riLED COURT OF APPEALS DIV I STATE OF WASHIKTON 

## 2010AUG -6 AM 9:5Q

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, Respondent, V. ABDIRAHMAN S.SAKAWE, Appellant. No.75991-4-1

UNPUBLISHED OPINION

FILED: August 6,2018 SCHINDLER,J.— The trial court convicted Abdirahman S.Sakawe of robbery and attempted robbery in the second degree and assault in the second degree. Sakawe seeks reversal,arguing (1)the court violated his right to due process by admitting unreliable in-court identification testimony,(2)the court erred in denying his motion to suppress statements he made to the police at the hospital,and (3)sufficient evidence does not support the convictions. We affirm. FACTS First Trial The State filed charges againstAbdirahman S.Sakawe in 2008 for robbery in the second degree of Chuan-Wen "Andre"Chuang and attempted robbery in the second degree and assault in the second degree of Ka "Charles"Chen. A jury convictedNo. 75991-4-1/2

Sakawe. We affirmed the convictions. State v. Sakawe, 150 Wn.App. 1045,2009 WL 1664930,at *3. Personal Restraint Petition Sakawe filed a personal restraint petition alleging ineffective assistance of counsel. We remanded for a reference hearing. In re Pers. Restraint of Sakawe, 168 Wn.App. 1028,2012 WL 1980895,at *1. The trial courtfound Sakawe "would have pled guilty if he had been properly advised regarding immigration matters." Sakawe, 2012 WL 1980895,at *2. Because the failure to advise a defendant of" 'available options and possible consequences constitutes ineffective assistance of counsel,'"we granted the petition and remanded for a new trial. Sakawe, 2012WL 1980895,at *2-*3 (quoting In re Pers. Restraint of McCready, 100Wn.App.259,263,996 P.2d 658 (2000)). Second Trial On remand,the State was unable to present the hotel lobby surveillance video footage to the jury. The trial court overruled the defense objection to calling the prosecutor from the first trial to testify about the video. The defense did not object to the police officer testimony. The prosecutor and police officers testified about whatthey

saw on the hotel surveillance video. The jury convicted Sakawe. On appeal,we held the trial court abused its discretion by allowing the prosecuting attorney from the first trial to testify about the hotel lobby video. We reversed and remanded for a new trial. State v. Sakawe, No.70563-6-1,slip op.at 15(Wash.Ct.App. Nov. 30,2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/705636.pdf.

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Third Trial On remand,Sakawe waived his right to a jury trial. Charles and a number of police officers testified. Because Andre and Garden Suites Hotel employee Catherine Wood were unavailable to testify, the State moved to admit their testimony from the previous trials. The defense objected to admitting the in-court identification testimony of Wood. The court overruled the objection and admitted the testimony. The evidence showed that on the evening of November 22,2007,two Taiwanese exchange students, Chuan-Wen "Andre"Chuang and Ka "Charles"Chen,were waiting at a bus stop when a group of approximately 10 young black males surrounded them and asked for a cigarette and the time. Andre and Charles had no cigarettes butAndre removed his cell phone from his pocket to check the time. One ofthe men "snatched" the phone away from him. Meanwhile,a black male wearing a red hat grabbed Charles by the throat. When Andre tried to intervene and stop the man,another black male grabbed Andre by the throat, punched him twice in the face,and then demanded• money. Andre and Charles managed to escape and ran to the Garden Suites Hotel where Andre lived. Garden Suites Hotel employee Catherine Wood was working at the front desk. When Andre and Charles ran into the hotel lobby, Charles threw his phone to Wood for safekeeping. Two men followed Charles and Andre inside the hotel. One ofthe men was the black male wearing a red hat who grabbed Charles by the throat at the bus stop. The other black male was wearing a white hooded sweatshirt. The man in the red hatfollowed Charles and Andre into the lobby while the man in the white hooded sweatshirt remained atthe hotel entry. The man in the red hat punched Andre

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in the face,knocking off his glasses. The man unsuccessfully tried to jump over the front counter to grab the phone from Wood. The man then confronted Charles and put him in a headlock. After Wood yelled at the man in the red hat to leave, both men fled. Des Moines Police Officer Eddie Ochart, Officer Randy Gallagher,and Officer David Shields responded to the 911 call. The officers viewed the hotel lobby surveillance video. The officers who viewed the hotel lobby surveillance footage testified aboutwhat the video showed. The defense did not objectto the police officer testimony. The surveillance video showed a man entering the hotel lobby after Charles and Andre ran inside. The man wore a black and red hooded sweatshirt, a red and black hat,and dark pants. Another man wearing a white hooded sweatshirt entered the lobby but remained by the entrance. While at the hotel,the police learned that a group ofabout 10 young men had gathered within walking distance ofthe hotel. Officer Gallagher left. Officer Gallagher immediately recognized the young man in the white hooded sweatshirtfrom the surveillance video. The man in the white hooded sweatshirt was standing with another black male in dark clothing. Officer Gallagher identified the man in the white sweatshirt

as Mahad Warsame and the other black male as Shirwa Muse. Officer Ochartfound a cell phone with "Asian characters"on it in Muse's pocket. Andre confirmed the cell phone was the phone that was stolen from him at the bus stop. The officers arrested Muse. Muse slipped out of his handcuffs and ran away. The officers called in a K-9 unit to track Muse. Auburn Police Department Officer Daniel O'Neil and police canine Ronin arrived at about 12:05 a.m. The dog ran into a wooded area and located and bit a young black

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male who was later identified asAbdirahman S.Sakawe. Sakawe was "wearing a red and black sweatshirt and black jeans." Sakawe told Officer Shields that he was homeless and spent nights in the woods. But the officers did notfind any bedding or sleeping gear and it was between 30 and 40 degrees outside that evening. The officers called medics. The medics drove Sakawe to Highline Medical Center to treat the dog bite injury. Ronin and Officer O'Neil tracked Muse to an apartment building. Officer O'Neil then went to Highline hospital to document the dog bite injury. Sakawe told Officer O'Neil he was 17 years old and lived in Burien. Sakawe said he was in Des Moines that day "hanging out with his friend 'Shirwa.'" The courtfound Sakawe guilty as charged of robbery in the second degree, attempted robbery in the second degree,and assault in the second degree. The court entered extensive written findings offact and conclusions of law. ANALYSIS Sakawe seeks reversal, arguing (1)the court violated his right to due process by admitting Wood's in-court identification testimony,(2)the court erred in admitting statements he made to the police at the hospital, and (3)insufficient evidence supports the conviction. 1) In-Court Identification Sakawe contends the admission ofWood's in-court identification testimony violated the federal due process clause. U.S.CONST.amend.XIV. Sakawe asserts the in-court identification was unnecessarily suggestive and unreliable.

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Before trial, Sakawe filed a motion to suppress admission ofthe testimony of Wood from the previous trials as "improper,suggestive in-court identification." Sakawe cited Neil v. Bigqers, 409 U.S. 188,93 S.Ct. 375,34 L. Ed. 2d 401 (1972),and Manson

v. Brathwaite, 432 U.S.98,97 S.Ct. 2243,53 L. Ed.2d 140 (1977). The court denied the motion to suppress the testimony. The court ruled Biggers and Brathwaite did not apply because the in-court identification was not procured or arranged by law enforcement. Those cases that gave rise to the law that defense would have applied here would not necessarily apply to this fact pattern. I think that the idea is that law enforcement, police and others have to be held in check,and when they do something that improperly suggests that a person is the defendant,then there is the potential ofa due process violation. The court noted the extensive defense cross-examination ofWood in the previous two trials and ruled that "where the police are not involved,"the court would determine credibility and the weight to give to the evidence. In the first trial, Wood testified that she was working as a desk clerk atthe Garden Suites Hotel at around 11:00 p.m.on November 22,2007 when two "young Asian boys"ran into the lobby followed by two young black males. One ofthe Asian

men "threw" her his cell phone. One ofthe young black men "swung at the one Asian kid,Andre,and knocked his glasses off of his face." After Wood yelled, "'Get out of here,' "the other black male said,"'Let's get out of here'"and "pulled"the first black male out ofthe building. Wood described the clothing ofthe two men. Wood said the young black male who swung atAndre and knocked off his glasses was "wearing red"and the other black

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male was "wearing white": He was,um,young and not sure if he was wearing, like — when I called the 911,or when I talked to them, I think I said that one ofthem was wearing white and one ofthem was wearing red, but I don't really recall. I think that the kid that was inside the building first was wearing red. . . . And,um,he was a black young man,and that's about all I could tell you." Wood described the man "wearing white"as "a black young man,as well." At the second trial in June 2013,Wood testified that the black male who assaulted Andre was wearing a black and red "hoodie." Q. Can you describe that person,that third person who came in? A. No, I couldn't describe him much atthat time,other than him being a black male. Q. Do you remember what he was wearing? A. He was wearing a black and red hoodie. Q. Can you describe any more for the jury what you mean by a black and red hoodie in terms ofwhy was it black and red or? A. I don't— I don't recall. Q. Do you remember anything about that black male who came through the door,the third man,in terms of his size in comparison to Andre? A. They seemed similar in size. Q. Both height and weight or was one — A. I really — I really don't know. Wood testified that the other man who entered the lobby was "a black male and he was maybe slightly taller," and he was "wearing a black and white type hoodie." Wood said that when she testified in the first trial, she "recognized" Sakawe. Q. Did you testify at a prior proceeding related to this incident? A. Yes, !did. Q. Was that back in 2008? A. Yes. Q. Was that here at the [Maleng Regional Justice Center]? A. Yes. Q. When you were in courtfor that proceeding,did you recognize someone in the courtroom? A. Yes, I did. Q. Was it your understanding that person was the defendant? A. Yes.

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Q. Did you recognize that person,the defendant in the courtroom when you testified before? A. Yes, I did. Q. And who did you recognize that person as being? A. It was the first black male that came into the building. Q. So I just want to make sure I'm clear, so when you testified before, you recognized the defendant as being the person from the lobby; is that — do I understand that correctly? A. Correct. Q. All right.

How did you recognize him or what did you recognize? A. I just recognized his face. Sakawe contends the court violated his right to due process by not considering the factors under Biggers and overruling his objection to Wood's previous in-court identification testimony from the second trial. Sakawe asserts the testimony was unreliable and the result of an unnecessarily suggestive procedure. In Biggers, the Court identified the factors the court should consider in determining whether the due process clause requires the suppression of eyewitness identification procured by law enforcement using unnecessarily suggestive circumstances. Biggers, 409 U.S.at 199-200. The Court in Biggers identifies the following factors to determine the reliability ofthe identification: [T]he opportunity ofthe witness to view the criminal atthe time ofthe crime,the witness'degree of attention,the accuracy ofthe witness'prior description ofthe criminal,the level of certainty demonstrated by the witness at the confrontation,and the length oftime between the crime and the confrontation. Biggers, 409 U.S.at 199-200. In Perry v. New Hampshire, 565 U.S. 228,240, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012),the Supreme Court rejected the contention that judges mustdetermine the reliability ofeyewitness evidence "any time an identification is made under suggestive circumstances." The Court emphasized that "due process concerns arise only when

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law enforcement officers use an identification procedure that is both suggestive and unnecessary." Perry, 565 U.S. at 238-39. Quoting Biggers, the Court states the due process clause "requires courts to assess,on a case-by

-case basis,whether improper police conduct created a 'substantial likelihood of misidentification.'" Perry, 565 U.S. at 239 (quoting Biggers, 409 U.S. at 201). Quoting Brathwaite, the Court states: "[R]eliability [ofthe eyewitness identification] is the linchpin"ofthat evaluation . . . .Where the "indicators of[a witness']ability to make an accurate identification" are "outweighed by the corrupting effect"of law enforcement suggestion,the identification should be suppressed. Perry, 565 U.S.at 2391 (quoting Brathwaite, 432 U.S.at 114, 116). Otherwise,the admissible evidence should be submitted to the jury. Perry, 565 U.S.at 239 (citing Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199-200). The Court held that the rationale underlying Biggers and Brathwaite does not support "a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances." Perry, 565 U.S.at 240.

Perry's argumentdepends,in large part, on the Court's statement in Brathwaite that "reliability is the linchpin in determining the admissibility of identification testimony." If reliability is the linchpin of admissibility under the Due Process Clause,Perry maintains, it should make no difference whether law enforcementwas responsible for creating the suggestive circumstances that marred the identification. Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear.. . .[T]he Brathwaite Court's reference to reliability appears in a portion ofthe opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the

1 Alterations in original. 9No.75991-4-1/10

defendant establishes improper police conduct. The very purpose ofthe check,the Court noted,was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct. Perry, 565 U.S. at 24041.2 The Court acknowledged,"Most eyewitness identifications involve some element of suggestion. Indeed,all in-court identifications do." Perry, 565 U.S.at 244. The Court also acknowledged the concerns surrounding eyewitness testimony,stating that "'the annals of criminal law are rife with instances of mistaken identification.'" Perry, 565 U.S. at 245 (quoting United States v. Wade, 388 U.S. 218,228,87 S.Ct. 1926, 18 L. Ed. 2d 1149 (1967)). But the Court concludes the "potential unreliability ofa type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair." Perry, 565 U.S. at 245. The Court held the constitution "protects a defendant against a conviction based

on evidence of questionable reliability, not by prohibiting introduction ofthe evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit." Perry, 565 U.S. at 237. "Only when evidence 'is so extremely unfair that its admission violates fundamental conceptions ofjustice,' have we imposed a constraint tied to the Due Process Clause." Perry, 565 U.S.at 2373 (quoting Dowling v. United States, 493 U.S. 342,352, 110 S.Ct. 668, 107 L. Ed. 2d 708 (1990)). The Court emphasized there are "other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability." Perry 565 U.S. at 245. Such safeguards include the defendant's right to confront the eyewitness,the defendant's right to effective assistance of an attorney,

2 Emphasis in original; citation omitted. 3 Citation omitted. 10No. 75991-4-1/11

eyewitness-specific jury instructions,the requirement that the State prove the defendant's guilt beyond a reasonable doubt,the rules of evidence,and expert testimony on the hazards of eyewitness identification evidence. Perry, 565 U.S.at 245- 47. The Court concluded,"[T]tle Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification

was not procured under unnecessarily suggestive circumstances arranged by law enforcement." Perry, 565 U.S.at 248;see also Boyer v. Chappell, 793 F.3d 1092, 1100 (9th Cir. 2015)(Under Perry, a preliminary reliability analysis is not required unless the identification is procured by law enforcement.). We conclude the courtdid not err or violate federal due process rights by admitting Wood's previous in-court identification testimony. The record shows the safeguards ofthe adversary system protected against placing undue weight on Wood's in-court eyewitness testimony. When asked on cross-examination atthe first trial what the man wearing red "looked like,"Wood admitted,"I really didn't get a lot offacial .. . . I just got, like, a side profile ofthe gentleman." Wood testified, "I didn't identify anybody. I saw — they brought nobody to me to identify." Defense counsel 

### cross-examined Wood extensively in the second trial to highlight the unreliability of her testimony that she recognized Sakawe atthe first trial. For example,defense counsel questions show how little Wood remembered: Q. . . .And the first person,the first black person who came into the lobby,describe them for me again? A. I can't really describe him to you. He is black. Q. Okay. All right. And whatwas he wearing? A. Asfar as I know it was a black and red hoodie.

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Q. When you say black and red,was it — do you remember which parts were black and which parts were red? A. No, I don't recall. Q. Okay. All right.

Do you remember if the hood was up or down? A. It was down. Q. Down?

Was he wearing anything else that you remember? A. I don't remember. Q. Did you get a look at his hairstyle? A. No. Q. Okay. Was there anything that prevented you from seeing his hairstyle or? A. No. Q. All right. You just don't remember? A. Correct. And defense counsel drew attention to Wood's failure to recognize Sakawe atthe first trial: Q. . . .And during that prior testimony you did not identify the person in the courtroom,correct? A. Correct. Q. And do you remember how long you were in the courtroom for your testimony? A. I don't really recall. Q. Was it a similar set up to what we have today, in terms ofthe layout of the room? A. Yes,similar. Q. Okay,and so the person that you saw in the courtroom that you indicated you recognized,was he the only black male in the room? A. 1 don't know. Q. Okay. And you were more or less face-to-face with him [the]entire time that you were testifying? A. Yes. During closing argument in the third trial, Sakawe's attorney again emphasized the inconsistencies in Wood's testimony and the limited details Wood gave aboutthe identification ofthe person who committed the crimes. Defense counsel argued Wood's

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"ability to recall and remember is very suspicious,"and the identification "is simply too tenuous"to prove Sakawe was guilty ofthe crimes beyond a reasonable doubt. Sakawe also argues article 1, section 3ofthe Washington Constitution provides greater protection against suggestive in-court identification than the Fourteenth Amendment to the United States Constitution. We reject the State's argument that Sakawe did not preserve this argument under RAP 2.5(a). The motion to suppress the in-court identification cites both the Fourteenth Amendmentand article 1, section 3. Even if article I, section 3of the Washington State Constitution provides greater protection than the federal constitution, any error in admitting the in-court identification testimony ofWood was harmless. Under a harmless error analysis,the State must show "beyond a reasonable doubtthat the error complained ofdid not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18,22-24,87 S.Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Jasper, 174 Wn.2d 96, 117,271 P.3d 876 (2012). Although the court refers to Wood's testimony,the record establishes the trial court did not rely on Wood's in-court identification testimony in finding Sakawe guilty beyond a reasonable doubt. The defense did not object to police officer testimony describing the hotel lobby surveillance video. The police officer testimony established the surveillance video showed a black man wearing a red hat and black and red clothing enter the hotel lobby and confrontAndre and Charles. The courtfound the testimony of Andre credible because he was able to identify the man in the red hat as the one who grabbed Charles'throat, he was able to distinguish the man in the red hatfrom other members of the group,and the surveillance video and testimony ofthe other witnesses corroborated his description of events. The courtfound the testimony of Charles

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credible and that the testimony ofthe other witnesses and the surveillance video corroborated his testimony.4 The courtfound the evidence established the clothes Sakawe was wearing matched the description ofthe assailant in the hotel lobby surveillance video. The court noted Sakawe was located in the area where Muse fled and found Sakawe's inconsistent explanations for why he was in the area not credible. After the oral ruling that Sakawe was guilty beyond a reasonable doubt ofthe crimes charged,the prosecutor asked the court about "any findings with respect to. . . the identification by Ms.Wood in the courtroom prior." The court responded,"[A]lthough that testimony would support the court's findings, . . . I deliberately did not make any reference to any identification." Because the record shows the court explicitly did not rely on Wood's in-court identification and substantial evidence supports the findings of guilt beyond a reasonable doubt,we conclude any error in admitting the in-court identification testimony from the previous trials did not contribute to the verdict and was harmless. 2) Statements at the Hospital Sakawe contends the court erred by admitting the statements he made to Officer O'Neil at the hospital. Sakawe asserts he was subjectto custodial interrogation and Officer O'Neil did not advise him of his Miranda5 rights. Under the Fifth Amendmentto the United States Constitution, "[n]o person shall be.. .compelled in any criminal case

4 The written findings offact and conclusions of law also state: Wood's testimony was credible as her description of events was corroborated by both the other witnesses'descriptions ofwhatwas shown on the surveillance video and by the testimony ofAndre and Charles. In addition, Wood's testimony was credible because the fact that only two people followed Andre and Charles into the hotel's lobby made identification easier. 5 Miranda v. Arizona, 384 U.S.436,86 S.Ct. 1602, 16 L. Ed.2d 694 (1966). 14No. 75991-4-1/15

to be a witness against himself." A defendant must be warned of his right to remain silent and his right to the presence ofan attorney before a custodial interrogation. Miranda v. Arizona, 384 U.S.436,444,86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). In In re Gault, 387 U.S. 1, 55,87S.Ct. 1428, 18 L. Ed. 2d 527(1967),the United States Supreme Court held the constitutional privilege against self-incrimination under Miranda applies with equal force to juveniles. We review de novo a court's determination ofwhether the suspect was in custody. State v. Lorenz, 152Wn.2d 22, 36,93 P.3d 133(2004). We examine the totality ofthe circumstances in analyzing whether a suspect was in custody. State v. Rosas-Miranda, 176 Wn.App.773,779,309 P.3d 728 (2013). The "critical inquiry" is "not the psychological state ofthe defendant, but simply whether his freedom of movementwas restricted." State v. Sargent, 111 Wn.2d 641,649,762 P.2d 1127 (1988). We use an objective test to determine custody and "whether a reasonable person in a suspect's position would have felt that his or herfreedom was curtailed to the degree associated with a formal arrest." State v. Heritage, 152 Wn.2d 210,218,95 P.3d 345 (2004); Berkemer v. McCarty, 468 U.S.420,440, 104 S.Ct. 3138,82 L. Ed. 2d 317 (1984). A suspect is not necessarily in custody when confined to a hospital room. In State v. Kelter, 71 Wn.2d 52,54,426 P.2d 500 (1967),the court held: [T]here was no compelling atmosphere of in-custody interrogation in the questioning ofthe defendant in his hospital room;and no competent evidence was offered to show that the defendant was not in full possession of his faculties atthis time; nor had the defendant been placed under arrest or otherwise restrained by the police in any manner.

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In J. D. B.v. North Carolina, 564 U.S.261,271-77,265, 131 S.Ct. 2394, 180 L. Ed. 2d 310 (2011),the Court held a "reasonable child" standard applies in analyzing whether a 13-year-old child was in custody. The Court held that "so long as the child's age was known to the officer atthe time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature ofthat test." J. D. B., 564 U.S.at 277. Sakawe contends a juvenile would reasonably believe he was in custody when the police questioned him at the hospital. The record shows that because the police dog attacked and injured Sakawe,police protocol required an officer to go to the hospital to documentthe dog bite injury. Officer O'Neil metwith Sakawe to document the circumstances ofthe injury "with photographs and an incident report"while Sakawe

was at the hospital waiting for treatment ofthe dog bite wound. The record shows Officer O'Neil knew Sakawe was 17 years old and planned to contact Sakawe's parent
or guardian about the police dog bite. Because the undisputed record shows Officer O'Neil was aware Sakawe was a juvenile, Sakawe was not a suspect, he was not under arrest or handcuffed,and the police did not prevent him from leaving the hospital,we conclude he was not subject to custodial interrogation. The trial court did not err in admitting Sakawe's statements made at the hospital. 3) Sufficiency of the Evidence Sakawe asserts sufficient evidence does not support the convictions for robbery in the second degree,attempted robbery in the second degree,and assault in the second degree because the State did not prove he was at the bus stop or in the hotel lobby.

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The State has the burden of proving the elements of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364,90 S.Ct. 1068,25 L. Ed.2d 368 (1970);State v. Borrero, 147Wn.2d 353, 364,58 P.3d 245 (2002). Under the Fourteenth Amendmentand the Sixth Amendment to the United States Constitution and article!, sections 21 and 22 ofthe Washington State Constitution,a criminal defendant is entitled to a "'determination that [he]is guilty ofevery element ofthe crime with which he is charged,beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S.466, 476-77, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000) 6 (quoting United States v. Gaudin, 515 U.S. 506,510, 115 S.Ct. 2310, 132 L. Ed. 2d 444 (1995)); State v. Polo, 169Wn. App.750,762-63,282 P.3d 1116 (2012);State v. Johnson, 185 Wn.App.655,666,342 P.3d 338 (2015). In reviewing a challenge to the sufficiency ofthe evidence,we view the evidence in the light mostfavorable to the State to determine whether any rational trier offact 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, 119 Wn.2d 192,201,829 P.2d 1068 (1992). A challenge to the sufficiency ofthe evidence admits the truth ofthe evidence. Witherspoon, 180 Wn.2d at 883. Circumstantial evidence and direct evidence are equally reliable. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). "[A]lI reasonable inferencesfrom the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201. We defer to the trier offact on "issues ofwitness credibility." Witherspoon, 180 Wn.2d at 883.

6 Alteration in original. 17No. 75991-4-1/18

RCW 9A.56.190 defines "robbery"asfollows: A person commits robbery when he or she unlawfully takes personal property from the person ofanother or in his or her presence against his or her will by the use or threatened use of immediate force,violence,or fear of injury to that person or his or her property or the person or property ofanyone. Such force orfear must be used to obtain or retain possession ofthe property,or to prevent or overcome resistance to the taking; in either ofwhich cases the degree offorce is immaterial. Such taking constitutes robbery whenever it appears that,although the taking was fully completed without the knowledge ofthe person from whom taken,such knowledge was prevented by the use offorce or fear.rn "A person is guilty of robbery in the second degree if he or she commits robbery." RCW 9A.56.210(1). Robbery in the second degree is a class B felony. RCW 9A.56.210(2). A person is guilty ofattempted robbery in the second degree when "with intent to commit" robbery," he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). A person commits assault in the second degree if he or she,"[w]ith intent to commit a felony, assaults another." RCW 9A.36.021(1)(e). Andre testified that while standing at a bus stop with Charles,a group of "[a]lmost ten"young black males "surrounded"them. "And then all ofa sudden,1 saw a black guy grabbing Charles'throat." Andre testified that the man who grabbed Charles'throat was wearing a red hat. Andre heard the man tell Charles to hand over his cell phone. Andre testified that when he tried to intervene,another black male grabbed his throat and punched him in the face twice, and "another black guy"took his phone. Andre said two ofthe black males chased after them,including "the one in the red hat"who was "grabbing Charles'throat" atthe bus stop. The man in the red hat

7 We note the legislature amended chapter 9A.56 RCW in 2011 to add gender -neutral language throughoutthe chapter. LAWSOF 2011,ch. 336. Because no other changes were made to the relevant robbery statutes quoted in this opinion,we cite the current statutes. 18No.75991-4-1/19

followed Andre and Charles into the Garden Suites Hotel. After the man in the red hat "attempted to jump over the counter to grab the cell phone,"the man punched Andre in the face. Officer Shields testified that when he responded to the Garden Suites Hotel,the left side ofAndre's face was red and "consistent with"a punch to the face. Officer Gallagher testified that the surveillance video showed the man who entered the hotel lobby after Charles and Andre was wearing a "black and red top," a "Ned and black hat,"and "dark pants." Officer Gallagher said the man in the red hat and one ofthe victims had "a brief struggle over something." Officer Gallagher testified there was "kind of a headlock"as the man in the red hat was "grabbing at something." Officer Ochart testified that the surveillance footage showed the man who entered the hotel lobby was
a "dark skinned male"who was wearing "red and black." Officer Ochart testified that this man was the one "causing the confrontation in the lobby." Officer Ochart said the video showed the man in red and black "either strike or swing at the Asian male"and at

some point,the man put the other Asian male in a "headlock type move." The hotel video also showed a black man wearing a white hooded sweatshirt enter the lobby for a "short amount oftime." Officer Gallagher testified thatthe man in the white hooded sweatshirt was "holding the door open"for the man in the red hat. Officer Gallagher testified that when he responded to the call about a group nearby, he immediately recognized the man wearing the white hooded sweatshirtfrom the hotel video. The man was standing with Shirwa Muse. Muse had a cell phone in his pocket thatdisplayed "Korean characters." Andre confirmed the cell phone was his.

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When Officer O'Neil found Sakawe in the wooded area,Sakawe was wearing "a black and red hoodie and black jeans." Sakawe had an "abrasion on his face"that looked "fresh." Sakawe first said that he was homeless and sleeping in the wooded

area. But Officer O'Neil testified that it was a cold winter night and there was nothing to corroborate Sakawe was sleeping in the wooded area. When Officer O'Neil later spoke to Sakawe at the hospital, Sakawe said he "lived in Burien"and "was in Des Moines hanging out with his friends,"specifically, his friend "Shirwa." Substantial evidence supports the court's findings offact and the findings support the conclusion that Sakawe committed robbery in the second degree,attempted robbery in the second degree,and assault in the second degree. We affirm.

WE CONCUR:

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