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

v. LARRY D. DALEY JR., Appellant No. 71956-4-1 DIVISION ONE

UNPUBLISHED OPINION FILED: December 28. 2015 

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

### inthe firstdegree after a shooting incident outside a nightclub. He was charged withone count against a "John Doe" afterfiring at a group ofunidentified 

### individuals, and the remaining three counts for shooting at three different officers. He appeals his convictions. With regard to the conviction for assault against "John Doe," Daley argues that because the State was not required to prove the 

### identity of the person he intended to assault, itfailed to prove each element of the charged crime beyond a reasonable doubt, violated his right to a unanimous verdict and the prohibition against doublejeopardy. With regard to the convictions for assaults againstthe officers, Daley claims the evidence is insufficientto establish guilt beyond a reasonable doubt. Finding no error, we affirm.No. 71956-4-1/2 FACTS Early on November 25, 2012, Seattle Police Department detectives Benjamin Hughey, Jonathan Huber, and Thomas Janes responded to a request for assistance at the now defunct Citrus nightclub on FairviewAvenue. Fights had broken out during the evening and a large crowd had gathered outside as the club was closing. The detectives arrived in a single car and parked opposite the nightclub on the far side ofFairviewAvenue. They saw a group ofthree to five men walking along Fairview Avenue following a man in a white hooded sweatshirt. The man inthe sweatshirtwas later identified as the defendant, Larry Daley Jr. Daley and the group ofmen 

### appeared to be having a heated argument. Daley stepped intothe street and 

### began to cross FairviewAvenue. The group followed him intothe street, where they exchanged gestures and yelled back and forth. The detectives saw Daley suddenly turn backtoward his pursuers and reach toward his waistband with his right hand. He then drew out his arm, elbow raised, in a motion thatthe detectives immediately recognized as drawing a 

### firearm. Daleyextended his hand and leveled a nine millimetersemiautomatic 

### pistol directly at the group of men. He was only about ten feetfrom the men when he fired multipleshots directly at them, with a crowd of club patrons behind them. Detective Hughey testified that he "onlyremember[ed] one distinct round." Verbatim Report ofProceedings (VRP) (3/20/14) at 61. One ofthe Citrus 

### employees heard three to six rounds beingfired toward the club. A security guard heard "aspurtof four or fiveshots." VRP (3/27/14) at 68. The group of menNo. 71956-4-1/3 scattered and were never identified. The crowd erupted into chaos—yelling and screaming, with drivers "peeling out" intheir cars to get away. VRP (3/27/14) at 140-141. As the detectives got out ofthe vehicle, Janes shouted, "Stop, Police!" while Hughey ran to intercept Daley. VRP (3/20/14) at 67-68. Daley looked inthe direction ofthe detectives, but then turned back and fired additional shots at the fleeing men and the crowd. He then sprinted toward the detectives. As the distance between Daley and Hughey closed to approximately twenty yards, 

### Daley raised his gun and pointed it directly at Hughey. Inthat moment, Hughey believed that Daley was about to shoot him. Hughey raised his own service 

### weapon and sighted Daley, firing twice as Daley veered past him onto Yale Avenue—running above and behind the detectives' position. 

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

### deadly threatto the detectives. Hughey ran over to the retaining wall and spotted Daley, still inpossession of his weapon, through some rhododendrons. Hughey fired additional shots at Daley as he continued to run up Yale Avenue. Meanwhile, Huber and Janes had come around the vehicle to get a better angle 

### on Daley. As Daley crossed their line of sight on the opposite side of the rhododendrons, Huber saw Daley turn and point his gun directly toward him and Janes. Huber immediately feltthat his life was indanger and fired several shots at Daley. Inthat same moment, as Huberfired at Daley, Janes saw two amber 

### muzzle flashes coming from Yale Avenue, between the rhododendron bushesNo. 71956-4-1/4 

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

### recalling the distinctive pop and whiz sound caused bythe projectiles breaking the sound barrier. Janes thoughtthat either he or Huberwas going to die and yelled for Huberto take cover. Meanwhile, Hughey ran to the back ofthe parking lot to access a ramp 

### leading up Yale Avenue. When he reached the ramp, he did not see Daley at first until he turned his weapon mounted flashlight on the rhododendron bushes. He
saw Daley inthe bushes and heard him call out, "I'm shot, I'm dying." VRP (3/20/14) at 89. Hughey yelled at him to keep his hands up, then called outto Huber and Janes that he had the suspect. Huber ran to provide cover, while Hughey ordered Daley out ofthe bushes. Daley no longer had his gun and indicated that he had left it inthe bushes. Hughey found the gun where Daley had indicated. Forensic investigators recovered several spent nine millimeter shell casings from the area near Fairview Avenue, three ofwhich matched Daley's pistol. Also recovered underthe rhododendron bush where Daley was arrested were two matching casings. Detectives Hughey and Janes laterviewed security footage from cameras
on the Fred Hutchinson campus. The footage, played at trial, showed Daley 

### running across Fairview Avenue and up Yale Avenue, as Hughey fired at him. Exhibit 2, Camera 072 at 1:56:48 a.m.-1:57:07 a.m. At 1:57:11 a.m., the video showed a muzzle flash from Daley's location. Exhibit 2, Camera 081 at 1:57:11 

### a.m.; Appendix E (Screen shot ofmuzzle flash). The video then shows Daley running and crouching inthe bushes along the side ofthe research center.No. 71956-4-1/5 Exhibit 2, Camera 072 at 1:57:12 a.m-1 a.m. At 1:57:22 a.m., the video shows Daley firing a final shotfrom the bushes at Hughey—in the top right corner ofthe frame. Exhibit 2, Camera 072 at 1:57:22 a.m.; see also Appendix F (Screen shot 

### of final muzzle flash—Shot fired at Hughey).1 The State charged Daley with four counts ofassault inthe first degree, while armed with a firearm. In count one, the State alleged that Daley, with intent to inflictgreat bodily harm, did assault "John Doe" with a firearm and force and
means likely to produce great bodily harm or death. Clerk's Papers (CP) at 12. The State made the same allegation as to the three Seattle Police Department detectives in counts two through four. Daley waived his right to a jury trial. The trial courtfound Daley guilty of all four counts of first degree assault and imposed a standard range sentence. DISCUSSION 

### Daley argues that because the statute establishing the crime of first 

### degree assault is a specific intent crime, it should be read to "require[ ] proof beyond a reasonable doubt that the defendant had the specific intent to assault an identified victim." Br. ofAppellant at 12. Becausethe State failed to do so, he 

### argues that his conviction for firstdegree assault on "John Doe" violated his due 

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

1Daley moves tostrikethe State'sAppendices D, E, andF, arguing thatthey arealtered and captioned screenshots that were neither part of the record nor submitted with permission from the court. RAP 10.3(a)(8) provides that "[a]n appendix may not include materials not contained in the record on review withoutpermission from the appellate court, except as provided in rule 10.4(c)." We deny Daley's motion to strike the State's Appendices D, E, and F,because they wereprovided toillustratetestimony in the record where witnesses attrial indicated locations of events on a screenshot of the security video.No. 71956-4-1/6 element ofthe charged crime, to not be placed injeopardy twice for the same offense, and to a unanimous verdict. The State argues thatthe statute does not require it to prove the identity of a named victim, but only that Daley assaulted anotherwith a firearm with the intent to inflictgreat bodily harm. We review questions of statutory interpretation de novo. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010). RCW 9A.36.011(1)(a) provides in relevant part: "Aperson is guilty ofassault inthe first degree ifhe or she, with intentto 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...." Thus, firstdegree assault has four elements: thatthe defendant, with 

### (1) intent to inflict great bodily harm, (2) assaulted (3) another (4) with a firearm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). The mens rea required 

### to provefirst degree assault is the specific intent to inflictgreat bodily harm.jd. 

### Bythe statute's own terms, there is noexpress requirement for proofofspecific intentto assault an identified victimas Daley claims. And we have already held that the name ofa victim is not an element ofthe crime ofassault. State v. Piano, 

### 67 Wn. App. 674, 679-680, 838 P.2d 1145 (1992). Daley cites EJmi and State v. Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004) as authority for his 

### argument that proofof specific intenttoassault an identified person isrequired. But neither case supports his position. In Elmi, the defendantwas convicted offour counts first degree assault with a firearm when he fired shots into the home of his estranged wife, where 

### their child and her two young siblings were present. 166 Wn.2d at 211. OnNo. 71956-4-1/7 appeal, he challenged his convictions as to the children, because he was
unaware oftheir presence inthe house, jd. The court affirmed the convictions, 

### holding that "once the intent to inflictgreat bodily harm is established, usually by proving that the defendant intended to inflictgreat bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011 to any unintended victim." id. at 218. The case is of no help to Daley because the Elmi court identified the necessary prooffor first degree assault as that demonstrating an intentto inflictgreat bodily harm. And while the court also observed thatthe

mens rea of first degree assault is "usually" established by proving an intentto harm a specific person, it did not hold, as Daley suggests, that proofofthe identity ofthe intended victim was a necessary element. InThomas, we addressed when experttestimony supporting a diminished capacity defense is admissible in a first degree assault case. 123 Wn. App. at 778-79. We concluded that the evidence may be admissible when specific intent


### or knowledge is an element ofthe charged crime and noted that assault in the firstdegree includes a specific intentelement, the intent to inflict great bodily harm. jd. Thomas is inapposite because we did not address the issue Daley raises here, whetherthe crime also requires proofofintentto harm a specific
person. 

### Insupport of its argumentthat such proof is not required, the State cites People v. Griggs, 216 Cal. App. 3d 734, 265 Cal. Rptr 53 (1989), a case with 

### facts remarkably similar to this one. In Griggs, a crowd was leaving an auditorium after a concert and streaming into a parking lot. An undercover officerassignedNo. 71956-4-1/8 

### to patrol the area sawthe defendant, Griggs, pull out a revolver and fire at least two shots into a large crowd ofpeople. Noone was injured and no victims were 

### identified. Griggs was charged with and convicted ofassaultwith a deadly weapon.2 On appeal, he argued that the trial court erred when it denied his motion for acquittal inwhich he contended thatthe name ofthe victim is a material element ofthe charged crime and the no proofhad been offered to 

### satisfy that element. The Griggs court rejected the argument, concluding thatthe identity ofthe victim underthese circumstances was not an element ofthe crime to be proven at trial. "All that is necessary is thatthere is a victim, the characteristics of the victim are not critical elements ofthe offense. The law is seeking to punish the reckless disregard of human life, and what needs to be shown is that a human life was threatened in the manner proscribed
.... [w]e conclude the naming ofthe particular victim is not an element of assault with a deadly weapon[.]" Griggs, 216 Cal. App. 3d at 742. We agree. Similarto the issue in Griggs, the question here is whetherthe defendant assaulted anotherwith a firearm while intending to inflictgreat bodily harm. The identity ofthe victim is irrelevantto this question because whetherthe victim was injured or placed infear by the defendant's actions are not elements that need to be proved or disproved. The State's burden is to prove that "another" was assaulted inthe manner provided by statute. The identity ofthe assaulted person is not necessary to establish that the crime has been committed.

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

8No. 71956-4-1/9 Daley also argues thatthe constitutional prohibition against double jeopardy requires identification of a specific victim, but cites no authority to support his argument. The State argues that a doublejeopardy claim is hypothetical and not ripe for review. In such an unlikely event, Daley would not be limited in his ability to raise itas a defense against additional charges arising

out ofthis incident. Daley cites Edmund v. State. 398 Md. 562, 921 A.2d 264 (2007) and State
v. Crank, 105 Utah 332, 142 P.2d 178, 180 (1943), to support his argumentthat due process requires a "quantum ofspecificityto identify an intended victim." Br. ofAppellant at 12. In Edmund, the defendant did not know the victim's name but stated that "he had an ongoing problem with [him]." 921 A.2d at 266. The Edmund courtfound that the charging documents, without the victim's name, 

### sufficed to provide defendantwith notice that he was charged with a firstdegree assaultthattook place on January 20, 2005, the day of his arrest. Id. at 267. In 

### Crank, the defendant also challenged the sufficiency ofthe information forfailing to name the individualallegedly murdered and/ordescribe him with sufficient 

### detail to avoid the possibility ofdoublejeopardy. Inthatcase, the court found that there was no requirementto name the victim if his identitywas unknown, but that facts must be supplied "to identifythe victim, to enable the defendantto prepare his defense, and to identifythe crime." Edmund 921 A.2d at 271. 

### These cases are of no help to Daley because he does not claimthat he did not receive fair notice ofthe charges against him, only that a lack of 

### identifying information puts him at riskforsuccessive prosecutions for the sameNo. 71956-4-1/10 incident. Moreover, both Crank and Edmund expressly dispel any concern about double punishment, because the defendants would have the entire record ofthe

case to allow them to raise such a defense if the occasion to do so arose. The Crank courtfound thatfor the purposes of doublejeopardy, the identity ofthe offense "may also be established by evidence, when the pleadings do not satisfactorily show the identity." Crank. 142 P.2d at 180. And in Edmund, while the victim there was described with some specificity, the court noted that "[ejven ifthe State were to initiate such a prosecution, Mr. Edmund, in support of a defense ofautrefois convict,3could use the entire record of this cause. He would 

### not be limited to the allegations ofthe indictment, as amended." Edmund. 921
A.2d at 273. 

### We agree withthe State that doublejeopardy issues are extremely 

### unlikely to arise. And, in the eventthat they do, while Daley may not have the


### names or physicaldescriptions of the men in the group, he may rely on the entire record of this case to raise doublejeopardy as a defense to any new charges based on this incident. We conclude thatthe failure to identify the individuals 

### does not implicate any constitutional concerns regarding doublejeopardy. 

### Daley also argues that his due process right to a unanimous verdict demands an identified, intended victim. He cites State v. Stephens. 93 Wn.2d 

### 186, 188, 607 P.2d 304 (1980), where thejurywas instructed inthe disjunctive to determine whether the defendant assaulted one ofthe victims or the other. In

3"Apleain bar of arraignment that the defendant has already been convicted of the offense. This plea can be asserted in the alternativewith a plea of notguilty." Black's Law Dictionary, 1340 10th ed. (1995).

10No. 71956-4-1/11 

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

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

### have allowed conviction if, e.g. "sixjurors believed Stephens assaulted [victim one] and six believed he assaulted [victim two]."|d_. at 190. This argument is also purely speculative and hypothetical. Daley waived his right to trial by a jury and thus, his right to a unanimous verdict. We hold thatthe State was not required to identify the particular men in the group or to identify one ofthem as the intended target. The State was only required to prove that Daley assaulted another using a firearm with the intent to inflictgreat bodily harm. The evidence is more than sufficientto supportthe trial court's conclusion that he did so beyond a reasonable doubt. There was no error. Next, Daley argues that the record contains insufficient evidence to sustain his convictions ofassault against Detectives Janes, Huber, and Hughey. Br. ofAppellant at 18-19. He argues that there was insufficient corroborating or circumstantial evidence to prove beyond a reasonable doubt that he was the individual who shot at the detectives. Daley also challenges the trial court's findings offact 7, 8, and 12, claiming thatthe trial court misinterpreted the 

### security videotapes and erroneously found that he had assaulted the three officers. The State must prove beyond a reasonable doubtthe identity of the defendant as the individual who committed the offense. State v. Thomson, 70 

### Wn. App. 200, 211, 852 P.2d 1104 (1993), affd, 123Wn.2d 877, 872 P.2d 1097 (1994). Intesting the sufficiency ofthe evidence, we draw all reasonable

11No. 71956-4-1/12 inferences from the evidence in the State's favor. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Again, we deferto the trier offact on issues of the credibility ofwitnesses, resolving issues of conflicting testimony, and the persuasiveness ofthe evidence. State v. Thomas, 150Wn.2d 821, 874-75, 83 P.3d 970 (2004) abrogated in part on other grounds by. Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L Ed .2d 177 (2004). "Circumstantial evidence and direct evidence have equal weight." State v. Beaslev. 126Wn. App. 670, 689, 109 P.3d 849 (2005) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)). Daley argues that the State failed to prove that he was the shooter because no one saw him fire his gun after he ran across Fairview Avenue North, 

### and that neitherdetective testified thatthey actually saw Daley pullthe trigger. 

### There is more than enough circumstantial evidence in the record, however, for a reasonable fact finder to findthat Daley shot at allthree detectives that night. Janes testified that he was heading toward Hughey's location at the 

### loading dock ramp when he saw twoamberflashes coming hisdirection. VRP (3/27/14) 76. He explained that visibleamber is "a fire from when a shell is 

### expelled out of a weapon, you get the flameout from the barrel." VRP (3/27/14) at 77. He also testified that he feltthe whizzing of two bullets coming past him, and identified the sounds as such based on his priorexperience of being fired upon while on a SWAT team. He indicated on a photo thatthe muzzle flashes were 

### comingfrom between some rhododendron bushes. Uponreview of the security tape showing a flash oflight, Janes identified that the lighton the tape came from

12No. 71956-4-1/13 the area where he noticed the two amber flashes. Janes also testified that he
was "100 percent" confident that Daley was the person inthe white sweatshirt. Jd.

at 95. Detective Hubertestified that he got out ofthe car and focused on Daley immediately after he saw him pull out a gun and fire shots atthe group. When Daley ran past him, Huber saw Daley "turn and look at [him] and point the gun in 

### [his] direction." jd. at 143. Hubertestified that at that point he was "scared" and concerned for his own safety." jd. at 144. According to Janes, Huberwas also 

### right next to Janes when he sawthe amberflashes and heard the bullets whiz pasttheir heads. 

### Detective Hughey testified that after Daley shot at the group, he began to
run toward the officers and saw "his firearm raised and pointed at me." VRP 

### (3/20/14) at 68. Hughey thought at that point he "was going to get shot, possibly killed, so Imade the decision to defend my lifeand Imade the decision to shoot 

### at Mr. Daley before he could shoot me."jd. at71. He further testified that he did not have any independent recollection of Daley shooting at him. Uponviewing the video, it"scared the heck out of[him]," because he "had no memory [himself] 

### of being shot at," but "[w]hen you see the video, you see me getting shot at, which obviously it really - after the fact, itscares you. You're like oh, wow, somebody really did try to kill me." Id. at 111-112. 

### Daleyargues that there is insufficientevidence that he assaulted Janes and Huber, because no bullets or casings were found at or nearwhere Janes


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

13No. 71956-4-1/14


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

### flashes as DetectiveJanes testified. According to Daley,there is insufficient evidence as wellthat he assaulted Hughey, because Hughey testified that
numerous other people were running on Yale Avenue North and that he was


### unaware of being fired upon until he viewed the security videotape. The trial court heard all of this evidence and is entitled to deference on issues of credibility and conflicting evidence. We find that there is sufficient evidence inthe record to support Daley's convictions and affirm. Affirmed.

WE CONCUR: 

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