IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85289-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION POLEVIA VALOAGA,
Appellant.
CHUNG, J. — A jury convicted Polevia Valoaga of assault in the first degree with
a deadly weapon enhancement, based on events over the course of approximately 20
minutes, during which Valoaga attacked the victim at a bus stop, followed him, and
attacked him again in the middle of a highway. Valoaga asserts his right to a unanimous
jury was violated when the trial court failed to provide a jury instruction on unanimity and
the State did not elect which act constituted the crime charged. He also raises several
issues in a statement of additional grounds (SAG) for review.
We affirm the conviction. However, we remand for resentencing as the State
failed to prove Valoaga’s criminal history and the court should not have imposed the
victim penalty assessment (VPA).
FACTS
Federal Way, Washington, has a network of approximately 120 “live view”
cameras located throughout the city. On September 20, 2021 around 7:37 p.m., one of No. 85289-2-I/2
these cameras captured Daniel Whitesel being assaulted while waiting at a bus stop on
Pacific Highway South and South 312th Street.
In the moments leading up to the attack, an individual in a black hoodie and red
pants with an orange backpack walked toward Whitesel. Whitesel turned his back to the
person and began to walk away, but within seconds, the individual jumped and kicked
toward Whitesel and struck the back of his head. Whitesel immediately collapsed to the
ground, and before he could get up, as he laid on the sidewalk, the person swiped at
Whitesel with a long object.
Whitesel rolled away from the assailant, stood up, and crossed to the other side
of Pacific Highway South, traversing three lanes of traffic to the median and then three
lanes of traffic going in the other direction. Around ten seconds later, the assailant
walked into the highway as well, also not at the intersection, crossing the six lanes of
traffic. Once across, Whitesel walked south, as did the attacker. At about 7:44 p.m.,
Whitesel crossed the highway back to the west side, followed by the individual around a
minute later.
Both individuals disappeared from the cameras’ view for about six minutes, until
they reappeared at 7:51 p.m. on the east side of the highway walking north. Whitesel
walked ahead of the individual, crossed the highway back toward the bus stop, and
continued to head north from there. The individual followed this same path slightly
behind Whitesel. Eventually, Whitesel crossed the highway back to the east side and
continued north.
Whitesel continued to walk north while the individual walked parallel to him on
the west side of the highway. Around 7:56 p.m., the individual left the sidewalk, walked
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into some shrubbery, and stood there for about a minute. Afterward, he returned to the
sidewalk and crossed the highway to the east and walked north in Whitesel’s direction.
Around 7:59 p.m., the individual stopped and appeared to pick up an object on the
ground to his right.
A minute later, Whitesel attempted to cross the highway to the west side again,
with the individual heading in the same direction. At about 8:01 p.m., the person caught
up with Whitesel in the southbound lanes of Pacific Highway South, slashed at
Whitesel’s head with the object he was holding, and threw Whitesel to the ground in the
middle of the highway. While Whitesel was on the ground, the individual slashed at him
four more times, once around his abdomen and three times around his face and neck.
The person ran off shortly after the encounter, and multiple witnesses called 911 to
report the assault. Approximately 20 minutes elapsed between the initial encounter at
the bus stop and when the individual left Whitesel in the middle of the highway. Officer
Ramon Franco with the Federal Way Police Department later testified that the distance
between the bus stop and the attack in the highway was “about a block, block and a
half.”
While setting up a perimeter to search for the assailant, Franco was driving
slowly “about two blocks” from where Whitesel was found on the highway when he
encountered a person matching the assailant’s description standing “like a statue”
facing what appeared to be a retaining wall. Franco trained his spotlight on Valoaga,
gave verbal commands, “tripped the sirens,” and told him he was under arrest, but
Valoaga did not react and ignored Franco, “still facing the wall.” Valoaga then stepped
toward a nearby bush, “still not looking at [Franco],” ignoring him. Franco testified to
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hearing a “loud thud” while Valoaga stood near the shrubbery. Shortly after Valoaga
was detained, when Franco and another officer searched the area, they found an
orange and black Fiskars brand pruning saw.
Police brought two people who witnessed the highway encounter to a show-up
procedure to determine if Valoaga was the attacker they had observed. The two
witnesses identified Valoaga as Whitesel’s assailant. Whitesel was later shown a
photomontage with six people, including Valoaga, but he was unable to make an
affirmative identification. However, DNA analysis strongly indicated the presence of
Whitesel’s DNA in the blood on the blade of the saw that was retrieved near where
Valoaga was detained. No forensic evidence linked the weapon to Valoaga. However,
Valoaga had blood on several areas of his clothing, and testing showed different DNA
contributors for the blood from the different samples, with moderate to limited support
for inclusion of Whitesel’s DNA in the various blood samples. 1
The State charged Valoaga with one count of assault in the first degree with a
deadly weapon enhancement. Valoaga pleaded not guilty. His defense theory at trial
was denial that he was the assailant. The jury convicted Valoaga as charged. He was
sentenced at the high end of the standard range and received a sentence of 171
months plus a 24-month deadly weapon enhancement.
1 Forensic scientist Gina Dembinski discussed a sliding scale qualifier to clarify what the linkages
signified. With the knife, it was 7 nonillion times more likely that the DNA profile originated from Whitesel rather than an unknown person from the U.S. population. For the bloodstains on Valoaga’s hoodie, there were different DNA contributors. Around the front pocket, the blood stain indicated it was “420 times more likely to observe the DNA profile that [Dembinski] obtained if it was [] Whitesel and an unknown person versus . . . two random unrelated people from the U.S. population.” On the front of the hoodie by the logo, it was “7.3 times more likely to observe the DNA profile if it originated from [] Whitesel and an unknown person versus two unknown unrelated individuals from the U.S. population.” On the back of the left sleeve, it was only “two times more likely.” In a final blood sample from the back of the hoodie, there was no support for the DNA being Whitesel’s.
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Valoaga timely appeals. He also filed a SAG.
DISCUSSION
Valoaga appeals his conviction on the basis that his right to a unanimous jury
verdict was violated under article I, section 21 of the Washington Constitution.
Alternatively, if the conviction is not vacated, Valoaga argues a resentencing hearing is
necessary as the State failed to prove his criminal history and a VPA was improperly
imposed on him given legislative changes. He also filed a SAG raising several
additional issues, including prosecutorial misconduct, a confrontation clause violation,
and insufficiency of evidence.
I. Unanimous Jury
Valoaga contends his right to a unanimous jury verdict on the act constituting the
charged offense was violated. In particular, he argues that either the State should have
elected which act it relied on as the basis of the charge—the bus stop or highway
encounter—or the jury should have been instructed to agree on a specific act. The State
counters that it is excused from electing or providing a jury instruction on unanimity as
the two encounters constituted a single, ongoing course of conduct. We agree with the
State.
Criminal defendants have a right to a unanimous jury verdict. W ASH. CONST. art.
I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the
State presents evidence of multiple acts that could constitute the crime charged, the jury
must unanimously agree on which act constituted the crime. State v. Kitchen, 110
Wn.2d 403, 411, 756 P.2d 105 (1988). To ensure unanimity, the State must either elect
the act it is relying on or the trial court must provide a unanimity instruction, often
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referred to as a “Petrich instruction.” See State v. Petrich, 101 Wn.2d 566, 683 P.2d 173
(1984), overruled on other grounds by Kitchen, 110 Wn.2d at 405-06; see 11
WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTION: CRIMINAL 4.25 (5th ed.
2024). Otherwise, some of the jurors may rely on one act while others may rely on
another. Kitchen, 110 Wn.2d at 411. However, neither election nor a unanimity
instruction is necessary if the defendant engaged in multiple acts that form a single
continuing course of criminal conduct. State v. Rodriguez, 187 Wn. App. 922, 936, 352
P.3d 200 (2015).
“Whether a unanimity instruction was required is reviewed de novo.” State v.
Aguilar, 27 Wn. App. 2d 905, 924, 534 P.3d 360 (2023) (citing State v. Boyd, 137 Wn.
App. 910, 922, 155 P.3d 188 (2007)). A violation “may be raised for the first time on
appeal under the manifest constitutional error standard.” Aguilar, 27 Wn. App. 2d at
918; RAP 2.5(a). A constitutional error occurs in a multiple acts case in which no
election was made and no Petrich instruction was given, “but reversal is not warranted if
the error was harmless.” Aguilar, 27 Wn. App. 2d at 924.
As an initial matter, Valoaga argues the State is judicially estopped from
presenting this argument because it clearly described the encounters as two separate
assaults to the jury. We disagree.
“Judicial estoppel precludes a party from ‘asserting one position in a court
proceeding and later seeking an advantage by taking a clearly inconsistent position.’ ”
Serpanok Constr., Inc. v. Point Ruston, LLC, 19 Wn. App. 2d 237, 256, 495 P.3d 271
(2021) (quoting Miller v. Campbell, 164 Wn.2d 529, 539, 192 P.3d 352 (2008)). We
consider three factors to determine whether judicial estoppel applies: (1) whether the
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party’s later position is clearly inconsistent with its earlier position, (2) whether
accepting the new position would create the perception that a court was misled, and
(3) whether a party would gain an unfair advantage from the change. Miller, 164 Wn.2d
at 539. 2
During closing argument, the State began,
This is a simple tree saw. . . . [I]n the hands of this defendant, Polevia Valoaga, this simple tree saw was used as a deadly weapon. We saw in the surveillance footage, we heard in the testimony of eyewitnesses that this defendant started his assault at [the] bus stop. What happened for the next 20 minutes was that the defendant used this deadly weapon to hack, to slash, to assault Daniel Whitesel. We saw in the surveillance footage as Daniel -- after that initial assault, Daniel tried to get away. He did his best. . . . He walks slowly, constantly looking behind him. And the defendant slowly pursued. . . . You heard testimony that he pursued him all of the way up and until in front of Bucky’s where he initiated his second assault.[3]
Thus, the State’s position during trial, as stated in closing, was that the assault was a
continuous course of conduct beginning with the assault at the bus stop, with the
defendant “slowly pursu[ing]” Whitesel “all of the way up and until” the final attack in the
road. Thus, under factor one, the position the State took at the trial level is not “clearly
2 These factors are not exhaustive, and “ ‘[a]dditional considerations’ may guide a court’s
decision.” Arkison v. Ethan Allen, Inc., 160 Wn. 2d 535, 539, 160 P.3d 13 (2007) (quoting New Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct.1808, 149 L. Ed. 2d 968 (2001)). However, Valoaga does not provide analysis of the issue beyond these three factors. 3 In discussing the jury instruction regarding jurors’ obligations, the State did not reference any
particular number of assaults or the acts it alleged to constitute the crime:
Instruction No. 2 . . . reads that, as jurors, you have agreed to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. . . . What doesn’t happen -- what it doesn’t have to be is that you don’t all have to agree as to the reasons for your belief beyond a reasonable doubt that this defendant is guilty. You have to be unanimous in the belief that he is, in fact, guilty, but you can have different reasons for that belief. You can arrive at that conclusion through different paths, okay. I just want to make that clear, that everyone can have kind of differing opinions as long as you are unanimous in your belief that this defendant is guilty.
7 No. 85289-2-I/8
inconsistent” with its current position that the attack constituted a single, ongoing
assault. 4
As for factor two, which focuses on whether accepting the new position would
create the perception that a court was misled, the trial court did not accept any position
because the issue of jury unanimity was not raised below, 5 and there were no relevant
rulings on the matter. Similarly, as for factor three, whether the State would gain an
unfair advantage from the change, as there was no change in position, this factor, too,
weighs against applying judicial estoppel.
We next address the merits of Valoaga’s unanimity claim. The State contends
Valoaga engaged in a continuous course of conduct. Neither election nor an instruction
on jury unanimity is required if a defendant’s acts can be characterized as a
“ ‘continuing course of conduct.’ ” State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d
1294 (1995) (quoting State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)). A
continuing course of conduct is “an ongoing enterprise with a single objective.” State v.
Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996).
Because assault is a course-of-conduct crime, multiple assaults committed within
a short period of time may be considered one continuous act. E.g., State v. Monaghan,
166 Wn. App. 521, 537, 270 P.3d 616 (2012). “We evaluate whether the evidence
shows conduct occurring at one place or at many places, within a brief or long period of
4 Valoaga highlights a variety of times when the State refers to the assault as “an initial” and
“subsequent” assault. He also points to a Google Earth image of the area which was submitted as an exhibit and labeled the two locations of the encounters as the “first assault” and the “second assault.” However, there were also multiple times when the State referenced the incident as a single assault. Using terminology to describe the sequence of events does not necessarily mean the events were not part of a continuous course of conduct. Thus, the position taken by the State at trial is not “clearly inconsistent” with its current position, particularly in the context of its closing argument. 5 Indeed, as the issue of jury unanimity is one of constitutional magnitude, it may be raised for the
first time on appeal. Aguilar, 27 Wn. App. 2d at 918.
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time, and to one or multiple different victims . . . .” State v. Lee, 12 Wn. App. 2d 378,
393, 460 P.3d 701 (2020). A “brief period of time” can include acts within a span of a
few hours, or even weeks. See State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10
(1991) (holding that continuous course of conduct exception to unanimous jury verdict
applied because fatal assault of three-year-old could have occurred only during a two-
hour span); State v. Craven, 69 Wn. App. 581, 588, 849 P.2d 681 (1993) (defendant
charged with single count of assault for injuries suffered by 16-month-old during a three-
week period; evidence supported State’s theory of “systematic pattern of abusive
conduct which lends itself to the continuing course exception”). “Common sense is the
guiding light of this analysis.” Aguilar, 27 Wn. App. 2d at 925.
For example, in Handran, the defendant climbed in through the window of
his ex-wife’s apartment, and she awoke to find him leaning over her, nude and
kissing her. 113 Wn.2d at 12. She demanded that he leave immediately, but
instead, he pinned her down, offered her money, and hit her in the face. Id.
Handran argued that the jury could have found an assault either in his kissing his
ex-wife or in his hitting her, but the court held that these two acts of assault were
part of a continuing course of conduct. Id. at 17. The court noted that the acts
occurred in one place, during a short period of time, with the same aggressor and
victim, and reasoned, “Under a commonsense evaluation of these facts, the
actions evidence a continuing course of conduct to secure sexual relations with
his ex-wife, whether she consented or not, rather than several distinct acts.” Id.
By contrast, in Aguilar, the court reasoned that although there was only
one victim and the relevant acts all occurred in one location, the evidence only
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superficially indicated a continuing course of conduct. 27 Wn. App. 2d at 927.
Instead, the court held that the defendant’s numerous activities between the
multiple acts of rape—such as “searching for and doing drugs, pretending to sip
wine,” breaking belongings, and destroying furniture—did not demonstrate the
existence of an ongoing enterprise with a single objective because he “acted
erratically under the influence of intoxicants, his focus shifting rapidly from one
thing to another.” Id.
Here, the evidence and common sense support concluding that Valoaga
engaged in a continuous course of conduct. The bus stop and highway
encounters took place near one another, within a block to a block and a half of
one another and within a relatively brief period of time, 20 minutes. The attacks
also involved the same perpetrator and the same victim.
There is also no evidence to suggest Valoaga’s objective changed
between the assaultive acts. Although the video shows Valoaga standing in the
shrubbery at one point and stopping another time briefly to pick something up,
the majority of the video showed Valoaga, in the prosecutor’s words, “slowly
pursu[ing]” Whitesel. Nor was there an intervening act or event, as the evidence
from multiple sources showed Valoaga following Whitesel for a stretch of nearly
20 minutes. While there is an approximately six-minute break in the surveillance
footage during which Whitesel and Valoaga are not on camera, during some of
this time, witness Jennie Robert testified she saw the two and watched them
walk southbound on Pacific Highway before temporarily losing sight of them.
Otherwise, Whitesel and Valoaga appeared engaged in a similar pattern of
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movement despite being off-camera, as verified by the additional video footage
and Robert’s second call to 911 in which she confirmed Valoaga continued to
follow Whitesel.
Here, while there were two distinct attacks on Whitesel, the evidence
showed Valoaga following Whitesel for 20 minutes, beginning with the first attack
at the bus stop until the second attack in the middle of the highway. We conclude
these acts constituted a continuing course of conduct, not multiple distinct acts.
Therefore, no Petrich unanimity instruction or election was required.
II. Claims Regarding Sentencing
Valoaga challenges his judgment and sentence, claiming the State failed to
prove his criminal history at sentencing, so a new sentencing hearing is required. The
State agrees.
The prosecution bears the burden of proving a defendant’s criminal history at
sentencing by a preponderance of the evidence. State v. Cate, 194 Wn.2d 909, 912-13,
453 P.3d 990 (2019). “The best evidence of a prior conviction is a certified copy of the
judgment,” but “the State may introduce other comparable documents of record or
transcripts of prior proceedings to establish criminal history.” State v. Hunley, 175
Wn.2d 901, 910, 287 P.3d 584 (2012) (quoting State v. Ford, 137 Wn.2d 472, 480, 973
P.2d 452 (1999)). Only an affirmative acknowledgement of criminal history waives a
challenge on appeal. State v. Ross, 152 Wn.2d 220, 233, 95 P.3d 1225 (2004).
The only evidence of Valoaga’s prior convictions was Appendix B to his judgment
and sentence, which listed four felony convictions in King County. Valoaga never
agreed to the accuracy of the documents, and the State “concedes that the Appendix B
11 No. 85289-2-I/12
did not, on this record, establish Valoaga’s criminal history by a preponderance of the
evidence.” Cate, 194 Wn.2d at 913. Thus, the remedy is a new sentencing hearing. Id.
at 914.
Valoaga also asserts that this court should strike the VPA because he is indigent
and recent amendments to the statute bar courts from imposing such fees on indigent
defendants. In 2023, the legislature amended RCW 7.68.035 to prohibit courts from
imposing the VPA when the defendant is indigent pursuant to RCW 10.01.160(3). RCW
7.68.035(4). Amendments to statutes governing legal financial obligations apply
retroactively to matters pending on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023). The State agrees that the VPA should be stricken. Thus, upon
remand, the new sentence should not include the VPA.
III. Statement of Additional Grounds for Review
Valoaga raises three separate issues in his SAG. First, he argues his Sixth and
Fourteenth Amendment rights were violated when the prosecutor commented on the
forensic evidence associated with the clothes and the saw that were submitted at trial. 6
Second, he argues his Sixth Amendment right to confrontation was violated as the
“forensic scientist was not present to verify and confirm lab[or]atory” evidence. Finally,
he argues there was insufficient evidence to support the special verdict that he was
armed with a deadly weapon at the time of the commission of the crime. The State did
6 Generally, Valoaga also argues his rights were violated by the admission at trial of the clothes
he was wearing and the saw located near him at the time of his arrest. But beyond this preliminary statement, he provides no additional argument on the matter or citation to the record informing this court “of the nature and occurrence of the alleged errors.” State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). “Although reference to the record and citation to authorities are not necessary or required, the appellate court will not consider an appellant’s SAG if it does not inform the court of the nature and occurrence of alleged errors.” State v. Gauthier, 189 Wn. App. 30, 43-44, 354 P.3d 900 (2015). Accordingly, we do not consider Valoaga’s claim regarding the admission of his clothes and the saw as evidence.
12 No. 85289-2-I/13
not respond to these additional issues raised on appeal. Valoaga’s additional claims are
unavailing.
A. Prosecutorial Statements
Valoaga argues that “[i]naccurate non-verified statements were . . . stated by
[the] prosecutor during trial,” and those statements “prejudiced defendant’s trial,” as the
prosecutor referenced forensic evidence and is not an expert witness. In particular, he
highlights the prosecutor’s statements during closing argument that three of the blood
stains on the hoodie “indicated the blood belonged to the victim.” Although Valoaga
cites to Frye v. United States7 and State v. Cauthron 8 to support this claim, at trial, he
did not challenge the testimony of the forensic scientist for the Washington State Patrol
Crime Lab who performed the DNA analysis for the knife and clothing, Gina Dembinski.
Rather, the focus of Valoaga’s challenge in his SAG appears to be the prosecutor’s
statements made in closing argument about this evidence.
“Allegations of prosecutorial misconduct are reviewed under an abuse of
discretion standard.” State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014)
(quoting State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)). The defendant
bears the burden of showing the comments were improper and prejudicial. Lindsay, 180
Wn.2d at 430 (citing State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008)).
Although prosecutors cannot reference evidence outside the record in their closing
arguments, prosecutors generally have wide latitude, and the comments are reviewed in
7 54 App. D.C. 46, 293 F. 1013, 34 A. L. R. 145 (1923). Under the Frye standard, “evidence
deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community.” State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984). 8 120 Wn.2d 879, 906, 846 P.2d 502 (1993) (holding testimony that defendant’s DNA “matched”
perpetrator’s was erroneously admitted, in that it was unsupported by valid probability statistics), overruled in part on other grounds by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997).
13 No. 85289-2-I/14
the context of the total argument. State v. Fisher, 165 Wn.2d 727, 746-47, 202 P.3d 937
(2009). When there is no objection to the argument, “the issue of misconduct is waived
unless the conduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice.” Lindsay, 180 Wn.2d at 430.
Here, we conclude it was not reversible misconduct for the prosecutor to discuss
the bloodstains on the hoodie, as at trial, Dembinski was introduced as a forensic
scientist and testified to the results referred to by the prosecutor. In the context of the
prosecutor’s comment, the preceding argument continually referenced Dembinski’s
testimony and accurately recounted the diminishing statistical likelihood of a match to
Whitesel. The prosecutor’s argument was based on the evidence and Valoaga cannot
show the comments were improper, much less that they were so flagrant and ill
intentioned that an instruction could not have cured any resulting prejudice.
B. Confrontation Clause
Valoaga contends the “forensic scientist was not present at trial and pre-trial” and
this absence violated his Sixth Amendment right to confront witnesses against him. We
disagree.
Both the federal and state constitutions protect the rights of criminal defendants
to confront adverse witnesses. U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22;
Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
“ ‘The primary and most important component’ of the confrontation right ‘is the right to
conduct a meaningful cross-examination of adverse witnesses.’ ” State v. Orn, 197
Wn.2d 343, 347, 482 P.3d 913 (2021) (quoting State v. Darden, 145 Wn.2d 612, 620,
41 P.3d 1189 (2002)). When considering the DNA testing process, defendants have a
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right “ ‘to be confronted with the analyst who made the certification.’ ” State v. Lui, 179
Wn.2d 457, 490, 315 P.3d 493 (2014) (quoting Bullcoming v. New Mexico, 564 U.S.
647, 652, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)). This court reviews confrontation
clause issues de novo. State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
The forensic scientist who performed all of the testing on the items related to the
case, Dembinski, testified at trial, eliminating the concern that an unrelated analyst
reported the results. She was available for cross-examination, and Valoaga availed
himself of the opportunity, eliciting testimony in which she acknowledged items can
become contaminated with DNA at the lab or during the collection process. Dembinksi
also testified on cross-examination that the DNA she tested was not necessarily from
the blood found on the clothing given the processes involved. Valoaga was not
unconstitutionally deprived of his right to confront Dembinski. 9
C. Sufficiency of Evidence
Finally, Valoaga contends there was “[i]nsufficient evidence to prove assault with
[a] deadly weapon beyond [a] reasonable doubt,” as “[t]here is no correlating evidence
tying the deadly weapon to the defendant” and “[t]he weapon was not found on
[Valoaga’s] person” when arrested. 10 We disagree.
Due process requires that the State prove every element of a crime beyond a
reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017). To
determine whether sufficient evidence supports a conviction, an appellate court must
9 Valoaga also argues there was a pre-trial confrontation clause issue, but as it was discussed
above, Dembinski was not present at any pre-trial hearings because there were no challenges to the admissibility of her testimony. 10 In support of this assertion, Valoaga additionally cites to “State v. Altam 2022,” which we
interpret as a reference to State v. Altman, 23 Wn. App. 2d 705, 520 P.3d 61 (2022).
15 No. 85289-2-I/16
“view the evidence in the light most favorable to the prosecution and determine whether
any rational fact finder could have found the elements of the crime beyond a reasonable
doubt.” State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). A claim of
insufficient evidence admits the truth of the State’s evidence and all reasonable
inferences from that evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). All reasonable inferences must be interpreted in favor of the State and most
strongly against the defendant. Id. Circumstantial and direct evidence are equally
reliable. State v. Lazcano, 188 Wn. App. 338, 363, 354 P.3d 233 (2015). Whether
sufficient evidence supports a defendant’s conviction is a question of law reviewed de
novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).
Under RCW 9A.36.011(1)(a), “[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 . . . .” A person acts with intent or intentionally when he or she acts with the
objective or purpose to accomplish a result which constitutes a crime. RCW
9A.08.010(1)(a). Great bodily harm means bodily injury which creates a probability of
death, or which causes significant serious permanent disfigurement, or which causes a
significant permanent loss or impairment of the function of any bodily part or organ.
RCW 9A.04.110(4)(c). Finally, a deadly weapon includes any weapon, device,
instrument, article, or substance . . . which, under the circumstances in which it is
used . . . is readily capable of causing death or substantial bodily harm. RCW
9A.04.110(6).
16 No. 85289-2-I/17
After viewing the video footage, any rational fact finder could find beyond a
reasonable doubt that the assailant in the video intended to inflict great bodily harm, as
slashing at the face and neck of an individual with a pruning saw is likely to result in
serious injury like death or disfigurement. Indeed, Whitesel and his attending physician
testified that he received multiple lacerations to his face and upper neck that required
stitches. Additionally, the pruning saw qualifies as a deadly weapon under the
circumstances, due its utilization in the aforementioned way.
When viewed in a light most favorable to the State and assumed true, the
evidence is also sufficient to establish that Valoaga was the individual who used the
saw to assault Whitesel, despite it not being found directly on him when he was
arrested. Video footage shows the assailant attacking Whitesel with an object with a
shiny blade and orange handle consistent with the pruning saw that was later found.
Franco testified that he heard a “loud thud” when initially confronting Valoaga a few
minutes after the highway encounter. Shortly after Valoaga’s arrest, Franco searched
the nearby bushes with other officers and found a folded saw, which would later be
identified as an orange and black Fiskars pruning saw. Further forensic testing
confirmed the saw contained Whitesel’s DNA. Valoaga’s clothes also contained blood
stains, which upon testing provided some support for inclusion of Whitesel’s DNA,
although the probability was lower than that of the blood on the saw. Overall, there is
sufficient evidence for any rational fact finder to connect Valoaga to the saw.
Further, there were two people who had witnessed the highway encounter and
identified Valoaga through field show-ups shortly after he was arrested. Each of them
confirmed that Valoaga was the same person they witnessed assault Whitesel earlier.
17 No. 85289-2-I/18
The arresting officer, Franco, also confirmed Valoaga was wearing clothing that
matched the attacker from the video. Additionally, various cameras recorded a bulk of
the ongoing incident and showed the same assailant following Whitesel. The
surveillance footage also captured two times where the individual pulled the saw in and
out of their front sweatshirt pocket. Because all reasonable inferences must be
interpreted in favor of the State, this portion of the evidence also connects Valoaga—
and the saw—to the assault.
Therefore, we conclude a rational fact finder could determine beyond a
reasonable doubt that Valoaga was armed with a deadly weapon when he assaulted
Whitesel.
CONCLUSION
We affirm Valoaga’s conviction but remand for resentencing because the State
failed to prove his criminal history and the VPA was improperly imposed.
WE CONCUR: