State v. Gorun, No. 56057-3-I (Wash. App. 5/21/2007)
| Decision Date | 21 May 2007 |
| Docket Number | No. 56057-3-I.,56057-3-I. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. IVAN GORUN Appellant. |
Appeal from Whatcom County Superior Court. Docket No: 03-1-01342-3. Judgment or order under review. Date filed: 04/05/2005. Judge signing: Honorable Ira J Uhrig.
Counsel for Appellant(s), Jennifer L Dobson, Attorney at Law, Po Box 15980, Seattle, WA, 98115-0980.
Eric Broman, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Skagit County Prosecuting Attorney, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA, 98225-4038.
Appellant Ivan Gorun, a 19-year-old Ukrainian immigrant, was charged with second degree assault, second degree rape, and assault with sexual motivation. The alleged events took place at a hot spring near Mount Baker. Testimony from witnesses conflict as to what actually occurred. A jury found him guilty as charged on all counts. He assigns error to the trial court's denial of his motion for a new trial. He also alleges impermissible judicial comment, ineffective assistance of counsel, inadequate interpretation, prosecutorial misconduct, and inconsistent jury instructions. In his statement of additional grounds, he argues that he was denied his right to a public trial under the Sixth Amendment. We affirm the decision of the trial court.
On April 17, 2003, the Whatcom County prosecutor charged appellant Ivan Gorun with one count of second degree assault and one count of second degree rape. RCW 9A.36.021; RCW 9A.44.050. The information was amended on February 19, 2004, to add an allegation of assault with sexual motivation. RCW 9.94A.835. At trial, a jury found Gorun guilty as charged on all counts. Substitute counsel made a motion for new trial, which was denied. Gorun was sentenced to a minimum term of 102 months of confinement and a maximum term of 20 years/life on the rape conviction. He faces deportation as a result of his conviction. Substantive Facts
Gorun is a Ukrainian immigrant, who had lived in the United States for three years. He was 19-years-old at the time of the incident. Because Gorun speaks Russian and Ukrainian, and has limited knowledge of English, he was assigned a court-appointed interpreter to assist the defense and another interpreter to interpret testimony during trial.
On October 11, 2003, Gorun and two of his friends, Valeriy Shintar and Leo Datsky, went to a hot spring near Mount Baker. Upon arriving in the parking lot for the trailhead leading to the hot springs, they were met by Heather Elliott and her live-in partner, Todd Elsworth. Elliott and Elsworth had intended to camp overnight. Elliott approached Gorun and his friends in the parking lot in order to determine their character, and she and Shintar exchanged greetings. Gorun and his friends, carrying flashlights and beer, hiked ahead of Elliott and Elsworth, who carried a backpack, lantern, rain gear and a Mason jar with some vodka. It was dark and raining, with minimal moonlight. When Gorun and his friends arrived at the spring, they changed into shorts and swim trunks and began to soak. Shintar and Datsky drank some beers. When Elliott and Elsworth arrived at the spring, they turned their lantern off, stripped naked, entered the spring, and began drinking their vodka from the Mason jar.
The hot spring was a pool of water, 20 by 22 feet across, with a two-to three-foot embankment on one side. Gorun and his friends were on one side of the pool, while Elliott and Elsworth were positioned in the middle. Elliott and Elsworth both testified that they were uncomfortable because Gorun and his friends were speaking to each other in Russian, which neither Elliott nor Elsworth understood. They engaged in polite conversation with Shintar and Datsky, and Elliott offered to share her vodka. At this offer, all three men moved from the perimeter of the pool toward the middle, and Shintar and Datsky took a few sips of the vodka. Gorun did not drink any of the vodka, nor had he consumed any beer. After their drinks, his friends moved back to the perimeter, but Gorun stayed in the middle of the pool and stretched out in the water.
Elliott and Elsworth remained in the middle of the pool. Elliott finished the vodka and also drank a beer. She testified that she was feeling the effects of the alcohol. Elsworth felt Gorun stretched out behind him, and thought that he was much too close. Elliott then whispered to him that Gorun's hand was on her leg. Gorun testified that it may have been his leg that brushed Elliott as he floated in the water. Elsworth testified he grabbed Gorun's hand and moved it away, saying nothing to Gorun. Elsworth said, "let's go," and got out of the pool to urinate. Elliott remained in the pool, and when Elsworth turned around, he saw Gorun back in the middle of the pool, close to Elliott. He re-entered the pool and pushed Gorun's head under the water, holding him there for five seconds. Gorun testified that after Elsworth released him, he got out of the water and was approached by Shintar and Datsky who asked what had happened.
Elliott and Elsworth got out of the pool to leave. At this point, testimony from the witnesses varies. Shintar and Datsky had seen Elsworth push Gorun under water, but did not know why. After talking to Gorun, Datsky got out of the pool and approached Elsworth and Elliott. Elsworth testified that he thought Datsky was coming after him to kill him and "do whatever" to Elliott. He kicked at Datsky, knocking him back into the water, and telling him that his "buddy" had been in the wrong. Datsky was angry, and chased Elsworth in order to fight him. The two men wrestled. Elsworth said that Datsky dragged him into the bushes; Datsky said that they fell and rolled down a slope. At some point in time, Datsky stopped fighting with Elsworth, and appeared to apologize. Elsworth testified that Datsky held his arms open as if he wanted to embrace him, which Elsworth did, despite his fear. Datsky let him go.
While Elsworth and Datsky were fighting, Elliott was standing near a tree trunk just outside the pool, and had put her shirt back on, but remained naked from the waist down. She testified that she saw Gorun walking toward her, and feared that she was going to be raped. Gorun and Shintar testified that Shintar had told Gorun to go see what Datsky was doing. Gorun testified that while he was looking in the woods for Datsky, Elliott approached him and sprayed him with pepper spray. Blinded, Gorun said that he grabbed at Elliott to stop any more spraying. Shintar testified that he then led Gorun to the water to wash out the pepper spray. In contrast, Elliott testified that as Gorun came at her, she put her arm out and said "[w]hat are you doing, [t]hink about what you are doing." She testified that she punched him in the face; he laughed, and punched her back in the face. She then described that as she reached for her pepper spray in her jacket and adjusted the nozzle, Gorun penetrated her vagina with his finger. She testified that he grabbed her from behind and masturbated by rubbing himself against her. She claims that she then sprayed him in the face with the pepper spray, at which point he yelled, grabbed it from her, and threw it to the ground. According to Elliott, she then tried to kick him, and threw him forward, rolling both of them into the water. Shintar testified that throughout the minute-long incident, he only heard Gorun yell that something was in his eyes; he did not hear Elliott say anything.
At this point, Elsworth and Datsky had stopped fighting. Elsworth and Elliott both testified that they gathered their belongings and ran down the trail towards the parking lot. At some point, they stopped long enough for Elsworth to put on his pants, and for Elliott to put on her shoes. When they got to their car, they wrote down the license plate number from Datsky's car, and let the air out of the tires. The remote location of the parking lot did not allow for cell phone reception, so they drove 20 minutes to Concrete. Elliott testified that during the drive, she told Elsworth that Gorun had punched her in the face, had digitally penetrated her, and had masturbated. They called 911 upon arriving in Concrete. Elsworth was treated for his injuries from fighting with Datsky. Elliott testified that she told the doctor that Gorun had put his fingers in her vagina and that she had pepper-sprayed him. She suffered a swollen nose, a chipped tooth and abrasions on her lower back, buttocks and legs. The doctor testified that he conducted a rape test, but that there were no injuries to Elliott's vaginal area. The doctor testified that this lack of injury was consistent with her account of the incident. Gorun points out that Elliott did not report the digital penetration and masturbation in her initial report to the police. In her interview with the lead detective, Elliott amended her statement to include these details.
During direct examination, Elliott testified that although she could not see underwater, she believed Gorun's hand touched her as he floated nearby. She testified that "he was floating, lying position sort of [sic]," and that his head was closest to her as he floated. Given the position of his head, she testified that it was more likely that his hand was touching her, rather than his leg. When pressed as to how she knew which part of Gorun's body her boyfriend pushed away from her, she said "I don't know." Later, during cross-examination, defense counsel asked Elliott again if she could tell what had touched her underwater, and she said "[n]o." Counsel then referred to a question he had asked Elliott during a defense interview at the prosecutor's office. "And do you remember...
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