¶54 (dissenting) — I dissent from the majority’s reversal of Kevin Abuan’s convictions for the reasons articulated in State v. Millan, 151 Wn. App. 492, 499-500, 212 P.3d 603 (2009), review granted, 168 Wn.2d 1005 (2010) (argued Oct. 26, 2010). In a split decision, we previously held that a defendant who fails to move to suppress evidence seized from a vehicle search incident to arrest fails to preserve this issue for appellate review. Millan, 151 Wn. App. at 499-500;13 accord State v. Nyegaard, 154 Wn. App. 641, 226 P.3d *161783 (2010).14I also dissent from the majority’s holding that the evidence was insufficient to support the jury’s conviction of Abuan on count VI, second degree assault, and its dismissal of that count with prejudice.
I. Failure To Preserve Evidentiary Challenge
¶55 Here, as in Millan, Abuan failed to challenge the vehicle search below on any grounds and, therefore, cannot seek suppression for the first time on appeal.15 See Millan, 151 Wn. App. at 496-500. Similarly, he failed to challenge below the noncustodial pat down of his person for weapons. Therefore, he has failed to preserve these issues for review. State v. Donohoe, 39 Wn. App. 778, 782 n.5, 695 P.2d 150 (“Because a defendant can receive complete consti*162tutional protection against the use of illegally obtained evidence through superior court suppression hearing procedures, and because the rights afforded by these constitutional provisions are not ‘trial rights’ or part of the ‘truth-finding function’, they can be waived.” (citing State v. Valladares, 99 Wn.2d 663, 671-72, 664 P.2d 508 (1983))), review denied, 103 Wn.2d 1032 (1985).
II. Alleged Constitutional Error Not “Manifest”
¶56 Alternatively, I would adopt Division One’s recent approach to a vehicle inventory search incident to arrest and impoundment of a vehicle in State v. Roberts, 158 Wn. App. 174, 240 P.3d 1198 (2010), petition for review filed, No. 85565-0 (Wash. Jan. 25, 2011). Although Roberts did not address Millan’s “waiver/failure to preserve” rationale, it did rule, presumably as a result of Roberts’ failure to move to suppress below, that the record was insufficiently developed to show that the alleged constitutional error was “manifest”: According to Division One, Roberts could not and did not show that the trial court would have granted a motion to suppress evidence lawfully seized during an inventory search before impounding his car.16 In short, Roberts did not carry his burden to prove that the alleged *163error was “manifest”; therefore, he could not challenge the legality of the seized evidence for the first time on appeal.
¶57 Similarly, here, in failing to move below to suppress the seizure of evidence of the crime for which he was arrested, Abuan failed to create a record to carry his burden of proof of a manifest constitutional error that he can raise for the first time on appeal: Abuan, like Roberts, cannot show on the record before us the likelihood that the trial court would have granted a motion to suppress had he brought one. Roberts, 158 Wn. App. at 182. Thus, I would follow Roberts and Millan, hold that Abuan failed to preserve his evidentiary challenges and suppression issues for appeal, and affirm.
III. Sufficiency of Evidence, Count VI
¶58 The majority holds that the evidence was insufficient to support the jury’s finding Abuan guilty of second degree assault. Again, I respectfully disagree. I would hold that under the doctrine of transferred intent,17 there was sufficient evidence for the jury to find that Abuan intended to cause bodily harm to unseen occupants in the home when he or his accomplice fired several rounds of ammunition into the open attached garage in which people were playing video games. In the alternative, I would hold that there was sufficient evidence to find (1) that Abuan intended his actions to create an apprehension and fear of bodily harm; and (2) that at least one victim inside the home, Fomai Leoso,18 did, in fact, experience fear and apprehension of bodily harm. I would affirm count VI.
*164¶59 The record contains the following evidence that supports the jury’s conviction of Abuan on count VI, second degree assault. On August 15, 2007, Francis Leoso was in his family’s garage, playing video games with his younger brother, in the presence of their uncle. Sometime after dark, they heard a car’s engine; someone shouted “N-G-C, cuz,” 8 Report of Proceedings (RP) at 1016, and suddenly gunfire started hitting the residence. Their older brother, Fomai Leoso, was on the phone inside the house when the shooting began; hearing five or six gunshots, he immediately ran outside. Fomai and Francis then “jumped in[to] a car” to look for the shooters, whom they were unable to find. 10 RP at 1288.
A. Standard of Review
¶60 I agree with the majority’s statement of the applicable standard of review. I disagree, however, with the manner in which it has applied this standard to the facts here. “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering an allegation of insufficiency, we review the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found guilt beyond a reasonable doubt.” Salinas, 119 Wn.2d at 201 (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). We must draw “all reasonable inferences from the evidence ... in favor of the State and interprete ] [them] most strongly against the defendant.” Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). In addition, we afford circumstantial and direct evidence equal weight. See State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
B. Two Types of Second Degree Assault — Elements
¶61 RCW 9A.36.021(l)(c) provides that “[a] person is guilty of assault in the second degree if he or she . . . *165[a]ssaults another with a deadly weapon.” The statute does not define “assault”; thus, the courts must resort to the common law definition. State v. Krup, 36 Wn. App. 454, 457, 676 P.2d 507, review denied, 101 Wn.2d 1008 (1984); RCW 9A.04.060 (common law provisions supplement criminal statutes). The common law defines “assault” and breaks it into two “concepts,” or types: one involving an attempt to injure and the other involving putting the victim in fear of injury. See State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995).
¶62 Applying these two alternative concepts of assault here, the trial court instructed the jury that it could find Abuan guilty of second degree assault if it found beyond a reasonable doubt that he either (1) performed an act “with intent to inflict bodily injury upon another” or (2) performed an act “with intent to create in another apprehension and fear of bodily injury, and which in fact create [d] in another a reasonable apprehension and imminent fear of bodily injury, even though the actor did not actually intend to inflict bodily injury.” Clerk’s Papers (CP) at 240 (Jury Instruction 19.19 In my view, there is sufficient evidence to support Abuan’s second degree assault conviction under both alternatives.
1. Intent to inflict bodily injury
¶63 Our courts have generally defined the first type of “assault” to be “ ‘an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented.’ ” Krup, 36 Wn. App. at 457 (quoting State v. Stewart, 73 Wn.2d 701, 703, 440 P.2d 815 (1968)). In State v. Frazier, for example, our Supreme Court explained:
“One concept is that an assault is an attempt to commit a battery. There may be an attempt to commit a battery, and hence an assault, under circumstances where the intended victim is unaware of danger. Apprehension on the part of the victim is not an essential element of that type of assault.”
*16681 Wn.2d 628, 631, 503 P.2d 1073 (1972) (emphasis added) (quoting United States v. Rizzo, 409 F.2d 400, 403 (7th Cir.), cert. denied, 396 U.S. 911 (1969)); see also State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996)20 (State must show specific intent to cause bodily injury but need not prove actual fear.); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (specific criminal intent may be inferred from conduct where plainly indicated as a matter of logical probability).
¶64 Addressing the first alternative — intent to inflict bodily injury — the trial court’s jury instruction defining “assault” correctly focused on whether the evidence proved that Abuan intended to harm “another,” not on whether his intent to injure was directed at a specific person.21 To prove specific intent to cause bodily injury to another, circumstantial and direct evidence have equal weight; thus, the jury was entitled to infer criminal intent from Abuan’s conduct. See Varga, 151 Wn.2d at 201; RCW 9A.08.010(1)(a) (“A person acts with intent . . . when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.”).
a. Transferred intent
¶65 It is irrelevant to a “transferred intent” analysis whether Abuan actually saw his victim or knew about his victim’s presence in the house. Our Supreme Court has held that first degree assault, RCW 9A.36.011, does not require the defendant’s knowledge of the victim’s presence:
RCW 9A.36.011 provides that once the mens rea is established, any unintended victim is assaulted if they fall within the terms *167and conditions of the statute. [State v.] Wilson, 125 Wn.2d [212,] 219[, 883 P.2d 320 (1994)]. This conclusion is supported by the plain language of RCW 9A.36.011(l)(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 . . . .” (emphasis added). In so reasoning, we hold in accord with Wilson, 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.
State v. Elmi, 166 Wn.2d 209, 218, 207 P.3d 439 (2009) (emphasis added) (some alterations in original).
¶66 This Elmi rationale is equally applicable to the first type of second degree assault at issue here. Just as RCW 9A.36.011(l)(a)’s weapon-based first degree assault of “another” with “intent to inflict great bodily harm” can include transfer of the requisite intent from a specific victim to “any unintended victim” according to Elmi, 166 Wn.2d at 218, so should RCW 9A.36.021(l)(c)’s lesser second degree intent to “[a]ssault[ ] another with a deadly weapon” include transfer of the requisite intent from a specific to an unintended victim.
¶67 For purposes of defining “assault,” the difference between first and second degree assault is inconsequential. Here, the instruction defining “assault” provided that a person is guilty of assault if he performs an act “with the intent to inflict bodily injury upon another.” CP at 181 (Jury Instruction 19) (emphasis added). Thus, once established, Abuan’s intent to inflict bodily injury on another would transfer to any unseen victims, just as the Supreme Court held in Elmi. 166 Wn.2d at 218. Under this rationale, when a defendant shoots into “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.” Elmi, 166 Wn.2d at 218 (emphasis added). And, despite the lack of an instruction on “transferred intent,” we may nonetheless affirm on alternate grounds that the record supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004) (An appellate court may sustain a trial court on any correct ground.).
*168¶68 Applying Elmi here, there is sufficient evidence, both circumstantial and direct, to support Abuan’s second degree assault conviction: When the drive-by shooting began, the three people in the garage saw and heard shouts and gunfire, and they dropped to the floor. Gunshot damage was found on the sides of the garage, in which they had been playing video games. The jury could infer criminal intent from Abuan’s conduct in spraying bullets into the open garage in which these three people were visible. See Elmi, 166 Wn.2d at 218-19; see also Varga, 151 Wn.2d at 201. These facts support the jury’s conclusion that the shooter, Abuan or his accomplice, intended to cause bodily harm to the garage’s occupants. Under Elmi, the intent to cause bodily harm could transfer from those in the attached garage to Fomai inside the main part of the house. See Elmi, 166 Wn.2d at 218-19. This evidence is sufficient to support the jury’s conviction of Abuan on count VI.
b. Extra “requirements”
¶69 The majority, however, appears to read into the applicable assault law additional requirements, both factual and legal, concerning proximity, apprehension, and imminent fear, which neither the statute nor the common law definition of “assault” includes. The majority apparently bases these extraneous requirements on the following three facts, which they find pivotal: (1) that Fomai was inside the house during the shooting and, thus, did not see the bullets being shot from the car as it drove by; (2) that bullet damage was found only on the attached garage, not on the main part of the house; and (3) that the record is devoid of direct testimony from Fomai that he was fearful or apprehensive during the shooting. These facts, however, are not relevant to analyzing whether there is sufficient evidence to support the first type of second degree assault— “performed an act with specific intent to inflict bodily injury.” Majority at 155.
¶70 The first type of second degree assault requires the State to prove only the defendant’s mental state, here, *169Abuan’s “intent to inflict bodily injury on another.” CP at 240. Neither the statute nor the common law requires proof of any mental state of the victim; again, as our courts have noted, “ Apprehension on the part of the victim is not an essential element of [this first] type of assault.’ ” Krup, 36 Wn. App. at 458 (quoting Rizzo, 409 F.2d at 403). Thus, the absence of testimony about Fomai’s mental state is irrelevant.22 Nor, contrary to the majority’s implication, does the law does require that the assault victim be within a certain proximity to the potential harm.23 Similarly, the majority’s asserted lack of damage to the house is also irrelevant to a sufficiency of the evidence analysis for count VI.
¶71 But even if this fact were relevant, it does not negate the possibility of inferring Abuan’s intent to assault the occupants of the house from the uncontroverted fact of the bullets spraying the occupied garage during his drive-by shooting. Taking the evidence in the light most favorable to the State, as we must,24 the record shows that the attached garage was an integral part of the house: Photographs clearly showed that the main part of the house was connected to the garage to form one unified structure. See Exs. 21, 23, 31. That Fomai’s family members were in the garage playing video games the night of the drive-by shooting also showed that the garage was being used as a living space of the house at the time.
¶72 The majority emphasizes that “[n]o shots hit the house,” majority at 159; but the record shows to the contrary. The garage extended toward the street, likely functioning as a shield for the other portion of the house against the spray of bullets during the drive-by shooting. And it was uncontroverted that Fomai’s brother Francis was playing video games with his younger brother in this attached *170garage portion of the house, which the bullets did hit. These facts support treating this attached garage as part of this house under the circumstances of this case. In my view, these facts require affirmance of the jury’s verdict, not a finding of insufficient evidence of second degree assault justifying reversal of Abuan’s conviction on count VI.
2. Intent to cause reasonable apprehension of bodily injury
¶73 The Frazier court also explained the second type of assault, as follows:
“The second concept is that an assault is ‘committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm.’ The concept is thought to have been assimilated into the criminal law from the law of torts. It is usually required that the apprehension of harm be a reasonable one.”
81 Wn.2d at 631 (quoting Rizzo, 409 F.2d at 403).
¶74 Even assuming, without agreeing, that the evidence supports an inference of Abuan’s, or his accomplice’s, intent to cause bodily harm to only the garage’s occupants and that transferred intent does not apply, there is still sufficient evidence to support Abuan’s conviction under the second type of assault — performing an act with “intent to create in another apprehension and fear of bodily injury,” which act in fact “creat[ed] in another a reasonable apprehension and imminent fear of bodily injury.” CP at 240 (Jury Instruction 18). The jury reasonably could infer such intent from the fact that Abuan, or an accomplice, discharged over five rounds of bullets into the garage portion of the house.25
¶75 Focusing on the lack of explicit testimony from Fomai about his fear, the majority finds insufficient evi*171dence to show that he actually experienced apprehension and fear of bodily harm. Majority at 157-58. I respectfully disagree. Fomai testified that while he was on the telephone inside the house, he heard “seven or six,” 10 RP at 1287, gunshots and immediately ran outside. In my view,26 just as the jury could infer Abuan’s intent to cause apprehension and fear from someone outside shooting at the house, the jury could reasonably infer Fomai’s apprehension and fear of bodily injury when he heard multiple gunshots and immediately ran outside.
¶76 That Fomai ran out to the street immediately after the shooting does not negate the circumstantial evidence and reasonable inference that he in fact felt apprehension and fear of bodily injury from the shots being fired. In a similar case, our Supreme Court held that an officer’s tackling an armed defendant did not negate any inference of his apprehension and fear for purposes of proving this element of second degree assault. State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967). That the defendant was pointing a gun at the officer was enough for a reasonable juror to find that the officer experienced fear in fact, regardless of his act of bravery in overcoming the armed defendant. Miller, 71 Wn.2d at 146 (“The fact that an officer may have the courage and skill to disarm a person does not mean that he is devoid of apprehension when a gun is pointed at him.”). Just as the officer’s tackling an armed man in Miller did not negate the officer’s reasonable fear and apprehension of bodily harm, here, it was not unreasonable for the jury to infer from Fomai’s running outside that the sound of multiple shots striking his house placed him in fear of bodily injury for himself, for his family members in the garage, or both. See Salinas, 119 Wn.2d at *172201 (the jury is entitled to draw reasonable inferences from evidence taken in light most favorable to State). Thus, Fomai’s running outside in response to the sound of bullets spraying the house was sufficient circumstantial evidence of his fear resulting from the drive-by shooting.
¶77 Again, the absence of explicit testimony from Fomai about whether he was fearful when he heard the shots and ran out of the house is not sufficient justification for reversing Abuan’s second degree assault conviction in count VI. Focusing on this fact shifts the focus away from the proper test for reviewing a claim of insufficient evidence, namely that (1) we must take the evidence in the light most favorable to the State, despite such perceived evidentiary deficiencies, and determine whether “any rational trier of fact could have found guilt beyond a reasonable doubt,” Salinas, 119 Wn.2d at 201; (2) we must draw “all reasonable inferences from the evidence ... in favor of the State and interpret [ ] [them] most strongly against the defendant,” Salinas, 119 Wn.2d at 201; and (3) circumstantial evidence is as reliable as direct evidence. Varga, 151 Wn.2d at 201. Applying these well-settled principles to the evidence here, I would affirm count VI.
Reconsideration denied June 14, 2011.
We in Division Two of the Court of Appeals have an internal split of authority on the need to preserve a challenge to a vehicle search incident to arrest in light of Arizona v. Gant, 556 U.S. 332, 338-39, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). In Millan, Judges Quinn-Brintnall, Bridgewater (retired), and I held that a defendant cannot challenge on appeal the admissibility of evidence seized from a vehicle *161during a search incident to arrest without having first raised this challenge in the trial court. Millan, 151 Wn. App. at 500. In contrast, in State v. McCormick, Judges Houghton (retired), Armstrong, and Penoyar held that a defendant may challenge the admissibility of evidence on appeal without having done so in the trial court, calling Millan into question. State v. McCormick, 152 Wn. App. 536, 540, 216 P.3d 475 (2009), petition for review filed, No. 83796-1 (Wash. Oct. 27, 2009). Following McCormick, in State v. Harris, still another panel, itself split (Judges Armstrong (writing), Penoyar (concurring), and Quinn-Brintnall (dissenting)), declined to hold that a defendant waived his right to challenge a vehicle search when he failed to bring a then meritless motion to suppress, before the United States Supreme Court issued Gant. State v. Harris, 154 Wn. App. 87, 99, 224 P.3d 830 (2010). Judges Quinn-Brintnall, Bridgewater (retired), and Hunt have followed the Millan analysis. Judges Houghton (retired), Armstrong, and Penoyar have followed the McCormick and Harris analyses.
I acknowledge that my colleagues in the majority here in Abuan agree with McCormick. I regret that Division Two’s opinions on the issue of waiver in post -Gant evidence challenges lack uniformity and, thus, do not provide guidance to counsel and to the superior courts. In my view, the outcomes of similar cases involving the same issue should not depend on the composition of randomly selected three-judge panels of our court. Under RCW 2.06.040, however, the Court of Appeals considers cases in three-judge panels only; there is no provision for sitting en banc to resolve internal splits. Our system leaves resolution of such internal splits to our Supreme Court, which recently heard argument in Millan and stayed a petition for review of McCormick pending its decision in Millan.
See also ER 103(a)(1) (error may not be predicated on a ruling admitting evidence absent a timely motion stating the specific ground for the objection); State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (in failing to move to suppress at trial, defendant waives right to challenge evidence gained in illegal search or seizure).
I respectfully disagree with the majority’s holding that Abuan has demonstrated actual prejudice and, thus, manifest error, which he can raise for the first time on appeal.
The Roberts court held:
[I]f the record is insufficient to determine the merits of the constitutional claim of error and the facts necessary to adjudicate the claimed error are not in the record, “no actual prejudice is shown and the error is not manifest” under RAP 2.5(a)(3). [State v.] McFarland, 127 Wn.2d [322,] 333[, 899 P.2d 1251 (1995)]. Where the error is based on trial counsel’s failure to move to suppress, the defendant must also show that the trial court would have likely granted the motion. McFarland, 127 Wn.2d at 333-34.
Roberts, 158 Wn. App. at 182. The court concluded by noting:
Because the defense did not file a CrR 3.6 motion to suppress the cocaine seized from the car, the record is not sufficient to determine the merits of Roberts’ claim that the primary purpose of the search was to find contraband, not to conduct an inventory search. The record is also not adequate to determine whether the inventory search was reasonable or there were reasonable alternatives to impoundment. Accordingly, we conclude the record is insufficient to address the merits of whether the inventory search was a valid basis for the search. McFarland, 127 Wn.2d at 338.
Roberts, 158 Wn. App. at 184 (emphasis added).
“The doctrine of transferred intent was developed at common law in order to provide a mechanism to find a defendant who shoots at B but misses and hits C instead just as guilty as if his aim had been accurate.’ ” State v. Elmi, 166 Wn.2d 209, 220, 207 P.3d 439 (2009) (Madsen, J., dissenting) (quoting 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) at 437 (2003)). “Indeed, the very reason for the doctrine is to relieve the prosecution of proving the defendant intended to injure an unintended victim.” Elmi, 166 Wn.2d at 220-21 (Madsen, J., dissenting).
Hereafter, I use this victim’s first name for clarity; in so doing, I intend no disrespect.
See also CP at 246 (Jury Instruction 24).
Overruled on other grounds by State v. Easterlin, 159 Wn.2d 203, 149 P.3d 366 (2006).
The majority states that the jury instructions identified Fomai as the victim and, therefore, there is “no room for a transferred intent analysis.” Majority at 156. But the record shows that Fomai was identified only in the “to convict” instruction. CP at 246, 239. In contrast, the instruction defining “assault” did not identify Fomai as the victim; the instruction simply used the statutory term “another.” CP at 246, 239; majority at 155.
Nevertheless, as I explain later in this dissent, the record does contain circumstantial evidence of the fear of bodily harm and apprehension by all four victims, Fomai and the three people in the garage.
Appropriately, the jury instructions did not include this “extra requirement.”
Salinas, 119 Wn.2d at 201.
See Eastmond, 129 Wn.2d at 500 (“A jury may infer specific intent to create fear from the defendant’s pointing a gun at the victim, unless the victim knew the weapon was unloaded.” (citing State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967); State v. Karp, 69 Wn. App. 369, 374-75, 848 P.2d 1304, review denied, 122 Wn.2d 1005 (1993); State v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276, review denied, 81 Wn.2d 1008 (1972))).
I respectfully disagree with the majority’s assertion that my Elmi analysis arguably could transform into a victim “anyone” in the neighborhood who heard the shots. See majority at 158. Fomai is not just “anyone”; he was “involved with” a gang that had “problems” with another gang involving “shoottings].” 10 RP at 1257-59. Thus, I would hold that it would have been reasonable for the jury to infer that when Fomai heard the shots, he ran outside under the belief that he was the target and that the bullets were being shot at his house — not being sprayed indiscriminately in the neighborhood.