      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                  No. 71956-4-1
                Respondent,
                                                  DIVISION ONE
          v.



LARRY D. DALEY JR.,                               UNPUBLISHED OPINION


                Appellant                         FILED: December 28. 2015



          Spearman, C.J. — Larry Daley Jr. was convicted of four counts of assault

in the first degree after a shooting incident outside a nightclub. He was charged

with one count against a "John Doe" after firing at a group of unidentified

individuals, and the remaining three counts for shooting at three different officers.

He appeals his convictions. With regard to the conviction for assault against

"John Doe," Daley argues that because the State was not required to prove the

identity of the person he intended to assault, it failed to prove each element of

the charged crime beyond a reasonable doubt, violated his right to a unanimous

verdict and the prohibition against double jeopardy. With regard to the

convictions for assaults against the officers, Daley claims the evidence is

insufficient to establish guilt beyond a reasonable doubt. Finding no error, we

affirm.
No. 71956-4-1/2


                                     FACTS

      Early on November 25, 2012, Seattle Police Department detectives

Benjamin Hughey, Jonathan Huber, and Thomas Janes responded to a request

for assistance at the now defunct Citrus nightclub on Fairview Avenue. Fights

had broken out during the evening and a large crowd had gathered outside as

the club was closing. The detectives arrived in a single car and parked opposite

the nightclub on the far side of Fairview Avenue.

      They saw a group of three to five men walking along Fairview Avenue

following a man in a white hooded sweatshirt. The man in the sweatshirt was

later identified as the defendant, Larry Daley Jr. Daley and the group of men

appeared to be having a heated argument. Daley stepped into the street and

began to cross Fairview Avenue. The group followed him into the street, where

they exchanged gestures and yelled back and forth.

      The detectives saw Daley suddenly turn back toward his pursuers and

reach toward his waistband with his right hand. He then drew out his arm, elbow

raised, in a motion that the detectives immediately recognized as drawing a

firearm. Daley extended his hand and leveled a nine millimeter semiautomatic

pistol directly at the group of men. He was only about ten feet from the men when

he fired multiple shots directly at them, with a crowd of club patrons behind them.

Detective Hughey testified that he "only remember[ed] one distinct round."

Verbatim Report of Proceedings (VRP) (3/20/14) at 61. One of the Citrus

employees heard three to six rounds being fired toward the club. A security guard

heard "a spurt of four or five shots." VRP (3/27/14) at 68. The group of men
No. 71956-4-1/3


scattered and were never identified. The crowd erupted into chaos—yelling and

screaming, with drivers "peeling out" in their cars to get away. VRP (3/27/14) at

140-141.


      As the detectives got out of the vehicle, Janes shouted, "Stop, Police!"

while Hughey ran to intercept Daley. VRP (3/20/14) at 67-68. Daley looked in the

direction of the detectives, but then turned back and fired additional shots at the

fleeing men and the crowd. He then sprinted toward the detectives. As the

distance between Daley and Hughey closed to approximately twenty yards,

Daley raised his gun and pointed it directly at Hughey. In that moment, Hughey

believed that Daley was about to shoot him. Hughey raised his own service

weapon and sighted Daley, firing twice as Daley veered past him onto Yale

Avenue—running above and behind the detectives' position.

       Daley then had the high ground on Yale Avenue, in position to present a

deadly threat to the detectives. Hughey ran over to the retaining wall and spotted

Daley, still in possession of his weapon, through some rhododendrons. Hughey

fired additional shots at Daley as he continued to run up Yale Avenue.

Meanwhile, Huber and Janes had come around the vehicle to get a better angle

on Daley. As Daley crossed their line of sight on the opposite side of the

rhododendrons, Huber saw Daley turn and point his gun directly toward him and

Janes. Huber immediately felt that his life was in danger and fired several shots

at Daley.

       In that same moment, as Huber fired at Daley, Janes saw two amber

muzzle flashes coming from Yale Avenue, between the rhododendron bushes
No. 71956-4-1/4


that lined the street. Janes actually felt and heard the bullets pass by his head,

recalling the distinctive pop and whiz sound caused by the projectiles breaking

the sound barrier. Janes thought that either he or Huber was going to die and

yelled for Huber to take cover.

       Meanwhile, Hughey ran to the back of the parking lot to access a ramp

leading up Yale Avenue. When he reached the ramp, he did not see Daley at first

until he turned his weapon mounted flashlight on the rhododendron bushes. He

saw Daley in the bushes and heard him call out, "I'm shot, I'm dying." VRP

(3/20/14) at 89. Hughey yelled at him to keep his hands up, then called out to

Huber and Janes that he had the suspect.

       Huber ran to provide cover, while Hughey ordered Daley out of the

bushes. Daley no longer had his gun and indicated that he had left it in the

bushes. Hughey found the gun where Daley had indicated. Forensic investigators

recovered several spent nine millimeter shell casings from the area near Fairview

Avenue, three of which matched Daley's pistol. Also recovered under the

rhododendron bush where Daley was arrested were two matching casings.

       Detectives Hughey and Janes later viewed security footage from cameras

on the Fred Hutchinson campus. The footage, played at trial, showed Daley

running across Fairview Avenue and up Yale Avenue, as Hughey fired at him.

Exhibit 2, Camera 072 at 1:56:48 a.m.-1:57:07 a.m. At 1:57:11 a.m., the video

showed a muzzle flash from Daley's location. Exhibit 2, Camera 081 at 1:57:11

a.m.; Appendix E (Screen shot of muzzle flash). The video then shows Daley

running and crouching in the bushes along the side of the research center.
No. 71956-4-1/5


Exhibit 2, Camera 072 at 1:57:12 a.m-1 a.m. At 1:57:22 a.m., the video shows

Daley firing a final shot from the bushes at Hughey—in the top right corner of the

frame. Exhibit 2, Camera 072 at 1:57:22 a.m.; see also Appendix F (Screen shot

of final muzzle flash—Shot fired at Hughey).1

        The State charged Daley with four counts of assault in the first degree,

while armed with a firearm. In count one, the State alleged that Daley, with intent

to inflict great bodily harm, did assault "John Doe" with a firearm and force and

means likely to produce great bodily harm or death. Clerk's Papers (CP) at 12.

The State made the same allegation as to the three Seattle Police Department

detectives in counts two through four.

        Daley waived his right to a jury trial. The trial court found Daley guilty of all

four counts of first degree assault and imposed a standard range sentence.

                                         DISCUSSION


        Daley argues that because the statute establishing the crime of first

degree assault is a specific intent crime, it should be read to "require[ ] proof

beyond a reasonable doubt that the defendant had the specific intent to assault

an identified victim." Br. of Appellant at 12. Because the State failed to do so, he

argues that his conviction for first degree assault on "John Doe" violated his due

process rights to hold the State to proof beyond a reasonable doubt as to each



        1Daley moves to strike the State's Appendices D, E, and F, arguing that they are altered
and captioned screenshots that were neither part of the record nor submitted with permission
from the court. RAP 10.3(a)(8) provides that "[a]n appendix may not include materials not
contained in the record on review without permission from the appellate court, except as provided
in rule 10.4(c)." We deny Daley's motion to strike the State's Appendices D, E, and F, because
they were provided to illustrate testimony in the record where witnesses at trial indicated locations
of events on a screenshot of the security video.
No. 71956-4-1/6


element of the charged crime, to not be placed in jeopardy twice for the same

offense, and to a unanimous verdict. The State argues that the statute does not

require it to prove the identity of a named victim, but only that Daley assaulted

another with a firearm with the intent to inflict great bodily harm.

       We review questions of statutory interpretation de novo. State v. Ervin,

169 Wn.2d 815, 820, 239 P.3d 354 (2010). RCW 9A.36.011(1)(a) provides in

relevant part: "A person is guilty of assault in the first degree if he or she, with

intent to inflict great bodily harm: (a) Assaults another with a firearm or any

deadly weapon or by any force or means likely to produce great bodily harm or

death...." Thus, first degree assault has four elements: that the defendant, with

(1) intent to inflict great bodily harm, (2) assaulted (3) another (4) with a firearm.

State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). The mens rea required

to prove first degree assault is the specific intent to inflict great bodily harm. jd.

By the statute's own terms, there is no express requirement for proof of specific

intent to assault an identified victim as Daley claims. And we have already held

that the name of a victim is not an element of the crime of assault. State v. Piano,

67 Wn. App. 674, 679-680, 838 P.2d 1145 (1992). Daley cites EJmi and State v.

Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004) as authority for his

argument that proof of specific intent to assault an identified person is required.

But neither case supports his position.

       In Elmi, the defendant was convicted of four counts first degree assault

with a firearm when he fired shots into the home of his estranged wife, where

their child and her two young siblings were present. 166 Wn.2d at 211. On
No. 71956-4-1/7


appeal, he challenged his convictions as to the children, because he was

unaware of their presence in the house, jd. The court affirmed the convictions,

holding that "once the intent to inflict great bodily harm is established, usually by

proving that the defendant intended to inflict great bodily harm on a specific

person, the mens rea is transferred under RCW 9A.36.011 to any unintended

victim." id. at 218. The case is of no help to Daley because the Elmi court

identified the necessary proof for first degree assault as that demonstrating an

intent to inflict great bodily harm. And while the court also observed that the

mens rea of first degree assault is "usually" established by proving an intent to

harm a specific person, it did not hold, as Daley suggests, that proof of the

identity of the intended victim was a necessary element.

       In Thomas, we addressed when expert testimony supporting a diminished

capacity defense is admissible in a first degree assault case. 123 Wn. App. at

778-79. We concluded that the evidence may be admissible when specific intent

or knowledge is an element of the charged crime and noted that assault in the

first degree includes a specific intent element, the intent to inflict great bodily

harm. jd. Thomas is inapposite because we did not address the issue Daley

raises here, whether the crime also requires proof of intent to harm a specific

person.

       In support of its argument that such proof is not required, the State cites

People v. Griggs, 216 Cal. App. 3d 734, 265 Cal. Rptr 53 (1989), a case with

facts remarkably similar to this one. In Griggs, a crowd was leaving an auditorium

after a concert and streaming into a parking lot. An undercover officer assigned
No. 71956-4-1/8

to patrol the area saw the defendant, Griggs, pull out a revolver and fire at least

two shots into a large crowd of people. No one was injured and no victims were

identified. Griggs was charged with and convicted of assault with a deadly

weapon.2 On appeal, he argued that the trial court erred when it denied his

motion for acquittal in which he contended that the name of the victim is a

material element of the charged crime and the no proof had been offered to

satisfy that element. The Griggs court rejected the argument, concluding that the

identity of the victim under these circumstances was not an element of the crime

to be proven at trial.

        "All that is necessary is that there is a victim, the characteristics of
        the victim are not critical elements of the offense. The law is
        seeking to punish the reckless disregard of human life, and what
        needs to be shown is that a human life was threatened in the
        manner proscribed .... [w]e conclude the naming of the particular
        victim is not an element of assault with a deadly weapon[.]"

Griggs, 216 Cal. App. 3d at 742. We agree. Similar to the issue in Griggs, the

question here is whether the defendant assaulted another with a firearm while

intending to inflict great bodily harm. The identity of the victim is irrelevant to this

question because whether the victim was injured or placed in fear by the

defendant's actions are not elements that need to be proved or disproved. The

State's burden is to prove that "another" was assaulted in the manner provided

by statute. The identity of the assaulted person is not necessary to establish that

the crime has been committed.




         2 In California, assault with a deadly weapon is a general intent crime requiring only the
intent to commit a battery, not the specific intent to cause any specific degree of injury or harm as
is required in Washington. Griggs, 216 Cal. App. 3d at 740.


                                                  8
No. 71956-4-1/9

       Daley also argues that the constitutional prohibition against double

jeopardy requires identification of a specific victim, but cites no authority to

support his argument. The State argues that a double jeopardy claim is

hypothetical and not ripe for review. In such an unlikely event, Daley would not

be limited in his ability to raise it as a defense against additional charges arising

out of this incident.


       Daley cites Edmund v. State. 398 Md. 562, 921 A.2d 264 (2007) and State

v. Crank, 105 Utah 332, 142 P.2d 178, 180 (1943), to support his argument that

due process requires a "quantum of specificity to identify an intended victim." Br.

of Appellant at 12. In Edmund, the defendant did not know the victim's name but

stated that "he had an ongoing problem with [him]." 921 A.2d at 266. The

Edmund court found that the charging documents, without the victim's name,

sufficed to provide defendant with notice that he was charged with a first degree

assault that took place on January 20, 2005, the day of his arrest. Id. at 267. In

Crank, the defendant also challenged the sufficiency of the information for failing

to name the individual allegedly murdered and/or describe him with sufficient

detail to avoid the possibility of double jeopardy. In that case, the court found that

there was no requirement to name the victim if his identity was unknown, but that

facts must be supplied "to identify the victim, to enable the defendant to prepare

his defense, and to identify the crime." Edmund 921 A.2d at 271.

       These cases are of no help to Daley because he does not claim that he

did not receive fair notice of the charges against him, only that a lack of

identifying information puts him at risk for successive prosecutions for the same
No. 71956-4-1/10


incident. Moreover, both Crank and Edmund expressly dispel any concern about

double punishment, because the defendants would have the entire record of the

case to allow them to raise such a defense if the occasion to do so arose. The

Crank court found that for the purposes of double jeopardy, the identity of the

offense "may also be established by evidence, when the pleadings do not

satisfactorily show the identity." Crank. 142 P.2d at 180. And in Edmund, while

the victim there was described with some specificity, the court noted that "[ejven

if the State were to initiate such a prosecution, Mr. Edmund, in support of a

defense of autrefois convict,3 could use the entire record of this cause. He would

not be limited to the allegations of the indictment, as amended." Edmund. 921

A.2d at 273.

       We agree with the State that double jeopardy issues are extremely

unlikely to arise. And, in the event that they do, while Daley may not have the

names or physical descriptions of the men in the group, he may rely on the entire

record of this case to raise double jeopardy as a defense to any new charges

based on this incident. We conclude that the failure to identify the individuals

does not implicate any constitutional concerns regarding double jeopardy.

        Daley also argues that his due process right to a unanimous verdict

demands an identified, intended victim. He cites State v. Stephens. 93 Wn.2d

186, 188, 607 P.2d 304 (1980), where the jury was instructed in the disjunctive to

determine whether the defendant assaulted one of the victims or the other. In



        3"A plea in bar of arraignment that the defendant has already been convicted of the
offense. This plea can be asserted in the alternativewith a plea of not guilty." Black's Law
Dictionary, 1340 10th ed. (1995).


                                               10
No. 71956-4-1/11


Stephens, the court found that the instruction split the action into two separate

crimes - assault against victim one and assault against victim two - and would

have allowed conviction if, e.g. "six jurors believed Stephens assaulted [victim

one] and six believed he assaulted [victim two]." |d_. at 190. This argument is also

purely speculative and hypothetical. Daley waived his right to trial by a jury and

thus, his right to a unanimous verdict.

       We hold that the State was not required to identify the particular men in

the group or to identify one of them as the intended target. The State was only

required to prove that Daley assaulted another using a firearm with the intent to

inflict great bodily harm. The evidence is more than sufficient to support the trial

court's conclusion that he did so beyond a reasonable doubt. There was no error.

        Next, Daley argues that the record contains insufficient evidence to

sustain his convictions of assault against Detectives Janes, Huber, and Hughey.

Br. of Appellant at 18-19. He argues that there was insufficient corroborating or

circumstantial evidence to prove beyond a reasonable doubt that he was the

individual who shot at the detectives. Daley also challenges the trial court's

findings of fact 7, 8, and 12, claiming that the trial court misinterpreted the

security videotapes and erroneously found that he had assaulted the three

officers.

       The State must prove beyond a reasonable doubt the identity of

the defendant as the individual who committed the offense. State v. Thomson, 70

Wn. App. 200, 211, 852 P.2d 1104 (1993), affd, 123Wn.2d 877, 872 P.2d 1097

(1994). In testing the sufficiency of the evidence, we draw all reasonable



                                          11
No. 71956-4-1/12


inferences from the evidence in the State's favor. State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). Again, we defer to the trier of fact on issues of

the credibility of witnesses, resolving issues of conflicting testimony, and the

persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83

P.3d 970 (2004) abrogated in part on other grounds by. Crawford v.

Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L Ed .2d 177 (2004).

"Circumstantial evidence and direct evidence have equal weight." State v.

Beaslev. 126 Wn. App. 670, 689, 109 P.3d 849 (2005) (citing State v. Delmarter,

94 Wn.2d 634, 638, 618 P.2d 99 (1980)).

       Daley argues that the State failed to prove that he was the shooter

because no one saw him fire his gun after he ran across Fairview Avenue North,

and that neither detective testified that they actually saw Daley pull the trigger.

There is more than enough circumstantial evidence in the record, however, for a

reasonable fact finder to find that Daley shot at all three detectives that night.

       Janes testified that he was heading toward Hughey's location at the

loading dock ramp when he saw two amber flashes coming his direction. VRP

(3/27/14) 76. He explained that visible amber is "a fire from when a shell is

expelled out of a weapon, you get the flameout from the barrel." VRP (3/27/14) at

77. He also testified that he felt the whizzing of two bullets coming past him, and

identified the sounds as such based on his prior experience of being fired upon

while on a SWAT team. He indicated on a photo that the muzzle flashes were

coming from between some rhododendron bushes. Upon review of the security

tape showing a flash of light, Janes identified that the light on the tape came from


                                          12
No. 71956-4-1/13


the area where he noticed the two amber flashes. Janes also testified that he

was "100 percent" confident that Daley was the person in the white sweatshirt. Jd.

at 95.


         Detective Huber testified that he got out of the car and focused on Daley

immediately after he saw him pull out a gun and fire shots at the group. When

Daley ran past him, Huber saw Daley "turn and look at [him] and point the gun in

[his] direction." jd. at 143. Huber testified that at that point he was "scared" and

concerned for his own safety." jd. at 144. According to Janes, Huber was also

right next to Janes when he saw the amber flashes and heard the bullets whiz

past their heads.

         Detective Hughey testified that after Daley shot at the group, he began to

run toward the officers and saw "his firearm raised and pointed at me." VRP

(3/20/14) at 68. Hughey thought at that point he "was going to get shot, possibly

killed, so I made the decision to defend my life and I made the decision to shoot

at Mr. Daley before he could shoot me." jd. at 71. He further testified that he did

not have any independent recollection of Daley shooting at him. Upon viewing

the video, it "scared the heck out of [him]," because he "had no memory [himself]

of being shot at," but "[w]hen you see the video, you see me getting shot at,

which obviously it really - after the fact, it scares you. You're like oh, wow,

somebody really did try to kill me." Id. at 111-112.

         Daley argues that there is insufficient evidence that he assaulted Janes

and Huber, because no bullets or casings were found at or near where Janes

saw muzzle flash. He also argues that the security tape showing muzzle flash


                                           13
No. 71956-4-1/14


near him is inconclusive, because you can see only one flash on tape, not two

flashes as Detective Janes testified. According to Daley, there is insufficient

evidence as well that he assaulted Hughey, because Hughey testified that

numerous other people were running on Yale Avenue North and that he was

unaware of being fired upon until he viewed the security videotape. The trial court

heard all of this evidence and is entitled to deference on issues of credibility and

conflicting evidence. We find that there is sufficient evidence in the record to

support Daley's convictions and affirm.

       Affirmed.




WE CONCUR:
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