### FILED JUNE 29, 2017. In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. ERIK CLIFFORD LUDEN, Appellant. ) ) ) ) ) ) ) ) ) No. 34001-5-111

UNPUBLISHED OPINION
KORSMO, 

### J.

- ErikLuden 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 kitchenpotwas used as a deadly weapon. We disagree and affirm. FACTS Mr. Ludenkilled his father, Virgil Luden, by beatingthe older manto death. A cookingpot lay nearthe body. It was splattered withblood. In his telephone call to 911, the younger Luden reported that he had struck his father with apot. The forensic pathologisttestified thatthe victim had been struck a minimum of 15 blunt-force blows, many ofwhich were "consistentwithbeing struckby a fist." There also was one laceration ofthe scalp, along with an accompanying skull fracture, thatNo. 34001-5-III State v. Luden
could notbe caused by a fist. Report ofProceedings (RP) at 298-299. The doctor noted that it took "a lot offorce to fracture" that area ofthe skull, which was "pretty well protected." RP at 303-304. This specific injury could have been causedby a pot or some other instrument. Thejury found the defendant guilty ofsecond degree murder while armed with a deadly weapon. Afterthe imposition ofa 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 presentedby this appeal is the question ofwhether or notthe prosecution established that the potwas a deadly weapon. We conclude the evidence permitted thejuryto make that determination. In relevantpart, thejurywas instructed, in accordance with the statutory definition, that a "deadly weapon is an implement or instrumentthat 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. Wereview an evidentiary sufficiency challenge to see ifthere was evidence from which thejury could have found the elements ofthe 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. 2No. 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 offact 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 ofthe injuries were inflicted with his fists (and which we agree did not constitute deadly weapons) and that one ofthose blows likely caused his father's death. While we agree with those observations, they are largely beside the point. The question for thejury was whether thepotwas 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 couldhave fulfilled that function.2 Here, thejurywas presented with evidence that ErikLuden 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 splatteredpot lay next to the body. The pathologisttestified that the pot, or something similar, could have caused the skull fracture. Fromthese facts, thejury was permitted to take Erik Luden at his word that he had struckhis father with the pot, thereby fracturing the skull. The evidence was sufficientto support thejury'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. 3No. 34001-5-111 State v. Luden
conclusion that he wielded the pot as a deadly weapon, even though it was notthe likely
cause ofdeath. Thejudgementis affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Pennell, J. '

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