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

v. HAILU DAGNEW MANDEFERO, Appellant. No. 69925-3-1 DIVISION ONE

UNPUBLISHED FILED: June 1,2015
Cox, J. — Hailu Mandefero appeals his judgment and sentence, claiming 

### thatthe evidence is insufficient to support his convictions of firstdegree assault, 

### second degree assault, and second degree unlawful possession of a firearm. Specifically, he contends that there is insufficientevidence toestablish identity. Reviewing the evidence in the lightmostfavorable to the State, it is clearthat a rational trier of fact could findbeyond a reasonable doubtthat Mandefero committed all three crimes. We affirm. 

### All three charges were based on a shooting that occurred in May 2012 at Ezell's Chicken inSkyway. During this incident, Jae Brione Gary was shot 

### multiple times as he sat in his car parked in front of this restaurant. Two of the shots fired at Gary's car missed him and went through the windows of the restaurant, where Sandra Torres was working. The shots were fired from theNo. 69925-3-1/2 vicinity of a truck that had pulled in behind Gary's car as he sattalking with his cousin.Police responded to the scene ofthe shooting and spoke with Gary before he was transported to the hospital for his wounds. Gary was, atfirst, reluctantto 

### say who shot him while being questioned near a small crowd ofbystanders. But he did identify his shooter once he was inthe confines ofthe ambulance that 

### latertransported him to the hospital. Specifically, he stated that he was shot by 

### "Haiua"from Money Gang.1 He also said he would point out his assailant in a high school yearbook. Police officers arrested Hailu Mandefero laterthat night. Atthe time of his 

### arrest, he was at a hospital with his friend, Kevin Hubbard. Mandefero gave inconsistent statements to police about his whereabouts and activities earlierthat evening. 

### The State charged Mandefero with assault in the first degree ofJae Brione 

### Gary, assaultin the second degree of SandraTorres, andunlawful possession of a firearm in the second degree. The twoassault charges included firearm allegations pursuantto RCW 9.94A.553(3). 

### Gary refused to speak with the investigating detective anddid not respond to the detective's attempts to contact him. Thus, the State obtained a material witness warrant for Gary, who testified attrial. He testified that after the shooting 

### hetold police who responded to the scenethat hisassailantwas Hailu and that he was talking about Mandefero. But he recanted his earlieridentification of Clerk's Papers at4-5; see also Ex. 9 and 10.No. 69925-3-1/3
Mandefero. He claimed it was Hubbard that shot him and that he could not see anyone else in the truck that pulled in behind his car at Ezell's. At trial, the State also presented the testimony of Deputy Michael 

### Glasgow, one ofthe officers who responded to the shooting at Ezell's. He testified that he was with Gary inthe ambulancejust afterthe shooting and that 

### Gary toldhimthat "Hailu and some ni[**]ers" had shot him.2 Deputy Glasgow also testified that Gary told him he would point out this person in a yearbook and thatthis person was associated withthe "Money Gang." Thejury also heard a 

### recording ofGary's statements to Deputy Glasgow inthe ambulance that the deputy made on his cellphone. 

### Mandefero did not testify and rested withoutpresenting any evidence. His 

### theory ofdefense during closing argument was that the State "gotthe wrong 

### guy."3 Defense counsel focused on Gary'stestimony attrial identifying Hubbard
as the assailant and argued that Hubbard acted alone. 

### The juryfound Mandeferoguilty ofall crimes, as charged. Mandefero appeals. SUFFICIENCY OF THE EVIDENCE 

### Mandeferoargues that the evidence isinsufficientto support his three convictions. Specifically, he contends that there isinsufficientevidence to 

### establish identity. We hold that the evidence in this record supports the jury verdicts in all respects. 

### 2Report ofProceedings (Oct. 24, 2012) at 146. 3Report ofProceedings (Nov. 6, 2012) at 36.No. 69925-3-1/4 

### Due process requires the State to prove beyond a reasonable doubt all 

### the necessary facts of the crime charged.4 "Thetestfordetermining the sufficiency ofthe evidence is whether, afterviewing the evidence inthe lightmost favorable to the State, any rational trier of fact could have found guiltbeyond a reasonable doubt."5 "[A]ll reasonable inferences from the evidence must be 

### drawn in favor of the State and interpreted most strongly againstthe defendant."6 A reviewing court need not be convinced ofthe defendant's guilt beyond a 

### reasonable doubt, but only that substantial evidence supports the State's case.7 Atrier offact may properly render a guilty verdict based on circumstantial evidence alone, even ifthe evidence is also consistent with a hypothesis of 

### innocence.8 Circumstantial evidence and direct evidence are equally reliable.9 This court defers to the trier offact on "issues ofconflicting testimony, 

### credibility ofwitnesses, and the persuasiveness of the evidence."10 "Credibility determinations are for the trier of fact and are not subjectto review."11

4State v. Colquitt. 133 Wn. App. 789, 796, 137 P.3d 892 (2006). 5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068(1992). 6ld 7State v. Fiser. 99 Wn. App. 714, 718, 995 P.2d 107 (2000). 8State v. Kovac. 50 Wn. App. 117, 119, 747 P.2d 484 (1987). 9 State v.Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004). 10id, at 874-75. 11 Id. at 874.No. 69925-3-1/5 Aperson commits the crime ofassault inthe first degree under RCW 9A.36.011(1)(a) when, with intentto inflictgreat bodily harm, he assaults another with a firearm or deadly weapon or by any force or means likely to produce great bodily harm or death. A person commits the crime of assault inthe second degree under RCW 9A.36.021(1)(c) when he assaults anotherwith a deadly weapon. A person commits the crime of unlawful possession of a firearm inthe second degree under RCW 9.41.040(2)(a)(i) when he has previously been convicted of a felony and knowingly has in his possession or control a firearm. Here, Mandefero does not challenge the sufficiency ofthe State's evidence that the three crimes were committed. Rather, he challenges the 

### sufficiency ofthe evidence that he was the shooter. We conclude thatthere is sufficient evidence to establish his identity as the shooter. First, evidence indicated that Mandefero had a motive to shoot Gary. 

### Garytestified attrial that he had a "beefwith Mandefero.12 He described an incident a couple ofweeks before the shooting where he stole Mandefero's chain 

### necklace in front of a crowd of people.13 Gary testified that he did this because 

### he thought Mandefero had cheated his cousin out ofmoney.14 The juryalso heard the recording of a jailphone call after Mandefero was arrested on these charges. The speaker referenced this chain necklace incident 12 Report ofProceedings (Oct. 24, 2012) at 80. 13 Jd at 80-94. 14 Id. at 81.No. 69925-3-1/6 

### stating, "Ain't nobody gonna snatch your chain everagain, promise you that."15 Mandefero laughed inresponse. This conversation further suggests thatthe chain necklace incidentwas the motive for the shooting. Mandefero does not point to any evidence to refute this evidence of motive. Accordingly, we conclude that there is sufficient evidence to support the State's theory that Mandefero had a motive to seek revenge against Gary for stealing his chain necklace by shooting him. This is circumstantial evidence that Mandefero was the shooter. Second, there was also evidence that Mandefero had the opportunity to shoot Gary. Mandefero had his cell phone when he was arrested at the hospital following the shooting. Call records for Mandefero's phone and Hubbard's phone


### were admitted intoevidence at trial.16 The phone records contain call logs that list both incoming and outgoing calls for both phones that night. The records also show the specific cell phone towers that each phone used to transmitthese calls. Thejury heard testimony thatwhen a phone call is made, itgenerally uses 

### the nearest tower of the phone's service provider.17 There are many factors that affect celltower reception, but generally, when a certain tower is identified, the 

### phone iswithin a three mile radius of the tower.18

15 Ex. 46; Ex.43. 16 Ex. 62; Ex. 63. 

### 17 Report ofProceedings (Nov. 5, 2012) at 39. 18 Jd at 37-40, 43, 54-55.No. 69925-3-1/7
The cell tower records indicate that both Mandefero and Hubbard traveled
a path that corresponded to the State's theory ofthe case. Both men were north of Ezell's prior to the shooting. An incoming call placed Mandefero north of 

### Ezell's at 8:43:05 p.m.19 An incoming call to Hubbard's phone at 8:43:36 p.m. shows that Hubbard was also north ofEzell's at thattime.20 Another incoming call at 9:05 p.m. showed that Mandefero had moved south, inthe direction of 

### Ezell's.21 After the shooting, both men were moving south ofEzell's.22 In short, the cell phone records supportthe State's theory that Mandefero was with Hubbard inthe area ofthe shooting around the time ofthe shooting. 

### Additionally, the records showthat neither Mandefero nor Hubbard used 

### his phone at the time of the shooting.23 Mandefero did not use his phone between 9:05 p.m. and 9:14 p.m.24 Hubbard did not use his cellphone between 

### 8:43 p.m. and 9:10 p.m.25 This is furthercircumstantial evidence that Mandefero had the opportunity to shoot Gary.

19 See Ex. 66. 20See Ex. 65. 21 See Ex. 66. 22 See Ex. 65; Ex.66. 23 See Ex. 65: Ex. 66. 24 See Ex. 63. 25 See Ex. 62.
7No. 69925-3-1/8 Mandefero challenges what is to be derived from the cell phone evidence. But his challenges go to the weight ofthe evidence, something thatthejury decided against him. Thus, his arguments are not persuasive. We turn to the main point ofcontention—identity. Mandefero urges that the evidence is insufficientto show that he committed the charged crimes. We disagree. Gary, atfirst, was unwilling to identify who shot him when Deputy Glasgow arrived on the scene and questioned him about what happened. This initial exchange occurred while a number ofbystanders were close by. Butwhen medical personnel arrived and placed Gary into an ambulance before transporting him to a hospital, he answered the deputy's questions. 

### Deputy Glasgow testified at trial that after he told Gary he would not tell 

### anybody, Gary toldhim who shot him.26 The deputy testified, "[Gary] said itwas 

### something along the name ofHailu and some ni[**]ers."27 Gary also said that he would show Deputy Glasgow a picture of Hailu, that Hailuwas in a burgundy 

### truck, that Hailu was from the "Money Gang," and that Hailu was African.28 Deputy Glasgow recorded portions of this conversation in the ambulance on his smartphone. This recording was played for thejury. 

### The State presented evidence to corroborate this identifying information. Specifically, itpresented evidence that Mandefero had "Money"tattooed on one 26 Report of Proceedings (Oct. 24, 2012) at 146. 27 Id 28 Id at 148-49; Ex. 10.
8No. 69925-3-1/9 

### hand and "Gang" tattooed on the other, surrounded by dollar signs.29 It also presented evidence from Mandefero's Facebook page, where Mandefero 

### claimed membership in the Money Gang.30 Notably, Gary admitted at trial that afterthe shooting he told Deputy 

### Glasgowthat his assailantwas Hailu.31 He further admitted that he was then talkingabout HailuMandefero.32 Gary identified Mandefero as his assailant again when he woke up inthe hospital, after being transported from the scene ofthe shooting. At trial, Gary 

### testified that he told his motherat the hospital that Mandefero had shothim.33 He also told herthat Hubbard was involved, and he told his family that ifthey caught 

### either Mandefero or Hubbard to "[s]ervehim howIgot served."34 Notwithstanding these pre-trial statements, Gary recanted his prior identifications of Mandefero.35 As we already noted, Gary testified at trial only after being compelled to do so on a material witness warrant.

29 Report ofProceedings (Oct. 29, 2012) at 134. 30Ex. 40. 

### 31 Report ofProceedings (Oct. 24, 2012) at 51. 32 id 33jd at 58. 34 id 35 Id. at 118-20.No. 69925-3-1/10 

### At trial, Gary testified that he only saw Hubbard and that he did not see anybody else. He said he was purposely misleading Deputy Glasgow when interviewed at the scene ofthe crimes. But thejury also heard evidence that Gary did not wantto cooperate and had a motive to recant his pre-trial statements. Thejury knew that Gary was arrested on a material witness warrant as a reluctant witness. Gary testified at trial that he knew detectives were looking for him and that he did not respond to their calls. He told the detectives that he was not going to cooperate. Gary testified that he stillwanted revenge. But he said that he intended to take care ofthings his way ratherthan go through the legal system. The following exchange occurred at trial: [Gary]: Honestly, I'm not about putting no man away. Idon't know how much time he is looking at, but I'm taking, you know, I'm about 20. Iknow we are around the same age. I'm not about putting no man away for no amount of time. [Prosecutor]: All right. So you justdon't wantto see anybody go to jail- [Gary]: Imean . . . [Prosecutor]:

- whetherthey shot you or not? 

### [Gary]: Pretty much.^ The officerwho arrested Gary on the material witness warrant also testified about Gary's reluctance to testify. He testified that Gary told him that he did not wantto snitch, he wanted to keep things on the streets, and he was afraid



### 36 Report ofProceedings (Oct. 24, 2012) at 65.
10No. 69925-3-1/11 

### of what would happen to himifhe testified against Mandefero.37 The officer further testified that Gary was "vehemently opposed to come and stand before the court" and that Gary's firstwords were, "I'm going to f[**]k the case up."38 On the basis of this and the otherevidence, thejury could have reasonably found that Gary's initialidentifications of Mandefero as his shooter
were credible. Likewise, thejury could also have reasonably found that Gary
was not telling the truth attrial when he recanted his prior identifications. The State cites a number ofextrajurisdictional cases to argue that Gary's pretrial identifications, alone, are sufficientevidence to prove identity despite the fact that Gary recanted at trial. The most notable ofthe cases cited by the State is Commonwealth v. Brown, a recent case from the Supreme Court of Pennsylvania, which conducts a thorough review ofcases analyzing the 

### sufficiency of convictions based exclusively on recanted identifications.39 The State argues that under any ofthe approaches taken by various other 

### jurisdictions, the evidence in this case is sufficient. We conclude that it is unnecessary for this courtto address the approaches ofthese otherjurisdictions in this case. That is because this case is not one that rests solely on Gary's pretrial identifications. As the trial court 

### correctly explained when itdenied the motion for a newtrial, this case "revolved



### 37 Report ofProceedings (Oct. 30, 2012) at 63. 38 id at 64. 39 617 Pa. 107, 52A.3d 1139(2012).

11No. 69925-3-1/12 much more around the circumstantial evidence than the direct evidence from [] 

### Gary."40 Here, in addition to the circumstantial evidence showing motive and opportunity, there was further circumstantial evidence to support the identity of Mandefero as the shooter. For example, Mandefero's actions and statements at the hospital shortly afterthe shooting at Ezell's also supports the State's case. 

### Mandefero gave conflictingaccounts to police about his whereabouts that night. An officer who spoke to Mandefero at the hospital testified that he 

### "appeared nervous" and did not want to talk.41 The officerthen described Mandefero's conflictingstories. Mandefero first told himthat Hubbard called him 

### and asked him to pickhim up at a 76 Station on Renton Avenue. The officer testified that this is near an Ezell's Chicken. Mandefero told the officer that he 

### wentwith his sisterto pick Hubbard up at this location. After the officer asked Mandefero for his sister's contact information, the 

### officertestified thatMandefero "changed his account as to whathappened."42 Mandefero then told the officer that he and Hubbard's girlfriend picked up Hubbard at Chuck E. Cheese in Kent. 

### Overall, the fact that Mandefero was with Hubbard afterthe shooting, the 

### fact that Mandefero does not dispute that Hubbard was involved in the shooting,

40 Report ofProceedings (Jan. 31, 2013) at 25. 41 Report ofProceedings (Oct. 25, 2012) at 82. 42 id at 96.
12No. 69925-3-1/13 

### and the fact that Mandefero provided conflicting accounts about his whereabouts
near the time ofthe shooting, further supported the State's case. Finally, circumstantial evidence also supported the State's theory that there were two shooters involved. Gary admitted that he initially told his mother that both Hubbard and Mandefero were involved. And at trial, Gary identified Hubbard as a passenger in the truck. Officers recovered multiple shell casings from two different caliberguns at the scene—.40 caliber and 9mm. An officertestified that the two different types ofcasings were in two different areas. Specifically, the bulk ofthe .40 caliber 

### casings were closerto Gary's carand the 9mm casings were further away. Officers recovered a .45 caliber handgun inthe glove compartment of 

### Gary's car. Thus, neitherthe .40 caliber shell casings nor the 9mm shell casings
camefrom the .45 caliber handgun. This also supports the State's theory that
two shooters were involved. 

### Insum, thejury was entitled to findthat Mandefero and Hubbard were the 

### two shooters. Gary's initial identification ofMandefero as the shooter coupled with the circumstantial evidence that we discussed constitutes sufficient evidence to convict Mandefero ofthe charged crimes. 

### Mandefero argues that "the majority of the evidence suggested that there was onlyone shooter: Hubbard."43 Mandefero then states thatthough itwas "theoretically possible" that someone elsejoined Hubbard inthe shooting, "no facts made the State's two-shootertheory any more likelythan the defense's
43 Brief ofAppellant at 26.
13No. 69925-3-1/14 

### one-shootertheory."44 Heasserts that the evidence of twoshooters "is equivocal 

### at best."45 These arguments are simply not borne out by the record before us. A jury is free to choose between conflicting inferences and did so in this case. 

### Mandefero argues that no rational jury could findthat Mandefero was presentwhen Hubbard shot Gary and thatthe "cell phone [record] evidence conclusively excludes the State's theory that [] Mandefero was with Hubbard 

### before and during the shooting."46 This simply is not true for the reasons we already explained earlier inthis opinion. Mandefero argues that Gary's statements to Deputy Glasgow were 

### "unreliable, speculative, and at best equivocal."47 These characterizations are simply inaccurate. And he argues that "Deputy Glasgow bullied Gary into 

### identifying someone."48 This assertion is not supported by the record. Mandefero argues that Gary's identification was based purely on 

### speculation. And he argues that "the location ofGary's injuries strongly suggest 

### that Gary did notseewho shot him."49 Butthese arguments are about credibility

44 Jd at 26-27. 45 id at 29. 46 id at 32. 47 Id at 38. 48 Id 49 Id. at 42.

14No. 69925-3-1/15 

### and the weight ofthe evidence. We deferto the jury on credibility ofwitnesses and persuasiveness ofevidence.50 

### Mandefero relies on State v.Vasquez51 for the proposition that equivocal witness statements pertaining to identification violate Due Process and cannot 

### support a criminal conviction. But while Gary's statements were contradictory,
none ofthem were equivocal. Thus, despite Mandefero's assertions to the 

### contrary, they do not "suffer from the same legal ambiguity" as in Vasquez.52 Mandefero's reliance on this case is not persuasive. Finally, Mandefero argues thatthe evidence does not support a conviction based upon accomplice liability. But there was no such instruction given to the jury. Rather, itconvicted on the basis that Mandefero was the principal responsible for the charged crimes. Forthat reason, we do not further address this argument. WAIVER Mandefero's first assignment oferror asserts that "the trial court erred 

### when itdenied [his] Knapstad motion at the close of the State's case."53 This motion is more properly characterized as a motion to dismiss. But Mandefero fails to supportthis assignment oferrorwith argument.

50Thomas. 150 Wn.2d at 874-75. 51 178Wn.2d 1, 309 P.3d 318 (2013). 

### 52 Brief ofAppellant at45. 53 Id at 1.
15No. 69925-3-1/16 

### A party waives an assignmentoferror not supported by sufficient 

### argument or citation to the record.54 That is the case here. Therefore, we do not address this assignment oferror any further. MATTERS OUTSIDE THE RECORD 

### The State argues thatthis court should disregard matters outside the trial court record. We agree and have done so. 

### In a direct appeal, the reviewing courtwill not consider matters outside the trial record.55 Moreover, a court examines sufficiency based on the evidence admitted at trial.56 

### Here, to support his claim of insufficiency, Mandefero relies on matters 

### outside the appellate record. Forexample, he extensively discusses a "Citrus 

### nightclub shooting."57 He argues that thisshooting occurred under"remarkably similarfacts to those ofthe Ezell's shooting."58 And he argues thatthe evidence "when viewed inthe context of both shootings, clearly points to Hubbard being 

### the lone gunman in bothshootings."59 To provide details of this shooting, he cites the State's sentencing memorandum from that case. But no evidence of

54 Skagit County Pub. Hosp. Dist. No. 1 v. Dep't of Revenue, 158 Wn. App. 426, 440, 242 P.3d 909 (2010). 55 State v.McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). 

### 56 See State v.Jackson. 82 Wn. App. 594, 608, 918 P.2d 945 (1996). 57 Brief ofAppellant at 22-24, 28-29. 58 id at 28. 59 id at 29.
16*wNo. 69925-3-1/17 

### this shooting was presented to thejury, and the sentencing memorandum that Mandefero cites is not inthis appellate record. In another example, Mandefero cites a jail phone call where he allegedly 

### stated that he "had nothing to hide."60 Butagain, Mandefero cites a document that is not in this appellate record.61 Mandefero provides no explanation for these violations ofthe Rules of Appellate Procedure. And we see none. While such disregard ofthe RAPs could result in the imposition of sanctions, we exercise our discretion and decline to impose sanctions in this case. We affirm thejudgment and sentence.

WE CONCUR \ 

# ^JJUlM&f-,

60 Brief ofAppellant at 18. 

### 61 Id (citing Report ofProceedings (Nov. 26, 2012) at 59-60).

17 V?
ro