          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                             NO. 69812-5-
                                                                                   c=>       -ic:

                    Respondent,                  DIVISION ONE                      :?        -Si'.

                    v.                                                              to



KEVIN STEWART CLARDY, JR.                        UNPUBLISHED OPINION                 >c       rt-3?

                                                                                         o
                    Appellant.                   FILED: April 21, 2014



       Lau, J. — Kevin Clardy challenges his convictions for first degree robbery, first

degree burglary, first degree assault, first degree unlawful possession of a firearm, and

drive-by shooting. He contends the prosecutor committed misconduct in closing

remarks and also contends the jury instructions erroneously defined the term "reckless

or acts recklessly." He raises additional issues in his pro se statement of additional

grounds (SAG). Finding no error, we affirm.

                                         FACTS


      The State initially charged Kevin Clardy with first degree robbery, first degree

burglary, and first degree assault, all of which the State alleged were committed while

armed with a firearm. Codefendants Tia Lyn Eaton, Amani Catrice Sorrell, Josiah M.
69812-5-1/2



Rashid, and Doresida C. Castro were charged in the same information.1 The State later

filed a third amended information charging Clardy with first degree robbery (count I), first

degree burglary (count II), first degree assault (count III), first degree unlawful

possession of a firearm (count IV), and drive-by shooting (count V). The State alleged

Clardy committed the crimes in counts I, II, and III while armed with a firearm.

       The parties agree on the background substantive facts. See Resp't's Br. at 3.

The charges arose from the robbery of Anthony Dao and Danielle Wright in early March

2011. Both Dao and Wright were home at the time, as were Dao's 7-year old son, BD,

and the couple's infant daughter, MD. According to Dao, a woman rang his doorbell

late in the evening on March 8, 2011. The woman claimed she was BD's aunt and that

she was there to pick up BD for his mother, who was Dao's former girl friend. She

insisted that Dao open the door. Dao told the woman to come back the next day, but at

her insistence, he eventually opened the front door but kept the storm door closed and

locked. Upon opening the front door, he saw a black man with a shotgun outside. The

man immediately attempted to break into Dao's home. Dao closed the door and yelled

for Wright, who was upstairs, to call the police.

        Dao then saw the man and woman run around to the back of his home and

shove the barrel of the gun through a back window. Dao ran out his front door to his

neighbors' house to ask them to call 911. As he was leaving, he heard more glass

breaking, which turned out to be a sliding glass door at the back of the house.


        1 Before trial, Clardy's four codefendants entered guilty pleas to various charges
for their roles in the events surrounding the robbery. None of the codefendants testified
at Clardy's trial.

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      After alerting his neighbors, Dao returned to his home and entered the front door.

He found no one inside, but he could see three or four people running away from the

back of the house. He grabbed a large knife and chased them on foot. The robbers ran

through Dao's backyard and into an adjacent neighborhood. They taunted Dao as they

ran away and fired the shotgun at him once.

      Dao abandoned his foot chase and pursued the robbers in his minivan. He drove

around the surrounding area and stopped next to a red sedan at a stoplight. He saw

four people in the car—two men in the back seat and two women in the front seats.

According to Dao, one of the women was the one he first encountered at his front door

and one of the men was the one with the shotgun at his house. When the light turned

green, the red car sped away and Dao followed. The man with the shotgun fired at Dao

three or four times as they drove along, and Dao could hear shotgun pellets hitting his

minivan. Dao also claimed that at one point the red car stopped and the man with the

shotgun stepped out of the car and fired at him two or three times from a distance of 30

to 60 feet. The man then picked up the spent shotgun pellets and returned to the red

car, which sped away again. Dao kept following in his minivan.

      About 10 or 15 minutes into the chase, Dao saw a law enforcement officer

engaged in an unrelated traffic stop. Dao pulled up to the officer and told him he had

just been robbed and needed assistance. He then sped off again in pursuit of the red

car. About 5 to 10 minutes later he saw items taken from his home strewn on the

roadway. He then saw the unoccupied red car, which had crashed into a guardrail. An

officer arrived at the scene and directed Dao to park his car and wait for assistance.



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      Wright recalled that when she heard Dao open the door late on March 8, she saw

a woman outside. She heard a sudden bang on the front door and then heard Dao yell,

"Run, babe. They got guns." RP (Nov. 8, 2012) at 471. Wright immediately ran to the

master bedroom, retrieved MD and a cell phone, and went to DB's bedroom. As she

passed the stairs on the way to BD's bedroom she saw at least two black men, one

larger than the other, and possibly another person coming up the stairs toward her.

One of the men had a gun. Wright ducked into BD's room, put MD on the floor, and lay

on top of MD to protect her.

      Wright recalled that at least two of the robbers entered BD's room. One started

hitting her hard in the back with what she thought was a large gun, and another held a

gun to her head, demanded money, and threatened to kill her. Wright also heard

someone rummaging through the rest of the house. After 30 or 40 seconds, the robbers

left Wright and went to the master bedroom. Moments later, Wright saw the two men

and a woman run downstairs with one of the men carrying Dao's briefcase. Wright

heard the robbers leave the house through the back door.

       Early in the morning on March 9, police arrested five suspects in an abandoned

quarry near where the red car had crashed. The suspects were two black men,

including Clardy, and three women. Police recovered two guns—a shotgun and a

handgun—in the underbrush near the crash site. In the red car, they found both live

and spent shotgun shells, a handgun case, and a rifle case. Strewn on the roadway

near the crash site were a broken briefcase and various papers and documents, some

of them bearing Dao's name. None of the male DNA (deoxyribonucleic acid) recovered
69812-5-1/5



from the handgun, shotgun, and shotgun shells was conclusively linked to any of the

suspects. No fingerprint evidence was presented at trial.

      Dao identified Clardy for the first time at trial as the man he thought was wielding

the shotgun during the robbery. Dao admitted he only got a glimpse of the man at his

front door and further acknowledged that the man he saw with the shotgun in the back

of the red car was "possibly" the same man he had seen at his front door. RP (Oct. 31,

2012) at 334. He eventually acknowledged he was "not sure" it was Clardy in the back

seat of the red car when they were stopped at the stoplight. RP (Oct. 31, 2012) at 403.

Like Dao, Wright claimed at trial that Clardy was the man with the shotgun.2

      During closing argument, the prosecutor discussed the "to convict" instructions

and explained that they described the elements of each charged crime. The prosecutor

continued:


            To put it in less legal terms, it gives you a set, a list, a checklist of things
      you need to consider and make a decision on. If you decide all of them one way,
      the Defendant's guilty; if you decide all of them another way, he's not guilty; if
      you can't decide or you reach different conclusions on different elements, then
      you can't render a verdict.

RP (Nov. 20, 2012) at 1200. Defense counsel objected, claiming this was a

misstatement of the law. The court replied, "Excuse me a moment. Overruled." RP

(Nov. 20, 2012) at 1200.

       During the defense's closing remarks, defense counsel did not contest that Dao

and Wright were victims of a violent robbery, but argued that the State failed to prove

Clardy was involved, noting that no one identified Clardy as one of the robbers prior to

        2 There was conflicting testimony at trial regarding whether Wright positively
identified Clardy as one of the robbers during a show-up identification of the suspects
arrested near the crash site.
69812-5-1/6



trial. Defense counsel emphasized, "This trial has not really been about what

happened, but about who did it, identification." RP (Nov. 20, 2012) at 1231. Counsel

also noted the lack of physical evidence linking Clardy to the crimes and further argued

that even if the jurors concluded the State proved Clardy was involved, it failed to prove

intent for the first degree assault charge.

       The jury convicted Clardy as charged on all counts, including the firearm

enhancements for counts I, II, and III. The court sentenced him within the standard

range. Clardy appeals.

                                         ANALYSIS


       Prosecutorial Misconduct


       Clardy argues that the prosecutor's statement, quoted above, constitutes

prosecutorial misconduct. He contends,

       By arguing the jury had to conclude the State failed to prove beyond a
       reasonable doubt all of the elements] listed in the to convict instructions in order
       to enter a 'not guilty' verdict, the prosecutor set up an impossible hurdle for the
       defense to overcome to obtain an acquittal on any charge.

Appellant's Br. at 13. The State responds that although "the prosecutor made a

confusing statement in closing argument that could be read as a misstatement of the

law," Clardy fails to prove prejudicial misconduct where the prosecutor correctly stated

the law moments later and the jury instructions correctly advised the jury of the

applicable law. Resp't's Br. at 1.

       Prosecutorial misconduct requires a showing that the prosecutor's conduct was

both improper and prejudicial in the context of the entire record and circumstances at

trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). "Prejudice is
69812-5-1/7



established only if there is a substantial likelihood the instances of misconduct affected

the jury's verdict." State v. Pirtle. 127 Wn.2d 628, 672, 904 P.2d 245 (1995). We

review a prosecutor's comments during closing argument in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury

instructions. State v. Boehninq. 127 Wn. App. 511. 519. 111 P.3d 899 (2005V During

closing argument, a prosecutor is afforded wide latitude in drawing and expressing

reasonable inferences from the evidence, including commenting on the credibility of

witnesses and arguing inferences about credibility based on evidence in the record.

State v. Millante. 80 Wn. App. 237, 250, 908 P.2d 374 (1995).

       Misstating the law is improper and has the potential to mislead the jury. State v.

Davenport. 100 Wn.2d 757, 763, 675 P.2d 1213 (1984). However, even if the

prosecutor misstated the law or otherwise caused confusion, Clardy is not entitled to a

new trial unless he can demonstrate a substantial likelihood that the prosecutor's

statements affected the jury's verdict. Pirtle, 127 Wn.2d at 672.

       The prosecutor's closing argument as a whole makes clear that he did not intend

to argue to the jury that it had to find a failure of proof on every element in order to

acquit Clardy. Despite the confusing statement quoted above, the prosecutor correctly

stated the law immediately after the statement. The prosecutor turned to the first

degree burglary charge and properly discussed the elements of that crime, noting that

the only element truly in dispute was identity. He repeatedly emphasized that the State

had the burden to prove every element of the crime beyond a reasonable doubt. See

RP (Nov. 20, 2012) at 1202-04. The prosecutor argued that the case involved the

perpetrator's identity, not what happened—an argument Clardy repeated in his closing

                                           -7-
69812-5-1/8



argument; RP (Nov. 20, 2012) at 1201-10 (prosecutor argued that identity was the

disputed element in all of the crimes); RP (Nov. 20, 2012) at 1231 (defense counsel

argued, "This trial has not really been about what happened, but about who did it,

identification.").

        Similarly, the prosecutor narrowed the areas of dispute regarding robbery,

assault, drive-by shooting, and unlawful possession of a firearm. The prosecutor's

statements properly clarified for the jury that if it found that the State's proof failed on

any single element—most likely identity in this case—it should acquit. Defense

counsel's closing remarks emphasized the State's burden of proof and argued the State

failed to prove the identity and intent elements of the crimes.

        Further, the jury instructions cured any potential confusion. See State v.

McKenzie, 157 Wn.2d 44, 57 & n.3, 134 P.3d 221 (2006) (proper jury instructions can

cure potential prejudice). Each to-convict instruction correctly states that ifthe jury has

a reasonable doubt as to any single element, it must acquit on that charge. For

example, the first degree robbery instruction described the six elements of the crime

and informed the jury, "[l]f, after weighing all the evidence, you have a reasonable doubt

as to anv one of the elements (1), (2). (3). (4). (5). or (6), then it will be your duty to

return a verdict of not guilty     " (Emphasis added.) Regarding first degree burglary,

the jurywas instructed, "[l]f, after weighing all the evidence, you have a reasonable

doubt as to anv one of these elements, then it will be your duty to return a verdict of not

guilty . . . ." (Emphasis added.) The first degree assault, first degree unlawful
possession of a firearm, and drive-by shooting to-convict instructions contained similar
language. The court also instructed the jury that the lawyers' remarks are not evidence

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and that the law is contained in the jury instructions. The jurors were instructed to

disregard any remark, statement, or argument that was not supported by the evidence

or the law as given to them by the court. We presume that the jury follows the court's

instructions. State v. Swan, 114 Wn.2d 613, 662, 790 P.2d 610 (1990).

       Because (1) the prosecutor immediately stated the correct law and clarified the

State's burden of proof, (2) defense counsel rebutted or clarified the prosecutor's

statement in his own closing remarks, and (3) proper jury instructions cured any

confusion, we conclude no substantial likelihood any misstatement affected the jury's

verdict. Clardy fails to establish prosecutorial misconduct.

       Jury Instructions

       Clardy contends that his drive-by shooting conviction must be reversed because

the trial court erroneously defined "reckless" in its jury instructions. The State responds

that Clardy invited any alleged error.

       A person is guilty of drive-by shooting if "he or she recklessly discharges a

firearm ... in a manner which creates a substantial risk of death or serious physical

injury to another person and the discharge is . . . from a motor vehicle . . . ." RCW

9A.36.045(1). Before trial, the State filed proposed jury instructions, including a

definition of recklessness drawn from Washington's criminal pattern jury instructions.

WPIC 10.03. The State also filed a pretrial motion to compel Clardy to file "a complete

set of proposed instructions." The trial court granted the motion. Clardy then sought

leave to agree with the State's instructions, thus avoiding the need to file his own

proposed instructions. Clardy specifically requested, "The Defense asks leave not to

propose the standard WPIC instructions and instead will rely on the State's proposed

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standard instructions. The Defense will propose any supplemental instructions ifthe

need arises." The trial court granted this motion. RP (Oct. 24, 2012) at 251 ("Motion to

allow the Defense to agree with the standard WPIC instructions. That's granted.").

        The first page of Clardy's proposed instructions states, "The Defense agrees and

stipulates to the WPIC standard instructions proposed by the State of Washington

except for the additional instructions that are being requested by the Defense." Clardy

proposed no additional or different instructions on the definition of recklessness or the

drive-by shooting charge. When Clardy revised his proposed instructions during trial,

he again explicitly adopted the State's proposed instructions.

        The trial court's to-convict instruction for drive-by shooting provided in relevant

part:

              To convict the defendant of the crime of Drive-by shooting as charged in
        count V, each of the following elements of the crime must be proved beyond a
        reasonable doubt:
               (1) That during the period of time intervening between March 8, 2011,
        through March 9, 2011, the defendant recklessly discharged a firearm;
               (2) That the discharge created a substantial risk of death or serious
        physical injury to another person;
               (3) That the discharge was either from a motor vehicle or from the
        immediate area of a motor vehicle that was used to transport the shooter or the
        firearm to the scene of the discharge; and
               (4) That the acts occurred in the State of Washington.

The court instructed the jury regarding recklessness in the same language proposed by

the State and stipulated to by Clardy:

              A person is reckless or acts recklessly when he or she knows of and
        disregards a substantial risk that a wrongful act or result may occur and this
        disregard is a gross deviation from conduct that a reasonable person would
        exercise in the same situation.
               When recklessness as to a particular fact or result is required to establish
        an element of a crime, the element is also established if a person acts
        intentionally or knowingly as to that fact or result.

                                             -10-
69812-5-1/11




(Emphasis added.)

          Clardy assigns no error to the court's to convict instruction but contends the

above underlined portion of the court's definition of "reckless or acts recklessly"

misstates the law. He argues, "A jury instruction defining the recklessness requirement

must account for the specific risk contemplated under that statute," and, thus, the

instruction should have replaced the term "a wrongful act or result" with "death or

serious physical injury to another person." Appellant's Br. at 17, 18.

       Jury instructions are sufficient when they allow trial counsel to argue their

respective theories of the case, are not misleading, and when read as a whole, properly

inform jurors of the applicable law. State v. Killingsworth, 166 Wn. App. 283, 288, 269

P.3d 1064 (2012). Each instruction is considered in the context of the "instructions as a

whole" rather than in isolation. State v. Benn. 120 Wn.2d 631, 654-55, 845 P.2d 289

(1993).

       We conclude that under the doctrine of invited error, Clardy may not challenge

jury instructions he proposed. The invited error doctrine "prohibits a party from 'setting

up error in the trial court and then complaining of it on appeal.'" State v. Armstrong, 69

Wn. App. 430, 434, 848 P.2d 1322 (1993) (quoting State v. Young, 63 Wn. App. 324,

330, 818 P .2d 1375 (1991)). Under the invited error doctrine, "even where

constitutional rights are involved, we are precluded from reviewing jury instructions

when the defendant has proposed an instruction or agreed to its wording." State v.

Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005) (emphasis added). Here, Clardy




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69812-5-1/12



expressed affirmative agreement to the instructions by joining in the State's proposed

instructions. He cannot challenge the jury instruction quoted above.3

       Statement of Additional Grounds (SAG)

       Clardy raises several additional arguments in his pro se SAG. First, he

contends, "The statements [and] testimony given by Anthony Dao [and] Danielle Wright

were not fact, so they can only be false" and claims the prosecutor committed

misconduct by knowingly presenting this allegedly perjured testimony. SAG at 10. He

points to several inconsistent or inconclusive statements made by each witness. Our

review of the record establishes that at best, Dao and Wright did not have a perfect

recollection of the events surrounding the robbery. While their testimony was at times

confusing and somewhat contradictory, the fact that some of a witness's statements

were inconsistent or that one witness's testimony contradicts another witness's

testimony does not reflect misconduct by the witnesses. The evidence does not show

that Dao or Wright testified falsely or committed perjury. See RCW 9A.72.050 (perjury

consists of person making inconsistent material statements under oath, knowing one to

be false). We defer to the fact finder's credibility determinations on issues of conflicting



        3We also note that in addition to inviting the error, Clardy waived this issue by
failing to object to the instruction at trial. Under RAP 2.5(a), we may refuse to hear any
claim of error not raised in the trial court unless that error constitutes manifest
constitutional error. Here, Clardy argues in a footnote and without elaboration that he
may raise the issue for the first time on appeal because it involves manifest
constitutional error. This is insufficient to justify review. See Norcon Builders. LLC v.
GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (declining to
consider an inadequately briefed argument); State v. Johnson, 69 Wn. App. 189, 194 n.
4, 847 P.2d 960 (1993) ("[P]lacing an argument... in a footnote is, at best, ambiguous
or equivocal as to whether the issue is truly intended to be part of the appeal.").


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testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Raleigh, 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010). Because the jury had a full

opportunity to consider each witness's testimony, we do not disturb its credibility

determinations. Clardy fails to show misconduct by either the witnesses or the

prosecutor in presenting the testimony.4

       Clardy also contends the trial court erred in applying firearm enhancements in

sentencing him for first degree assault, first degree burglary, and first degree robbery.5

He claims, "Enhancements apply to all felonies except where the use of a firearm is an

element of the offense." SAG at 11. We disagree. In State v. Williams-Walker, 167

Wn.2d 889, 225 P.3d 913 (2010), our Supreme Court considered whether the trial court

properly added firearm enhancements in sentencing the defendants for first degree

assault, first degree robbery, and first degree murder. For each defendant, the jury

returned a special verdict form indicating it found the defendant was armed with a

"deadly weapon" at the time of the crime. Williams-Walker, 167 Wn.2d at 893-94. The

verdict forms did not mention "firearm," and the trial court relied on the underlying guilty

verdicts in imposing a firearm enhancement rather than a deadly weapon enhancement.

Williams-Walker, 167 Wn.2d at 899-900. Our Supreme Court held that the jury in each

case authorized only a deadly weapon enhancement, not the more severe firearm

enhancement. Williams-Walker, 167 Wn.2d at 898. The court did not hold that firearm



       4 Clardy also fails to demonstrate prejudice given defense counsel's extensive
cross-examination and impeachment of both Dao and Wright.

       5To the extent Clardy also argues the court improperly imposed a firearm
enhancement in sentencing him for his drive-by shooting conviction, the record
indicates the trial court imposed no enhancement on that conviction.
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enhancements were inappropriate for crimes in which use of a firearm is an element of

the offense. It merely held that a firearm enhancement must be alleged and authorized

by the jury in the form of a special verdict:

       For purposes of sentence enhancement, the sentencing court is bound by
       special verdict findings, regardless of the findings implicit in the underlying guilty
       verdict. Where a firearm is used in the commission of a crime, the only way to
       determine which enhancement is authorized is to look at the jury's special
       findings. A sentence enhancement must not only be alleged, it also must be
       authorized by the jury in the form of a special verdict.

Williams-Walker. 167 Wn.2d at 900. Here, the jury found by special verdict that Clardy

was "armed with a firearm" at the time he committed first degree assault, first degree

burglary, and first degree robbery. CP 263-65, 297. The trial court properly imposed

the firearm enhancements.


       Clardy also contends that his first degree assault and drive-by shooting

convictions constitute double jeopardy. Both the United States and Washington State

Constitutions protect persons from being twice put in jeopardy for the same offense.

State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010); U.S. CONST. AMEND. V;

CONST. ART. I, § 9. This includes "being (1) prosecuted a second time for the same

offense after acquittal, (2) prosecuted a second time for the same offense after

conviction, and (3) punished multiple times for the same offense." State v. Linton, 156

Wn.2d 777, 783, 132 P.3d 127 (2006) (citing State v. Graham, 153 Wn.2d 400, 404,

103 P.3d 1238 (2005)). However, the State may bring multiple charges arising from the

same criminal conduct in a single proceeding without offending double jeopardy. State

v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005). Our Supreme Court has

consistently rejected the notion that "offenses committed during a 'single transaction'


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are necessarily the 'same offense'" for purposes of double jeopardy. State v. Vladovic,

99 Wn.2d 413, 423, 662 P.2d 853 (1983). Because double jeopardy is a question of

law, our review is de novo. Freeman, 153 Wn.2d at 770.

      Our courts employ a three-part framework for double jeopardy analysis.

Freeman, 153 Wn.2d at 771-73. First, if there is clear express or implicit legislative

intent to punish the crimes separately, then we look no further. Freeman, 153 Wn.2d at

771-72. Ifthe legislative intent is unclear, we turn to the "same evidence" test which

asks if the crimes are the same in law and in fact.6 State v. Calle, 125 Wn.2d 769, 777-

78, 888 P.2d 155 (1995). Third, if applicable, the merger doctrine may help determine

legislative intent. Vladovic, 99 Wn.2d at 419. Even if the two offenses appear to be the

same, when each one has an independent purpose or effect, then the two offenses may

be punished separately. Freeman, 153 Wn.2d at 773.

      Clardy asserts that the offenses of first degree assault and drive-by shooting are

"covered under the same statu[t]e." SAG at 16. We presume he argues the offenses

are legally identical. We evaluate the two crimes under the same evidence test, which

considers "whether each provision requires proof of a fact which the other does not."

Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

"If each crime contains an element that the other does not, we presume that the crimes

are not the same offense for double jeopardy purposes." Freeman, 153 Wn.2d at 772.

Offenses are not the same in fact and law if there is an element in each offense that is



      6Washington's "same evidence" test is sometimes referred to as the "same
elements" test or "the Blockburger test." Freeman, 153 Wn.2d at 772 (citing
Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).


                                          -15-
69812-5-1/16



not included in the other and proof of one offense would not necessarily also prove the

other. Calle. 125 Wn.2d at 777; Vladovic, 99 Wn.2d at 423. We view the elements "as

charged and proved," not in the abstract. Freeman, 153 Wn.2d at 777.

        As charged in this case, drive-by shooting and first degree assault each contain a

statutory element that is absent from the others. See RCW 9A.36.011 ("A person is

guilty of assault in the first degree if he or she, with intent to inflict great bodily harm .. .

[a]ssaults another with a firearm or any deadly weapon or by any force or means likely

to produce great bodily harm or death."); RCW 9A.36.045(1) ("A person is guilty of

drive-by shooting when he or she recklessly discharges a firearm ... in a manner

which creates a substantial risk of death or serious physical injury to another person

and the discharge is either from a motor vehicle or from the immediate area of a motor

vehicle . . . .").

        However, comparison of the statutory elements at an abstract level does not end

the analysis. In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291

(2004); State v. Nvsta, 168 Wn. App. 30, 46-47, 275 P.3d 1162 (2012), review denied,

177 Wn.2d 1008 (2013). We must look at the statutory elements and the facts used to

prove those elements to determine whether each offense required "proof of a fact which

the other d[id] not." Blockburger. 284 U.S. at 304. As the offenses were charged and

proved in this case, evidence that Clardy fired a gun was required to prove both his

convictions for drive-by shooting and first degree assault. But each offense also

required proof of a fact that the other did not. With respect to first degree assault, the

State was required to prove that Clardy's shooting was directed at Dao with the intent to

inflict great bodily harm. To prove drive-by shooting, the State was required to prove

                                             -16-
69812-5-1/17



that Clardy discharged a weapon from a vehicle or in proximity to a vehicle in a manner

that created a substantial risk of death or serious injury to another person.

       This is not a case where evidence of a single act was required to prove multiple

offenses and was the sole available evidence to prove those charges. The evidence

that Clardy fired one bullet at Dao was all that was required to prove first degree

assault. This evidence was available, but not required, to support the drive-by shooting

conviction. That conviction was also established by evidence that Clardy fired several

more times at Dao from the car in which Clardy was a passenger. In sum, first degree

assault and drive-by shooting were not the same offenses. It follows that the two

convictions did not violate the prohibition against double jeopardy.

       Clardy also challenges specific items of evidence admitted at trial. He contests

"the presentation of a sweat shirt that was not covered under CrR 4.7 and no one had

any record (or) knowledge of how it showed up in the evidence locker." SAG at 19. He

argues the sweat shirt evidence was "contaminated" because "[t]here was no control of

the contents of the locker." SAG at 24, 25.       He also claims "DNA .. . was presented to

jurors for no other reason but confusion." SAG at 19. We find no support for these

assertions in the record.

       Clardy also argues that insufficient evidence supports his convictions. Evidence

is sufficient if, when viewed in the light most favorable to the State, it permits any

rational trier of fact to find the essential elements of the crime beyond a reasonable

doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficient

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

be drawn from it. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992).

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Circumstantial evidence is as probative as direct evidence. State v. Vermillion, 66 Wn.

App. 332, 342, 832 P.2d 95 (1992). Clardy bases his sufficiency challenge on

conflicting witness testimony and also claims that identification evidence was unreliable.

He essentially contests witness credibility and evidence persuasiveness at trial. We

defer to the trier of fact on issues of conflicting testimony, witness credibility, and

persuasiveness of the evidence. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107

(2000). Given the fact finder's opportunity to assess witness demeanor and credibility,

we will not disturb those findings. See State v. Pierce, 134 Wn. App. 763, 774, 142

P.3d 610 (2006). Viewing the evidence in the light most favorable to the State, we

conclude a rational jury could have found Clardy guilty of the charged crimes beyond a

reasonable doubt.

       Finally, Clardy contends the record of proceedings from November 21, 2012 (the

in-court presentation of the verdicts) is missing from the appellate record. We received

the transcript from these proceedings and reviewed the complete record in deciding this

appeal.

                                       CONCLUSION


       We affirm Clardy's convictions.




WE CONCUR:




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