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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JICOREY RICCARDO BRADFORD and JAMES EARL GRAY, Appellants. J No. 71056-7-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 24, 2014 

### Becker, J. — Codefendants JiCorey Bradford and James Gray were 

### convicted ofdrive-by shooting and other charges arising from a hostile encounter with two men inTacoma. We reverse both appellants' convictions for drive-by 

### shooting because of ineffectiveassistance ofcounsel. Because the evidence
was insufficient, we also reverse Bradford's conviction for possession of a stolen firearm. 

### The shootings occurred on the afternoon ofOctober7, 2011, nearan apartment complex where Bradford's brotherlived. According to testimony at trial, two or three shots were fired into a Chevy Caprice occupied by Dandre 

### Long and KerryEdwards. The shots camefrom another caroccupied by defendants Bradford and Gray. The cars then sped off in different directions butNo. 71056-7-1/2

soon met up again. Either Bradford or Gray got out and fired more shots into the Caprice. Edwards and Long leftthe scene; itwas some time laterthatthey contacted the police. Bradford and Gray attempted to leave, buttheir car crashed into an embankment near a fire station. Police soon arrived and found Bradford sitting inthe carwhen they arrived. Gray ran away and was not arrested until sometime later. Near Bradford on the ground, police found a gun thatwas later matched to shells found inthe Caprice or nearthe locations ofthe shootings. At least 13 shots had been fired at the Caprice. One bulletwas found lodged inthe back of the driver's headrest and another was recovered from the back seat. As he was being transported to the police station, Bradford identified a 

### photograph ofGray as the person who was with him during the shooting. Bradford told police itwas he, not Gray, who fired the shots. Bradford maintained he fired in self-defense because Edwards had pointed a gun at him and Gray from the outset. The information alleged that Bradford and Gray acted as accomplices in the shootings. On May 14, 2012, ajointtrial began with Bradford and Gray as codefendants. Each ofthem was charged with one countof first degree assault 

### with a firearm against Edwards, one count of first degree assaultwith a firearm 

### against Long, one count of drive-by shooting, and one count ofpossession of a stolen firearm. Inaddition, Bradford was charged with second degree unlawfulNo. 71056-7-1/3 

### possession of a firearm, and Gray was charged with first degree unlawful 

### possession of a firearm. The trialcourtdismissed charges ofcocaine possession. 

### The trialwas challenging because the four participants gave differing accounts ofwhat happened. According to the defendants, Bradford was the shooter. Edwards identified Gray as the shooter attrial. Edwards had earlier 

### identified Bradford as the shooterwhen police showed him a photo montage. 

### The defendants' theory was thatthey should be acquitted ofthe shooting charges on the ground ofself-defense because Bradford fired atthe Caprice only after Edwards pointed a gun at them. Edwards and Long testified that neitherof them had a gun. Edwards, the State's chiefwitness, admitted that he had 

### recently pleaded guilty to 12 or 14 felonies. All but two ofthe charges against him had been dismissed inexchange for his testimony against gang members in other cases, and he had served 1 year in prison instead of 30. Edwards testified that his felony convictions prevented him from possessing firearms and he would face a 30-year sentence if he were found to have violated his plea deal by possessing a firearm. The State's theory was that no one inthe Caprice had a gun, and accordingly, there could be no finding ofself-defense. Inclosing arguments, both sides agreed that the central issue was whether Edwards had a gun. Edwards denied it, and the defense impeached him with a witness who said Edwards had recently threatened herwith a gun.No. 71056-7-1/4 

### Edwards testified that the other car pulled up next to the Caprice as he and Long were driving away from an apartment building. Edwards testified that 

### neither he norLong said anything to the defendants. He said Gray started shooting and as he and Longdrove away, they heard the backwindow burst. He testified that he looked back and saw Gray standing inthe middle ofthe street,
saw him fire four or five shots, and then heard more shots hitthe Caprice as he ducked down. Edwards said Gray started shooting again when the two cars met for the second time, and he heard six or seven more shots hit the car. Edwards 

### testified he saw Bradford inthe passenger seat ofGray's car before the first shots but did not see Bradford at all during the second round ofshooting. Long testified that he knew Gray but did not see him on the day of the incident. Long denied seeing Bradford. He recalled having a briefencounter withsome men at the apartment complex. Then, he said, someone got out of a
car and started shooting. He thought different people were involved inthe second shooting. 

### Bradford testified that he and Gray were stopped nearthe apartment building when the Caprice pulled up, hostile words were spoken by its occupants, and the passenger (Edwards) leaned forward and pointed a gun at him. Bradford 

### testified that he reacted by reaching under his seat, pulling out his gun, and firing two or three times from inside the car. He said both cars drove off, but then the Caprice suddenly reappeared, passed them, and spun out infront ofthem, cutting them off. Bradford said he saw Edwards holding a gun outthe window.No. 71056-7-1/5 

### He testified thatwhen he sawthe gun, he reacted on instinct and fired once or 

### twice from inside the car, but feeling he was in the direct line offire, he got out of the carand ran toward the backfor cover, firing at the other car as he ran. 

### Bradford testified that Gray never possessed the gun and had not known there
was a gun inthe car. 

### Gray testified that he recognized Long when he saw him inthe Caprice and that Long was verbally aggressive. He said he noticed Bradford was 

### ducking down like he was trying to hide from someone with a gun. Then Bradford pulled a gun outfrom under his seat and fired two shots, the first one 

### from withinthe car and the second one after he had gotten out ofthe car. 

### Gray said Bradford got back inthe driver's seat and drove off, then Long's
carappeared again and cutthem off. He said Bradford ducked and gotoutofthe
car. Gray said he heard shots and moved to the driver's seat because he was 

### scared and wanted to leave. Then, he said, Bradford got into the passenger seat 

### and they took off. Gray lost control ofthe carand crashed it. Gray testified that he ran away and hid in a tree for several hours before going home. There were several other witnesses who saw or heard some ofthe shots. None ofthem identified the shooter. On May 24, 2012, thejury rendered its verdict. Bradford was convicted of drive-by shooting, first degree assaultwith a firearm against Long, unlawful possession of a firearm (a crime he conceded he was guilty of), and possession of a stolen firearm. Thejury could not reach a decision as to the count chargingNo. 71056-7-1/6


### Bradford with first degree assault against Edwards. 

### Gray was convicted only of drive-by shooting and unlawfulpossession of 

### a firearm. Gray was found not guilty of the two counts of firstdegree assaultand not guilty of possession of a stolen firearm. 

### Bradford and Grayfiled separate appeals. The appeals have been 

### consolidated. Gray has submitted ajoinderincoappellant Bradford's arguments. See RAP 10.1(g)(2). SELF-DEFENSE INSTRUCTION 

### Bradford's defense centered on his claim that he fired only inself-defense when he saw Edwards pointing a gun. The trial court gave a standard self

### defense instruction. Bythe terms ofthe firstparagraph, the self-defense instruction applied only to the charges of first degree assault. "It is a defense to a charge ofassault inthe first degree thatthe force used was lawful as defined in this instruction." 

### Bradford contends the trial court erred by failing to instructthejury that self-defense was an available defense for the drive-by shooting charge. There
was no objection to the instruction below. Bradford contends, however, thatthe alleged errormay be raised for the first time on appeal as manifest constitutional

error. He also claims ineffective assistance of counsel. Appellate courts analyze unpreserved claims oferror involving selfdefense instructions on a case-by-case basis to assess whetherthe claimed

error is manifest constitutional error. State v. O'Hara, 167 Wn.2d 91, 104, 217No. 71056-7-1/7
P.3d 756 (2009). O'Hara applies because instruction 16 was not, on its face,
erroneous. It did not relieve the State of its burden to disprove that Bradford acted in self-defense. See O'Hara, 167 Wn.2d at 108. The instruction was modeled afterWPIC 17.02, which has been upheld as a correct instruction on the law ofself-defense. See State v. Prado, 144 Wn. App. 227, 247-48, 181 P.3d 901 (2008). The problem is not that the instruction erroneously stated the law of 

### self-defense. The problem is that it did not make self-defense applicable to the charges ofdrive-by shooting. Accordingly, we do notfind manifest constitutional


### error. The issue is more appropriately addressed inthe context ofineffective assistance ofcounsel. See State v. Woods. 138 Wn. App. 191, 197, 156 P.3d 309 (2007). To prevail on a claim of ineffective assistance, Bradford must show that (1) his attorney's representation was deficient and (2) he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An ineffective assistance claim is reviewed de novo because it presents mixed questions of law and fact. State v. A.N.J.. 168 Wn.2d 91, 109, 225 P.3d 956 (2010). Counsel is ineffective when counsel's conductcould not have been a legitimate strategic or tactical choice. Woods, 138 Wn. App. at 197. Under RCW 9A.36.045(1), a person is guilty ofdrive-by shooting when he recklessly discharges a firearm in a mannerwhich creates 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 ofa motor vehicle that was usedNo. 71056-7-1/8


### totransportthe shooteror the firearm, or both, to the scene of the discharge." The State does notdispute that self-defense is available as a defense to 

### a charge of drive-by shooting. The State does notidentify a strategic reason why defense counsel would want thejury to be instructed on self-defense as to the assault charges but notthe drive-by shooting charge. Self-defensewas Bradford's only defense, as he admitted to being the shooter. The conduct 

### underlying the drive-by shooting was the same as the conductunderlying the first degree assaultcharges. Counsel argued the assault and drive-by shooting charges would rise orfall together, depending on whetherthe jury believed Edwards had a gun. We conclude the first prong ofthe Strickland test is met. Counsel for Bradford was ineffective for failing to ensure thatthe self-defense 

### instruction applied to the drive-by shooting charge as wellas the assaultcharges. The same istrue ofcounsel for Gray, who hasjoined inBradford's argument on appeal. To convict Gray of drive-by shooting, thejury must have concluded he
was eitherthe shooter (as the State claimed) or an accomplice to Bradford. The second prong ofthe test is demonstrating prejudice. Adefendant shows prejudice where there is a reasonable probability thatthe result ofthe trial would have been different absent the challenged conduct. Strickland. 466 U.S.
at 694.The State contends Bradford cannot show prejudice because "there is


### reason to question" whetherthere was sufficient evidence to justify a selfdefense instruction. Inparticular, the State argues thejury could not have found

8No. 71056-7-1/9 

### that Bradford subjectively feared he was inimminent danger or that he exercised
no more force than was reasonably necessary. This argument is unconvincing. A self-defense instruction must be given ifthere is "'any evidence'" the person acted in self-defense. State v. Adams, 31 Wn. App. 393, 395, 641 P.2d 1207 (1982). Bradford's testimony provided such evidence. The trial court did give a self-defense instruction pertaining to the charges of first degree assault, 

### presumably recognizing there was sufficientevidence ofself-defense. Bradford argues thatthe prejudice ofcounsel's error is demonstrated by 

### thejury's inabilityto reach a verdict on the charge that he committed firstdegree assaultagainst Edwards. The suggestion isthat ifsomejurors found Bradford
wasjustified inshooting at Edwards, likelythey would have also found he was justified infiring shots from the car he was in orthe area nearit—ifinstructed that self-defense applied to the drive-by shooting charges. 

### Alljurors acquitted Gray of both assaults, so they most likely agreed Bradford was the shooter. Alljurors convicted Bradford ofassaulting Long. All 

### jurors convicted both defendants of drive-by shooting. Possibly, the jury's inabilityto agree that Bradfordassaulted Edwards means that at least some 

### jurors found that Edwards had a gun and Bradford acted in self-defense as to Edwards. Ifso, the jury's decision to convict both defendants of drive-by shooting possibly means they found that the shooting at some pointceased to be 

### justified by self-defense and was then simply reckless as to other persons in the vicinity. The problem is that nothing in the record demonstrates a singleNo. 71056-7-1/10 

### coherent rationale for the verdicts. The State did not walk the jurors through the instructions and verdict form in closing argument. The prosecutorleft the complex task of relating the instructions to the facts completely up to thejury: "In many cases, Italkabout instructions, and in this case Iam not going to. Isaid I
was going to be exceedingly short. And frankly, Iam finished. Yourdecision." Ifsomejurors believed that at least some ofBradford's shots were fired in 

### self-defense, there is a reasonable possibilitythe samejurors would have found the drive-by shootingjustified byself-defense ifthey had been given an instruction that permitted them to do so. We conclude thatthe failure ofboth 

### defense counsel to ensure that the self-defense instruction applied to drive-by shooting as wellas to assaultwas both deficient performance and prejudicial. As a result, Bradford's and Gray's convictions for drive-by shooting must be reversed. SUFFICIENCY OF THE EVIDENCE Bradford and Gray both argue the State presented insufficientevidence for a rationaljury to find them guilty ofcertain counts. Where a criminal defendant challenges the sufficiency ofthe evidence, this court reviews the evidence inthe light mostfavorable to the State to determine ifany rational trier 

### offact 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 ofthe State's evidence and all ofthe inferences that can reasonably be drawn therefrom. Salinas, 119 Wn.2d at 201. "'Determinations ofcredibility are for the

10No. 71056-7-1/11
fact finder and are not reviewable on appeal.'" State v. Brockob. 159 Wn.2d 311, 336, 150 P.3d 59 (2006), quoting State v. Hughes. 154 Wn.2d 118, 152, 110 P.3d 192(2005). 

### Gray's Conviction for Drive-byShooting Gray claims there was insufficientevidence to convict him ofdrive-by 

### shooting. Ifso, he would be entitled to have the charge dismissed instead of simply having the conviction reversed for ineffective assistance as discussed above.Gray and Bradford testified that Bradford did the shooting and Gray did 

### not know Bradford had a gun in his car until Bradford brandished it. The only person who identified Gray as a shooterwas Edwards. Gray argues that Edwards' testimony was too self-contradictory and ambivalentto prove that he 

### fired the gun. This courtdefers to thejury on issues of credibility. Gray cites no authority holding that the testimony of a witness must be internally consistent. Thejurors could have chosen to believe those portions of Edwards' testimony in which he identified Gray as the shooter. Even ifthey did not, thejurors did not have to find that Gray was the actual shooter inorderto convict him ofdrive-by shooting. Thejury was instructed on accomplice liability. Ifthejury found that only Bradford fired shots, itnevertheless could have also found that Gray 

### became an accomplice to Bradford by standing by withthe carwhile Bradford got outofthe carand fired shots. Gray's conduct could fairlybe seen as waiting for

11No. 71056-7-1/12 

### Bradford tofinish shooting in order to help him get away. Thus, we reject Gray's challenge to the sufficiency of the evidence to supportthe conviction for drive-by shooting. 

### Gray's Conviction for UnlawfulPossession ofa Firearm Because of priorfelony convictions, Gray could not possess a firearm. 

### Knowing possession is an essential elementofthe charge. State v.Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). Possession may be actual or constructive. State v. Echeverria. 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). A jury can find a defendant constructively possessed a firearm ifthe defendant has dominion and control over it or overthe premises where the firearm was found. Echeverria, 85 Wn. App. at 783. A vehicle qualifies as "premises" for purposes ofthis inquiry. State v. Mathews. 4 Wn. App. 653, 656, 484 P.2d 942 (1971). Close proximity alone is not enough to establish constructive possession; otherfacts must enable the trier offact to infer dominion and control. 

### State v. Spruell. 57 Wn. App. 383, 388-89, 788 P.2d 21 (1990). The totality of the circumstances must be considered. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243. review denied. 126Wn.2d 1016(1995). Gray and Bradford testified that Gray did not know Bradford had a gun and Bradford was the only person who fired it. But as discussed above, thejury could have believed Edwards' testimony that Gray was the shooter. Ifthejury concluded Gray fired the gun, he obviously possessed it. Alternatively, thejury may have believed that although Gray was not the

12No. 71056-7-1/13 shooter, he remained inthe careven after Bradford got out and then, when Bradford got back in, Gray drove the getaway vehicle with Bradford inside, allthe time knowing there was a firearm inside the car. Undereither scenario, there was sufficient evidence for a reasonablejury to find that Gray knowingly possessed a firearm. Bradford's Conviction for Possession ofa Stolen Firearm Thejury was instructed thatthe State had to prove, among otherthings, that Bradford possessed, carried, delivered, sold orwas in control of a stolen firearm, and "acted with knowledge thatthe firearm had been stolen." Bradford stipulated that he knew he was not permitted to possess a firearm because of his prior felonies. He admitted he was guilty of unlawful possession of a firearm. He does not dispute thatthe firearm he had in his possession was stolen. He contends, however, thatthere was insufficient evidence that he knew it was stolen. Bradford testified that he acquired the gun inAugust 2011. He said he 

### needed the gun for protection because someone had threatened to shoot him in
an unrelated dispute over a woman. He testified that a man he met at a gas 

### station had a gun in his carand offered to sell it for $250, and he decided to buy it. Bradford testified that he checked the gun's serial number, and because it
was not scratched off, he assumed the gun was not stolen. 

### Bare possession ofstolen property is not enough to justify a conviction. 

### Butpossession ofrecently stolen property inconnection withotherevidence

13No. 71056-7-1/14 

### tending to show guilt is sufficientto show knowledge. State v. McPhee, 156 Wn. App. 44, 62, 230 P.3d 284, review denied. 169Wn.2d 1028 (2010); see also State v. Couet. 71 Wn.2d 773, 776, 430 P.2d 974 (1967) (evidence is sufficient if 

### the defendant gives a false or improbable explanation for possessing the stolen property). The State contends there was sufficientevidence ofknowledge under McPhee and Couet because the gun used by Bradford was recently stolen and Bradford's explanation about how he came to be in possession of itwas improbable. The gun ownertestified atthe May 2012 trial that his gun had been stolen from his home in Graham perhaps as early as 2008, or at least a "couple years ago." A "couple years ago" would have been around May 2010, more than a 

### year before Bradford admitted acquiring it or when the shooting occurred in October2011. The lapse oftime was too greatto prove that the gun had been 

### "recently" stolen. Compare McPhee (two days) and Couet (several weeks). And Bradford's explanation about how and where he acquired the gun was not 

### inherently improbable. We concludethere was insufficient evidence ofthe essential element of knowledge. Statements ofAdditional Grounds 

### Bradford and Gray submitted separate statements ofadditional grounds pursuantto RAP 10.10. Neitherwarrants further review. Bradford's statement 

### alleges ineffectiveassistance ofcounsel with respectto the wording of the selfdefense instruction, and he also asserts there should have been instructions on

14No. 71056-7-1/15
lesser included offenses ofthe assault charges. The statement raises no possibility that the latter claims are meritorious. Gray's statement challenges the adequacy of Edwards' identification of him as the shooter. This claim was adequately covered by appellate counsel. The drive-by shooting convictions ofBradford and Gray are reversed due to ineffective assistance ofcounsel. Bradford's conviction for possession of a 

### stolen firearm is reversed for insufficiency ofthe evidence. Gray's conviction for 

### unlawful possession of a firearm is affirmed. Both cases are remanded for further proceedings not inconsistentwith this opinion.

15 1 WE CONCUR: 

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