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

v. MOHAMED IBRAHIM, Appellant. No. 72753-2-1

UNPUBLISHED OPINION


### FILED: January 30, 2017 Schindler, J. —Ajury convicted Mohamed Ibrahim ofthree counts ofassault in the first degree while armed with a firearm and unlawful possession of a firearm inthe first degree. Ibrahim contends he is entitled to dismissal with prejudice because the court erred in declaring a mistrial and the retrial violated doublejeopardy. Inthe alternative, Ibrahim seeks reversal on the grounds that (1) the court abused its discretion by allowing the State to amend the information to add a third count of assault 

### inthe first degree, (2) the amended information did not inform him ofthe essential elements ofthe crime, (3) the court erred in denying the defense requestfor a material witness warrant, and (4) insufficient evidence supports one ofthe convictions for assault inthe first degree. Ibrahim also claims the court erred by sentencing him to serve the 

### sentence forthe three assault convictions consecutively under RCW 9.94A.589(1)(b). We affirm the convictions and thejudgment and sentence.No. 72753-2-1/2 May 2013 Shooting 

### Vincent Williams Jr., his good friend Mardillo "Mardy" Barnes, and Barnes' friend "Ket"spentthe evening of May 17, 2013 together. Williams, Barnes, and Ketwentto a 

### bar to drink and shootpool. Afterward, they smoked marijuana and stopped to getfood. Atapproximately 1:00 a.m., they parked on FremontAvenue North near North 85th 

### Street. Williams and Barnes lived next to each other about a block away fromwhere they parked the car. Before walking home, Williams, Barnes, and Ket stood next to each other "shoulderto shoulder" on the sidewalk talking. 

### Williams testified thatwhile they were talking, two "lightskinned
.. . African American
. . . guys" walked toward them. The man walking in front, later identified as YusufHaise Shire, was short and wearing "dark clothing." The taller man, later identified as Mohamed Ibrahim, was wearing a blue and white striped zip-up sweatshirt,
a baseball cap, and dark gloves. Williams recognized the shorter man as someone he had seen one or two times before and knew as "Louie." Williams did not recognize the taller man. Shire approached Ket and engaged in a briefand friendly conversation. But when Shire and Ibrahim talked to Barnes, Williams said itwas "kind ofweird." Barnes acted like he "didn'twantto have this conversation" and "justwanted to go home." Williams said the two men were "pretty intoxicated," itseemed "likethey were going to go home too," and there were "no threats or. . . intimidation." 

### But after Shire and Ibrahim started walking away, Shire said," 'I do this.'" Shire pulled out a revolver, "pointed it inthe air," fired a shot, and then pointed the gun at Barnes, Williams, and Ket and fired four more shots. Ibrahim then turned around facingNo. 72753-2-1/3 

### Barnes, Williams, and Ket. Ibrahim pulled out a 9mm semiautomatic pistol from his waistband; pointed the gun at Barnes, Williams, and Ket; and fired at least six shots. Williams, Barnes, and Ket were standing "right next to" each anotherwithin an "arm's length" and were "inthe line of fire." Williams saw Ket "run across the street and dive behind a car. So he was kind of like out ofthe way when Mr. Ibrahim began to fire." After "[bjullets
. .. passed [his] head," Williams hid behind a car. As Barnes "began to run across the street," Ibrahim continued shooting and Williams "saw blood." Williams testified: Idon't know what their intentions were, but Ijust know that Ithink that

— like from the gist Igotfrom itand from my own mind is that they were aiming for [Barnes].
. .. Like Isaid, like it's like a trail ofbullets following him like where he ran. Shire and Ibrahim turned and ran away toward a housing complex. Williams tried to find Barnes. Williams screamed his name while he followed the direction ofthe blood on the street. Williams heard Barnes groaning "in agony" and 

### found him in a backyard in a "puddle of blood." Barnes was "holding his hand," blood "dripping out his sleeve." 

### The Barnes family lived in a housing complex located at 8521 FremontAvenue North. Barnes' father Mardillo Arnold was awakened by a "loud bang" followed by a 

### pause and several more shots. Arnold ran outside and sawWilliams down the street. Arnold ran down the street and asked Williams what happened. Williams looked scared 

### and said," Theyjust shot Mardy.'" Arnold "was really scared" and "ran intothe middle ofthe street. . . screaming, 'Mardy, Mardy, Mardy.'" Barnes "came running from behind a house." Arnold, Barnes, Williams, and someone Arnold "vaguely" knew as "Kip"headed back to their house.No. 72753-2-1/4 

### Meanwhile, Barnes' mother Carolyn Barnes-Arnold looked out the window and
saw someone run bywearing a black shirt or "hoodie." The man ran along a walkway that leads intothe courtyard ofthe housing complex. When Barnes-Arnold ran outside, 

### she sawWilliams and Barnes' friend, who she knew as "Ket," standing on the front porch looking scared. Williams was screaming that Barnes had been shot. Barnes was bleeding heavily from his hand. Arnold used his belt to make a tourniquet around Barnes' arm and called 911. Williams told Barnes-Arnold that "Louie" was one ofthe
two shooters. Thomas English lived inthe same housing complex at 8549 FremontAvenue North. English was smoking a cigarette on his patio around 1:00 a.m. when he saw two black men run through the well-litcourtyard toward FremontAvenue North. One ofthe
men was "pretty short" and the otherwas taller. Within minutes, English heard 9 or 10 gunshots. The gunshots were "[v]ery quick" and separated by a "real briefhesitation." The gunshots were "very close[,]. . . [n]ot even a block away." After hearing the gunshots, English saw two black men, "[o]ne was short and one
was tall," run through the courtyard. The shorter man ran by first and was wearing a dark hoodie and dark pants. He was "crouching down" and holding a gun in his hand. 

### The taller man was 10 to 15 seconds behind "running clumsily with [his] hands down in his pants." He was wearing a blue and white striped hoodie and baggie pants. English "couldn'ttell" ifthey were the same two men he saw run by earlier. English wentto see 

### ifanyone needed "assistance" and saw an "AfricanAmerican" man in shockwith a hand injury.No. 72753-2-1/5
David Bentler lived near the intersection of North 85th Street and Fremont Avenue North. Bentler heard two series ofgunshots that were very close. When Bentler looked out the widow, he saw a white late-1990s-model Toyota Camry parked in
a driveway. Less than a minute later, Bentler saw two men get into the car. A "very tall African American male" wearing "dark colored clothing" got into the back seat behind the driver. As soon as the two men got inthe Camry, the car "sped off' heading west on North 85th Street. Bentler called 911 at 1:18 a.m. and provided a description ofthe vehicle. At 1:24 a.m., Seattle Police Department Officer Collin Carpenter stopped a white 

### 1996 Toyota Camry inthe 7700 block of 3rd Avenue Northwest. There were five people inthe car—two in the front and three inthe back. Officer Carpenter called for backup. 

### The passenger inthe back seat behind the driver, later identified as Ibrahim, did not put his hands up as directed and kept "moving around" and "bending down." The 

### passenger inthe back seat ofthe car on the passenger side, later identified as Shire,

was also reaching down. 

### The police removed the five individuals from the car and conducted a showup identification. Ibrahim is over six feet tall. He was wearing a blue and white striped zip

### up sweatshirt and a blue baseball hat. Shire is fivefeet three inches tall. He was 

### wearing a black T-shirt andjeans. Englishidentified Ibrahim and Shire with "100 percent" certainty as the two men he saw run through the courtyard of the housing 

### complex. Bentleridentified the white 1996 Toyota Camry as the car he saw parked in a drivewaynearthe intersection ofNorth 85th Street and Fremont Avenue North.No. 72753-2-1/6 

### The police found a 9mm semiautomatic pistolunderthe driver's seatdirectly in front ofwhere Ibrahimwas sitting. The gun has a 16-cartridge capacity. Only 1 bullet remained inthe gun. The police found a black and white glove on the floorboard near where Ibrahim was sitting. The police found a .38 caliber revolver underthe front passenger seat directly in front ofwhere Shire was sitting. The .38 caliber revolver has


### a 5-round capacity. The revolver contained 3 unfired rounds and 1 spent shell casing. Detective Robert Sevaaetasi searched the area where the shooting occurred. Detective Sevaaetasi recovered six 9mm shell casings and a "deformed bullet 

### fragment." Detective Sevaaetasi found bullet "strike marks inthe planting strip" nearthe

street. Detective Thomas Janes interviewed Williams the next day. Detective Janes prepared two six-person photomontages, one with a photo of Shire and the otherwith a photo of Ibrahim. Williams identified Ibrahim and Shire as the shooters with "100 percent" certainty. Williams told the police he knew the third victim only as "Barkett" and did not know where to find him. Barnes refused to provide any information to the police. Barnes' father told the police he did not know "Barkett." The police believed the man identified as "Barkett" was associated with the "Barquet" family. The police were unable to identify or locate the person identified as "Ket," "Kip,"or "Barkett." Testing performed by the Washington State Patrol Crime Laboratory (WSPCL) showed the six 9mm shell casings found atthe location ofthe shooting were fired from 

### the 9mm semiautomatic gun the police found on the floor ofthe Toyota underthe 

### driver's seat directly in front ofwhere Ibrahim was sitting. Fingerprint analysis showedNo. 72753-2-1/7 

### the fingerprints on the cylinder ofthe .38 caliberrevolver the police found underthe front passenger seatdirectly in front ofwhere Shire was sitting matched Shire's left thumb and left middle finger. 

### On May 21, 2013, the State charged Ibrahim and Shire with assault ofBarnes in 

### the firstdegree while armed with a firearm, assault of Williams inthe firstdegree while armed with a firearm, and unlawful possession of a firearm inthe first degree. The trial was scheduled to begin on September 16, 2013. Atthe request of Ibrahim, the trial was continued for six weeks until October28, 2013. Ibrahim's attorney requested the six-week continuance because his new counsel needed "time to prepare." Between October 28 and November 18, the court continued the trial each day because 

### the prosecutorwas intrial.1 Beginning November 20, the court continued the trial because of "[n]ojudicial availability." November 26, 2013 Trial The trial began on November 26, 2013. The State listed " 'Kip' Barquet" as a witness. The State estimated the trial would "last approximately 10 days includingjury selection." 

### Beforejury selection on December 2, the court confirmed when the parties anticipated submitting the case to thejury. The prosecutortold the courtthe State planned to give closing argument on December 16 and submitthe case to thejury on December 17 "[a]t the very latest." 

### Your Honor, I'm beginning my holiday leave on the 18th so Ihave every intention ofgetting this case to thejury on the 17th. THE COURT: At the very latest. 

### [PROSECUTOR]: Atthe very latest. Ithink more likelywe will be able to, Ithink perhaps, do closings Monday the 16th. But Iwould say that 1On November 19, the court continued the trial one day for medical leave.No. 72753-2-1/8 

### the State will be making every effort to getthe case to thejury on the 17th. No later than the 17th. Shire's attorney told the courtthat December 16 was a "reasonable time to do closings" because Shire did not "have any witnesses to offer" and would rest afterthe State completed its case in chief. Ibrahim's attorney agreed and was "optimistic" that the parties would give closing arguments on December 16. Thejury was empaneled on December 3. Between December4 and December 16, the State called a number ofwitnesses to testify including Williams, Barnes, Arnold, 

### Barnes-Arnold, English, Bentler, Detective Janes, Detective Sevaaetasi, WSPCL firearm examiner Kathy Geil, and Seattle Police Department latent fingerprint examiner
Kellie Anderson. Williams identified Ibrahim and Shire as the shooters. Williams testified that Shire fired a shot "inthe air" from a "snubbed nosed" revolver and then pointed the gun 

### "directly at us" and "started firingtowards us." Williams said he, Barnes, and Ketwere all standing on "the same sidewalk square" when Shire began shooting. Williams testified that Ibrahim then pulled a 9mm semiautomatic pistol from his waistband and 

### "began to shoot." Duringthe shooting, Williams "felt like [heat] passed my face, like bullets." Williams said Ibrahim initially fired "[t]owards us" and then began to fire 

### "[t]owards the middle of the street" when Barnes ran across the street. Williams testified that as Shire and Ibrahim ran away toward North 85th Street, they "cut through" the nearby housing complex. 

### Barnes testified that he "kn[e]w a guy named Barketor Kip or Kit." Barnes testified he called him "Ket" but he had "no idea what's his real name." Barnes said he is "one ofthe homies that come around sometimes." Barnes testified he was eating and

8No. 72753-2-1/9 

### "minding my own business" when shots were fired and "I gothit." Barnes said he did not remember seeing anyone in the street before the shooting. Barnes testified he did not see who shot him or "where these bullets were coming from." On Wednesday, December 11, the prosecutortoldthe court the State planned to conclude its case on Monday, December 16. Shire's attorney stated, "Atthis point, I don't have any witnesses" to call. Ibrahim's attorney toldthe court he had no witnesses 

### to call, "[t]he same" as Shire. The court told the jurythatdeliberations would likely begin
on Monday, December 16: 

### We still plan on getting the case to you for deliberations on Monday, which is the representation Ithink we made at the outset.... [0]ur prediction is thatwe're going to finish everything up inthe morning, hopefully, and get the case to you for deliberations on Monday like we planned. Atthe end ofthe day, the court reiterated thatjury deliberations would begin "sometime[ ]" on December 16. 

### On Monday, December 16, the prosecutortold the courtthe State planned to conclude the presentation ofevidence that day. But atthe end ofthe day, the courttold thejury the trial was "a little bit behind schedule, but not too much," and the State would 

### call its final witness and the parties would give closing arguments the next day on December 17. While reviewing proposedjury instructions the next morning, Shire's attorney told the court and the prosecutorthatthe defense had located and interviewed the "missing witness, Berkett Kebede." Shire's attorney said that on December 10, Kebede approached him outside the courtroom. The attorney spoke briefly with Kebede to determine "ifhe was who [he] said he was and ifhe had any information related to the 

### case." During the next five days, the attorney investigated Kebede and his potentialNo. 72753-2-1/10 

### testimony and discussed whetherto call Kebede as a witness with his colleagues and Shire. 

### The attorney told the court Kebede "would testify that he knows allthe parties in the case, that he was present atthe shooting, that he did see the shooters and that the shooters are not Mr. Shire or Mr. Ibrahim." Shire's attorney said he served Kebede with


### a subpoena on Monday, December 16, and Kebede was present inthe hallway outside
the courtroom. The court took a recess to allow the State to interview Kebede. With the 

### attorneys present, Seattle Police Department Gang Unitdetectives interviewed Kebede for more than an hour. Kebede said he had been in contact with Shire and Ibrahim after 

### they were arrested. Kebede told detectives he attended the trialwhen Williams testified
on December 5 and he contacted Shire's attorney "the past week." Kebede gave the 

### detectives the telephone number he used to talk to Shire and Ibrahim while they were in jail. 

### The State moved to exclude Kebede's testimony "given the willful nondisclosure 

### and the other issues with this particularwitness' testimony." The State argued the interview established Shire and Ibrahim "were well aware of how to get ahold of 

### [Kebede] and ifthey wanted him called as a witness they could have disclosed him in a timely manner." The State also pointed out the need to conductfurther investigation to "effectively cross-examine" Kebede. 

### [T]his particular witness has been in contactwith the defendants, both of them, since their arrest apparently via jail calls.
... He also admits to 

### severaljail visitswith Mr. Shire and receiving letters fromMr. Shire as well. Obviously, those are all things thatthe State needs to investigate and look into inorderto effectively cross-examine this particularwitness. The witness

— other issues include like I had mentioned the witness has

10No. 72753-2-1/11 

### watched part of trial and has indicated that since the 4th or the 5th when he was here for trial the first time, has been in fairly constant contactwith the defendant's sister.... [S]he has been keeping him abreast ofwhat 

### has been occurring during the trial. So we have some extreme taint issues with this witness as well. Additionally, the State believes we have some 5th amendment issues with this particularwitness and he may in fact need to have an attorney present. 

### The court denied the motion to exclude Kebede from testifying because ofthe 

### exculpatory nature ofthe testimony. Specifically, that according to the offer of proof, Shire and Ibrahim "had nothing to do withthe shooting." "In this case, it's really clearto
me that nobody else is going to be offering th[is] evidence." 

### The State then requested a "lengthy recess" to conduct "additional investigation based onjustwhatthis witness has admitted to." 

### Ithink [a lengthy recess] isthe next solution in this particular case, Your Honor. Imean, given whatthis witness has to say, given the time of the 

### disclosure bydefense, and given the additional investigation based on just what this witness has admitted to as far as contact with the defendants in 

### this case. We've already ordered the most recent set of jail calls since the 

### trialbegan, but obviously, you know,those take time to listen to and investigate. 

### The court asked Shire's attorney, "[W]hat's yourthought on the recess until 

### January 14th?" Shire's attorney stated he was "leftin a position to object." The attorney argued there was "noreason we can't [get] through the witnesses and close this case tomorrow." Ibrahim's attorney agreed a lengthyrecess is "aproblem.... So 

### yes, Iwould object." Ibrahim's attorney also agreed there was "no reason wecouldn't conclude this case tomorrow or ifwe have to the next day." The prosecutortold the 

### court she was available forthe next couple ofdays but argued the State would need
more than a day or two to prepare to cross-examine Kebede.

11No. 72753-2-1/12 The court rejected a short recess. The court concluded a short recess was not a 

### viable option because the State needed "significant" time to investigate and prepare for cross-examination. 

### Ithinkthe State is going to need more time than an afternoon to investigate whatthey're going to need to investigate given the substance ofthose purported testimony. It's going to be significant. The court concluded the only option was to recess the trial untilJanuary 14 but expressed concerns about doing so. 

### So then the only issue Ihave right now is whether or not I'm going to continue the matter or recess the matter until January 14th, which would 

### require me posing to thejury: Are you willing to come back inJanuary to finish this up for however long ittakes? It might be a couple days. It 

### might be a week. We made representations to this juryabout how long their serve [sic]was going to be and we've already thrown that out the window, and, frankly, I'm disinclined to ask[ ] them that question. 

### The court noted it"hate[ed] the thought ofgranting a mistrial particularly when we put so 

### much into this already" but could notexclude testimony that "purportedly goes right to the heart ofthe matter." 

### After a recess, the prosecutorasked the court to poll the jury to determine if 

### jurorswould be able toreturn in January. The courtrejected the request topoll thejury about a continuance to January 14. 

### I'm not going to poll the jury on this. Ijust don't feel comfortable doing that. We're talking about an almost month longrecess. Ican't imagine that they've all taken enough notes during the trial that they can 

### adequately refresh theirrecollection on all the nuances of the testimony they've heard in this case. . . .Affirmative representations, as Isaid before, were made to them at the outsetof this trial. We told them they'd 

### be indeliberations yesterday. Right now we are nowhere close to getting them into deliberations.

12No. 72753-2-1/13 

### The court also concluded continuing the trial would prejudice the defense. [I]t looks a littlecoercive from my prospective, and
. . . don't you think they're going to be wondering what all necessitated this three-week hiatus. And none of us are in a position to be able to explain anything to them at thisjuncture, and once we get back on the record, ifwe ever did with this jury, Ihave a feeling they'd be going, "Oh, Isee what happened. It's that defense. Oh, Igot it." Shire's attorney agreed with the court. "[M]y concern with keeping thatjury is that they're going to inferthe reason for delay and that itwill reflect negatively on Mr. Shire regardless ofan instruction." 

### Overthe objection ofthe parties, the court declared a mistrial. The court ruled the "late disclosed" exculpatory defense witness created a "manifest necessity" for a
mistrial. 

### I'mgoing to hold to the mistrial, and Idon't thinkjeopardy attaches because in essence it was a late disclosed defense witness that necessitated the mistrial, and Iwill find manifest necessity for all the reasons I've said already. Motion to Dismiss Charges as Barred by Double Jeopardy 

### The second trialwas assigned to anotherjudge and scheduled to begin in 

### January 2014. Beforetrial, Ibrahim and Shire filed a motion to dismiss with prejudice. Ibrahim and Shire argued the court abused its discretion by sua sponte declaring a mistrial and doublejeopardy barred retrial of the charges. Ibrahim and Shire argued the court "never realistically considered workable options available otherthan mistrial." For the first time, Ibrahim and Shire argued the court did not considerthe option of ordering the prosecutor or co-counsel complete the trial. 

### The State argued the record supported finding manifest necessity and the court did not abuse its discretion indeclaring a mistrial. Insupport, the Statefiled the

13No. 72753-2-1/14 transcriptfrom the interview the detectives conducted with Kebede on December 17, 

### 2013; a transcript ofthe court hearing on December 17, 2013; and the declaration of Senior Deputy Prosecuting Attorney (DPA) Julie Kline. 

### Senior DPA Klinedescribed the lengthy investigation after learning the identity of Kebede including the need to examine approximately 220jail phone calls.

.... Prior to December 16, 2013, the State had no knowledge ofthe 

### identity ofthe person described bywitnesses as "Kip" or "Barquet". This included any knowledge of his address, phone number, physical appearance or true and correct name.

.... The State and Seattle Police made efforts to identify "Kip" because 

### according to witnesses, the State believed he would not only be able to confirm the identity ofthe shooters, but was also a victim and his identification would allow for the addition ofanother count ofAssault.



### .... Upon learning the identity and telephone number of"Kip" on December 16, 2013 (true and correct name: Berket Kebede), the State examined the 220+jail phone calls ofboth defendants using 

### the telephone number Mr. Kebede provided. Without having Mr. Kebede's telephone number, there was no way to determine the 

### identity ofthe persons the defendants were calling from Jail. Upon examination, itwas discovered thatthere were multiple calls from 

### the defendants, who remainedjailed during the pendency of this case, to Mr. Kebede's telephone number. The first call from defendant Shire to Mr. Kebede was dated May 31, 2013. The first call from defendant Ibrahim to Mr. Kebede was dated June 8, 2013. Parts ofthese conversations were not in English.

.... The calls between the defendants and Mr. Kebede frequently made 

### mention ofMr. Kebede coming during jail visitation hours and 

### bringing writing implements to take notes at the instruction of defendant Shire. Senior DPA Kline also described the need to call rebuttal witnesses.

.... Mr. Kebede indicated in his defense interview that he was present 

### in courtfor VincentWilliams' testimony in trial, which occurred December 5, 2013. Both defendants are acquainted with Mr. 

### Kebede, were present in trial on December5, 2013, and would have been aware of his presence in court.



### .... During his defense interview, Mr. Kebede claimed that he did not name the defendants as the shooters afterthe incident to the 

### victims or the victims' familymembers after the incident. This is

14No. 72753-2-1/15 contrary to what these witnesses have stated and rebuttal 

### testimony bythese witnesses would have been necessary subsequentto Mr. Kebede's testimony at trial. 

### Senior DPAKline states requiringco-counsel to try the case was not a viable option.

### Iinvited Deputy Prosecuting Attorney Paul Sewell to co-try this case with 

### me inorderto gain felony trialexperience. At the time this trialbegan, he had only previouslytried one felony jury trial. Mr. Sewell would not have been otherwise assigned this case given the seriousness level and 

### complexity without supervision from a seniordeputy prosecutor, such as myself. In response to questioning about the efforts to locate Kebede, DPA Sewell told 

### the courtthat Barnes' parents knew Kebede only as a friend ofBarnes' from the neighborhood named "Ket." [Barnes' parents] had indicated that [Kebede] was a friend oftheir son[']s kind of from the area they're aware of. They only knew him as Ket. That 

### was all the information thatwe had, which is clearly shortfor his first name. To be perfectly honest the State was underthe impression that he was a member ofthe [Barquet] family, which are fairly well-known by the Seattle Police Department and so that was the avenue that we were going by. Ipersonally was scouring records looking for someone inthe family that was either inthat area or the same age. So that, ofcourse, ended fruitless because he wasn't a member ofthatfamily. Itwas only when he came forth that we found out

— during the trial we found out— his real identity and his real name. As Isaid, the family members only knew of him as Ket. That's all the information that we received. The court denied the motion to dismiss the charges as barred by double 

### jeopardy.2 The court concluded the options "on December 17th where suddenly this witness with potentially exculpatory information" was disclosed were "very limited at that point." The court ruled itwas not an abuse ofdiscretion to deny the requestto exclude the witness.

2Ibrahim does not assign error to this ruling.

15No. 72753-2-1/16 

### The court concluded the parties had "ample opportunity
... to state their positions." 

### The record does indicate thatthe Court gave ample opportunity to the

— to counsel to flush outtheir positions inorderthatthe Court could give consideration to the various options before it. The Court's determination ultimately is entitled to a significant degree ofdeference and respect in light ofthe absence of misconduct and the opportunity for all parties to state their positions. The court ruled a short continuance "would not have been adequate to fairly allow for the evidence to be properly presented infairness to all parties inthe case." Certainly, the State would need at least a week as well to find who this individual is, to gettranscripts of any defense interviews, to interview him, to listen to all the relevant phone calls, to conduct any other background investigation that was necessary and to arrange for any potential rebuttal testimony that might be required as result ofthe witness. The court also concluded itwas not an abuse ofdiscretion to reject a month-long
continuance. Thejudge was sensitive to the fact thatthis was potential exculpatory evidence whether it's believed or not, would be a question for thejury. But 

### thejury should be able to have fullinformation before in making that 

### determination. So thejudge concluded and withinthe range ofdiscretion vested inthe trialjudge that there was a manifest necessity to declare a mistrial to go backto square one and startthe trial over somewhere down the road. 

### Ido notthink it is fair tojurors nor is it a good practical solution to 

### have a month-long recess inthe middle ofthe trial. Particularly, one such as this where the testimony has been confusing and hotlydebated, difficult credibility decisions had to be made as to a number ofthe witnesses who had been presented to thatjury. To recess the case then from mid

### Decemberto mid-January really was not a viable option. As a practical matter, Idon't think

— Idon'tthink thatthejurors would be able to 

### accomplish that mental feet [sic] to keep their minds free and clearand to 

### be able to fully and fairly process the information aftertaking a month off at the busy holiday season ofthe year. 

### Inaddition, Ido thinkjudges are sensitive to what is fair and unfair with respectto thejurors as well as fair and unfair with respectto the parties. It would be an incredible burden to place upon thejurors to put 

### them inthat position. So Idon'tfaultthejudgefor not making the inquiry

16No. 72753-2-1/17 

### of the jurors as to whether or not theywould indicate theirwillingness to make a good-faith attemptto take a nearly month long recess at the 

### holidayseason in the middle ofthe trial and then come back and try to resume their duties. So, again the stakes are high obviously because it's a motion to dismiss these charges. The Court is going to deny that motion to dismiss and allow the case to proceed atthis point. September 3, 2014 Trial 

### The second trialbegan on September3, 2014. The courtgranted the State's motion to file an amended information to add assault ofKebede in the firstdegree.3 The State called a number ofwitnesses to testify including Williams, Barnes, Arnold, Barnes-Arnold, English, Bentler, forensic experts, and detectives. Inaddition, the State called the surgeon who operated on Barnes' hand. Detective Janes testified about his unsuccessful efforts to locate Berket Kebede. Detective Janes read into evidence the letter that Shire had written about the need to 

### make sure "none ofthe victims or the witness" testify. What's up, Samira? How's everything. Tell Lucky Isaid Ilove her and to 

### do good in school; that Imiss her. But yeah, man, my case is looking kind ofbad right now that they pushed itback 'tilOctober. And they got my prints on the gun. But really, my case relies on the victims. Ifthe victims don't come, Iwill get charged with the gun. That's why I'm stressing really. So far they can't get a hold of none ofthe victims orthe witness. But yeah, Ineed you give to take Oh Boy out oftown to Cali and give him like one thousand a month to live until my shit is overwith 'cause ifthey find him and he comes, I'm cooked. Bad. That's why Ineed you to do that, because with him Ishouldn't

— should be good. 'Cause they are

— are looking for him. But yeah, this is my cut-up number, (206)844-5764. Call him and he will let you know how to handle everything. Ineed this alone ASAP. And call (206)403-6612 and give herthe letter and poem please. And I sent a letter awhile back to the house and Hooda had itand didn't give it to her. So it's — it's pretty in her room. Ineed you — need you to give her that too please. Samira, don'tforget. Try to do itas soon as possible. Much love.

3The State filed a subsequentamended information to correctthe spelling ofKebede's name.

17No. 72753-2-1/18 Thejury found Shire guilty ofthree counts ofthe lesser included crime ofassault 

### inthe second degree while armed with a firearm and unlawful possession of a firearm in the first degree. Thejury found Ibrahim guilty ofthree counts ofassault inthe first degree while armed with a firearm and unlawful possession of a firearm inthe first degree. Ibrahim appeals. Double Jeopardy Ibrahim contends the court erred in declaring a mistrial and doublejeopardy barred retrial on the charges against him. The Fifth Amendment to the United States Constitution and the Washington State Constitution prohibit the State from twice putting a defendant injeopardy for the
same offense. U.S. Const, amend. V ("No person shall... be subjectfor the same offense to be twice put injeopardy of lifeor limb.");Wash. Const, art. I, § 9 ("No person 

### shall be . . . twice put injeopardyfor the same offense."); State v. Fuller, 185 Wn.2d 30, 33, 367 P.3d 1057 (2016). Because Washington's doublejeopardy clause is 

### coextensive with the federal doublejeopardy clause, it is given the same interpretation 

### the Supreme Court gives to the FifthAmendment. State v. Eggleston, 164 Wn.2d 61, 70, 187 P.3d 233 (2008): State v. Glasmann, 183Wn.2d 117, 121, 349 P.3d 829 (2015).

### Jeopardy attaches when a jury has been impaneled and embraces the 

### defendant's right to have the trial" 'completed by a particulartribunal.'" Crist v. Bretz, 437 U.S. 28, 35-36, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (quoting Wade v. Hunter, 

### 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949)); Downum v. United States, 372 U.S. 734, 735-36, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); Arizona v. Washington, 434

18No. 72753-2-1/19 

### U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Ifthejury is discharged without reaching a verdict, doublejeopardy bars a retrial unless manifest necessity exists to declare a mistrial. Green v. United States. 355 U.S. 184, 188, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); Wade. 336 U.S. at 688-89; Washington, 434 U.S. at 505. Whether retrial violates doublejeopardy is a question of law we review de novo. Fuller. 185 Wn.2d at 34; State v. Jackman. 156 Wn.2d 736, 746, 132 P.3d 136 (2006). Where manifest necessity to declare a mistrial exists, the prohibition against double jeopardy is not implicated and retrial is permitted. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982); State v. Wright. 165 Wn.2d 783, 793, 203P.3d 1027(2009). 

### "Necessity" is not interpreted literally. Washington. 434 U.S. at 506; Renico v. Lett, 559 U.S. 766, 774, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010). Manifest necessity 

### exists where " 'extraordinary and striking circumstances'" indicate to a court inthe reasonable exercise of its discretion that the " 'ends of substantialjustice cannot be 

### obtained without discontinuing the trial.'" State v. Jones, 97 Wn.2d 159, 163, 641 P.2d 708 (1982) (quoting State v. Bishop. 6 Wn. App. 146, 150, 491 P.2d 1359 (1971)); Renico. 559 U.S. at 783-84. The determination ofwhether "manifest necessity" exists 

### to justify ordering a mistrial over the objection ofthe defense is a matterwithin the discretion ofthe trial court to be exercised according to the particular circumstances of each case. United States v. Perez. 22 U.S. 579, 580, 9 Wheat. 579, 6 L. Ed. 165 (1824).

### We think, that in all cases of this nature, the law has invested Courts of 

### justice with the authority to discharge a jury fromgiving any verdict, whenever, in their opinion, taking allthe circumstances intoconsideration, there is a manifest necessity for the act, or the ends ofpublicjustice would

19No. 72753-2-1/20 

### otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render itproperto interfere. Perez. 22 U.S. at 580.4 

### Ibrahim argues "manifest necessity" did not existto order a mistrial. The State 

### contends the courtdid not abuse its discretion in finding manifest necessity and declaring a mistrial. We review the decision to declare a mistrial under an abuse of 

### discretion standard and "give '[g]reat deference' to the trial court's decision to declare a 

### mistrial." State v. Greiff. 141 Wn.2d 910, 921, 10 P.3d 390 (2000); State v. Strine, 176 

### Wn.2d 742, 753, 293 P.3d 1177 (2013)5(quoting Jones. 97 Wn.2d at 163); Washington. 434 U.S. at 510. The trialjudge has " 'broad discretion'" to determine whether manifest necessity for a mistrial exists and the trial court is best situated to decide whether, for compelling reasons, "the ends of substantialjustice cannot be attained without 

### discontinuing the trial." Renico, 559 U.S. at 774 (quoting Illinois v. Somerville. 410 U.S. 458, 462, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973)); Wade. 336 U.S. at 689-90; Strine. 176Wn.2d at 754; State v. Brunn. 22 Wn.2d 120, 145, 154 P.2d 826 (1945); Gori v. United States. 367 U.S. 364, 368, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961). Further, "the overriding interest inthe evenhanded administration ofjustice" requires that we accord "the highest degree ofrespect" to the trial court's evaluation that a mistrial was necessary. Washington, 434 U.S. at 511. The interest in orderly, impartial procedure would be impaired if[the trial court] were deterred from exercising that power by a concern that any time a reviewing court disagreed with [the court's] assessment ofthe trial situation a retrial would automatically be barred. Washington. 434 U.S. at 513. 4Emphasis added. 5Alteration in original.
20No. 72753-2-1/21 

### There is no "mechanical formula by which tojudge the propriety ofdeclaring a mistrial inthe varying and often unique situations arising during the course of a criminal trial." Somerville. 410 U.S. at 462; Washington, 434 U.S. at 506. Although the United 

### States Supreme Court has avoided establishing clear-cut guidelines on what constitutes manifest necessity, the Court has considered (1) whether the trial court "gave both defense counsel and the prosecutorfull opportunity to explain their positions on the propriety of a mistrial," Washington. 434 U.S. at 515-16; (2) whetherthe trial court considered alternatives to a mistrial, United States v. Jorn. 400 U.S. 470, 487, 91 S. Ct. 

### 547, 27 L. Ed. 2d 543 (1971); (3) whetherthe trial court acted deliberately ratherthan "precipitately." Washington. 434 U.S. at 515; and (4) whetherthe mistrial would be to 

### the benefitofthe defendant or the prosecution, Gprj, 367 U.S. at 369. See also State v. Melton, 97 Wn. App. 327, 332, 983 P.2d 699 (1999) (identifying the followingthree 

### factors to consider: (1)whetherthe court gave both parties the opportunity to explain 

### their positions, (2)whetherthe court considered the defendant's interest in having the trial concluded in a single proceeding, and (3)whetherthe court considered alternatives to declaring a mistrial). 

### Ibrahimdoes notdispute thatthe trial court gave allparties the opportunity to 

### fully explain their positions on the propriety of a mistrial or that the trial court acted deliberatelyin declaring a mistrial. Ibrahim asserts the court did not consider reasonable alternatives before declaring a mistrial and the mistrial was prejudicial to the defense. The record does not support his argument. 

### The record shows the court considered and rejected several alternatives before 

### declaring a mistrial. The courtfirst considered excluding thetestimony ofKebede but

21No. 72753-2-1/22 

### rejected this alternative because of the critical nature of the exculpatory testimony. The court considered the defense requestfor a briefrecess but concluded this alternative


### was not feasible given the "significant amount ofbackground investigation" the State needed inorderto cross-examine Kebede. The court considered but rejected the request to poll thejury to determine whetherthejurors would be able to return to 

### complete the trialthe next month. Because ofthe representations made to thejury at the beginning and throughoutthe trial, the court concluded a lengthy recess would prejudice the defense and declined to poll thejury about returning in mid-January to 

### complete the trial.6 Ibrahim argues the court should have considered several other alternatives including whether another prosecutor could have completed the trial orwhetherthe prosecutor could have returned from a scheduled vacation after completing the 

### investigation of Kebede. These alternatives were never suggested by the defense before the court declared a mistrial. Strine. 176Wn.2d at 749 (appellate courtwill not consider claim oferror not raised inthe trial court); State v. Powell. 166 Wn.2d 73, 82, 206 P.3d 321 (2009) (a party may not raise an objection not properly preserved). Unlike in State v. Robinson. 146Wn. App. 471, 483-84, 191 P.3d 906 (2008), the record shows the court considered a number ofalternatives to a mistrial. Further, a 

### court need not exhaustively consider "every conceivable alternative" before finding

6We note representations made to the jury about the length of the trialare validconcerns for the court to consider in declaring a mistrial. See UnitedStates v. Lynch. 598 F.2d 132, 135 (D.C. Cir. 1978) (where "jury had been selected on the basis of a reasonable expectation ofdischarge by December, midDecember at the latest," the distraction posed by "the impending holidays" was "supportive of a declaration of a mistrial based on manifest necessity"); Powers v. United States, 412 A.2d 1205, 1207 (D.C. Cir. 1980) ("extension of the jurors' service beyond their scheduled 'lastday'" and proximity to Christmas supported decision to declare a mistrial).

22No. 72753-2-1/23 

### manifestnecessityfor a mistrial. Ross v. Petro, 515 F.3d 653, 668-69 (6thCir. 2008);

see Washington, 434 U.S. at 506. Ibrahim also argues the State created the time constraints that led to the need to 

### declare the mistrial. Ibrahim cites the continuances from October 28 until November26, 2013. The record shows thatfrom October 28 until November 18, 2013, the court 

### continued the trial a number oftimes because the prosecutorwas in trial on another

case. From November 20 to November 25, the court continued the trial because of 

### judicial unavailability. Setting aside the legitimate need to continue the trial on a day-to day basis from October 28 to November 26, Ibrahim ignores his requestfor a lengthy six-week continuance from the originally scheduled trial date to October 28 and the disclosure of Kebede on the last day of trial. 

### Insupport of his argument thatthe mistrial resulted in prejudice, Ibrahim points to differences inthe testimony of Williams and the testimony of Dr. Nicholas Vedder inthe second trial. The differences Ibrahim relies on do not support his argument ofprejudice. Atthe first trial, Williams testified that when Ibrahim pulled out his gun, he initially fired "[t]owards ourway" and then began to fire "across the street" where Barnes and "Ket"
were running. On cross-examination, Williams acknowledged that because both Barnes and "Ket" ran across the street, he could not say Ibrahim was aiming specifically for Barnes. In the second trial, Williams testified that it seemed liked Shire and Ibrahim
were aiming for Barnes because as Barnes ran across the street, there was a "trail of bullets following him like where he ran." Dr. Vedder did nottestify atthe first trial. But his testimony atthe second trial was cumulative ofthe testimony about Barnes' hand injury at the first trial.

23No. 72753-2-1/24 

### We conclude the court did notabuse itsdiscretion in finding manifest necessity for a mistrial and the second trial did not violate double jeopardy. The record shows the court gave all parties the opportunity to explain fully their position on the propriety of a 

### mistrial, considered a numberofalternatives to a mistrial, acted deliberately, and declared the mistrial on the last day of trial to allow the defense to presentthe exculpatory testimony of a late-disclosed witness. Washington. 434 U.S. at 505; Kennedy. 456 U.S. at 672; Wright. 165 Wn.2d at 793. Amended Information 

### Ibrahim argues the court abused its discretion in allowing the State to amend the 

### information before the second trial to add assault ofBerket Kebede inthe firstdegree while armed with a deadly weapon. Ibrahim and Shire agreed they had notice ofthe "intentto add this count since January 22, 2014." The defense objected to the amendment under CrR 8.3(c). The court rejected the CrR 8.3(c) argument and granted the motion to amend. Forthe first time on appeal, Ibrahim argues assault of Kebede inthe first degree
was a "related offense" that the State should have charged before the first trial. In support, Ibrahim cites a case that addresses CrR 4.3, State v. Russell, 101 Wn.2d 349, 678 P.2d 332 (1984). We decline to review the argument Ibrahim raises for the first time on appeal. Powell, 166 Wn.2d at 82. Sufficiency ofthe Amended Information Ibrahim argues his constitutional right to notice was violated because the amended information did not inform him ofthe elements ofthe crime of assault in the

24No. 72753-2-1/25 

### firstdegree. Specifically, that the amended information did not state he could be found guiltyas an accomplice or underthe theory oftransferred intent. We review challenges to the sufficiency of a charging document de novo. State
v. Goss. 186 Wn.2d 372, 376, 378 P.3d 154 (2016); State v. Williams. 162 Wn.2d 177, 

### 182, 170 P.3d 30 (2007). Adefendant has a constitutional right to be informed ofthe "nature and cause" ofthe charges against him. U.S. Const, amend. VI; Wash. Const. art I, § 22 (amend. 10); State v. McCartv. 140 Wn.2d 420, 424-25, 998 P.2d 296 (2000). A charging document satisfies these constitutional requirements "if itstates all the essential elements ofthe crime charged." McCarty, 140 Wn.2d at425; State v. Kiorsvik. 117Wn.2d93, 101-02, 812 P.2d 86 (1991). " 'An essential element is one whose specification is necessary to establish the 

### very illegality ofthe behavior charged.'" Goss, 186 Wn.2d at 3787 (quoting State v. Zillvette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)). Because accomplice liabilityand the theory oftransferred intent are not essential elements ofthe crime ofassault inthe first degree, the amended information did not violate the constitutional right to notice. See RCW 9A.36.011(1)(a); State v. Elmi. 166 Wn.2d 209, 214-15, 207 P.3d 439 

### (2009).8

7Internal quotation marks omitted. 8The State need notallege accomplice liability ortransferred intent. See State v. Carothers, 84 Wn.2d 256, 262, 525 P.2d 731 (1974); State v. Teal, 117 Wn. App. 831, 838, 73 P.3d 402 (2003); State v. Johnston. 85 Wn. App. 549, 555, 933 P.2d 448 (1997); State v. Rodriguez. 78 Wn. App. 769, 771-74, 899 P.2d 871 (1995); State v. Clinton. 25 Wn. App. 400, 403-04, 606 P.2d 1240 (1980); United States v. Montova. 739 F.2d 1437, 1437-38 (9th Cir. 1984).
25No. 72753-2-1/26
Material Witness Warrant 

### Ibrahim argues the court violated his constitutional right to compulsory process and to present a defense by denying the request to issue a material witness warrantfor 

### Kebede on the last day ofthe second trial.9 Both the United States Constitution and the Washington State Constitution guarantee an accused the right to compulsory process to compel the attendance of witnesses and the right to present a defense. U.S. Const, amend. VI;Wash. Const. art. I, § 22 (amend. 10); State v. Maupin. 128 Wn.2d 918, 924-25, 913 P.2d 808 (1996); State v. Lew, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006). However, neitherthe right to 

### compulsory process nor the right to present a defense is absolute. State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004); Maupin, 128 Wn.2d at 924-25. The right to 

### compulsory process is "synonymous" withthe right to present a defense. State v. Tracy, 128 Wn. App. 388, 397-98, 115 P.3d 381 (2005). The availability ofthe right to 

### compulsory process "isdependent entirely on the defendant's initiative." Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). "The very nature of 

### the rightrequires that its effective use be preceded by deliberate planning and affirmative conduct." Taylor, 484 U.S. at410. 

### We review a trial court's decision to deny a motion for issuance of a material witness warrant for a manifest abuse ofdiscretion. City of Bellevue v. Vigil, 66 Wn. 

### App. 891, 895, 833 P.2d 445 (1992). We will not disturb the trial court's decision unless there is " 'a clear showing . . . [thatthe trial court's] discretion [is] manifestly

9Because Shire's attorney requested a material witness warrant, we reject the State's argument thatIbrahim waived his rightto argue denial of the motion for a material witness warrantviolated his constitutional rights. UnderRAP 2.5(a), a party may raise a claim of error on appeal "ifanother party on the same side ofthe case has raised the claim oferror in the trial court."
26No. 72753-2-1/27 

### unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v. 

### Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004)10 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). Whetherthe trial court ruling "rises to the level of a constitutional violation requires a case-by-case inquiry." Downing, 151 Wn.2d at 275-76. Inexercising its discretion to grant or deny a requestfor compulsory process, the trial court may consider a number offactors including "surprise, diligence, materiality and maintenance oforderly procedure." State v. Edwards, 68 Wn.2d 246, 255, 412 P.2d 747 (1966); State v. Schaffer. 70 Wn.2d 124, 129, 422 P.2d 285 (1966); State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974). Here, the record supports the 

### decision to deny the request to issue a material witness warrant on the last day of trial. The record also shows that issuing a material witness warrant would have resulted in either a significant delay or a continuance to locate Kebede. 

### The second trial began on September 3, 2014. On September4, the State served Kebede with a subpoena to testify at trial. On September 11, the prosecutortold the courtthat the State would not call Kebede as a witness because the police could not locate him. On September 16, the State called the final witness in its case in chief. During a break inthe testimony, the court asked how the defense planned to 

### proceed at the conclusion ofthe State's case. Shire's attorney told the court he had not 

### had any contactwith Kebede since December 2013 and he believed the likelihoodthat Kebede would come to court was "slim." However, the attorney asked the court to "give 

### defense untiltomorrow morning" to locate Kebede. Ibrahim's attorney then disclosed that Kebede had called her during the noon recess and said he would come to courtthe next morning at 8:30 a.m. 10 Alterations in original.
27No. 72753-2-1/28 

### The courttold the defense that ifKebede did not appear, the courtplanned to conclude the case the following morning. You know, I'd like to be prepared to go with whatever happens tomorrow. 

### Ifhe arrives and testifies and ittakes all day, fine, and ourjurors are okay 

### ifthey don't get closings until Thursday morning, but if he doesn't show and ifthere's no further testimony I'd like to be able to go right into instructions and argumenttomorrow morning. 

### The next morning, Shire's attorney told the court that he talked to Kebede that 

### morning, that Kebede received the defense subpoena, and that Kebede "would be here at 9:00" a.m. When Kebede did not appear, at approximately 9:30 a.m., Shire's 

### attorney stated he was "obliged to ask" for a material witness warrant. 

### [SHIRE'S ATTORNEY]: Ithink the onlyotherthing that Iwould have would be a motion for a material witness warrant. Unfortunately, the service information is as I've described to the Court and that's all Ican offer the Court in terms ofa basis for that. THE COURT: Okay. 

### [SHIRE'S ATTORNEY]: ButIwould be obliged to ask. [PROSECUTOR]: That's fine. 

### The court ruled, "And IthinkIwould in light of the timing be obliged to decline the 

### invitation." Shire's attorney noted, "That's not a surprise." Afterthe Statetold the court 

### that"[t]here actually is awarrantfor Mr. Kebede'sarrest" in municipal court, Shire's 

### attorney requested thecourtissue a material witness warrant. Thecourtdenied the request. 

### And the record will reflect, as Isuggested a moment ago, that that would be denied based on the timing. This is too much of a Deja vu all over 

### againwith the lasttrial with Mr. Kebede's possible appearance on the last day of a two-week trial. 

### Following brieftestimonyfrom the defense investigator, the courtinstructedthe jury. Closing arguments began at approximately10:30 a.m.

28No. 72753-2-1/29 

### United States v. Moudv. 462 F.2d 694 (5thCir. 1972), and State v. Edwards. 68 Wn.2d 246, 412 P.2d 747 (1966), are distinguishable. InMoudv, the defendant 

### requested a subpoena for a witness the day before the trial began. Moudv. 462 F.2d at 696. Inconcluding denial ofthe subpoena was reversible error, the Fifth Circuit noted 

### the record "does notdemonstrate that in fact the trial would have been delayed." Moudv. 462 F.2d at 698. InEdwards, the court denied the defense request on the last day of trial to recess untilthe end ofthe lunch recess to enforce several subpoenas. Edwards. 68 Wn.2d at 251-52, 254. Because the record showed the "court's schedule 

### of trial or orderly procedure" would not have been "seriously disturbed," the Supreme Court concluded the trial court abused its discretion indenying the requestfor a short
recess. Edwards, 68 Wn.2d at 257-58. Bycontrast, here, because the record shows issuing a material witness warrant at that pointwould have necessitated a lengthy delay
or continuance, the court did not abuse its discretion in denying the last-minute request for a material witness warrant. Sufficiency ofthe Evidence Ibrahim contends the evidence does not support thejury conviction ofassault in the first degree of Kebede. 

### In reviewing a challenge to the sufficiency ofthe evidence, we view the evidence 

### in the lightmostfavorable to the State to determine whether any rational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt. State

v. Witherspoon. 180 Wn.2d 875. 883. 329 P.3d 888 (2014): State v. Salinas. 119Wn.2d 

### 192, 201, 829 P.2d 1068 (1992). Achallenge to the sufficiency ofthe evidence admits the truth ofthe State's evidence. Witherspoon. 180Wn.2d at 883. "[A]ll reasonable

29No. 72753-2-1/30 inferences from the evidence must be drawn infavor ofthe State and interpreted most 

### strongly againstthe defendant." Salinas. 119 Wn.2d at 201. We deferto the trier of fact
on "issues ofwitness credibility." Witherspoon, 180Wn.2d at 883. 

### Ibrahim claims there was no evidence Kebede was injured or "placed in fear." 

### Injury or fear are not essential elements ofthe crime ofassault inthe firstdegree as charged under RCW 9A.36.011(1)(a). 

### Unlikethe original information that alleged Ibrahim committed assault inthe first 

### degree byinflicting great bodily harm on the named victim,11 the amended information did not. The amended information charged Ibrahim and Shire ofassault ofKebede in the first degree as follows: That the defendants YUSUF HAISE SHIRE AND MOHAMED 

### IBRAHIM in King County, Washington, on or about May 18, 2013, with intent to inflict great bodily harm, did assault Berket Kebede with a firearm and force and means likely to produce great bodily harm or death, to-wit: a handgun; 

### Contrary to RCW 9A.36.011(1)(a), and againstthe peace and dignity ofthe State ofWashington. 

### To convict Ibrahim ofassault inthe firstdegree as charged inthe amended 

### information under RCW 9A.36.011(1 )(a), the State had the burden of proving beyond a 

### reasonable doubt that Ibrahim intentionallyassaulted Kebede with a firearm with the

11 For instance, theoriginal information charged Ibrahim and Shire of assault of Barnesin thefirst degree as follows: That the defendants YUSUF HAISE SHIRE and MOHAMED IBRAHIM, and each of them, in King County, Washington, on or aboutMay 18,2013,with intenttoinflictgreat bodily harm, did assault Mardillo [Barnes] with afirearm and force and means likelyto produce greatbodily harm or death, to-wit: a firearm, and did inflictgreatbodily harm upon Mardillo [Barnes]; ContrarytoRCW 9A.36.011(1)(a), (c), and against the peace anddignity ofthe State ofWashington.
30No. 72753-2-1/31 

### intent to inflict great bodily harm. RCW 9A.36.011(1 )(a) states, inpertinent part: A person is guilty ofassault inthe firstdegree if he or she, with intent to inflictgreat bodily harm: (a) Assaults anotherwith a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death. Viewing the evidence and all reasonable inferences inthe light mostfavorable to the State, a rationaljury could find that Ibrahim assaulted Kebede with a firearm likely to produce great bodily harm. The evidence established Ibrahim used a 9mm semiautomatic pistol to fire at least six shots. Williams testified Shire and Ibrahim shot atWilliams, Barnes, and Kebede while they were "inthe line of fire" standing nextto each other. Sufficientevidence supports Ibrahim's conviction for assault of Kebede in the first degree. Sentencing Ibrahim asserts the court erred by sentencing him to serve the assault 

### convictions consecutively. The court imposed a low-end standard range sentence of 120 months, 93 months, and 93 months for the three assault in the first degree 

### convictions to be served consecutively; mandatory consecutive 60-month terms of confinementfor the three firearm enhancements; and a concurrent standard range sentence of54 months for unlawful possession offirearm inthe first degree. 

### Under RCW 9.94A.589(1)(b), when a defendant is convicted of two or more 

### "serious violent offenses" that arise from "separate and distinct criminal conduct," the sentences must be served consecutively. State v. Cubias. 155 Wn.2d 549, 552, 120 

### P.3d 929 (2005). Assault inthe firstdegree is a "serious violent offense." RCW 9.94A.030(46)(a)(v). " 'Offenses arise from separate and distinct [criminal] conduct

31No. 72753-2-1/32 

### when theyinvolve separate victims.'" Cubias. 155Wn.2d at55212 (quoting In rePers. Restraint of Orange. 152 Wn.2d 795, 821, 100 P.3d 291 (2004)); State v.Wilson. 125 Wn.2d 212, 220, 883 P.2d 320 (1994). Ibrahimclaims the court erred by requiring him to serve the sentences consecutively because the courtdid not explicitly find thatthe three assault convictions 

### involved separate and distinct criminalconduct. Becausethejuryreturned a separate verdict for each count ofassault inthe firstdegree for each victim, the courtdid not err by requiring the sentences be served consecutively. Statement ofAdditional Grounds 

### Inhis pro se statement ofadditional grounds, Ibrahim relies on State v. Graham, 181 Wn.2d 878, 337 P.3d 319 (2014), to argue the court abused its discretion by not considering the purposes in RCW 9.94A.010 in denying his requestfor an exceptional sentence below the standard range. As a general rule, a court must sentence a defendant underthe Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, within the standard range. Graham. 181 Wn.2d at 882. But a standard range sentence imposed for multiple serious violent offenses must be served consecutively. RCW 9.94A.589(1)(b). "The court may impose
an exceptional sentence below the standard range if itfinds that mitigating 

### circumstances are established by a preponderance ofthe evidence." RCW 9.94A.535(1). One mitigating circumstance is where "[t]he operation ofthe multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly 

### excessive in light ofthe purpose of this chapter, as expressed in RCW 9.94A.010."

12 Alteration in original.
32No. 72753-2-1/33 

### RCW 9.94A.535(1)(g). Ifthe imposition of a consecutive sentence is so clearly excessive underthe circumstances that itprovides " 'substantial and compelling 

### reasons'" for an exceptional sentence below the standard range, the sentencing court 

### may grant that exceptional sentence. Graham. 181 Wn.2d at 885 (quoting RCW 9.94A.535). 

### Here, the court considered the request to impose an exceptional sentence below 

### the standard range under the multiple offensepolicy butfound "no basis" toconclude the standard range sentence was clearly excessive "in lightof the purpose of the sentencing laws." The courtdid notabuse itsdiscretion in concluding the circumstances did notjustify an exceptional sentence downward. 

### Ibrahim also argues the 486-monthsentence constitutes cruel and unusual 

### punishment. TheEighth Amendmentto theUnited States Constitution prohibitsthe infliction of "cruel and unusual punishments." The state constitution provides greater 

### protection than thefederal constitution. Article I, section 14 oftheWashington State Constitution prohibits the infliction of"cruel punishment." Asentence violates the state constitution whenitis grosslydisproportionate to the crimeforwhich it isimposed. 

### Statev. Morin, 100Wn. App. 25, 29, 995 P.2d 113 (2000). Apunishmentisgrossly 

## disproportionate "ifthe punishmentis clearlyarbitraryand shocking to the senseof justice." Statev. Smith, 93Wn.2d 329, 344-45, 610 P.2d 869 (1980). Becausethe 

## imposition ofasentence underthe SRAguidelines isnotarbitrary and shockingtothe

33No. 72753-2-1/34



### sense ofjustice, we reject Ibrahim's argument. See State v. Farmer. 116 Wn.2d 414, 434, 805 P.2d 200 (1991). 

### We affirmthejury convictions and entry ofthejudgment and sentence. 

# vsjSL^
WE CONCUR: 

# £b?0

34