State v. Rusev

• Decision Date: 18 April 2017
• Docket Number: No. 47762-9-II,47762-9-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. VENIAMIN GEORGE RUSEV, Appellant.

STATE OF WASHINGTON, Respondent, v. VENIAMIN GEORGE RUSEV, Appellant.

No. 47762-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

April 18, 2017

UNPUBLISHED OPINION

MELNICK, J. — Veniamin George Rusev appeals his conviction and sentence for assault in the first degree and two counts of robbery in the first degree.¹ We conclude that sufficient evidence supports Rusev's convictions and that the trial court properly instructed the jury on accomplice liability. We also conclude that the trial court gave the jury an improper "to convict" instruction on robbery; however, the error was harmless. The court further erred by imposing a mandatory minimum sentence on the assault charge. Based on our resolution of the case, we do not reach the double jeopardy issue, and because of newly amended RAP 14.2, we do not reach the issue of appellate costs.

We affirm, but remand for resentencing and order the trial court to strike the mandatory minimum sentence.

FACTS²

Ihor Onishchuk sold a Mercedes-Benz to his cousin, Oleg Mikhalchuk. Oleg and his brother, Yaheni, were cousins of Ihor and his brother, Dmytro. The Mikhalchuk brothers also knew Rusev. Oleg told Rusev about some issues with the Mercedes not working properly. Rusev said he "doesn't like people who are cheating the other people." 7 Report of Proceedings (RP) at 675.

Alesik, a close friend of Ihor and Dmytro, also knew Rusev. Rusev worked on Alesik's Volvo. Alesik loaned Rusev his Volvo to drive for a few months while Rusev fixed it.

On February 23, 2014, Alesik called Ihor and Dmytro, and asked them to pick up the Volvo from Rusev. The brothers planned to go together, so Ihor could drive his own car, and Dmytro could drive the Volvo to Alesik. Alesik told Rusev over the phone that Ihor and Dmytro would pick up the car, and reminded Rusev that he had previously met Ihor.

Before the brothers went to pick up the Volvo, Rusev told Vossler Blesch that he did not like that Ihor sold Oleg a broken car. Rusev told Blesch that he wanted to rob the brothers and scare them because they cheated their own family. Rusev said he did not trust the brothers and asked Blesch to stay. Blesch carried a firearm in his waistband and Rusev told Blesch to reveal it when the brothers arrived, so they would see it and be intimidated.³

When the brothers arrived at Rusev's, they drove into the alleyway behind his garage. Rusev waited for them, standing in the doorway to the garage. Rusev asked them if they were picking up the Volvo. He acted normal and smiled at them. Rusev shook the brothers' hands.

When Dmytro entered the garage, he saw a stranger, Blesch, with a gun in his waistband. After Ihor entered the garage, Rusev closed and locked the door. Within seconds, Blesch pulled the gun out of his waistband and pointed it at the brothers.

Ihor and Dmytro stood approximately five to seven feet away from Blesch and Rusev. The brothers spoke in Russian with Rusev. Rusev spoke aggressively and cursed. Blesch did not understand Russian, and could not follow the conversation.

Rusev walked back and forth in front of the brothers. Blesch described Rusev as circling them "kind of like a predator stalking his prey." 10 RP at 977. Based on instruction from Rusev, Blesch "rack[ed] the slide" and ejected a bullet out of the chamber of the gun to intimidate the brothers; Rusev kicked it out of the way. 5 RP at 392.

Rusev demanded the brothers' wallets and cell phones, and Dmytro's watch. Ihor tried to talk to Rusev in a friendly manner, but Rusev told him to be quiet or he would kill them. Rusev gestured with his head to Blesch to come closer with the gun. Blesch moved closer to them and gestured with the gun for the brothers to hand the items over. The brothers obeyed.

Rusev took one wallet and put it on top of the Volvo and gave the other wallet to Blesch. Rusev then demanded the brothers take off their jackets and shoes. They again obeyed. Rusev also demanded their car keys; Ihor handed them to Rusev. Rusev handed their phones and the keys to Blesch, and Blesch put them in his jacket pocket.⁴ Blesch said to Rusev, "What the hell?"10 RP at 984. Rusev said something along the lines of "trust me." 10 RP at 985. Rusev finally ordered the brothers to take off their pants. Ihor refused.

Rusev then asked Ihor, "[A]re you the owner of the Mercedes?" 9 RP at 810. Ihor agreed that he was the owner. Rusev picked up the wallet off the Volvo, looked at Ihor's driver's license, and placed it back. Rusev phoned Yaheni and asked Yaheni the name of his cousin. Yaheni responded, "I[h]or Onishchuk." 7 RP at 571.

Ihor told Dmytro that they would not "leave this place alive," and that they would need to get out of there at "any price." 5 RP at 397-98. When Rusev hung up the phone, he began to walk behind the brothers. Ihor grabbed Rusev and held him. Dmytro grabbed Rusev from behind and tried to push the group towards the door to escape. Rusev cried out, "Voss, help me." 10 RP at 995. While Dmytro tried to open the door, Blesch fired the gun, striking and injuring Ihor.

Rusev seemed surprised that Blesch shot the gun and he told Blesch to leave. Rusev told Dmytro that Blesch was not supposed to fire the gun, he was only supposed to scare them. Ihor suffered a gunshot wound to the neck, chest, and arm that caused a significant spinal cord injury, rendering him a partial quadriplegic. He could move his hands, but nothing else from the neck down.

Blesch turned himself into the police shortly thereafter. Blesch claimed that he followed Rusev's lead throughout the incident. Blesch pled guilty to assault in the first degree and two counts of robbery in the first degree.

After the shooting, law enforcement arrested Rusev. Rusev identified Blesch as the shooter and stated that Blesch fled after shooting Ihor. An officer noticed that when Rusev left the scene to receive medical attention for an injury to his ear, he took a wallet out of his pocket, said that itwas not his, and dropped it on the ground. A forensic specialist found Ihor's wallet on top of the Volvo in the garage.

The State charged Rusev as an accomplice to one count of assault in the first degree and two counts of robbery in the first degree, each with firearm enhancements.⁵

The trial court instructed the jury on accomplice liability:

A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he either:

(1) Solicits, commands, encourages, or requests another person to commit the crime: or

(2) Aids or agrees to aid another person in planning or committing the crime.

The word "aid" means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and ready to assist by his presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Clerk's Papers (CP) at 131 (Instr. 5). Rusev did not object to this instruction.

The trial court instructed the jury on the elements of robbery in the first degree:⁶

To convict the defendant of the crime of robbery in the first degree as charged in Count IA [and II-A], each of the following six elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 23rd day of February, 2014, the defendant or a person to whom the defendant was acting as an accomplice; unlawfully took personal property from Ihor Onishchuk [or Dmytro Onishchuk];

(2) That the defendant or a person to whom the defendant was acting as an accomplice, intended to commit theft of the property;

(3) That the taking was against Ihor Onishchuk's [or Dmytro Onishchuk's] will by the defendant's or a person to whom the defendant was acting as an accomplice, use or threatened use of immediate force, violence, or fear of injury to that person or to the person or property of another;(4) That force or fear was used by the defendant or a person to whom the defendant was acting as an accomplice, to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

(5) (a) That in the commission of these acts or in immediate flight therefrom the defendant or a person to whom the defendant was acting as an accomplice, was armed with a deadly weapon or

(b) That in the commission of these acts or in the immediate flight therefrom the defendant or a person to whom the defendant was acting as an accomplice, displayed what appeared to be a firearm or other deadly weapon; and

(6) That any of these acts occurred in the State of Washington.

CP at 139, 141 (Instr. 13, 14). Rusev took exception to these instructions because he argued that the court should include a theft instruction that stated there must have been an intent to permanently deprive the owner of the property as an element.

The jury found Rusev guilty of one count of assault in the first degree and two counts of robbery in the first degree. By special verdict, the jury found Rusev or the person to whom he acted as an accomplice, was armed with a firearm at the time of each of the three counts.

The trial court sentenced Rusev to 335 months of confinement. The trial court noted that the "confinement time on Count(s) III [assault] contain(s) a mandatory minimum term of 60 months." CP at 221. The trial court also entered an order of indigency. Rusev appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

Rusev argues insufficient evidence supports his convictions for all counts. He argues that he did not know Blesch would assault Ihor. Rusev also argues that he did not take the property with an intent to steal and he did not retain possession of any of the property,...