State of Washington v. Erik N. Skau

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ERIK N. SKAU,
Appellant.
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No. 39289-9-III
UNPUBLISHED OPINION
PENNELL, J. — Erik Skau appeals 17 felony convictions stemming from the
burglary of a home in Grand Coulee, Washington. We affirm his convictions but, as
the parties agree, remand for resentencing.
FACTS
Arthur Kuehn splits his time between a home in Grand Coulee and one in western
Washington. On the morning of November 4, 2021, Mr. Kuehn left Grand Coulee for
his other residence. Approximately 48 hours later, a neighbor heard an all-terrain vehicle
fire up and take off from the Grand Coulee residence. Further investigation revealed
Mr. Kuehn’s Grand Coulee home had been burglarized. Law enforcement discovered
several signs of forced entry and a sledgehammer lying on the floor of the home.
FILED
SEPTEMBER 17, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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Mr. Kuehn returned to Grand Coulee and documented numerous missing items.
These included 12 firearms, a fishing boat, two ATVs, a weed eater, a compressor, two
downriggers, and some fishing poles. Mr. Kuehn informed law enforcement that the
sledgehammer discovered in the residence did not belong to him.
Law enforcement seized the sledgehammer and sent it to the state crime lab for
analysis. Months later, a forensic examiner recovered DNA from the sledgehammer’s
handle. Analysis of the DNA profile showed three contributors, with Erik Skau
contributing 84 percent of the profile.
Law enforcement began investigating Mr. Skau and discovered he lived in Yelm,
Washington. An officer drove by Mr. Skau’s residence and observed Mr. Kuehn’s boat
stored on the driveway. Armed with the DNA evidence and observation of the boat, law
enforcement obtained a warrant to search Mr. Skau’s property. During execution of the
warrant, officers located Mr. Kuehn’s boat and his stolen weed eater. The remaining
property was never recovered.
Mr. Skau spoke with law enforcement and initially told them he had purchased
the boat from someone named “Kyler” or “Tyler.” 1 Rep. of Proc. (RP) (Oct. 13, 2022)
at 189, 196-97. Weeks later, Mr. Skau changed his story, telling the authorities he bought
the boat from someone named “Joseph Lewis,” and showed police a handwritten note that

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he claimed to be a bill of sale from Mr. Lewis. Id. at 190, 197. Law enforcement were not
able to find anyone named Joseph Lewis living near the Grand Coulee area. The
investigation did turn up a person named Joseph Busker, who had previously used the
alias “Joseph Lewis,” who was now living in Spokane while participating in a work
release program Id. at 190-91, 193-94. An officer found a phone number for Joseph
Busker and left a voicemail, but did not reach anyone.
The State charged Mr. Skau with 17 crimes: 1 count each of first degree burglary,
first degree malicious mischief, and first degree theft; 12 counts of theft of a firearm;
and 2 counts of theft of a motor vehicle.
Mr. Skau testified on his own behalf at trial. Mr. Skau conceded the boat
discovered on his property had been stolen from Mr. Kuehn; his defense rested on his
claim that he was not involved in any burglary or theft. In his testimony, Mr. Skau stated
he saw the boat listed for sale sometime between November 1 and November 3, on a
website the name of which he could not remember. According to Mr. Skau, the seller
agreed to sell him the boat for $1,200. Mr. Skau testified he then rented a car trailer from
U-Haul so he could transport the boat back to his home in Yelm. He claimed he rented a
car trailer, rather than a boat trailer, because he could not find a place that rented boat
trailers.

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During direct examination of Mr. Skau, defense counsel handed the trial
prosecutor a document he sought to admit: a copy of a towing receipt from U-Haul. The
prosecutor immediately objected: “I have never seen this before. This was not provided
to me in discovery.” Id. at 271. After conferring with counsel, the trial court ultimately
excluded the U-Haul receipt, based on a violation of the court’s omnibus discovery order.
The court also noted that the receipt had not been authenticated.
Mr. Skau continued his testimony, explaining that he drove from Yelm to Lincoln
County on November 4, towing the car trailer, to pick up the boat. Mr. Skau claimed he
drove over with a friend, Woody Madsen.1 According to Mr. Skau, he and Mr. Madsen
traveled to eastern Washington from Yelm in the dead of night to pick up the boat.
Mr. Skau testified that he and the seller had agreed to meet at a rest area near
Grand Coulee in the middle of the night, and that once they met, he followed the seller
to a rural residence to retrieve the boat. Mr. Skau claimed that he gave the seller cash,
and that the seller then drew up a handwritten bill of sale and gave it to him. The bill of
sale purportedly identified the seller as “Joseph Lewis.” Id. at 279. Mr. Skau claimed he
1 Mr. Skau called Mr. Madsen to testify as the only other defense witness. Mr.
Madsen testified that he drank a half-gallon of vodka before leaving with Mr. Skau and
that he passed out, sleeping for much of the journey. Mr. Madsen could not provide an
answer to the question, “Why did you go on this trip?”, could not recall the month or year
of the trip, and failed to offer a meaningful or consistent description of where they went

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looked at the seller’s driver’s license, which bore the name “Joseph Lewis.” Id. at 324.
Then, Mr. Skau claimed he loaded the boat into the car trailer he had rented, with Mr.
Lewis’s help, and drove home, not arriving back in Yelm until early the next morning,
November 5.
Mr. Skau testified he had used a sledgehammer belonging to Mr. Lewis to hammer
wood underneath the boat to help lift it into the car trailer, which was not an ideal vessel
for transporting a boat. He claimed he bought a boat without a trailer because “it’s
cheaper that way.” Id. at 285. He further claimed Mr. Kuehn’s weed eater was found in
his possession because it had been left behind in the boat. Mr. Skau claimed the boat’s
registration number was already scratched off when he bought the boat, but insisted that
this did not concern him.
Defense counsel sought to admit a document purporting to be the handwritten bill
of sale written by “Joseph Lewis.” Id. at 278. The prosecutor objected, claiming the bill
of sale had not been properly authenticated and it was hearsay. The court told Mr. Skau’s
counsel that the bill of sale was “a writing signed by someone other than your client
offered for . . . the truth of the matter asserted. It’s hearsay.” Id. at 293. The court asked
defense counsel if he could identify a hearsay exception that would allow the document’s
or what they did. Id. at 244.

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admission. Defense counsel was unable to cite an applicable rule. The court then
excluded the proffered evidence.
On cross-examination, Mr. Skau admitted he had not tried to register Mr. Kuehn’s
boat—despite owning it for more than eight months—because he did not have the money
to pay for registration. Mr. Skau conceded the car trailer he rented was not big enough to
transport a boat, but claimed he was somehow able to make it work.
In the State’s closing argument, the trial prosecutor argued Mr. Skau’s proffered
version of events was nonsensical: According to Mr. Skau, he saw the boat listed for sale
online before the date of the theft. The prosecutor further pointed to the DNA Mr. Skau
left on the handle of the sledgehammer found at Mr. Kuehn’s home. The prosecutor
inferred that it did not make sense to rent a car trailer to tow a boat over Snoqualmie Pass.
The prosecutor conceded that Mr. Skau probably did rent a car trailer, because rental of a
car trailer would have enabled Mr. Skau to transport two ATVs, which were also stolen.
The State ended its summation by urging the jury to disbelieve Mr. Skau: “There was no
sale of a boat.” Id. at 391.
In the defense closing argument, Mr. Skau’s attorney urged the jury to believe his
client’s testimony: “Mr. Skau told you how he bought and paid for the boat. And he
conducted a transaction with somebody that was at least calling himself Joseph Lewis.”

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Id. at 397. Counsel went on, criticizing the quality of the police work, arguing that police
acted with insufficient diligence in pursuing Mr. Lewis. Defense counsel implied that Mr.
Lewis was possibly “a big fish” who might “inform on the rest of the gang.” Id. at 402.
Counsel posited that the police unwisely stopped investigating when they apprehended his
client, and that if they had more robustly pursued Mr. Lewis, they might have recovered
the rest of the stolen property. Defense counsel added that Mr. Skau had provided an
explanation of how his DNA ended up on a sledgehammer; he had used it while moving
the boat into his trailer at Mr. Lewis’s residence.
During the State’s rebuttal argument, the trial prosecutor noted, “[T]hey want you
to infer that that sledgehammer somehow ended up back at the burglary scene after the
boat had already been stolen. . . . [L]ook at these alternate scenarios. They make no
sense.” Id. at 412-13 (emphasis added). The trial prosecutor also responded to defense
counsel’s focus on Joseph Lewis, or Joseph Busker:
This whole side point about this Joseph Busker, is just a distraction. It’s a
red herring. . . .
There’s absolutely no evidence that his [sic] Joseph Busker was
involved in this at all. There is no Joseph Lewis that lives in the Grand
Coulee area. [Law enforcement] couldn’t find anybody that fit the
description of what Mr. Skau claims is the person who sold him that boat.
So, if Joseph Lewis is this key witness who sold him this boat, why isn’t he
here? Why wasn’t Joseph Lewis testifying here today . . . ? Because he
doesn’t exist. He is a distraction. It didn’t happen. This sale of the boat
didn’t happen. It’s not reasonable to believe that that happened. What is

No. 39289-9-III
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reasonable to believe is that Mr. Skau traveled out to Grand Coulee to steal
a whole bunch of things from this residence and then took it back to his
house in Yelm. There was no legitimate sale. There was no sale legitimate
or otherwise. It was all stolen.
Id. at 409-10.
The jury found Mr. Skau guilty as charged of all 17 crimes. For sentencing
purposes, Mr. Skau had no countable prior felonies. The State calculated Mr. Skau’s
offender score for 15 of the crimes as “16,” and for 2 of the crimes as “18,”2 based
entirely on treating his current convictions as prior offenses. 1 RP (Oct. 18, 2022) at
425-26; see also Clerk’s Papers (CP) at 89-90. For Mr. Skau’s most serious conviction—
first degree burglary—the standard sentencing range for a maxed-out offender score of 9+
was 87 to 116 months. See RCW 9.94A.510; see also CP at 89-90.
The trial prosecutor sought an exceptional sentence of 218 months’ confinement,
citing the so-called “free-crimes aggravator,” RCW 9.94A.535(2)(c). Mr. Skau’s counsel
offered no opposition to the State’s calculation of Mr. Skau’s offender score, and simply
asked for “some mercy” and “the lowest possible range.” 1 RP (Oct. 18, 2022) at 430.
2 The additional points were included because, for each of Mr. Skau’s two
convictions for theft of a motor vehicle, the State counted the other theft of a motor
vehicle conviction as three points rather than one. See RCW 9.94A.525(20).

No. 39289-9-III
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The superior court declined to enter an exceptional sentence. Rather, the court
imposed a standard-range term of confinement of 116 total months, representing the top
of the uncontested standard range for Mr. Skau’s most serious crime.
Mr. Skau timely appeals.
ANALYSIS
Mr. Skau makes three challenges to his convictions: (1) he was deprived of
effective assistance of counsel when his attorney failed to object to hearsay evidence,
(2) the prosecutor improperly shifted the burden of proof during summation, and (3) the
trial court erroneously refused to admit Mr. Skau’s trial exhibits. Mr. Skau also argues for
resentencing, claiming the trial court improperly calculated his offender component of his
guideline range by failing to consider whether his current offenses constituted the same
criminal conduct. We address each claim in turn.
Failure to object to hearsay
Mr. Skau contends his trial attorney provided constitutionally ineffective
representation when counsel failed to assert hearsay objections to law enforcement
testimony identifying the boat found on his property as Mr. Kuehn’s. We disagree.
Criminal defendants are guaranteed effective assistance of counsel by our
federal and state constitutions. See U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.

No. 39289-9-III
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A defendant appealing a conviction on the basis of ineffective assistance of counsel bears
the burden of showing both deficient performance and prejudice. State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Failure to meet either element is dispositive.
See In re Pers. Restraint of Pleasant, 21 Wn. App. 2d 320, 326, 509 P.3d 295 (2022).
Our review of defense counsel’s performance requires considerable deference.
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). “There is a strong presumption that counsel has rendered adequate assistance and
has made all significant decisions in the exercise of reasonable professional judgment.”
State v. Benn, 120 Wn.2d 631, 665, 845 P.2d 289 (1993). “Because the presumption runs
in favor of effective representation, the defendant must show in the record the absence of
legitimate strategic or tactical reasons supporting the challenged conduct by counsel.”
McFarland, 127 Wn.2d at 336.
Here, defense counsel’s failure to object was reasonably strategic. Mr. Skau never
disputed that the boat found on his property had belonged to Mr. Kuehn. To the contrary,
he described the boat as “Mr. Kuehn’s” on multiple occasions during his own testimony.
1 RP (Oct. 13, 2022) at 261. Given the nature of Mr. Skau’s defense, little would have
been served by objecting to hearsay statements regarding Mr. Kuehn’s ownership of the
boat. Furthermore, defense counsel likely surmised that if a hearsay objection had been

No. 39289-9-III
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asserted, the State would have elicited the identification testimony from Mr. Kuehn.
Counsel’s failure to assert hearsay objections to law enforcement testimony did not
deprive Mr. Skau of his right to effective assistance of counsel.
Shifting burden of proof during summation
Mr. Skau claims the prosecutor engaged in improper argument during rebuttal
by asking why Joseph Lewis—the purported boat seller—had not testified at trial.
According to Mr. Skau, this line of argument suggested the defense bore responsibility
for calling Mr. Lewis as a witness and, as such, improperly shifted the burden of proof.
We disagree.
The State bears the burden of proving its case beyond a reasonable doubt, and a
defendant has no burden to present evidence at all. See State v. Montgomery, 163 Wn.2d
577, 597, 183 P.3d 267 (2008). It is misconduct for the State to suggest that the defense
bears the burden of producing evidence in support of reasonable doubt. See State v.
Emery, 174 Wn.2d 741, 759-60, 278 P.3d 653 (2012). However, “it is not misconduct”
for a prosecutor to “fairly respond to defense counsel’s argument.” State v. Thorgerson,
172 Wn.2d 438, 449, 258 P.3d 43 (2011).
Here, the prosecutor’s rebuttal argument was not improper because it constituted a
fair response to Mr. Skau’s theory of the case. During the defense closing, Mr. Skau’s

No. 39289-9-III
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attorney criticized law enforcement for failing to adequately pursue Mr. Lewis. Mr.
Skau’s counsel speculated that if police had done a better job, they may have found the
leader of a gang and recovered the rest of Mr. Kuehn’s stolen property. The State’s
prosecutor appropriately responded that Mr. Skau’s defense was implausible. For
example, Mr. Skau claimed he saw a listing for the boat days before it was stolen. Given
the implausibility of Mr. Skau’s defense, the State merely argued that the reason Mr.
Lewis had not testified was that he did not exist. Considered in context, the State’s
argument did not suggest that Mr. Skau had the burden of calling Mr. Lewis as a witness.
Exclusion of evidence
Mr. Skau contends the trial court erred by excluding two documents he sought
to admit as evidence: a U-Haul towing reservation and a handwritten bill of sale. He
further contends the exclusion of these documents violated his right to present a defense.
We disagree.
We engage in a two-step process in assessing whether a trial court’s evidentiary
decision violated a defendant’s constitutional right to present a defense. State v.
Broussard, 25 Wn. App. 2d 781, 786, 525 P.3d 615 (2023). First, we review the merits
of the evidentiary decision. Id. If the defendant can prevail on the merits, no further

No. 39289-9-III
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analysis is necessary. But if the trial court’s evidentiary decision was either not an abuse
of discretion or harmless, we will proceed to a constitutional analysis. Id. at 786-87.
The trial court’s evidentiary rulings pass the first part of the analysis. The court
acted within its discretion in excluding the U-Haul receipt based on a violation of the
court’s omnibus order, requiring disclosure of exhibits. And the court properly excluded
the bill of sale documents based on hearsay. Furthermore, the exclusion of both
documents was harmless. Mr. Skau testified that he rented the U-Haul and that Mr. Lewis
had provided him a bill of sale. The State never challenged the fact that Mr. Skau had
rented the U-Haul trailer. After all, doing so would have facilitated his ability to purloin
Mr. Kuehn’s property. And there was no real dispute that Mr. Skau possessed a
handwritten document that purported to be a bill of sale from Mr. Lewis. The State’s
argument was simply that the document was fake. Given the handwritten bill of sale
was not a public record or otherwise authenticated, there is no suggestion that
introduction of the document would have helped Mr. Skau show that the document
came from Mr. Lewis.
Going to the second step of the analysis, we review de novo whether exclusion of
the evidence violated Mr. Skau’s right to present a defense. See id. This right is “‘in
essence, the right to a fair opportunity to defend against the State’s accusations.’” State v.

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Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v. Mississippi, 410
U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). This right is not absolute, and the
defendant’s relative need for the information sought to be admitted must be weighed
against the State’s interest in excluding the evidence. State v. Arndt, 194 Wn.2d 784, 812,
453 P.3d 696 (2019).
The trial court did not violate Mr. Skau’s constitutional right to present a defense.
As noted above, neither piece of excluded evidence was materially helpful to Mr. Skau’s
case. Furthermore, the bill of sale was inadmissible as hearsay and Mr. Skau has never
proffered any reason for holding that it did not qualify as hearsay. The right to present a
defense does not encompass a right to present inadmissible evidence. See State v. Goss,
189 Wn. App. 571, 583, 358 P.3d 436 (2015). Mr. Skau has not identified a constitutional
injury.
Offender score—“same criminal conduct”
Mr. Skau contends he is must be resentenced because his current convictions
constituted the “same criminal conduct,” and thus should have been counted as a single
offense for purposes of calculating his offender score. RCW 9.94A.589(1)(a). The State
agrees it is probable that some of Mr. Skau’s convictions were for the “same criminal

No. 39289-9-III
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conduct,” and concedes remand is necessary. Id. We accept the State’s concession and
remand for resentencing.
Ordinarily, when a person is sentenced for multiple current offenses, the sentence
range for each offense is determined by counting other current convictions “as if they
were prior convictions.” Id. There is an exception “if the court enters a finding that some
or all of the current offenses encompass the same criminal conduct.”3 Id. (emphasis
added). In that case, the current offenses constituting the “same criminal conduct” are
“counted as one crime.” Id. Same criminal conduct determinations are committed to the
trial court’s discretion. See State v. Graciano, 176 Wn.2d 531, 536, 295 P.3d 219 (2013).
The legislature defined “same criminal conduct” as “two or more crimes that [(1)]
require the same criminal intent, are committed at [(2)] the same time and place, and [(3)]
involve the same victim.” RCW 9.94A.589(1)(a). This court will not find same criminal
conduct if any of these elements are missing. See State v. Saunders, 120 Wn. App. 800,
824, 86 P.3d 232 (2004). Mr. Skau’s crimes were directed at the same victim: Mr. Kuehn.
As charged and proved by the State, the crimes were also committed at the same place
3 Same criminal conduct is analytically distinct from double jeopardy. See State v.
French, 157 Wn.2d 593, 611-12, 141 P.3d 54 (2006). Two crimes might constitute same
criminal conduct for sentencing purposes even where the multiple convictions do not
violate the constitutional prohibition of double jeopardy. See, e.g., State v. Tili, 139
Wn.2d 107, 110, 119-20, 985 P.2d 365 (1999).

No. 39289-9-III
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and within a limited time period. Thus, the determinative question is whether each of
Mr. Skau’s crimes required the same “statutory intent” as set forth by the Supreme
Court’s recent decision in State v. Westwood, 2 Wn.3d 157, 166, 534 P.3d 1162 (2023).
Under Westwood, at least some of Mr. Skau’s convictions plausibly constitute the
same criminal conduct. All 12 of his convictions for theft of a firearm necessarily have
the same “statutory intent” because they are all violations of the same statute. Id. at 167-
68; see RCW 9A.56.300. And the convictions for first degree theft and theft of a motor
vehicle have the same statutory intent as those crimes, too, because—like the theft of a
firearm statute—those statutes both require proof of “theft” and its requisite mens rea. See
RCW 9A.56.030 (requiring proof of “theft”); RCW 9A.56.065 (same); RCW 9A.56.300
(same); see also RCW 9A.56.020(1)(a) (defining “theft” as requiring an “intent to
deprive” the rightful owner of their property). Because the “statutory intent element[s]”
are “the same or similar,” this court may “look at whether the crimes furthered each
other” and whether “the nature of the crime did not change significantly throughout.”
Westwood, 2 Wn.3d at 168. And as proved by the State, all of these theft crimes were
committed as part of an overarching robbery of Mr. Kuehn’s home. As such, there was a
plausibly meritorious argument that at least 15 of Mr. Skau’s crimes constituted the same
criminal conduct and thus should have counted as one crime toward his offender score,

No. 39289-9-111
State v. Skau
rather than being counted individually. RCW 9.94A.589(l)(a). With a lower offender
score, Mr. Skau's sentencing range would have been much lower.
Based on the foregoing, we accept the State's concession and remand for a new
sentencing hearing. Resentencing shall be de novo, with both parties able to argue for any
lawful sentence.
CONCLUSION
The judgment of conviction is affirmed. This matter is remanded for resentencing.
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.
Pennell, J.
WE CONCUR:
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