conflicting testimony,

        credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150

        Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other grounds by

        Crawfordv. Washington, 541 U.S. 36,124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

               According to Mr. Zamudio, the State failed to establish that the handgun used in

        the assault was operable. He claims that "[t]he only way to determine if a weapon is

        functional is to test it." Br. of Appellant at 9. The State presented evidence at trial that

        the firearm used in the assault was a black Walther PPS .40 caliber handgun loaded with

        six live .40 caliber rounds. RCW 9.41.010(9) defines a "firearm" as "a weapon or device

        from which a projectile or projectiles may be fired by an explosive such as gunpowder."

        The pattern instruction provided to the jury is consistent with this definition. CP at 38,

        jury instruction 10; see 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

        INSTRUCTIONS: CRIMINAL 2.10.01, at 54 (3d ed. 2008) (WPIC).




                                                      12 

No. 32508-3-111
State v. Zamudio


       In contending that the State was required to prove the firearm's operability, Mr.

Zamudio relies on language from State v. Recuenco, 163 Wn.2d 428, 437, 180 P.3d 1276

(2008), in which the court stated that "a jury must be presented with sufficient evidence

to find a firearm operable under this definition in order to uphold the enhancement." As

the State points out, however, Mr. Zamudio's reliance on Recuenco is misplaced.

      The defendant in Recuenco was charged with second degree assault and the State

opted to charge him with the lesser enhancement for a deadly weapon, rather than an

enhancement for a firearm. Id. at 436. The jury was never given a firearm instruction:

"[t]he only instruction given to the jury regarding sentencing enhancements was the

special verdict for a deadly weapon." Id. at 439. After the jury found the defendant

guilty and returned a special verdict finding that the defendant was armed with a deadly

weapon when committing the assault, the State requested the greater three-year

mandatory enhancement for use of a firearm. Id.

       On appeal, our Supreme Court held that the defendant was entitled to have the jury

determine beyond a reasonable doubt that he was armed with a firearm and that the trial

court lacked authority to sentence Mr. Recuenco for the additional two years associated

with the greater enhancement. Id. at 436. A dissent in Recuenco reasoned that "because

the only deadly weapon discussed at trial was a handgun, it was appropriate to ask for the

firearm enhancement at sentencing rather than the charged and convicted deadly weapon

enhancement." Id. at 437.

                                            13
No. 32508-3-111
State v. Zamudio


       It was in responding to the position of the dissent that the Recuenco court stated

that to prove a firearm enhancement, "the State must introduce facts upon which the jury

could find beyond a reasonable doubt the weapon in question falls under the definition of

a 'firearm,'" and

       [w]e have held that ajury must be presented with sufficient evidence to find
       a firearm operable under this definition in order to uphold the
       enhancement. State v. Pam, 98 Wn.2d 748, 754-55, 659 P.2d 454 (1983),
       overruled in part on other grounds by State v. Brown, 111 Wn.2d 124, 761
       P.2d 588 (I988)[, superseded on recons., 113 Wn.2d 520, 782 P.2d 1013,
       787 P.2d 906 (l989) (plurality opinion)].

Id. at 437 (emphasis added) {quoting 11 WPIC 2.10.01 (2d ed. Supp. 2005)). In Pam, the

court had held that "[a] gun-like object incapable of being fired is not a 'firearm' under

[the statutory] definition" and that "[a] defendant's penalty cannot be enhanced if the

evidence establishes only that he was armed with a gun-like, but nondeadly, object." Id.

at 753 {citing State v. Tongate, 93 Wn.2d 751, 755, 613 P.2d 121 (1980) (distinguishing

between a "toy gun" and "a gun-like but nondeadly object").

       Division II of this court addressed the argument that Recuenco requires proof of a

firearm's operability in State v. Faust, 93 Wn. App. 373, 379,967 P.2d 1284 (1998) and

concluded that while Pam "could be read as limiting the definition of firearm to a gun

that was operable at the time of crime," a "careful reading of [that case] reveals

otherwise." It explained that the court's holding in Pam

       did not limit the definition of a firearm to one capable of being fired during
       the crime. Rather, the distinction was between a toy gun and a gun "in

                                             14
No. 32508-3-111
State v. Zamudio


       fact." Moreover, the unchallenged instruction in Tongate made clear that
       an unloaded gun, or one incapable of being fired, was still a deadly weapon
       within the meaning of the statute.

ld. at 380.

       We agree with Faust's reading of Recuenco and Pam. The State is not required to

prove a firearm's operability. In this case, it presented sufficient evidence of what it was

required to prove: that the gun Mr. Zamudio used in the assault was a gun "in fact,"

rather than "a gun-like but nondeadly object." Mr. Lumsden testified to being "[a]

hundred percent sure" that Mr. Zamudio was holding a gun, and when police executed a

search warrant of Mr. Zamudio's truck shortly after the assault, they found a black

Walther PPS .40 caliber handgun loaded with six live .40 caliber rounds. RP at 93. The

evidence was sufficient to establish that the gun met the definition of a "firearm" under

RCW 9.41.010(9).

                   IV. Evidence sufficiency: victim fear and apprehension

       Finally, Mr. Zamudio challenges the sufficiency of the evidence to support a

finding by the jury that he placed the victim, Mr. Berndt, in a reasonable apprehension

and imminent fear of bodily injury, where Mr. Berndt did not testifY at trial. Mr.

Zamudio called the jury's attention to Mr. Berndt's absence from trial, urging it as a

shortfall in the State's proof. The jury nonetheless found Mr. Zamudio guilty of the

assault.




                                             15 

No. 32508-3-111
State v. Zamudio


       In charging Mr. Zamudio with second degree assault under RCW 9A.36.021, the

information alleged that he "intentionally assault[ ed] another and recklessly inflict [ed]

substantial bodily harm and/or did assault another with a deadly weapon," identifying the

witness as David Berndt. Clerk's Papers (CP) at 21.

       "The word 'assault' is not defined in the Washington Criminal Code." State v.

Brown, 140 Wn.2d 456,466,998 P.2d 321 (2000). However, Washington courts have

recognized three common law forms of assault: '" (1) an unlawful touching (actual

battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending

but failing to accomplish it (attempted battery); and (3) putting another in apprehension

of harm.'" State v. Abuan, 161 Wn. App. 135, 157,257 P.3d 1 (2011) (quoting State v.

Elmi, 166 Wn.2d 209,215,207 P.3d 439 (2009)).

       Here, the jury was instructed under the third "reasonable apprehension" form of

assault. Jury instruction 9 provided that

       [a]n assault is an act, with unlawful force, done with the intent to create in
       another apprehension and fear of bodily injury, and which in fact creates in
       another a reasonable apprehension and imminent fear of bodily injury even
       though the actor did not actually intend to inflict bodily injury.

CP at 37; 11 WPIC 35.50, at 547. "Whether there has been an assault in a particular case

depends more upon the apprehension created in the mind of the person assaulted than

upon the undisclosed intention of the person committing the assault." Peasley v. Puget

Sound Tug & Barge Co., 13 Wn.2d 485,505, 125 P.2d 681 (1942).


                                              16
No. 32508-3-III
State v. Zamudio


         "In determining the sufficiency of the evidence, circumstantial evidence is not to

be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634,

63~,   618 P.2d 99 (1980). In the context of assault, "[a] jury may infer specific intent to

create fear from the defendant's pointing a gun at the victim, unless the victim knew the

weapon was unloaded, but not from mere display." State v. Eastmond, 129 Wn.2d 497,

500,919 P.2d 577 (1996), overruled on other grounds by State v. Brown, 147 Wn.2d 330,

340,58 P.3d 889 (2002). Likewise, "[a]pprehension ofa person at whom a revolver is

pointed may be inferred, unless he knows it to be unloaded." State v. Miller, 71 Wn.2d

143, 146,426 P.2d 986 (1967); Peasley, 13 Wn.2d at 505; Allen v. Hannaford, 138

Wash. 423, 425, 244 P. 700 (1926).

        The jury heard testimony from Mr. Lumsden, who was standing about three feet to

the left of Mr. Berndt at the time of the assault and had a "[v]ery clear" view of what

happened. RP at 96. He described Mr. Zamudio's demeanor as "[u]nprovoked anger."

RP at 94. According to Mr. Lumsden, Mr. Zamudio "got a little bit out of control,"

pulled out a "handheld firearm," and held it "[a]bout six inches away from [Mr. Berndt's]

face." RP at 92-93. When asked how long Mr. Zamudio held the gun there, Mr.

Lumsden responded:

        A. 	    It was probably about thirty seconds or so but it kind of felt longer
                so I don't know for sure.
        Q. 	    Okay. And so how would you describe [Mr. Berndt's] demeanor?
                Was he happy?
        A. 	    He was happy before this yes.

                                               17
No. 32508-3-111
State v. Zamudio


      Q. 	   Did it change?
      A. 	   Well yeah, he seemed a little frightened.
      Q. 	   What makes you say that?
      A. 	   Because of the look in his eyes.

RP at 95. The officer who took statements from Mr. Lumsden and Mr. Berndt described

Mr. Berndt's demeanor as "calm but concerned" and testified, "You know, he's a truck

driver and he sees a lot of things but-but he was concerned ....[r]egarding what

happened, what he witnessed and what he was the victim of." RP at 134.

      Mr. Lumsden was also questioned about his own mental state:

      Q. 	   How did you feel when all of this was going on?
      A. 	   In awe. Like surreal.
      Q. 	   At any time were you-did you think this was ajoke when you saw
             it-what you saw?
      A. 	   No. It looked pretty serious to me.
      Q. 	   Did you at any time think [Mr. Zamudio] was joking?
      A. 	   No.
      Q. 	   How did he look?
      A. 	   Serious. Angry.
      Q. 	   At any time were you fearful about any of this?
      A. 	   Yeah. I didn't know if I wanted to be a hero at this point or just
             keep quiet but I chose to keep quiet.
      Q. 	   Okay. Did you ever think about running away?
      A. 	   Yeah. But I didn't think that anything was a good idea besides just
             to kind of freeze right there.
      Q. 	   SO you were frozen right there?
      A. 	   Mmm hmm. [Affirmative].

RP at 96.

      "[A] juror is expected to bring his or her opinions, insights, common sense, and

everyday life experiences into deliberations." State v. Carlson, 61 Wn. App. 865, 878,



                                           18 

No. 32508-3-II1
State v. Zamudio


812 P.2d 536 (1991); see, e.g., State v. Peterson, 174 Wn. App. 828, 855,301 P.3d 1060

(2013) (even without expert testimony, sufficient evidence supported the jury's finding

that horses suffered unjustifiable pain and suffering, as required to support animal cruelty

conviction). The jury was provided with a description of the incident by a witness in the

immediate vicinity of Mr. Berndt who had a clear view of what happened, from which it

could reasonably infer that most people under those circumstances would be fearful of

bodily harm. That, along with some evidence of Mr. Berndt's demeanor and conduct

tending to prove that he experienced such fear, was sufficient.

       Affirmed.




WE CONCUR:


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            J 

Fe£.~' ;r 



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