IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ERICA MAY TOEBE,

Appellant.

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No. 36322-8-III

UNPUBLISHED OPINION

PENNELL, C.J. — Erica Toebe appeals a deadly weapon enhancement imposed in 

relation to her conviction for second degree assault. We affirm.

FACTS

Ms. Toebe got into an argument with her roommate over a bar tab. The dispute

escalated into a physical altercation, and culminated in Ms. Toebe clubbing her roommate

FILED

MAY 12, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36322-8-III

State v. Toebe

2

with a metal towel bar. Several of Ms. Toebe’s blows landed on her roommate’s head. 

The roommate sought help from some neighbors and was transported by ambulance to 

the hospital.

At the hospital, the roommate was treated for: (1) a broken cheekbone requiring 

reparative surgery, (2) a cut to the head requiring six staples, (3) a cut to the lip requiring 

four stiches, and (4) bruising and swelling the face, eye area, arms and ankles. The

bruising was so severe it delayed reparative surgery to the cheekbone.

The State charged Ms. Toebe with one count of second degree assault with a 

deadly weapon enhancement. A jury convicted her as charged. Ms. Toebe appeals.

Her challenges are limited to the deadly weapon enhancement.

ANALYSIS

A jury’s verdict on a deadly weapon enhancement must be supported by sufficient 

evidence. See State v. Sassen Van Elsloo, 191 Wn.2d 798, 825-26, 425 P.3d 807 (2018).

This standard is not onerous. “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).

The State’s evidence was sufficient to prove the towel bar employed by Ms. Toebe

against her roommate was a deadly weapon. Washington’s deadly weapon statute lists
No. 36322-8-III

State v. Toebe

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several instruments that are per se deadly weapons. RCW 9.94A.825. Included is “any 

metal pipe or bar used or intended to be used as a club.” Id. The towel bar here met that 

definition. Witnesses described the bar as being made from metal. Ms. Toebe used the bar

to club the victim of her assault. It is irrelevant that the towel bar was not shaped like a 

club or might not meet the dictionary definition of a club. The statute only requires the 

bar or pipe be used like a club, not that it be a club. The uncontested evidence meets this 

standard.

Even though Ms. Toebe’s second degree assault conviction required proof of a 

deadly weapon, RCW 9A.36.021(1)(c), imposition of a deadly weapon enhancement

under RCW 9.94A.533(4) did not violate Ms. Toebe’s right against double jeopardy. 

Our case law has long recognized the legislature’s intent to increase punishment when a 

defendant convicted of second degree assault (which can be committed in several ways)

is armed with a deadly weapon. State v. Aguirre, 168 Wn.2d 350, 366, 229 P.3d 669

(2010). No recent authority holds to the contrary.1 Thus, there was no double jeopardy 

violation. Id.

 1 Ms. Toebe’s citation to State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018) is 

inapt. That case addressed the preclusive effect of a jury’s verdict as to sentence 

enhancements, not the validity of multiple punishments authorized by the jury’s verdict.
No. 36322-8-III

State v. Toebe

4

CONCLUSION

The judgment 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.

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Pennell, C.J.

WE CONCUR:

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Siddoway, J.

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Lawrence-Berrey, J.