State v. Baranovich

• Decision Date: 02 March 2011
• Docket Number: CR0900068; A142051.
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Irina Anatoley BARANOVICH, Defendant–Appellant.
• Court: Oregon Court of Appeals

241 Or.App. 280

249 P.3d 1284

STATE of Oregon, Plaintiff–Respondent,

v.Irina Anatoley BARANOVICH, Defendant–Appellant.

CR0900068; A142051.

Court of Appeals of Oregon.

Submitted Dec. 16, 2010.Decided March 2, 2011.

Peter Gartlan, Chief Defender, and Joshua B. Crowther, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Katherine H. Waldo, Senior Assistant Attorney General, filed the brief for respondent.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.WOLLHEIM, J.

Defendant was convicted of second-degree assault for participating in an ambush in which her brother struck the victim in the head with a rock. ORS 163.175. On appeal, defendant argues that the evidence was insufficient to demonstrate that she knew that her brother would use a rock—as opposed to his fist—to assault the victim, and that she therefore should have been acquitted of aiding and abetting the “physical injury to another by means of a deadly or dangerous weapon.” ORS 163.175(1)(b). We affirm.

Because the trial court found defendant guilty of the relevant offense, we state the facts in the light most favorable to the state. State v. Viranond, 346 Or. 451, 453, 212 P.3d 1252 (2009). Defendant and the victim were friends. They briefly lived together and also worked together. The friendship fell apart in December 2008, and the victim moved out. The victim also informed their employer about some of defendant's activities, and defendant was fired as a result. After defendant was fired, she made threats through mutual acquaintances about what she would do to the victim, including a text message stating, “when I see her she's dead.” The victim also learned through friends that defendant was “looking for [her].”

In January 2009, the victim and her friends were “hanging out” in downtown Portland when she saw defendant in a car that she recognized as belonging to defendant's boyfriend, Mashtalyar. The victim became concerned, called for her ride, and headed back to her residence in Oregon City.

When the victim reached her residence and began walking up the steps to the front door, she saw someone “running out of the bushes.” That individual, later identified as defendant's 13–year–old brother, struck the victim twice in the head with a rock, knocking her to the grass. Defendant, who had been hiding in the bushes, then jumped out. She and her brother then ran to Mashtalyar's car, which was parked down the block, and they fled the scene.

The victim and her friends reported the crime and described the getaway car. A short time later, police pulled over Mashtalyar's car. He was driving, defendant was in the passenger seat, and defendant's brother was in the backseat. Mashtalyar told the investigating officer that they had driven to Oregon City to beat up the victim, that the plan was to punch and “knock [the victim] out,” and that “all three had planned it”; he denied knowing anything about the rock that was used during the assault. As it turned out, Mashtalyar had been driving with a suspended license, and his car was towed and inventoried. During the inventory, police found “a baseball sized rock that had blood on it” under the driver's seat. In the backseat, police found a canister of pepper spray, a black ski mask, and an aluminum baseball bat.

Defendant and Mashtalyar, her codefendant, were each subsequently charged with two counts of assault. Count 1, second-degree assault, alleged that the defendants “did unlawfully and knowingly cause physical injury to [the victim] by means of a dangerous weapon, to-wit: a rock.” Count 2, third-degree assault, alleged that the defendants “did unlawfully and knowingly, while being aided by another person actually present, cause physical injury to [the victim].” After a bench trial, defendant was found guilty of second-degree assault on a theory of accomplice liability; she was acquitted of third-degree assault.

Defendant now appeals, arguing that the trial court erred in convicting her of second-degree assault because the evidence established, at most, that she was an accomplice to fourth-degree assault. Her contention is that, under the accomplice liability statute, ORS 161.155, a defendant cannot be held liable for aiding or abetting second-degree assault unless the defendant intends to aid or abet that particular crime, as opposed to an assault generally. Here, she argues, the evidence established that she agreed to aid her brother in “beating up” the victim—a fourth-degree assault—but that there was no evidence that she was aware or intended that her brother would use a rock (which she concedes is a dangerous weapon) as part of that assault. According to defendant, despite that lack of evidence, the trial court nonetheless erroneously relied on dictum in State v. Fichter, 226 Or. 526, 532, 360 P.2d 278 (1961), to find her guilty on the theory that second-degree assault by means of a rock was a “natural and probable consequence” of the plan to physically assault the victim. Cf. State v. Lopez–Minjarez, 236 Or.App. 270, 286, 237 P.3d 223, disposition modified on recons., 237 Or.App. 688, 240 P.3d 753 (2010) (“We conclude that the ‘natural and probable consequences' instruction is not an accurate statement of the law [.]”).¹

The state's response is two-fold. First, the state argues that defendant did not adequately preserve for appeal her contentions regarding the sufficiency of the evidence because she did not move for a judgment of acquittal, nor did she argue below regarding the continued viability of Fichter's “natural and probable consequences” formulation. Second, the state argues that, contrary to defendant's characterization of the evidence, a reasonable trier of fact could have found that defendant indeed intended to aid or abet a second-degree assault.

As an initial matter, we conclude that the issue defendant raises on appeal regarding the sufficiency of the evidence was adequately preserved below. Although defendant did not move for a judgment of acquittal, she clearly challenged the sufficiency of the evidence during closing argument. See State v. McCants/Walker, 231 Or.App. 570, 576, 220 P.3d 436 (2009), rev'd on other grounds sub nom. State v. Baker–Krofft, 348 Or. 655, 239 P.3d 226 (2010) (“As noted, here, neither defendant challenged the legal sufficiency of the state's proof by way of a motion for judgment of acquittal. Nevertheless,...