Terry Metzgar was convicted of aggravated assault by a jury and was sentenced to the custody of the Board of Correction for an indeterminate term of five years. Metzgar’s sentence was enhanced by a five-year consecutive term because he had used a firearm in the assault. On appeal, Metzgar *733 raises two issues. First, he asserts that the state failed to prove that an operable firearm as defined in I.C. § 19-2520 was used in the assаult. Second, he contends that since the aggravated assault involved a firearm, the enhancement of his sentence for using a firearm violated his constitutional right against double jeopardy. We affirm the judgment of conviсtion.
The record indicates that the victim and her roommate were walking in Boise when the driver of a car pulled over and offered them a ride. The victim and her roommate accepted and, as they got into the back seat of the car, noticed that the female passenger in the front seat was not fully clothed. After going a short distance, the driver let the female passenger in the front seat out of the car. The driver then рointed a pistol at the victim and her roommate and ordered them to undress. The driver touched the victim’s chest. The victim and her roommate were then allowed to dress and were dropped off near a bar in Boise. Although her roommate disappeared, the victim contacted the police. Metzgar was later arrested and subsequently identified by the victim as the driver of the car. Because the gun allegedly used was never found, it wаs not admitted into evidence at trial. A jury found Metzgar guilty of aggravated assault and of using a firearm in the commission of the assault. The judge sentenced Metzgar to an indeterminate term of five years for the aggravated assаult and to a consecutive five-year term for using a firearm.
I
Idaho Code § 19-2520 provides in part:
For the purposes of this section, “firearm” means any deadly weapon capable of ejecting or propelling one or more projectiles by the action of any explosive or combustible propellant, and includes unloaded firearms and firearms which are inoperable but which can readily be rendered operable.
Metzgar argues that since no firearm was admitted into evidence, the state failed to prove that the gun met the operability requirements of § 19-2520. We recently held in
State v. Stedtfeld,
The remaining question raised by Bowman’s assignment of error is whether there is sufficient evidence viewed in the light most favorable to the State from which a rational trier of fact could conclude beyond a reasonable doubt that Bowman wаs armed with a real gun during the commission of these crimes. State v. Green,94 Wash.2d 216 ,616 P.2d 628 (1980). The State need not introduce the actual deadly weapon at trial. “The evidence is sufficient if a witness to the crime has testified to the presence of such a weapon, as happened here____ The evidence may be circumstantial; no weapon need be produced or introduced.” [State v.] Tongate, [93 Wash.2d 751 ] at 754, 613 P.2d [121] at 121.
The record contains sufficient evidence to support the jury’s conclusion: Mrs. C. described the gun in detail and on cross-examination stated that “there was no question in my mind whatsoever” that it was a real gun. Further, the defendant’s threats to use the gun added additional credence to the jury’s conclusion.
[A defendant’s] express verbal threat to “shoot” his victim necessarily implied that he had access to a firearm capable of killing or seriously injuring his victim. We have' previously held that a firearm is unambiguously a deadly weapon.
State v. Hentz,99 Wash.2d 538 , 541,663 P.2d 476 (1983).
Although the victim testified in the instant case that she did not know much about guns, she indicated there was no *734 doubt it was a gun Metzgar had used. The victim said that she observed the gun from a distance of approximately two feet. She testified that Metzgar pointed the gun at her and her roommate while they undressed. She also related that Metzgar opened the cylinder and showed her that the weapon was loaded, and that during the assault he pulled the hammer back. Metzgar at one point also told the victim’s roommate that if he ran away, Metzgar would “blow his head off.” We believe this evidence clearly was sufficient to allow the jury to reasonably conclude that the gun was operable.
II
Metzgar next challenges the firearm enhancement of his sentence for two reasons. He points out that using a firearm elevated his crime from a simple assault to an aggravated assаult, but using the firearm was also responsible for the sentence enhancement. 1 Therefore, Metzgar urges that this “double enhancement” first violates his constitutional right against double jeopardy. He also contends that it violаtes I.C. § 18-301, which prohibits more than one punishment for the same act.
A
Missouri v. Hunter,
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, rеgardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulаtive punishment under such statutes in a single trial.
Idaho Code § 19-2520, referred to previously, further provides:
Any person convicted of a violation of sections 18-905 (aggravated assault defined), ... who displayed, used, threatened, or attempted to use a firearm or other deadly weаpon while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the above cited crimes____
This section shall apply even in those cases where the use of a firearm is an element of the offense.
*735
We applied the
Hunter
rationale in
State v. Galaviz,
B
We now turn to Metzgar’s second argument that the enhancemеnt of the assault sentence violated I.C. § 18-301. That statute provides:
An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be рunished under more than one; an acquittal or conviction and sentence under either one bars a prosectuion [sic] for the same act or omission under any other.
Metzgar insists the use of a firearm in the assault was “the same act” that also subjected him to the penalties of § 19-2520, in this case a five-year consecutive term.
Our Supreme Court held in
State v. Horn,
Under § 18-301 a defendant cannot be punished twice for the same act, rather than the same crime. If defendant’s single action creates liability under two criminal statutes, defendant can only be punished under one statute. [Emphasis original.]
We do acknowledge that there are differences between the definition of “firearm” in § 18-905 and § 19-2520. Section 18-905 includes “any firearm, though unloaded or so defective that it cannot be fired.” Section 19-2520 however, “includes unloaded firearms and firearms which are inoperable but which can readily be rendered oрerable.” However, § 19-2520 also requires that the firearm be capable of “propelling ... projectiles.” We can foresee crimes where the firearm used is “so defective it cannot be fired” and thereforе, brings a defendant within the ambit of § 18-905, aggravated assault, yet the gun does not come within the “readily ... rendered operable” requirements for the enhancement provisions of § 19-2,520. Adding to the conflict is the fact that-aggravated assault is an enumerated crime listed in § 19-2520. However, we need not resolve that conflict now. We affirm the judgment of the district court.
Notes
. Idaho Code § 18-905 defines an aggravated assault as an assault:
(a) With a deadly weapon or instrumеnt without intent to kill; or
(b) By any means or force likely to produce great bodily harm.
(c) With any vitriol, corrosive acid, or a caustic chemical of any kind.
(d) "Deadly weapon or instrument" as used in this chapter is defined to include any firearm, though unloaded or so defective that it cannot be fired.