FILED
AUGUST 27, 2026
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 40636-9-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
DENVER MCKAY BRAGG, )
)
Appellant. )
LAWRENCE-BERREY, J. — Denver Bragg appeals after a jury found him guilty of three counts of first degree assault (with a firearm), drive-by shooting, attempting to elude, and possession of a stolen firearm. He challenges his assault and drive-by shooting convictions. We affirm Bragg’s assault convictions. We also affirm his drive- by shooting conviction. Although a jury instruction based on RCW 9A.36.045(2) resulted in possible constitutional error on Bragg’s drive-by shooting conviction, the conflicting evidence at trial shows that this purported error was harmless beyond a reasonable doubt. We remand for the trial court to strike community custody supervision fees and restitution interest from the judgment and sentence.
State v. Bragg
FACTS
In 2021, the State charged Denver Bragg with three counts of first degree assault.
All three counts alleged Bragg was armed with a firearm and committed the offenses against law enforcement officers performing their official duties. The State also charged Bragg with drive-by shooting, attempting to elude a pursuing police vehicle, unlawful possession of a firearm,1 and possession of a stolen firearm.
From the beginning, Bragg had strong opinions and was very vocal about the strategies he wanted his counsel to employ. During pretrial proceedings, Bragg expressed distrust of his counsel multiple times and tried to dismiss his attorney. Bragg’s counsel described his relationship with Bragg as tense. Bragg also continually and impolitely interrupted the court during pretrial proceedings.
Bragg did not testify in his first jury trial. In addition to first degree assault instructions, the trial court gave the jury instructions on second degree assault. The first jury convicted Bragg as charged, and he appealed. In State v. Bragg, 28 Wn. App. 2d 497, 506, 536 P.3d 1176 (2023), this court reversed Bragg’s convictions and remanded
1 The court dismissed Bragg’s unlawful possession of a firearm charge in his first trial.
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the matter because he was unable to privately confer with his counsel during critical pretrial proceedings.
During the second trial, Bragg explosively yelled profanities at his new counsel in front of the jury. Bragg refused to work with his attorney any further, and the trial court declared a mistrial. Bragg was so disruptive that he had to be removed from the courtroom while he continued to yell profanities. The trial court disqualified defense counsel from further representing Bragg.
The present appeal follows Bragg’s third jury trial. During a pretrial conference, the State expressed concern with Bragg’s past disruptive courtroom behavior. Bragg’s new counsel acknowledged he read the past transcripts and knew of Bragg’s poor relationships with his prior attorneys but believed he and Bragg were able to communicate well.
Third trial The following facts are taken from Bragg’s third trial. In 2021, law enforcement suspected that Bragg had stolen a firearm. Late one evening in May 2021, Deputies Blake Teitzel and Mathew Wallace were standing at an intersection when they saw a silver Ford Taurus drive past them and fail to signal before turning. The deputies knew
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State v. Bragg
Bragg drove a silver Ford Taurus, knew his driver’s license was suspended, and knew he had an outstanding warrant for driving with a suspended license.
Deputies Teitzel and Wallace got into their marked patrol vehicles and followed Bragg, who led them on a 31-mile chase through rural Lewis County.2 Even after the deputies activated their lights and sirens, Bragg failed to stop or slow down. During the chase, Bragg consistently exceeded the posted speed limit, at times driving up to 100 miles per hour, failed to stop at stop signs and traffic lights, drove into oncoming lanes, veered off the road multiple times, and turned off his vehicle’s headlights while attempting to elude the deputies.
As the two deputies pursued Bragg, Deputy Emmet Woods arrived at an intersection ahead of Bragg’s path and deployed spike strips. Because it was dark and the rural intersection had no streetlights, Deputy Woods activated his patrol vehicle’s emergency lights and a strobe light mounted on his shoulder. After deploying the spike strips, Deputy Woods stood behind a utility pole for cover.
As Bragg approached the intersection, Deputy Wallace was about two car lengths behind Bragg, and Deputy Teitzel was about two car lengths behind Deputy Wallace.
2 Lewis County did not equip its officers or patrol vehicles with body cams or dash cams in 2021.
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Bragg drove around the spike strips, and, as he turned left onto the highway, he slid off the roadway and into the embankment. As Bragg attempted to reenter the highway, he became stuck in the soft dirt. Deputies Teitzel and Wallace slowed down considerably while Bragg attempted to get out of the ditch. Deputy Wallace turned left into the right lane, and Deputy Teitzel turned left into the left oncoming lane.
Deputy Wallace’s headlights shone onto Bragg’s driver’s side window while Bragg’s Taurus was canted to the side in the ditch. Deputy Wallace could not see Bragg’s head or face because the car’s pillar between the driver’s side front and back windows blocked his view. Deputy Wallace believed he was about 20 feet behind Bragg when Bragg reentered the highway. It was then that Deputy Wallace saw Bragg’s left arm extend out the driver’s window holding a pistol aimed at the patrol vehicles; Deputy Wallace heard three shots and saw corresponding muzzle flashes.
Deputy Wallace believed that Bragg was discharging the gun at them, although he admitted that the pistol was aimed more toward Deputy Teitzel than him. Deputy Wallace believed that Bragg would have had to extend his arm backward at an extreme angle to aim at him, and the car pillar restrained Bragg’s arm from going further back. In a few seconds, Bragg’s car regained traction on the road and sped away. As Bragg
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State v. Bragg
drove away, Deputy Wallace heard one more shot and saw a muzzle flash but could not tell where Bragg had pointed his gun.
Deputy Teitzel testified he could see Deputy Woods in his peripheral vision running toward the patrol cars when Bragg went into the ditch. Deputy Teitzel testified he saw Bragg’s hand holding something out the window, but he did not realize it was a gun until he heard the shots. Deputy Teitzel believed the gun was pointed at him but admitted the lighting was poor.
Deputy Woods testified he ran toward Deputy Teitzel’s patrol vehicle when it appeared that Bragg was stuck in the ditch. When Deputy Woods was within 15 to 20 feet of Deputy Teitzel’s vehicle and about 30 to 40 feet away from Bragg’s car, he heard three shots and saw a muzzle flash followed by a short pause and another shot. Although it was dark and poorly lit, Deputy Woods testified he could see Bragg’s silhouette and shoulders oriented toward their direction but could not see Bragg’s arm extended out the window. Deputy Woods believed the shots were being fired at him, and he ran back toward his patrol vehicle.
Bragg testified that he saw Deputy Woods and the spike strips as he arrived at the highway intersection. He denied shooting toward the deputies and testified he fired the gun into a field with the deputies about one-eighth of a mile behind, near the turn. Bragg
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told the jury he had no intention to shoot the deputies and that he shot into the field because he thought every bullet found in the gun would result in more jail time. Bragg testified he threw the gun out of his car during the chase. He told the jury he was extremely high on methamphetamine and possibly fentanyl during the chase.
Deputy Woods later caught up to the chase as it entered Chehalis city limits and successfully executed a PIT3 maneuver on Bragg’s car, which ended the chase. The deputies took Bragg into custody.
Deputy Wallace checked his vehicle after the chase and it did not have any damage. Deputy Teitzel’s vehicle sustained a small dent above its right wheel. Based on Deputy Teitzel’s experience and training, he believed the dent was caused by a bullet ricochet.
The day after the chase, a public works employee found a pistol in the grass along the chase route. Bragg’s DNA was found on the gun and the empty magazine. Law enforcement found two shell casings. The casings were found close to Bragg’s reentry onto the highway, not one-eighth of a mile down the road where Bragg testified he had shot into the field. Tests confirmed that the shells were fired from the recovered firearm.
3 Pursuit immobilization technique.
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Jury instruction dispute Bragg’s counsel submitted proposed jury instructions for third degree assault and attempted second degree assault. At the jury instruction conference, the trial court first heard arguments on whether it should give instructions on third degree assault. It decided that because a firearm was involved in the alleged assault, the facts would not allow an instruction on third degree assault.
Turning to the attempted second degree assault instructions, defense counsel told the court he believed his representation of Bragg would be ineffective if he did not propose an attempted second degree assault instruction but explained that Bragg himself opposed such an instruction. Defense counsel told the court that Bragg’s all-or-nothing strategy was not one he was willing to take unless the court honored Bragg’s request.
The trial court then spoke to Bragg. The court asked Bragg if he understood he would be waiving the issue of inferior degree instructions on appeal. Bragg responded, “Right.” Rep. of Proc. (July 19, 2024) at 1101. Bragg explained he did not agree with the attempted second degree assault instruction because he did not try to shoot the deputies. He said he understood his attorney’s position and the risks of an all-or-nothing approach. However, he believed an instruction on attempted second degree assault would give the jury a reason to convict him of something he did not do. Bragg explained that
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the first jury found him guilty of first degree assault even though it was instructed on second degree assault. He believed there was no point in even using the instructions because he did not shoot at the deputies.
The court acknowledged that Bragg wanted an all-or-nothing approach and decided to honor Bragg’s wishes. Defense counsel did not object to the final jury instructions. The jury found Bragg guilty on all counts.
At sentencing, the trial court imposed restitution but said it would not impose restitution interest. The court also ordered Bragg to pay community custody supervision fees. The court sentenced Bragg to 721 months’ confinement. When defense counsel asked Bragg to apply his fingerprints to the judgment and sentence, Bragg began yelling profanities, threw the microphone off the table, had to be restrained by law enforcement officers, and was forcibly removed from the courtroom.
Bragg appeals.
ANALYSIS
A. SUFFICIENT EVIDENCE TO SUSTAIN CONVICTION ON COUNT 2 Bragg argues the State presented insufficient evidence to convict him of count 2, first degree assault, against Deputy Wallace because Bragg lacked the apparent present ability to shoot the deputy. We disagree.
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To satisfy due process, the State must prove each element of the charged offense beyond a reasonable doubt. State v. Anderson, 198 Wn.2d 672, 686, 498 P.3d 903 (2021). A defendant may challenge the sufficiency of the evidence for the first time on appeal. RAP 2.5(a)(3); State v. Colquitt, 133 Wn. App. 789, 795-96, 137 P.3d 892 (2006).
When a defendant argues their conviction rested on insufficient evidence, we will uphold the conviction “if any rational fact finder could have found the essential elements beyond a reasonable doubt.” State v. Roberts, 5 Wn.3d 222, 237, 572 P.3d 1191 (2025). In an insufficient evidence claim, the defendant admits that the State’s evidence is true and all reasonable inferences drawn from it. Id. We also “defer to the trier of fact for purposes of resolving conflicting testimony and persuasiveness of the evidence.” Id. This standard of review is highly deferential to the jury’s decision. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). “Circumstantial evidence and direct evidence are equally reliable when determining the sufficiency of the evidence.” Roberts, 5 Wn.3d at 237. If we find insufficient evidence to prove an element, we must reverse the conviction with prejudice. State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).
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State v. Bragg
The State charged Bragg with assaulting Deputy Wallace in the first degree. To convict Bragg, the State had to prove (1) Bragg assaulted Deputy Wallace, (2) with a firearm, and (3) “with intent to inflict great bodily harm.” RCW 9A.36.011(1)(a). Bragg only disputes the first prong.
We recognize three definitions of assault in Washington: a person assaults another (1) “by attempting to inflict bodily harm on another,” (2) “by unlawfully touching another with criminal intent,” or (3) “by placing another in apprehension of physical harm.” State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012). Bragg’s jury instructions only defined the first two options. Because the State presented no evidence to prove the second option, we focus only on the first option.
The jury instructions contained the following definition of attempted assault:
An assault is also 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.
Clerks Papers (CP) at 144 (emphasis added).
Bragg argues the State did not sufficiently prove he assaulted Deputy Wallace because it did not prove he had the “apparent present ability” to do so. He relies on Deputy Wallace’s testimony that Bragg could not extend his arm in the deputy’s direction. We disagree with Bragg’s argument.
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State v. Bragg
We have never held that “apparent present ability” is measured by the victim’s perspective. Rather, apprehension by the victim is not an essential element of attempted assault. State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073 (1972). This suggests we must leave it to an objective, reasonable fact finder to determine whether a defendant had the “present apparent ability” to commit assault under the circumstances “if not prevented.”
The jury heard that Bragg’s arm was prevented from bending further back by the car’s pillar. Thus, Bragg had the present apparent ability to commit assault and that ability was prevented only by the pillar. Thus, the State presented sufficient evidence to sustain Bragg’s conviction on count 2.
Bragg argues we must view the “present apparent ability” largely from the targeted person’s perspective. He cites State v. Krup, 36 Wn. App. 454, 457-58, 676 P.2d 507 (1984), State v. Rush, 14 Wn.2d 138, 140, 127 P.2d 411 (1942), and State v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276 (1972). However, these cases discuss the apprehension of fear option for proving assault. Because that option does not apply here, those cases lack relevance to our analysis.
We affirm Bragg’s conviction on count 2, first degree assault against Deputy Wallace.
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State v. Bragg
B. THIRD DEGREE ASSAULT JURY INSTRUCTION NOT WARRANTED Bragg argues the trial court erred in denying his proposed instruction on third degree assault. We disagree.
Criminal defendants are entitled to instructions on inferior degree crimes if they satisfy a two-part test, one legal and one factual. First, the statutes for both the charged offense and the proposed inferior degree offense must prohibit one offense, the information charges an offense divided into degrees, and the proposed offense is an inferior degree of the charged offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). Second, the evidence must raise “an inference that the lesser degree or lesser included offense was committed such that a jury might have a reasonable doubt as to which degree . . . was committed, believe that some [degree] was committed, and find the defendant guilty of the lesser offense.” State v. Coryell, 197 Wn.2d 397, 417-18, 483 P.3d 98 (2021).
The parties do not dispute that third degree assault is an inferior degree offense of first degree assault. The trial court concluded that anytime a firearm is involved in an assault, the assault is either first or second degree and can never be third degree. Because the trial court’s decision was based on a legal conclusion, we review the court’s decision de novo. Id. at 405.
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State v. Bragg
For Bragg to be entitled to a third degree assault instruction, there must have been conflicting evidence so that a jury could find that the State had proved only the lesser or inferior crime. Id. at 414-15. We view the evidence in the light most favorable to Bragg, the party who requested the instruction. Id. at 415.
Here, there was no conflicting evidence so that a jury could find that the State had proved only third degree assault. The States’s evidence was that Bragg shot toward the deputies as he gained control of his car. Bragg’s evidence was that he was one-eighth of a mile beyond the corner when he shot into a field. If the jury believed the State’s evidence, it could not have convicted Bragg of third degree assault. This is because third degree assault cannot be proved if the assault is either a first degree assault or a second degree assault. RCW 9A.36.031(1). And assaulting a person with a firearm is either first degree assault4 or second degree assault.5 Whereas, if the jury believed Bragg’s evidence, it could not have convicted him of any degree of assault, much less third degree assault. Shooting into a field is not an assault. Had there been evidence that Bragg
4 First degree assault includes assaulting with a firearm in a manner likely to produce great bodily harm. RCW 9A.36.011(1)(a).
5 Second degree assault includes assaulting another with a deadly weapon.
RCW 9A.36.021(c). A firearm is a deadly weapon. RCW 9A.04.110(6).
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assaulted the deputies with something other than a deadly weapon, he might have been entitled to the lesser degree instruction. But there was no evidence of this.
We conclude that the trial court did not err in refusing to instruct the jury on third degree assault.
C. INEFFECTIVE ASSISTANCE OF COUNSEL NOT SHOWN Bragg argues he received ineffective assistance of counsel for two reasons:
(1) his counsel abdicated his duty to decide trial strategy and deferred to Bragg about whether to submit an attempted second degree assault instruction, and (2) counsel did not submit second degree assault instructions. The State asserts Bragg waived his right to appeal his counsel’s decision not to submit second degree assault instructions.
When a defendant asserts ineffective assistance of counsel, they must show “(1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
We first address the State’s waiver argument. Bragg’s colloquy with the trial court showed his strong opinions against submitting second degree assault instructions. But, even when a defendant agrees to forego lesser included instructions or, in this case,
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inferior degree instructions, it does not bar an ineffective assistance claim based on counsel’s failure to submit them. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). The Grier court decided this was proper after reviewing Washington’s Rules of Professional Conduct and the standards promulgated by the American Bar Association because both indicate that the final decision to submit a lesser degree instruction is vested in counsel. Id.
Bragg did not simply agree but insisted, after an in-depth colloquy with the court, that an attempted second degree assault instruction should not be submitted. However, based on the policy reasons discussed in Grier, we believe Bragg did not waive his right to appeal the decision. We, therefore, proceed to the merits.
Defense counsel did not perform deficiently Bragg argues his counsel was deficient because he did not research relevant law, and it was not a legitimate trial tactic to not submit the second degree assault or attempted second degree assault instructions. The State argues Bragg’s counsel was not deficient because an attorney can allow their client to choose whether to submit a lesser included jury instruction. We disagree with both arguments.
A counsel’s performance is deficient if it is objectively unreasonable. Bertrand, 3 Wn.3d at 128. One way a counsel’s performance is deficient is if it lacks a “‘legitimate
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trial strategy or tactic[ ].’” Id. (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009)). We strongly presume that counsel’s conduct was not deficient and fell “‘within the wide range of reasonable professional assistance’ to safeguard ‘the wide latitude counsel must have in making tactical decisions.’” Id. at 123 (quoting Strickland, 466 U.S. at 689). “To rebut this presumption, the defendant bears the burden of establishing the absence of any ‘conceivable legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d at 42 (alteration in original) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
Bragg must overcome a strong presumption that his counsel’s performance was reasonable. Bertrand, 3 Wn.3d at 130. We must “‘reconstruct the circumstances of counsel’s challenged conduct,’” and “‘evaluate the conduct from counsel’s perspective at the time.’” Id. (quoting Kyllo, 166 Wn.2d at 862).
Requesting an inferior degree offense instruction involves the broad discretion counsel has in making tactical decisions. Id. at 131. This is because such instructions protect procedural fairness but also pose significant risks for the accused. Id. Given the significant risks of an all-or-nothing strategy, the decision to include or exclude lesser included offense instructions requires input from both the defendant and their counsel.
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Id. However, the ultimate decision rests with trial counsel and if it can be characterized as legitimate trial strategy or tactics, the performance is not deficient. Id. at 131-32.
Citing Grier, Bragg argues his counsel was deficient for abdicating his duty to make the ultimate decision on the attempted second degree assault jury instructions. We disagree. In Grier, the court was not discussing whether defense counsel was deficient for allowing his client to make the final decision on jury instructions. Rather, the Grier court was determining whether the defendant waived her right to appeal her counsel’s failure to submit jury instructions on lesser included offenses because she agreed to forego the instructions. 171 Wn.2d at 32. The court concluded that because the decision to submit lesser included jury instructions ultimately rested on defense counsel, the defendant had not waived her right to appeal the decision. Id. The court proceeded to determine that the defendant failed to prove her ineffective assistance of counsel claim because not submitting the instructions was a legitimate trial strategy. Id. at 42. Bragg’s cite to Grier is not persuasive.
Bragg also argues that under Bertrand, Bragg’s counsel performed deficiently. In Bertrand, the court found the defendant’s counsel deficient for failing to realize fourth degree assault could be a lesser included offense of child molestation. Bertrand, 3 Wn.3d at 132. This was because defense counsel’s “‘duty to provide effective assistance
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includes the duty to research relevant statutes.’” Id. Bragg argues his counsel, similar to defense counsel in Bertrand, failed to research the relevant law and abdicated his duty to decide trial strategy. He also argued that trial counsel’s foregoing of an inferior degree instruction was not a reasonable tactical decision.
The record does not support Bragg’s assertion that his counsel had no legitimate trial strategy for withdrawing the instructions. Defense counsel submitted a proposed attempted second degree assault jury instruction. We infer that defense counsel discussed the instruction with Bragg because counsel told the court that Bragg disagreed with submitting it. Although defense counsel believed withdrawing the jury instruction was not good trial strategy, other considerations were involved.
The record shows Bragg was actively involved in his trial strategy and had a history of tense, distrustful relationships with his attorneys. Bragg also continually and impolitely interrupted court proceedings. The trial court even declared a mistrial during Bragg’s second trial because Bragg explosively shouted profanities at his lawyer in front of the jury.
Counsel could have submitted the instructions over Bragg’s objections. However, given Bragg’s history with past counsel, defense counsel legitimately could have decided that rather than risk the relationship he had built with Bragg, it was in Bragg’s best
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interest to withdraw the instructions. This is a legitimate trial tactic and is enough to overcome Bragg’s claims of deficient performance.
For the same reason, Bragg’s counsel was not deficient for failing to submit a second degree assault instruction. Bragg made his wishes clear. Defense counsel risked a breakdown in communication if he submitted second degree assault instructions over Bragg’s objections. Bragg also continuously asserted and testified he was innocent of the charges because he lacked the intent to harm the deputies when he fired the gun. If a lesser offense instruction could weaken a defendant’s claim of innocence, the failure to request a lesser offense instruction is a reasonable strategy. Bertrand, 3 Wn.3d at 131.
We conclude that Bragg has failed to show he received ineffective assistance of counsel, given that counsel’s decision to abide by Bragg’s request was a reasonable trial strategy in light of Bragg’s history of explosive outbursts.
D. INSTRUCTION INFERRING RECKLESSNESS WAS HARMLESS BEYOND A REASONABLE DOUBT
The State charged Bragg with drive-by shooting under RCW 9A.36.045. “A person is guilty of drive-by shooting when he . . . 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 . . . from a motor vehicle.” RCW 9A.36.045(1).
The trial court provided the following instruction to the jury:
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A person who unlawfully discharges a firearm from a moving motor vehicle may be inferred to have engaged in reckless conduct unless the discharge shall be shown by evidence satisfactory to you to have been made without such recklessness. This inference is not binding upon you and it is for you to determine what weight, if any, such inference shall be given.
CP at 152. The inference of recklessness is codified at RCW 9A.36.045(2).
Bragg did not object to this instruction. For the first time on appeal, he argues this instruction unconstitutionally relieved the State of its burden of proving each element of drive-by shooting beyond a reasonable doubt. The State concedes this issue but argues that any error was harmless beyond a reasonable doubt. We decline to accept the State’s concession.
“We will not reach a constitutional issue ‘unless absolutely necessary to the determination of the case.’” In re Citizen Complaint by Stout, 198 Wn.2d 180, 184, 493 P.3d 1170 (2021) (quoting State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981)). We avoid the constitutional issue here by concluding that error, if any, was harmless beyond a reasonable doubt.
In conducting constitutional harmless error review, we ask whether the State has proved the error harmless beyond a reasonable doubt. State v. Magaña Arévalo, 5 Wn.3d 781, 810, 582 P.3d 330 (2026). In the context of the possibly unconstitutional jury instruction here, our review is whether the State has proved beyond a reasonable
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doubt that the jury would have found that Bragg acted recklessly by firing the gun from the moving vehicle.
In addition to the instruction on the inference of recklessness, the trial court provided the jury the following instruction:
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and this disregard is a gross deviation from conduct that a reasonable person would exercise in the same situation.
When recklessness as to a particular result or fact is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly as to that result or fact.
CP at 153.
The jury had two versions of events to decide between—the testimonies of the State’s witnesses that Bragg, as he gained control of his car, fired the gun toward two of the deputies, and Bragg’s testimony that he fired the gun one-eighth of a mile down the road from the intersection into a field. The jury’s findings of guilt for the three first degree assault charges establish that it believed the State’s version of the events. Any reasonable jury would believe that firing a gun from a moving car at two deputies is reckless conduct. We conclude that the State has established that error, if any, arising from the challenged instruction was harmless beyond a reasonable doubt.
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E. REMAND TO CORRECT TWO LEGAL FINANCIAL OBLIGATIONS Supervision fees The court’s authority to impose community custody conditions is statutory.
RCW 9.94A.703. Effective July 1, 2022, the legislature amended the community custody statute and removed the trial court’s authority to impose supervision fees. LAWS OF 2022, ch. 29, §§ 7, 8. The trial court sentenced Bragg in 2024. The trial court therefore did not have the statutory authority to impose this condition. We remand and direct the trial court to strike the condition imposing community custody supervision fees.
Restitution interest Bragg contends there is a clerical error in his judgment and sentence regarding the restitution interest. RCW 10.82.090(2) allows a court to waive restitution interest on court orders. At sentencing, the trial court expressed its intent to waive interest on the ordered restitution. However, the judgment and sentence imposed interest on the restitution.
An error is clerical if the language of the judgment does not correctly convey the court’s intention based on other evidence. State v. Wemhoff, 24 Wn. App. 2d 198, 202, 519 P.3d 297 (2022). Because Bragg’s judgment and sentence does not correctly convey the court’s intention to strike restitution interest, we remand to correct this error.
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Affirm the convictions. Remand to correct two LFOs.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
_________________________________
Lawrence-Berrey, J.
WE CONCUR:
______________________________ _________________________________ Staab, C.J. Cooney, J.