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lI                                                                              FILED
                                                                              NOV. 17,2015
j                                                                     In the Office of the Clerk of Court
I                                                                   W A State Court of Appeals, Division III
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                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

I1   STATE OF WASHINGTON,
                                    DIVISION THREE

                                                   )
j                                                  )        No. 32860-1-111
                          Respondent,              )
                                                   )
            v.                                     )
                                                   )
     MARCOS AVALOS BARRERA,                        )
                                                   )        UNPUBLISHED OPINION
                          Appellant.               )

            BROWN, J. -   Marcos Avalos Barrera appeals his custodial assault and fourth

     degree assault convictions, alleging instructional error and sufficient evidence does not

     exist to support his convictions. We disagree and affirm.

                                                FACTS

            Correction Officer Alex Aragon assisted in escorting prisoner Anthony Vazquez

     from his cell to the visitation room. As Mr. Vazquez descended from the upper cell

     area, Mr. Barrera charged at him and began punching him. Officer Aragon attempted to

     break up the 'fight, at which point Mr. Barrera struck the officer. Mr. Barrera claims he

     did not intend to strike Officer Aragon.
No. 32860-1-111
State v. Barrera


       Mr. Vazquez did nothing to provoke the fight at the time of the confrontation, but

Mr. Barrera claimed Mr. Vazquez threatened him previously.

       The State charged Mr. Barrera with fourth degree assault (involving Mr.

Vazquez) and custodial assault (involving Officer Aragon).

       The court instructed the jury, "If a person acts with intent to assault another, but

the act harms a third person, the actor is also deemed to have acted with intent to

assault the third person." Clerk's Papers (CP) at 130. Defense counsel objected to a

proposed jury instruction about "consent" and noted this is a "transferred intent case."

Report of Proceedings (RP) at 188. Counsel stated, "as far as what an assault is, intent

    I think [the pattern instructions] fairly state the law in this case." Id.

       The court instructed the jury, "A person is entitled to act on appearances in

defending himself, if that person believes in good faith and on reasonable grounds that

he is in actual danger of great bodily harm." CP at 135. The court instructed the jury, "if

you find beyond a reasonable doubt that the defendant was the aggressor and that

defendant's acts and conduct provoked or commenced the fight, then self-defense is

not available as a defense." CP at 131.

       A jury found Mr. Barrera guilty as charged. He appealed.

                                         ANALYSIS

                                    A. Transferred Intent

       The issue is whether the court erred in giving the jury a transferred intent

instruction that provided, "If a person acts with intent to assault another, but the act



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     No. 32860-1-111
     State v. Barrera


     harms a third person, the actor is also deemed to have acted with intent to assault the

     third person." CP at 130. Mr. Barrera claims intent could not transfer to the correction

     officer because custodial assault is a more serious offense than fourth degree assault.

     Mr. Barrera, however, did not object to the giving of this instruction below; rather, our

     record shows he objected to a different instruction regarding consent. Generally,

     instructional error may not be raised for the first time on appeal. State   v. Morgan, 163
     Wn. App. 341, 348, 261 P.3d 167 (2011). Moreover, an unchallenged transferred intent

     instruction becomes "the law of the case." State   v. Wilson, 113 Wn. App. 122, 131, 52
     P.3d 545 (2002) (citing State   v. Perez-Cervantes, 141 Wn.2d 468, 476 n.1, 6 P.3d 1160
     (2000».

            Nevertheless, transferred intent is applicable to assault charges involving an

     accidental or unintended victim. Our Supreme Court addressed this in the context of

     assault in State   v. Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009). There, Mr. Elmi used a
     firearm to shoot into his estranged wife's house. He was convicted of attempted first

     degree murder against his wife and first degree assault against her children who were

     present in the house during the shooting. On appeal, Mr. Elmi argued the State was

     required to prove he had the specific intent to assault the children. Our Supreme Court

     disagreed, holding that a person's intent to assault transfers to "any unintended victim."

     Id. at 218. Mr. Barrera asks us to carve out an exception for when the victim is a

     corrections institution employee. Our Supreme Court, however, has clearly stated that

\    intent may transfer to "any unintended victim." Id. Moreover, to borrow from tort law,

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1   No. 32860-1-111
1   State v. Ban-era

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t   one takes their victim as they find them. State v. Hiett, 154 Wn.2d 560, 572, 115 P.3d

1   274 (2005) (the "eggshell skull" rule).

                                       B. Evidence Sufficiency

         . The issue is whether sufficient evidence supports Mr. Barrera's convictions. He

    argues the State failed to disprove self defense beyond a reasonable doubt.

           "The test for determining the sufficiency of the evidence is whether, after viewing

    the evidence in the light most favorable to the State, any rational trier of fact could have

    found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,201,829

    P .2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and

    all inferences that reasonably can be drawn therefrom." Id. Circumstantial evidence

    and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618

    P .2d 99 (1980). "Credibility determinations are for the trier of fact and cannot be

    reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

           A person is guilty of fourth degree assault, "if, under circumstances not

    amounting to assault in the first, second, or third degree, or custodial assault, he or she

    assaults another." RCW 9A.36.041 (1). A person is guilty of custodial assault if he or

    she, "[a]ssaults a full or part-time staff member ... at any adult corrections institution or

    local adult detention facilities who was performing official duties at the time of the

    assault." RCW 9A.36.1 00(1 )(b).

           A defendant asserting a claim of self defense bears the initial burden of

    producing some evidence that his or her actions occurred in circumstances amounting



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No. 32860-1-111
State v. Barrera


to self defense. State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005). Once

this threshold is met and a jury is instructed on self defense, the State bears the burden

of proving the absence of self defense beyond a reasonable doubt. State v. Walden,

131 Wn.2d 469,473,932 P.2d 1237 (1997). The absence of self defense becomes

another element of the offense that the State must prove. State v. Woods, 138 Wn.

App. 191, 198, 156 P.3d 309 (2007).

      Here, drawing all reasonable inferences in favor of the State, Mr. Barrera claimed

Mr. Vazquez threatened him in the past. The State, however, offered eye-witness

testimony showing no threats were made at the time of the attack. The attack was

unprovoked. Credibility determinations are for the trier of fact. Camarillo, 115 Wn.2d at

71. Accordingly, the State met its burden to prove Mr. Barrera was the aggressor and

did not act in self defense. Sufficient evidence supports both convictions.

      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.


                                             Brown, J.        .
WE CONCUR:



Siddoway, C.J.                               Lawrence-Berrey, J.




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