IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 69812-5- c=> -ic: Respondent, DIVISION ONE :? -Si'. v. to KEVIN STEWART CLARDY, JR. UNPUBLISHED OPINION >c rt-3? o Appellant. FILED: April 21, 2014 Lau, J. — Kevin Clardy challenges his convictions for first degree robbery, first degree burglary, first degree assault, first degree unlawful possession of a firearm, and drive-by shooting. He contends the prosecutor committed misconduct in closing remarks and also contends the jury instructions erroneously defined the term "reckless or acts recklessly." He raises additional issues in his pro se statement of additional grounds (SAG). Finding no error, we affirm. FACTS The State initially charged Kevin Clardy with first degree robbery, first degree burglary, and first degree assault, all of which the State alleged were committed while armed with a firearm. Codefendants Tia Lyn Eaton, Amani Catrice Sorrell, Josiah M. 69812-5-1/2 Rashid, and Doresida C. Castro were charged in the same information.^[1] The State later filed a third amended information charging Clardy with first degree robbery (count I), first degree burglary (count II), first degree assault (count III), first degree unlawful possession of a firearm (count IV), and drive-by shooting (count V). The State alleged Clardy committed the crimes in counts I, II, and III while armed with a firearm. The parties agree on the background substantive facts. See Resp't's Br. at 3. The charges arose from the robbery of Anthony Dao and Danielle Wright in early March 2011. Both Dao and Wright were home at the time, as were Dao's 7-year old son, BD, and the couple's infant daughter, MD. According to Dao, a woman rang his doorbell late in the evening on March 8, 2011. The woman claimed she was BD's aunt and that she was there to pick up BD for his mother, who was Dao's former girl friend. She insisted that Dao open the door. Dao told the woman to come back the next day, but at her insistence, he eventually opened the front door but kept the storm door closed and locked. Upon opening the front door, he saw a black man with a shotgun outside. The man immediately attempted to break into Dao's home. Dao closed the door and yelled for Wright, who was upstairs, to call the police. Dao then saw the man and woman run around to the back of his home and shove the barrel of the gun through a back window. Dao ran out his front door to his neighbors' house to ask them to call 911. As he was leaving, he heard more glass breaking, which turned out to be a sliding glass door at the back of the house.

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After alerting his neighbors, Dao returned to his home and entered the front door. He found no one inside, but he could see three or four people running away from the back of the house. He grabbed a large knife and chased them on foot. The robbers ran through Dao's backyard and into an adjacent neighborhood. They taunted Dao as they ran away and fired the shotgun at him once. Dao abandoned his foot chase and pursued the robbers in his minivan. He drove around the surrounding area and stopped next to a red sedan at a stoplight. He saw four people in the car—two men in the back seat and two women in the front seats. According to Dao, one of the women was the one he first encountered at his front door and one of the men was the one with the shotgun at his house. When the light turned green, the red car sped away and Dao followed. The man with the shotgun fired at Dao three or four times as they drove along, and Dao could hear shotgun pellets hitting his minivan. Dao also claimed that at one point the red car stopped and the man with the shotgun stepped out of the car and fired at him two or three times from a distance of 30 to 60 feet. The man then picked up the spent shotgun pellets and returned to the red car, which sped away again. Dao kept following in his minivan. About 10 or 15 minutes into the chase, Dao saw a law enforcement officer engaged in an unrelated traffic stop. Dao pulled up to the officer and told him he had just been robbed and needed assistance. He then sped off again in pursuit of the red car. About 5 to 10 minutes later he saw items taken from his home strewn on the roadway. He then saw the unoccupied red car, which had crashed into a guardrail. An officer arrived at the scene and directed Dao to park his car and wait for assistance.

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Wright recalled that when she heard Dao open the door late on March 8, she saw a woman outside. She heard a sudden bang on the front door and then heard Dao yell, "Run, babe. They got guns." RP (Nov. 8, 2012) at 471. Wright immediately ran to the master bedroom, retrieved MD and a cell phone, and went to DB's bedroom. As she passed the stairs on the way to BD's bedroom she saw at least two black men, one larger than the other, and possibly another person coming up the stairs toward her. One of the men had a gun. Wright ducked into BD's room, put MD on the floor, and lay on top of MD to protect her. Wright recalled that at least two of the robbers entered BD's room. One started hitting her hard in the back with what she thought was a large gun, and another held a gun to her head, demanded money, and threatened to kill her. Wright also heard someone rummaging through the rest of the house. After 30 or 40 seconds, the robbers left Wright and went to the master bedroom. Moments later, Wright saw the two men and a woman run downstairs with one of the men carrying Dao's briefcase. Wright heard the robbers leave the house through the back door. Early in the morning on March 9, police arrested five suspects in an abandoned quarry near where the red car had crashed. The suspects were two black men, including Clardy, and three women. Police recovered two guns—a shotgun and a handgun—in the underbrush near the crash site. In the red car, they found both live and spent shotgun shells, a handgun case, and a rifle case. Strewn on the roadway near the crash site were a broken briefcase and various papers and documents, some of them bearing Dao's name. None of the male DNA (deoxyribonucleic acid) recovered 69812-5-1/5 from the handgun, shotgun, and shotgun shells was conclusively linked to any of the suspects. No fingerprint evidence was presented at trial. Dao identified Clardy for the first time at trial as the man he thought was wielding the shotgun during the robbery. Dao admitted he only got a glimpse of the man at his front door and further acknowledged that the man he saw with the shotgun in the back of the red car was "possibly" the same man he had seen at his front door. RP (Oct. 31, 2012) at 334. He eventually acknowledged he was "not sure" it was Clardy in the back seat of the red car when they were stopped at the stoplight. RP (Oct. 31, 2012) at 403. Like Dao, Wright claimed at trial that Clardy was the man with the shotgun.^[2] During closing argument, the prosecutor discussed the "to convict" instructions and explained that they described the elements of each charged crime. The prosecutor continued: To put it in less legal terms, it gives you a set, a list, a checklist of things you need to consider and make a decision on. If you decide all of them one way, the Defendant's guilty; if you decide all of them another way, he's not guilty; if you can't decide or you reach different conclusions on different elements, then you can't render a verdict. RP (Nov. 20, 2012) at 1200. Defense counsel objected, claiming this was a misstatement of the law. The court replied, "Excuse me a moment. Overruled." RP (Nov. 20, 2012) at 1200. During the defense's closing remarks, defense counsel did not contest that Dao and Wright were victims of a violent robbery, but argued that the State failed to prove Clardy was involved, noting that no one identified Clardy as one of the robbers prior to 69812-5-1/8 69812-5-1/9 69812-5-1/10 69812-5-1/11 69812-5-1/12 69812-5-1/13 69812-5-1/14

enhancements were inappropriate for crimes in which use of a firearm is an element of the offense. It merely held that a firearm enhancement must be alleged and authorized by the jury in the form of a special verdict: For purposes of sentence enhancement, the sentencing court is bound by special verdict findings, regardless of the findings implicit in the underlying guilty verdict. Where a firearm is used in the commission of a crime, the only way to determine which enhancement is authorized is to look at the jury's special findings. A sentence enhancement must not only be alleged, it also must be authorized by the jury in the form of a special verdict. Williams-Walker. 167 Wn.2d at 900. Here, the jury found by special verdict that Clardy was "armed with a firearm" at the time he committed first degree assault, first degree burglary, and first degree robbery. CP 263-65, 297. The trial court properly imposed the firearm enhancements. Clardy also contends that his first degree assault and drive-by shooting convictions constitute double jeopardy. Both the United States and Washington State Constitutions protect persons from being twice put in jeopardy for the same offense. State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010); U.S. CONST. AMEND. V; CONST. ART. I, § 9. This includes "being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense." State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006) (citing State v. Graham, 153 Wn.2d 400, 404, 103 P.3d 1238 (2005)). However, the State may bring multiple charges arising from the same criminal conduct in a single proceeding without offending double jeopardy. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005). Our Supreme Court has consistently rejected the notion that "offenses committed during a 'single transaction' 69812-5-1/15

are necessarily the 'same offense'" for purposes of double jeopardy. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983). Because double jeopardy is a question of law, our review is de novo. Freeman, 153 Wn.2d at 770. Our courts employ a three-part framework for double jeopardy analysis. Freeman, 153 Wn.2d at 771-73. First, if there is clear express or implicit legislative intent to punish the crimes separately, then we look no further. Freeman, 153 Wn.2d at 771-72. Ifthe legislative intent is unclear, we turn to the "same evidence" test which asks if the crimes are the same in law and in fact.6 State v. Calle, 125 Wn.2d 769, 777- 78, 888 P.2d 155 (1995). Third, if applicable, the merger doctrine may help determine legislative intent. Vladovic, 99 Wn.2d at 419. Even if the two offenses appear to be the same, when each one has an independent purpose or effect, then the two offenses may be punished separately. Freeman, 153 Wn.2d at 773. Clardy asserts that the offenses of first degree assault and drive-by shooting are "covered under the same statu[t]e." SAG at 16. We presume he argues the offenses are legally identical. We evaluate the two crimes under the same evidence test, which considers "whether each provision requires proof of a fact which the other does not." Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). "If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes." Freeman, 153 Wn.2d at 772. Offenses are not the same in fact and law if there is an element in each offense that is 6Washington's "same evidence" test is sometimes referred to as the "same elements" test or "the Blockburger test." Freeman, 153 Wn.2d at 772 (citing Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).

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not included in the other and proof of one offense would not necessarily also prove the other. Calle. 125 Wn.2d at 777; Vladovic, 99 Wn.2d at 423. We view the elements "as charged and proved," not in the abstract. Freeman, 153 Wn.2d at 777. As charged in this case, drive-by shooting and first degree assault each contain a statutory element that is absent from the others. See RCW 9A.36.011 ("A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm .. . [a]ssaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death."); RCW 9A.36.045(1) ("A person is guilty of drive-by shooting when he or she recklessly discharges a firearm ... in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle . . . ."). However, comparison of the statutory elements at an abstract level does not end the analysis. In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291 (2004); State v. Nvsta, 168 Wn. App. 30, 46-47, 275 P.3d 1162 (2012), review denied, 177 Wn.2d 1008 (2013). We must look at the statutory elements and the facts used to prove those elements to determine whether each offense required "proof of a fact which the other d[id] not." Blockburger. 284 U.S. at 304. As the offenses were charged and proved in this case, evidence that Clardy fired a gun was required to prove both his convictions for drive-by shooting and first degree assault. But each offense also required proof of a fact that the other did not. With respect to first degree assault, the State was required to prove that Clardy's shooting was directed at Dao with the intent to inflict great bodily harm. To prove drive-by shooting, the State was required to prove 69812-5-1/17

that Clardy discharged a weapon from a vehicle or in proximity to a vehicle in a manner that created a substantial risk of death or serious injury to another person. This is not a case where evidence of a single act was required to prove multiple offenses and was the sole available evidence to prove those charges. The evidence that Clardy fired one bullet at Dao was all that was required to prove first degree assault. This evidence was available, but not required, to support the drive-by shooting conviction. That conviction was also established by evidence that Clardy fired several more times at Dao from the car in which Clardy was a passenger. In sum, first degree assault and drive-by shooting were not the same offenses. It follows that the two convictions did not violate the prohibition against double jeopardy. Clardy also challenges specific items of evidence admitted at trial. He contests "the presentation of a sweat shirt that was not covered under CrR 4.7 and no one had any record (or) knowledge of how it showed up in the evidence locker." SAG at 19. He argues the sweat shirt evidence was "contaminated" because "[t]here was no control of the contents of the locker." SAG at 24, 25. He also claims "DNA .. . was presented to jurors for no other reason but confusion." SAG at 19. We find no support for these assertions in the record. Clardy also argues that insufficient evidence supports his convictions. Evidence is sufficient if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficient evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992).

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Circumstantial evidence is as probative as direct evidence. State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992). Clardy bases his sufficiency challenge on conflicting witness testimony and also claims that identification evidence was unreliable. He essentially contests witness credibility and evidence persuasiveness at trial. We defer to the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Given the fact finder's opportunity to assess witness demeanor and credibility, we will not disturb those findings. See State v. Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006). Viewing the evidence in the light most favorable to the State, we conclude a rational jury could have found Clardy guilty of the charged crimes beyond a reasonable doubt. Finally, Clardy contends the record of proceedings from November 21, 2012 (the in-court presentation of the verdicts) is missing from the appellate record. We received the transcript from these proceedings and reviewed the complete record in deciding this appeal. CONCLUSION We affirm Clardy's convictions. WE CONCUR: 2w2 JS-&e