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UNPUBLISHED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

that the evidence is insufficient to support his convictions of first degree assault,

second degree assault, and second degree unlawful possession of a firearm.

Specifically, he contends that there is insufficient evidence to establish identity.

Reviewing the evidence in the light most favorable to the State, it is clear that a

rational trier of fact could find beyond a reasonable doubt that Mandefero

committed all three crimes. We affirm.

All three charges were based on a shooting that occurred in May 2012 at

Ezell's Chicken in Skyway. 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 the

No. 69925-3-1/2

vicinity of a truck that had pulled in behind Gary's car as he sat talking with his

cousin.

Police responded to the scene of the shooting and spoke with Gary before

he was transported to the hospital for his wounds. Gary was, at first, reluctant to

say who shot him while being questioned near a small crowd of bystanders. But

he did identify his shooter once he was in the confines of the ambulance that

later transported 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 later that night. At the 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 earlier that

evening.

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

Gary, assault in the second degree of Sandra Torres, and unlawful possession of

a firearm in the second degree. The two assault charges included firearm

allegations pursuant to RCW 9.94A.553(3).

Gary refused to speak with the investigating detective and did not respond

to the detective's attempts to contact him. Thus, the State obtained a material

witness warrant for Gary, who testified at trial. He testified that after the shooting

he told police who responded to the scene that his assailant was Hailu and that

he was talking about Mandefero. But he recanted his earlier identification of

Clerk's Papers at 4-5; 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 of the officers who responded to the shooting at Ezell's. He

testified that he was with Gary in the ambulance just after the shooting and that

Gary told him that "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

that this person was associated with the "Money Gang." The jury also heard a

recording of Gary's statements to Deputy Glasgow in the ambulance that the

deputy made on his cellphone.

Mandefero did not testify and rested without presenting any evidence. His

theory of defense during closing argument was that the State "gotthe wrong

guy."3 Defense counsel focused on Gary'stestimony at trial identifying Hubbard

as the assailant and argued that Hubbard acted alone.

The juryfound Mandefero guilty of all crimes, as charged.

Mandefero appeals.

SUFFICIENCY OF THE EVIDENCE

Mandefero argues that the evidence is insufficient to support his three

convictions. Specifically, he contends that there is insufficient evidence to

establish identity. We hold that the evidence in this record supports the jury

verdicts in all respects.

2Report of Proceedings (Oct. 24, 2012) at 146.

3 Report of Proceedings (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 "The test for determining the

sufficiency of the evidence is whether, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt."5 "[A]ll reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant."6

A reviewing court need not be convinced of the defendant's guilt beyond a

reasonable doubt, but only that substantial evidence supports the State's case.7

A trier of fact 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 of fact on "issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence."10 "Credibility

determinations are for the trier of fact and are not subject to review."11

4 State 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

7 State v. Fiser. 99 Wn. App. 714, 718, 995 P.2d 107 (2000).

8 State 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).

10 id, at 874-75.

11 Id. at 874.

No. 69925-3-1/5

A person commits the crime of assault in the first degree under RCW

9A.36.011(1)(a) when, with intent to inflict great 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 in the second degree under RCW

9A.36.021(1)(c) when he assaults another with a deadly weapon.

A person commits the crime of unlawful possession of a firearm in the

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 of the State's

evidence that the three crimes were committed. Rather, he challenges the

sufficiency of the evidence that he was the shooter. We conclude that there is

sufficient evidence to establish his identity as the shooter.

First, evidence indicated that Mandefero had a motive to shoot Gary.

Gary testified at trial that he had a "beef with Mandefero.12 He described an

incident a couple of weeks 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 of money.14

The jury also heard the recording of a jail phone call after Mandefero was

arrested on these charges. The speaker referenced this chain necklace incident

12 Report of Proceedings (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 ever again, promise you that."15

Mandefero laughed in response. This conversation further suggests that the

chain necklace incident was 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 into evidence 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 transmit these calls.

The jury heard testimony that when a phone call is made, it generally uses

the nearest tower of the phone's service provider.17 There are many factors that

affect cell tower reception, but generally, when a certain tower is identified, the

phone is within a three mile radius of the tower.18

15 Ex. 46; Ex.43.

16 Ex. 62; Ex. 63.

17 Report of Proceedings (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 of the 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 of Ezell's at that time.20 Another incoming

call at 9:05 p.m. showed that Mandefero had moved south, in the direction of

Ezell's.21 After the shooting, both men were moving south of Ezell's.22 In short,

the cell phone records support the State's theory that Mandefero was with

Hubbard in the area of the shooting around the time of the shooting.

Additionally, the records show that 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 cell phone between

8:43 p.m. and 9:10 p.m.25 This is further circumstantial evidence that Mandefero

had the opportunity to shoot Gary.

19 See Ex. 66.

20 See 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.

7

No. 69925-3-1/8

Mandefero challenges what is to be derived from the cell phone evidence.

But his challenges go to the weight of the evidence, something that the jury

decided against him. Thus, his arguments are not persuasive.

We turn to the main point of contention—identity. Mandefero urges that

the evidence is insufficient to show that he committed the charged crimes. We

disagree.

Gary, at first, 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 of bystanders were close by. But when

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 told him who shot him.26 The deputy testified, "[Gary] said itwas

something along the name of Hailu and some ni[**]ers."27 Gary also said that he

would show Deputy Glasgow a picture of Hailu, that Hailu was 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 the jury.

The State presented evidence to corroborate this identifying information.

Specifically, it presented 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.

8

No. 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 after the shooting he told Deputy

Glasgow that his assailant was Hailu.31 He further admitted that he was then

talking about Hailu Mandefero.32

Gary identified Mandefero as his assailant again when he woke up in the

hospital, after being transported from the scene of the shooting. At trial, Gary

testified that he told his mother at the hospital that Mandefero had shot him.33 He

also told her that Hubbard was involved, and he told his family that ifthey caught

either Mandefero or Hubbard to "[s]erve him how I got 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 of Proceedings (Oct. 29, 2012) at 134.

30 Ex. 40.

31 Report of Proceedings (Oct. 24, 2012) at 51.

32 id

33 jd 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 of the crimes.

But the jury also heard evidence that Gary did not want to cooperate and

had a motive to recant his pre-trial statements. The jury 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 still wanted revenge. But he said that he intended to

take care of things his way rather than go through the legal system. The

following exchange occurred at trial:

[Gary]: Honestly, I'm not about putting no man away. I don't know

how much time he is looking at, but I'm taking, you know, I'm about

20. I know we are around the same age. I'm not about putting no

man away for no amount of time.

[Prosecutor]: All right. So you just don't want to see anybody go to

jail-

[Gary]: I mean . . .

[Prosecutor]: - whether they shot you or not?

[Gary]: Pretty much.^

The officer who 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 want to snitch, he wanted to keep things on the streets, and he was afraid

36 Report of Proceedings (Oct. 24, 2012) at 65.

10

No. 69925-3-1/11

of what would happen to him if he testified against Mandefero.37 The officer

further testified that Gary was "vehemently opposed to come and stand before

the court" and that Gary's first words were, "I'm going to f[**]k the case up."38

On the basis of this and the other evidence, the jury could have

reasonably found that Gary's initial identifications of Mandefero as his shooter

were credible. Likewise, the jury could also have reasonably found that Gary

was not telling the truth at trial when he recanted his prior identifications.

The State cites a number of extrajurisdictional cases to argue that Gary's

pretrial identifications, alone, are sufficient evidence to prove identity despite the

fact that Gary recanted at trial. The most notable of the cases cited by the State

is Commonwealth v. Brown, a recent case from the Supreme Court of

Pennsylvania, which conducts a thorough review of cases analyzing the

sufficiency of convictions based exclusively on recanted identifications.39 The

State argues that under any of the approaches taken by various other

jurisdictions, the evidence in this case is sufficient.

We conclude that it is unnecessary for this court to address the

approaches of these other jurisdictions 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 it denied the motion for a new trial, this case "revolved

37 Report of Proceedings (Oct. 30, 2012) at 63.

38 id at 64.

39 617 Pa. 107, 52A.3d 1139(2012).

11

No. 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 after the shooting at Ezell's also supports the State's case.

Mandefero gave conflicting accounts 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 officer then described

Mandefero's conflicting stories. Mandefero first told him that Hubbard called him

and asked him to pick him 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

went with his sister to pick Hubbard up at this location.

After the officer asked Mandefero for his sister's contact information, the

officer testified that Mandefero "changed his account as to what happened."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 after the shooting, the

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

40 Report of Proceedings (Jan. 31, 2013) at 25.

41 Report of Proceedings (Oct. 25, 2012) at 82.

42 id at 96.

12

No. 69925-3-1/13

and the fact that Mandefero provided conflicting accounts about his whereabouts

near the time of the 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 caliber guns at

the scene—.40 caliber and 9mm. An officer testified that the two different types

of casings were in two different areas. Specifically, the bulk of the .40 caliber

casings were closer to Gary's car and the 9mm casings were further away.

Officers recovered a .45 caliber handgun in the glove compartment of

Gary's car. Thus, neither the .40 caliber shell casings nor the 9mm shell casings

came from the .45 caliber handgun. This also supports the State's theory that

two shooters were involved.

In sum, the jury was entitled to find that Mandefero and Hubbard were the

two shooters. Gary's initial identification of Mandefero as the shooter coupled

with the circumstantial evidence that we discussed constitutes sufficient evidence

to convict Mandefero of the charged crimes.

Mandefero argues that "the majority of the evidence suggested that there

was only one shooter: Hubbard."43 Mandefero then states that though itwas

"theoretically possible" that someone else joined Hubbard in the shooting, "no

facts made the State's two-shooter theory any more likely than the defense's

43 Brief of Appellant at 26.

13

No. 69925-3-1/14

one-shooter theory."44 He asserts that the evidence of two shooters "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 find that Mandefero was

present when Hubbard shot Gary and that the "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 in this 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 of Gary's injuries strongly suggest

that Gary did not see who shot him."49 But these 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.

14

No. 69925-3-1/15

and the weight of the evidence. We defer to the jury on credibility of witnesses

and persuasiveness of evidence.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 of them 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 that the evidence does not support a conviction

based upon accomplice liability. But there was no such instruction given to the

jury. Rather, it convicted on the basis that Mandefero was the principal

responsible for the charged crimes. For that reason, we do not further address

this argument.

WAIVER

Mandefero's first assignment of error asserts that "the trial court erred

when it denied [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 support this assignment of error with argument.

50 Thomas. 150 Wn.2d at 874-75.

51 178Wn.2d 1, 309 P.3d 318 (2013).

52 Brief of Appellant at 45.

53 Id at 1.

15

No. 69925-3-1/16

A party waives an assignment of error not supported by sufficient

argument or citation to the record.54 That is the case here. Therefore, we do not

address this assignment of error any further.

MATTERS OUTSIDE THE RECORD

The State argues that this court should disregard matters outside the trial

court record. We agree and have done so.

In a direct appeal, the reviewing court will 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. For example, he extensively discusses a "Citrus

nightclub shooting."57 He argues that this shooting occurred under "remarkably

similar facts to those of the Ezell's shooting."58 And he argues that the evidence

"when viewed in the context of both shootings, clearly points to Hubbard being

the lone gunman in both shootings."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 of Appellant at 22-24, 28-29.

58 id at 28.

59 id at 29.

16
*w
No. 69925-3-1/17

this shooting was presented to the jury, and the sentencing memorandum that

Mandefero cites is not in this appellate record.

In another example, Mandefero cites a jail phone call where he allegedly

stated that he "had nothing to hide."60 But again, Mandefero cites a document

that is not in this appellate record.61

Mandefero provides no explanation for these violations of the Rules of

Appellate Procedure. And we see none. While such disregard of the RAPs

could result in the imposition of sanctions, we exercise our discretion and decline

to impose sanctions in this case.

We affirm the judgment and sentence.

WE CONCUR

\

^JJUlM&f-,

60 Brief of Appellant at 18.

61 Id (citing Report of Proceedings (Nov. 26, 2012) at 59-60).

17

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