“Direct evidence is not required to uphold a jury’s verdict; circumstantial evidence can be sufficient.”
How later courts described this case
- “Direct evidence is not required to uphold a jury’s verdict; circumstantial evidence can be sufficient.”
- explaining that RAP 2.5(a)(3) “does not help a defendant when the asserted constitutional error is harmless beyond a reasonable doubt”
- holding that a jury must unanimously agree “that the criminal act charged in the information has been committed”
Written by the judges who cited it.
The opinion
Filed
Washington State
Court of Appeals
Division Two
October 21, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59578-8-II
Appellant,
v.
UNPUBLISHED OPINION
TREYVONE JAHEIM ISHAQ,
Respondent.
VELJACIC, J. — Late in the night on December 13, 2021, Treyvone Ishaq pulled up to his
ex-girlfriend’s home and discharged a shotgun six times. Ishaq now challenges his conviction for
three counts of assault in the first degree, one count of drive-by shooting, and one count of unlawful
possession of a firearm. Ishaq raises several issues on appeal, all of which he maintains require
reversal or dismissal. First, Ishaq argues that the court erroneously admitted evidence that he had
previously carried a pistol in his waistband prior to the shooting, allowing the jury to rely on
impermissible character evidence. Second, Ishaq argues that there was insufficient evidence
supporting his conviction for the three counts of assault in the first degree. Third, he argues the
court erred in failing to provide an unanimity instruction1 regarding the assault charges, violating
1
An unanimity instruction is also referred to as a Petrich instruction. E.g., State v. Petrich, 101
Wn.2d 566, 569-70, 683 P.2d 173 (1984) (holding that a jury must unanimously agree “that the
criminal act charged in the information has been committed”), overruled on other grounds by State
v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated on other grounds by In re Pers.
Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014); State v. Aguilar, 27 Wn. App. 2d
905, 924, 534 P.3d 360 (2023).
59578-8-II
his right to a unanimous jury verdict. And fourth, he maintains that his conviction for unlawful
possession of a firearm in the second degree violates the Second Amendment to the United States
Constitution.
We conclude that: (1) the court did not erroneously admit evidence that Ishaq carried a
pistol in his waistband prior to the shooting; (2) sufficient evidence supports Ishaq’s convictions
for assault in the first degree; and (3) the remainder of Ishaq’s arguments were not preserved for
review. Accordingly, we affirm Ishaq’s convictions.
FACTS
I. BACKGROUND2
In 2021, Ishaq and Sandy Doherty were dating. At some point that year, Ishaq and Sandy
broke up, and Sandy moved in with her mother, Yun Doherty. Yun lived in Lakewood. Sandy’s
sister, Mary Hamilton, also lived at the residence along with her husband, Christopher Hamilton,
their four-year-old son, and six-month-old twins. Sandy moved into Yun’s home following her
break up with Ishaq. Sandy would “come and go” and stay with friends periodically. 3 Rep. of
Proc. (RP) at 278. Christopher, Mary, and Yun had all encountered Ishaq at least once throughout
the course of his relationship with Sandy and were all familiar with what Ishaq looked like.
II. THE THANKSGIVING ENCOUNTER
Mary, Chris, and their three children were in the living room of Yun’s home on
Thanksgiving, November 25. At some point that evening, someone rang the doorbell and
“bang[ed] on the [front] door.” 3 RP at 199. The door’s ring camera revealed that it was Ishaq.
Mary did not feel safe opening the door, so Christopher answered. Immediately, Christopher
2
Because several of the people involved in the incident share the same last name, we refer to them
by their first names. No disrespect is intended.
2
59578-8-II
noticed that Ishaq had a pistol in his waistband, causing Christopher concern. Ishaq asked where
Sandy was. Christopher explained that he did not know where Sandy was but said that she was
not home. Ishaq replied, “I know she’s in there.” 3 RP at 181. Christopher again stated that Sandy
was not home and encouraged Ishaq to check Sandy’s friend’s house. Ishaq said that he had already
checked Sandy’s friend’s house, and he left. The encounter lasted only a couple of minutes. At
no point did Ishaq make an overt threat toward Christopher.
III. THE SHOOTING
On the night of Monday, December 13, everyone was present at Yun’s home except for
Sandy. Three vehicles were parked in the driveway. Christopher and Mary had tucked their
children in for the night, and they proceeded to get into their bed. Christopher and Mary were
sleeping in their own bedroom and had begun to doze off. Yun had also gone to her room and was
lying in bed.
Around 11:00 p.m. to 12:00 a.m., Yun, Christopher, and Mary “heard a really loud bang.”
3 RP at 207. Yun immediately got out of bed and looked out her window, which faced the street.
There was a person standing in the middle of the road next to a running car.3 Shortly thereafter,
“[a] volley of shots . . . rang out, one after another.” 3 RP at 174. Christopher covered Mary in
their bed, and Mary “screamed about [their] babies.” 3 RP at 174.
After the shooting stopped, Yun ran to the living room to get a better view of the shooter;
it was Ishaq. Ishaq was standing behind the car with the door open. Terrified, Yun ran toward
Mary and Christopher’s room. The car drove off shortly after.
3
The shooting was captured by a security camera installed by Yun’s bedroom.
3
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Christopher and Mary ran toward the children’s room. The children were unharmed and
still asleep. Both Mary and Christopher could hear Yun screaming “Trey[vone] is shooting at us”
and “[Treyvone] shot at us; Treyvone shot at us.” 3 RP at 174, 209. In the living room, there was
broken “glass all over the floor.” 3 RP at 210. Mary called 911. Only a couple of minutes had
passed since the first shot.
Police arrived at the scene shortly after receiving the 911 call. Officers patrolling in the
area heard the gunshots and expected a call to come in. Upon arrival, officers investigated the
area. Officers found several shotgun casings and one unfired shotgun slug in the street facing
Yun’s home. Officer Kasey Bents, observed “that one of the vehicles in the driveway had five
holes [in] the side of [it].” 4 RP at 328. Officer Jared Pingul noted that there was a “large hole in
the” living room window. 4 RP at 328.
Pingul and Bents did basic interviews with Christopher and Mary and got written
statements.4 Upon further investigation, it was determined that shotgun slugs were used in the
shooting.5, 6 And one of the six discharged slugs penetrated the living room window and the
kitchen wall facing the street.7 The slug was closest to the children’s bedroom. Mary later found
a fragment of the slug—approximately the size of a quarter—in the children’s snack basket.
4
Pingul and Bents did not speak with Yun because there was a language barrier.
5
A slug is a type of ammunition used for shotguns when shooting at farther ranges. “A slug is a
single projectile, heavy, that makes one big hole.” 3 RP at 237-38.
6
Of the six shotgun shells recovered, Detective Darin Sale could not “produce any identifiable
ridges or fingerprints,” which is common “because the heat” caused by discharging a firearm
“usually destroys” any trace of fingerprints. 4 RP at 324.
7
The Lakewood Police Department did not call Forensic Services to the crime scene to perform a
trajectory analysis on any of the discharged slugs because, consistent with department policy, there
was no shooting victim.
4
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Officers determined that it was not safe to stay at Yun’s house, so Christopher, Mary, their
children, and Yun stayed at a hotel. Yun later identified Ishaq in a photo montage in a follow-up
interview.
IV. ISHAQ’S ARREST
Detective Karen Latimer obtained a search warrant to review cell tower records for a phone
number associated with Ishaq. All records were given to Detective Jeff Martin, who then processed
the data. Martin’s analysis of the records revealed that the phone associated with Ishaq’s number
was “near the crime scene” at 11:57 p.m., thirteen minutes before the 911 call. 3 RP at 268. Ishaq
did not live in the same coverage area as Yun’s house.
Ishaq was ultimately arrested and charged with three counts of assault in the first degree,
one count of drive-by shooting, and one count of unlawful possession of a firearm in the second
degree.
V. TRIAL
A. Reference to Ishaq Possessing Firearms
After voir dire, the court addressed the parties’ motions in limine. Defense counsel sought
to “exclude reference to [Ishaq] possessing a firearm on any occasion,” except for the December
13 shooting. 2 RP at 126. The State wanted to refer to the Thanksgiving encounter, arguing that
it was admissible as “res gestae motive.” 2 RP at 127. At that time, the State explained that Ishaq
had threatened Christopher a few days prior saying, “you need to tell me where Sandy is or you’ll
be sorry.” 2 RP at 128. The court reserved judgment on the motion.
The next day, the court addressed defense counsel’s motion regarding Ishaq possessing a
pistol on Thanksgiving. Before making its ruling, the State commented, “[Christopher], I just
confirmed with him, said that . . . Ishaq came to the door right around Thanksgiving and was clearly
5
59578-8-II
armed and he was looking for Sandy. . . . And [Christopher] basically brushed him off. That’s the
extent of what I want to do on that.” 3 RP at 145. Based on the State’s offer of proof provided the
day prior, the court concluded that the testimony would be admissible under ER 404(b). The court
explained that the probative value of the fact that Ishaq possessed a pistol at the Thanksgiving
incident outweighed any prejudice because it went to the issues of intent and motive. The court
also noted that the evidence was admissible under the theory that it was relevant to the “fear
element of the assault, which is one of the ways that assault can be committed.” 3 RP at 148.
Later in trial, the court was once again tasked with ruling on the admissibility of the fact
that Ishaq was armed with the pistol on Thanksgiving. During Christopher’s testimony, he
indicated that Ishaq made no threats when he came over to ask for Sandy’s whereabouts. Outside
the presence of the jury, the State clarified that Ishaq had threatened Christopher sometime in
October, “well before” the Thanksgiving encounter. 3 RP at 189. The State further explained that
Christopher did “not recall that or [was] afraid that” his prior statement recounting Ishaq’s threat,
was connected to a prior incident. 3 RP at 189. Based on this, defense counsel questioned the
court’s previous ruling on its motion in limine. The court explained that its ruling was still in effect
based on the alternative theory of admissibility—the fear element of assault.
B. Ishaq’s Stipulation
Outside the presence of the jury, the State, during its case-in-chief, introduced a stipulation
prepared by Ishaq regarding his prior felony adjudication. Ishaq agreed that he was “previously
convicted of, or adjudicated guilty as a juvenile[,] of a felony offense” for the purposes of the one
count of unlawful possession of a firearm in the second degree. Clerk’s Papers (CP) at 13. 8 After
8
Ishaq was previously adjudicated guilty of, among other crimes, residential burglary in violation
of RCW 9A.52.025.
6
59578-8-II
engaging in a colloquy with Ishaq, the court accepted the stipulation and later read the stipulation
into the record. Then, the State rested its case. At no point during trial did defense counsel argue
that the unlawful possession of a firearm charge was unconstitutional under the Second
Amendment, even though the trial occurred almost a year after the Supreme Court announced its
decision in New York State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213
L. Ed. 2d 387 (2022).
C. Ishaq’s Motion to Dismiss
Following the State resting its case, Ishaq moved to dismiss all three counts for assault in
the first degree. Ishaq argued that there was insufficient evidence to prove that he possessed the
intent to inflict great bodily harm because “[t]here was no indication that [Ishaq] was shooting at
anyone.” 4 RP at 348. The State countered by explaining that there was sufficient evidence based
on Ishaq’s prior encounters with Sandy’s family, the fact that four vehicles were parked in the
driveway on the evening of the shooting—supporting a reasonable inference that people were
home that night, and the fact that Ishaq was using a high-powered weapon. Ultimately, the court
denied Ishaq’s motion, reasoning that the underlying circumstances supported “an intent to inflict
great bodily harm,” especially the fact that one of the shots went through a window and into the
home. 4 RP at 350.
D. Jury Instructions
During the colloquy regarding jury instructions, the State requested a transferred intent
instruction for the three counts of assault in the first degree. Defense counsel objected to the
instruction being provided.
7
59578-8-II
The court concluded that a transferred intent instruction was unnecessary. Under State v.
Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009), the court reasoned that “the intent to impose great
bodily harm,” as required by RCW 9A.36.011(1)(a), was “not specific to an individual.” 4 RP at
360. Even though the State agreed with the court’s interpretation of Elmi, it nevertheless objected
to the court not providing a transferred intent instruction. The State explained that, under the
theory of its case, it opted to pursue the attempted battery definition of assault because the children
were unaware of the incident, but they were the closest to the slug that entered the house. Because
of this, the State requested the instruction to avoid potential confusion between assault in the first
and second degree.
Instruction 9 explained that “[a] person commits the crime of assault in the first degree
when, with intent to inflict great bodily harm, he or she assaults another with a firearm.” CP at 31.
And instructions 10, 11, and 12, the to-convict instructions for the assault in the first degree
charges, read as follows:
To convict the defendant of the crime of assault in the first degree as charged
in count 1, [9] each of the following elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about December 13, 2021, the defendant assaulted [L.H.,
M.H., and T.H.];
(2) That the assault was committed with a firearm;
(3) That the defendant acted with intent to inflict great bodily harm; and
(4) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable
doubt as to any one of these elements, then it will be your duty to return a verdict
of not guilty.
9
To be clear, instructions 10, 11, and 12 required the jury to find that Ishaq assaulted each child
separately, respective to the count that they were named under. We only list the victims in this
manner to illustrate that each child was named, and the to-convict instruction for all three counts
were the same except for the named victim.
8
59578-8-II
CP at 32-34.
Instruction 20 defined assault. Instruction 20 explained that,
An Assault is an act done with intent to inflict bodily injury upon another,
tending but failing to accomplish it and accompanied with the apparent present
ability to inflict the bodily injury if not prevented. It is not necessary that bodily
injury be inflicted.
Assault is also an act done with the intent to create apprehension and fear
of bodily injury, and which in fact creates in another a reasonable apprehension and
imminent fear of bodily injury even though the actor did not actually intend to
inflict bodily injury.
CP at 42. During the colloquy regarding jury instructions, defense counsel never objected to the
court not providing an unanimity instruction for the assault charges. And when the court explained
that the definitions of assault did not create alternative means for committing the offense, defense
counsel said nothing.
E. Closing Argument
The State began its closing argument by stating, Ishaq “is the guy who comes out to the
house with a pistol sticking out of his waistband wanting to know where Sandy is.” 4 RP at 382-
83. Later, the State commented,
Well, [Ishaq is] the guy, right, who keeps going [to] various places looking
for Sandy. [Ishaq is] the guy who doesn’t give up. [Ishaq] shows up at the house
two weeks before [the shooting], apparently with a gun. [Ishaq is] not charged in
that, by the way, because we don’t know. It could be a BB gun. It could be a water
gun. It could be anything. I think from his testimony you can tell that Christopher
Hamilton didn’t think it was a water gun. But this goes to, you know, what [Ishaq
is] trying to accomplish; what does he intend?
4 RP at 395 (emphasis added).
When discussing the instructions relevant to the assault charges, the State argued Ishaq had
“reason to believe that [there were] people in [Yun’s] house.” 4 RP at 402. The State proceeded
to reference the facts that there were four cars parked outside in the driveway, it was 11:30 at night,
and Ishaq knew the family. And when addressing the possibility that Ishaq was not aiming at the
9
59578-8-II
house, the State said, “the fact that [Ishaq] fires off five other rounds . . . that aren’t necessarily
directed at the house doesn’t change that. Okay. You don’t get partial credit for only firing off
one round into the house.” 4 RP at 403.
During Ishaq’s closing argument, he focused on the credibility of witnesses identifying him
at the scene and argued that the shooter did not intend to inflict great bodily harm. Specifically,
Ishaq alleged that the shooter was aiming at the car, not the house, which was supported by the
positioning of the shooter, the car, and the house. As for the bullet that went into the house, Ishaq
suggested that it had ricocheted off one of the wheels, and he referenced the fact that the State
failed to conduct a trajectory analysis of the bullet. All this evidence, Ishaq claimed, supported, at
most, recklessness on the part of the shooter—not an intent to inflict great bodily harm.
F. Verdict
Ishaq was found guilty of drive-by shooting, unlawful possession of a firearm in the second
degree, and three counts of assault in the first degree with firearm enhancements.
Ishaq appeals his convictions for three counts of assault in the first degree, one count of
drive-by shooting, and one count of unlawful possession of a firearm in the second degree.
ANALYSIS
I. THE COURT DID NOT ERRONEOUSLY ADMIT EVIDENCE OF ISHAQ POSSESSING A PISTOL ON
THANKSGIVING
We review the trial court’s decision to admit or exclude evidence of misconduct under ER
404(b) for an abuse of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). A
“court abuses its discretion when its decision is ‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” State v. Thurlby, 184 Wn.2d 618, 624, 359 P.3d
793 (2015) (internal quotation marks omitted) (quoting State v. Woods, 143 Wn.2d 561, 579, 23
P.3d 1046 (2001)). A trial court’s error in admitting evidence is reviewed under the standard for
10
59578-8-II
nonconstitutional error. State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). A
nonconstitutional error is harmless where there is no reasonable probability that the error
materially affected the verdict. Id.
“All relevant evidence is admissible.” ER 402. Evidence is relevant when it has “any
tendency to make the existence of any fact that is of consequence to the termination of the action
more probable or less probable than it would be without the evidence.” ER 401. There are,
however, limitations on the admissibility of relevant evidence.
Under ER 404(b), evidence of prior misconduct is categorically barred when it is offered
“for the purpose of proving the character of a person in order to show that the person acted in
conformity with that character.” State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). But
the same evidence may be admitted for proper purposes that include, but are not limited to,
“‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”’ Id. (quoting ER 404(b)). “ER 404(b) is not designed ‘to deprive the State of relevant
evidence necessary to establish an essential element of its case;’” rather, ER 404(b) is intended to
prevent “the State from suggesting that a defendant is guilty because he or she is a criminal-type
person who would be likely to commit the crime charged.” State v. Foxhoven, 161 Wn.2d 168,
175, 163 P.3d 786 (2007) (quoting State v. Lough, 125 Wn.2d 847, 859, 889 P.2d 487 (1995)).
Motive is defined as “something, [such as a] willful desire, that leads one to act.” BLACK’S
LAW DICTIONARY 1217 (12th ed. 2024). In other words, motive is “the reason or explanation for
the offense.” Id. In contrast, intent is defined as “[t]he state of mind accompanying an act.” Id.
at 963. “‘[E]vidence of threats by the defendant[] are probative [to] the question of the defendant’s
intent.’” State v. Powell, 126 Wn.2d 244, 261, 893 P.2d 615 (1995) (quoting State v. Parr, 93
Wn.2d 95, 102, 606 P.2d 263 (1980)). And “‘[e]vidence of intent . . . is to be gathered from all of
11
59578-8-II
the circumstances of the case, including . . . the nature of the prior relationship and any previous
threats.’” State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994) (internal quotation marks
omitted) (quoting State v. Ferreira, 69 Wn. App. 465, 468, 850 P.2d 541 (1993)). Threats may be
implied from an individual’s conduct. See In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 726, 543
P.3d 821 (2024).
Before admitting evidence of prior misconduct, a trial court must, on the record, “‘(1) find
by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for
which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to
prove an element of the crime charged, and (4) weigh the probative value against the prejudicial
effect.”’ Gresham, 173 Wn.2d at 421 (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d
1159 (2002)). Even when a trial court’s rationale for admitting evidence under ER 404(b) was
erroneous, reversal is not required when one of the court’s “cited bases is justified.” Powell, 126
Wn.2d at 264.
Here, the court did not err in admitting evidence that Ishaq had a pistol in his waistband
when he went to Yun’s home on Thanksgiving. The court, on the record, engaged in the four-part
analysis required under ER 404(b). First, the court established by a preponderance of the evidence
that the incident occurred. Second, the court determined that there were two bases for admitting
the evidence. The court explained that the evidence could be introduced for the purpose of motive
and/or intent, which was relevant to Ishaq’s intent underlying the assault charges, as well as “the
fear element of the assault, . . . one of the ways that assault can be committed.” 3 RP at 148. Third,
the court concluded that the evidence was relevant to establish Ishaq assaulted the victims, a
12
59578-8-II
necessary element for the offense. RCW 9A.36.011(1)(a).10 And fourth, the court determined that
the probative value of the evidence outweighed the prejudicial effect it had on Ishaq.
The trial court did not abuse its discretion because the fact that Ishaq had a firearm in his
waistband on Thanksgiving was admissible under ER 404(b) for the purpose of motive and/or
intent.11 While it is true that Ishaq made no overt threat toward Christopher that evening, it is
obvious that Ishaq’s actions amounted to an implied threat. Arnsten, 2 Wn.3d at 726 (concluding
that the defendant intended to cause apprehension of harm even though he did not directly point
his gun at the victim). Christopher testified that simply having what appeared to be a firearm
visible in Ishaq’s waistband made him concerned. Again, Ishaq showed up uninvited at Yun’s
home Thanksgiving evening demanding Sandy’s whereabouts. When considering the context of
the situation, it is evident that Ishaq possessing an alleged pistol was relevant to Ishaq’s motive
and/or intent because it illustrated his escalating behavior and animosity toward Sandy and her
family.
Therefore, we conclude that the court did not erroneously admit evidence of Ishaq carrying
a pistol in his waistband prior to the shooting.12
10
As provided in instruction 20, assault was defined as attempted battery or apprehension of bodily
harm. Because of this, fear was relevant to one of the definitions of assault provided by the court.
11
Because the evidence was admissible for the purpose of Ishaq’s motive and/or intent, we do not
need to consider the court’s alternative theory of admissibility focusing on the fear element of
assault. Powell, 126 Wn.2d at 264.
12
Ishaq argues that the State’s comments during closing argument encouraged the jury to base its
decision on racial biases, which was supported by the fact that the State emphasized Ishaq
possessed a pistol prior to the shooting. While this court takes the threat of racial biases impacting
a jury’s verdict seriously, we disagree with Ishaq’s characterization of the State’s comments.
During closing argument, the State emphasized that Ishaq possessing a pistol on Thanksgiving was
relevant to his intent. As previously explained, this was permissible.
13
59578-8-II
II. SUFFICIENT EVIDENCE SUPPORTS ISHAQ’S CONVICTION FOR THREE COUNTS OF ASSAULT IN
THE FIRST DEGREE
We review challenges to the sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d
857, 867, 337 P.3d 310 (2014). Our review, however, is “highly deferential to the jury’s decision.”
State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014).
To satisfy due process, the State must prove every element of the crimes charged beyond a
reasonable doubt. State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005). 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 [the defendant] guilt[y]
beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
“A sufficiency challenge admits the truth of the State’s evidence and accepts the reasonable
inferences to be made from it.” State v. O'Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007).
Therefore, the court must draw “all reasonable inferences from the evidence in favor of the State
and against the defendant.” Arntsen, 2 Wn.3d at 724. The standard of review for a challenge to
the sufficiency of the evidence supporting a criminal conviction is deferential to the factfinder, and
“questions of credibility, persuasiveness, and conflicting testimony must be left to the jury.” In re
Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011).
When we evaluate the sufficiency of the evidence supporting a conviction, we consider
circumstantial evidence to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634,
638, 618 P.2d 99 (1980); see also O'Neal, 159 Wn.2d at 506 (“Direct evidence is not required to
uphold a jury’s verdict; circumstantial evidence can be sufficient.”). “[E]ven if the only evidence
of guilt is circumstantial, the jury need only be convinced of guilt beyond a reasonable doubt.”
State v. Couch, 44 Wn. App. 26, 30, 720 P.2d 1387 (1986).
14
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Under RCW 9A.36.011(1)(a), an individual is “‘guilty of assault in the first degree if she
or he, with intent to inflict great bodily harm . . . [a]ssaults another with a firearm.’” Elmi, 166
Wn.2d at 214. Therefore, a jury must conclude beyond a reasonable doubt that a defendant, “with
(1) the intent to inflict great bodily harm, (2) assaulted (3) another (4) with a firearm.” Id. at 214-
15.
There is no statutory definition for “assault,” so Washington courts rely on common law to
define the term. Wilson, 125 Wn.2d at 217. Our state recognizes three definitions: “(1) an unlawful
touching (actual battery); (2) at attempt with unlawful force to inflict bodily injury upon another,
tending but failing to accomplish it (attempted battery); and (3) putting another in apprehension of
harm.” Elmi, 166 Wn.2d at 215. These definitions “do not create additional alternative means of
committing the crime of assault.” State v. Smith, 159 Wn.2d 778, 785, 154 P.3d 873 (2007).13
When a defendant commits an assault in the form of attempted battery, “[a]pprehension on the part
of the victim is” unnecessary. State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073 (1972).
Assault in the first degree is a specific intent crime. See RCW 9A.36.011(1); Elmi, 166
Wn.2d at 215. “Specific intent is defined as intent to produce a specific result, as opposed to [the]
intent to do the physical act that produces the result.” Elmi, 166 Wn.2d at 215. Critically, assault
in the first degree “does not, under all circumstances, require that the specific intent match a
specific victim.” Id. Therefore, so long as the State establishes that the defendant possessed “the
intent to inflict great bodily harm,” the mens rea may be transferred to any unintended victim.
13
Ishaq appears to argue that because instruction 20 provided two definitions of assault, the State
was required to prove both. If that is his argument, it is incorrect. Because these definitions do
not create alternative means of committing the offense, they do not create an additional element
that the State must prove beyond a reasonable doubt. See Smith, 159 Wn.2d at 788-89. At trial,
the State acknowledged that the children were asleep, meaning that its theory of the case could not
rely on the apprehension of harm definition of assault. To that end, it made clear that it was relying
on the attempted battery definition.
15
59578-8-II
RCW 9A.36.011(1); Elmi, 166 Wn.2d at 217; Wilson, 125 Wn.2d at 218. In other words, “[w]hile
the State . . . can present proof of intent to harm a specific person, doing so is unnecessary. All
[RCW 9A.36.011(1)] requires is proof the defendant intended to inflict great bodily harm on
someone, even if that someone is unknown.” State v. Mancilla, 197 Wn. App. 631, 647, 391 P.3d
507 (2017) (second emphasis in the original). And courts may infer specific intent from a
defendant’s conduct “‘where it is plainly indicated as a matter of logical probability.’” Arnsten, 2
Wn.3d at 726 (quoting Delmarter, 94 Wn.2d at 638).
A. The State Did Not Need to Prove Ishaq Intended to Assault a Specific Victim14
At the outset, Ishaq argues that because the court did not provide a transferred intent
instruction, the jury must have found that Ishaq intentionally assaulted a specific person, i.e., L.H.,
M.H., and T.H. Ishaq relies on State v. Abuan, 161 Wn. App. 135, 257 P.3d 1 (2011), for support.
In Abuan, the defendant was charged with two counts of assault in the second degree after he shot
at an attached garage while driving by. Id. at 141-45. Fomai, one of the named victims, was inside
the house when the shooting occurred, “and he was unable to see who was shooting or what was
happening in front of the garage.” Id. at 142. We held that there was insufficient evidence to
support Abuan’s conviction for assault in the second degree against Fomai because there was “no
evidence that Abuan knew Fomai was at the house or that Abuan intended to fire the gun at Fomai,”
and the trial court did not provide a transferred intent instruction. Id. at 159. We reasoned that
Elmi was not applicable since Abuan was charged with assault in the second degree, not assault in
the first degree, which was the basis for our Supreme Court’s holding in Elmi. Id. at 157-59.
14
Ishaq appears to make a prosecutorial misconduct claim within his unanimity argument in his
opening brief. We will not consider argument that is inadequately briefed. RAP 10.3(a)(6).
16
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Abuan is inapplicable for several reasons. First, Abuan’s analysis was based on the
defendant being charged with second degree assault. Id. at 157-59. Ishaq, in contrast, was charged
with three counts of assault in the first degree, meaning Elmi is controlling. See id. at 156. In
Elmi, the defendant shot into the living room of his estranged wife while her young child and her
two young siblings were present. 166 Wn.2d at 212. Elmi was charged with four counts of assault
in the first degree, and he challenged his conviction on the grounds that the State failed to present
sufficient evidence and the court erred in providing a transferred intent instruction. Id. at 212-13.
Our Supreme Court affirmed Elmi’s convictions, explaining that the court did not err because a
transferred intent instruction was unnecessary. Id. at 218. The court recognized that “once the
intent to inflict great bodily harm is established, usually by proving that the defendant intended to
inflict great bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011
to any unintended victim.” Id. (emphasis added). The court’s holding was based on the fact that
the statutory language of “RCW 9A.36.011 encompasses transferred intent,” and they did not
analyze the doctrine of transferred intent. Id.
Second, Mancilla is on point. There, four defendants were charged with several counts of
assault in the first degree for shooting at an occupied single-wide trailer home. 197 Wn. App. at
639, 649. The jury instructions named different victims, but the defendants argued that the State
had to prove the defendants intended to assault a specific person. Id. at 648. And because there
was “no proof . . . presented at trial that the defendants knew who was inside” the house, the
defendants argued their convictions must be overturned for insufficient evidence. Id. Division III
of this court disagreed, explaining that “a defendant’s generalized intent to harm one or more
persons is sufficient to establish the mens rea of” assault in the first degree. Id. (emphasis added).
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The court did note, however, that while “proof as to a specific victim is not required, . . . the State
must prove the defendants intended harm to an actual person.” Id. at 649 (emphasis added).
Therefore, in the case before us, the State did not need to prove that Ishaq specifically
intended to assault L.H., M.H., and T.H. Rather, the State must have proved that Ishaq possessed
the intent to inflict great bodily harm on a person in general. Id.; RCW 9A.36.011(1)(a). As
explained by the court in Elmi,
Where a defendant intends to shoot into and to hit someone occupying a
house, a tavern, or a car, she or he certainly bears the risk of multiple convictions
when several victims are present, regardless of whether the defendant knows of
their presence. And, because the intent is the same, criminal culpability should be
the same where a number of persons are present but physically unharmed.
166 Wn.2d at 218 (emphasis added). So long as the State established that Ishaq possessed the
intent to inflict great bodily harm, then any unintended victim, within reason, could be a basis for
assault in the first degree.15
B. Sufficient Evidence Supports Ishaq’s Conviction
When viewing the facts in the light most favorable to the State, a jury could have concluded
that Ishaq was guilty of assault in the first degree.16 The evidence supports that Ishaq possessed
the intent to inflict great bodily harm on someone. The night of December 13 was not an isolated
event—quite the opposite. Ishaq had several encounters with Christopher, Yun, and Mary
throughout the course of his relationship with Sandy. After their breakup, Ishaq repeatedly
15
Ishaq also relies on State v. Frasquillo, 161 Wn. App. 907, 255 P.3d 813 (2011), for the
proposition that “‘intent does not transfer to victims who are neither harmed nor put in
apprehension of harm.’” Br. of Appellant at 19 (quoting 161 Wn. App. at 916). Frasquillo in
inapplicable here because it does not address attempted battery, one of the three recognized
definitions of assault in Washington. 161 Wn. App. at 916.
16
The elements focusing on the crime occurring in the state of Washington and that the assault
was committed with a firearm are uncontested on appeal.
18
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attempted to locate Sandy, even showing up on Thanksgiving and implicitly threatening harm by
displaying what appeared to be a pistol in his waistband. And on the night of the shooting, Ishaq
used a high-powered weapon, one that could, and did in fact, penetrate an interior wall of Yun’s
home.
Ishaq relies on State v. Ferreira, 69 Wn. App. 465, 850 P.2d 541 (1993), for factual support,
arguing that Ishaq did not know anyone was home. In Ferreira, the defendant, along with three
other accomplices, drove by the victim’s home while firing a gun, ultimately hitting a six-year-old
girl. 69 Wn. App. at 467. The court concluded that there was insufficient evidence to sustain
Ferreira’s conviction because “the [trial] court entered a finding that it was only likely apparent
the house was occupied.” Id. at 469. Additionally, the trial court determined that “the shots were
[not] fired at occupied areas of the house,” and were “fired at the kitchen and living room, not the
empty bedroom.” Id.
The case before us is dissimilar. Like Mancilla, several cars were outside in the driveway
when the incident took place, which supported that people were home. Mancilla, 197 Wn. App.
at 649. While Ishaq may have never met L.H., M.H., and T.H., he knew, at a minimum, that Yun,
Christopher, Mary, and Sandy lived at the residence. Additionally, because the incident took place
between 11:00 p.m. and 12:00 a.m. on a Monday night there was a high likelihood that Sandy and
her family were occupying the house. And the bullet that entered Yun’s home penetrated the wall
that was closest to the children’s bedrooms. All this evidence supports that Ishaq intended to inflict
great bodily harm on an occupant of Yun’s home. RCW 9A.36.011(1).
19
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Ishaq argues that the record does not support that he was aiming at the house. Ishaq points
to the possibility that the bullet ricocheted off the tire of the car and into Yun’s home. But the jury
heard this evidence at trial and was not persuaded. A sufficiency of the evidence challenge requires
us to be deferential to the fact finder. Martinez, 171 Wn.2d at 364.
Therefore, we conclude that there was sufficient evidence such that any rational trier of
fact could have found Ishaq guilty of assault in the first degree beyond a reasonable doubt.
III. ISHAQ WAIVED REVIEW FOR THE REMAINDER OF HIS ARGUMENTS
Generally, courts do not consider issues raised for the first time on appeal. State v.
McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995); RAP 2.5(a). An issue, however, may
be raised for the first time on appeal if there is (1) a “lack of trial court jurisdiction,” (2) a “failure
to establish facts upon which relief can be granted,” or (3) a “manifest error affecting a
constitutional right.” RAP 2.5(a); McFarland, 127 Wn.2d at 332-33. Critically, RAP 2.5(a)(3) “is
not intended to afford criminal defendants a means for obtaining new trials whenever they can
‘identify a constitutional issue not litigated below.’” State v. Scott, 110 Wn.2d 682, 687, 757 P.2d
492 (1988) (quoting State v. Valladares, 31 Wn. App. 63, 76, 639 P.2d 813 (1982), aff’d in part,
rev’d in part by State v. Valladrares 99 Wn.2d 663, 664 P.2d 508 (1983)). Instead, the exception
“encompasses developing case law while ensuring only certain constitutional questions can be
raised for the first time on review.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). And
even when a defendant satisfies RAP 2.5(a)(3), the error is still subject to review under the
constitutional harmless error standard. Scott, 110 Wn.2d at 687 (explaining that RAP 2.5(a)(3)
“does not help a defendant when the asserted constitutional error is harmless beyond a reasonable
doubt”).
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To satisfy RAP 2.5(a)(3) “and raise an error for the first time on appeal, [a defendant] must”
first demonstrate that “the error is truly of constitutional dimension.” O’Hara, 167 Wn.2d at 98.
Then, a defendant must prove that the error was manifest. Id. Stated differently, “[t]he defendant
must identify a constitutional error and show how the alleged error actually affected the
defendant’s rights at trial.” State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). If a
party raising an argument for the first time on appeal fails to satisfy the exception articulated in
RAP 2.5(a)(3), we may decline to review the issue.
Courts “do not assume the alleged error is of constitutional magnitude;” instead, “[w]e look
to the asserted claim and assess whether, if correct, it implicates a constitutional interest as
compared to another form of trial error.” O’Hara, 167 Wn.2d at 98.
“‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.” Kirkman, 159 Wn.2d
at 935. Actual prejudice requires a “‘plausible showing by the defendant that the asserted error
had practical and identifiable consequences in the trial of the case.’” Id. (internal quotation marks
omitted) (quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).
A. Unanimity Instruction
Here, Ishaq failed to argue a need for an unanimity instruction at all possible opportunities.
Therefore, Ishaq’s claim is unpreserved, and we can decline review of this unless this alleged error
is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). Ishaq’s claim does implicate
a constitutional right, see, e.g., State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988), but he
cannot demonstrate that there was a manifest error.
In both Ishaq’s and the State’s brief, they appear to suggest that this alleged error is
automatically reviewable because it implicates the constitutional right to unanimity. But an
alleged error must do more than implicate a constitutional right to be reviewable for the first time
21
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on appeal; it must also be manifest, which means that it must have caused Ishaq actual prejudice.
This, in turn, means that the error must have had practical and identifiable consequences at trial.
O’Hara, 167 Wn.2d at 99. Consequently, this inquiry is fact-specific to each case. Id. at 99-100.
Ishaq cannot establish that the court failing to provide an unanimity instruction amounted
to a manifest error. This is so because the court only instructed the jury on one means of
committing assault in the first degree: assault with a firearm under RCW 9A.36.011(1)(a). As a
result, the jury could only convict Ishaq on one means of committing assault. As previously
discussed, the definitions of assault do not constitute alternative means. Smith, 159 Wn.2d at 785.
Moreover, under assault in the first degree, the State needs to establish only that Ishaq had the
general intent to inflict great bodily harm on someone, not a specific victim. Mancilla, 197 Wn.
App. at 649. The State also named each victim separately in counts 1 through 3, meaning that the
jury had to unanimously conclude that Ishaq assaulted each victim.
Therefore, Ishaq cannot establish that the alleged error was manifest, and we decline to
review this alleged error for the first time on appeal.
B. Unlawful Possession of a Firearm
Next, Ishaq argues that his conviction for unlawful possession of a firearm is
unconstitutional, as applied to him, under the Second Amendment to the United States
Constitution. Ishaq failed to argue that the unlawful possession of a firearm charge was
unconstitutional at trial. In fact, he stipulated that his previous felony adjudication satisfied RCW
9.41.040. Therefore, Ishaq’s argument is unpreserved. We may review an alleged error that is
unpreserved if Ishaq demonstrates that the issue implicates a “manifest error affecting a
constitutional right.” RAP 2.5(a)(3). He fails to do so.
22
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Ishaq cannot establish that the issue implicates a constitutional right.17 Individuals who
have been convicted or adjudicated guilty of a felony offense, both violent and nonviolent, do not
have a right to possess a firearm under the Second Amendment. State v. Ross, 28 Wn. App. 2d
644, 651, 537 P.3d 1114 (2023), review denied, 2 Wn.3d 1026, 544 P.3d 30 (2024); State v.
Bonaparte, 32 Wn. App. 2d 266, 279, 554 P.3d 1245 (2024), review denied, 4 Wn.3d 1019, 566
P.3d 98 (2025); State v. Olson, 33 Wn. App. 2d 667, 683, 565 P.3d 128 (2025).18, 19
Therefore, Ishaq cannot establish the asserted error implicates a constitutional right. There
is no manifest error affecting a constitutional right, and we decline to review the issue for the first
time on appeal.
17
Our Supreme Court has previously explained that an individual “being charged, convicted, and
sentenced pursuant to an unconstitutional charging statute qualifies as a manifest constitutional
error affecting a constitutional right.” State v. Rice, 174 Wn.2d 884, 893, 279 P.3d 849 (2012).
Because RCW 9.41.040 is constitutional under the Second Amendment, however, Ishaq does not
succeed in demonstrating that his claim implicates a constitutional right.
18
Ishaq cites to several federal circuit decisions to support that individuals previously convicted
or adjudicated guilty of a felony offense have a right to possess a firearm under the Second
Amendment. See Br. of Appellant at 42-47 (citing United States v. Range, 69 F.4th 96 (3rd Cir.
2023), vacated by Garland v. Range, ___ U.S. ___, 144 S. Ct. 2706, 219 L. Ed. 2d 1313 (2024);
United States v. Duarte, 101 F.4th 657, 2024 WL 2068016 (9th Cir. 2024)); Reply Br. at 23-27
(citing United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)). Federal circuit precedent is not
binding on this court. See State v. Pippin, 200 Wn. App. 826, 835, 403 P.3d 907 (2017) (“[W]e
may utilize well-reasoned, persuasive authority from federal courts and sister jurisdictions to
resolve a question.”) (emphasis added). Because our state authorities are dispositive on the
constitutionality of RCW 9.41.040, we will not read the persuasive circuit authority to reject our
state authorities on this issue.
19
To the extent that Ishaq is arguing there is no historical tradition for disarming individuals who
have previously been adjudicated of a felony, we decline to address this argument for inadequate
briefing. RAP 10.3(a)(6).
23
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CONCLUSION
Accordingly, we affirm Ishaq’s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Veljacic, J.
We Concur:
Glasgow, J.
Cruser, C.J.
24