State Of Washington, Resp./cross App v. Michael Emeric Mockovak, App./cross Resp ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 66924-9-1
v.
MICHAEL EMERIC MOCKOVAK UNPUBLISHED OPINION
Appellant. FILED: May 20, 2013
S cog
Dwyer, J. — Dr. Michael Mockovak, the former co-owner of Clearly La$g, ^!g
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Inc, appeals from his convictions of attempted murder in the first degree,
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solicitation to commit murder in the first degree, attempted theft in the first £5™
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degree, and conspiracy to commit theft in the first degree arising from ^ ^-r-
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Mockovak's attempt to hire Russian mobsters to murder his business partner, Dr.
Joseph King. Over the course of several months, Mockovak plotted with Daniel
Kultin, the information technologies director at Clearly Lasik, to arrange the
murder of King and to thereafter collect on a $4 million insurance policy.
Unbeknownst to Mockovak, however, Kultin was working as an informant for the
FBI. Kultin wore a concealed recording device during several of his
conversations with Mockovak in which the two men discussed the plan to murder
King. After Mockovak delivered a $10,000 payment for the murder along with a
photograph of King and his family, he was arrested.
No. 66924-9-1/2
Mockovak contends that the jury was improperly instructed regarding the
defense of entrapment and that several of his convictions violate the double
jeopardy provisions of our state and federal constitutions. Mockovak further
contends that the charging document did not apprise him of the essential
elements of the crime of conspiracy to commit theft in the first degree and that
there was insufficient evidence adduced at trial for the jury to convict him of this
crime. Finally, Mockovak asserts, Kultin's actions as an FBI informant during the
investigation constituted outrageous government conduct in violation of due
process. These claims are all without merit and, accordingly, we affirm.
I
Mockovak and King began practicing together in 2002. The two doctors
were the co-owners of Clearly Lasik, a business providing refractive eye surgery.
By 2009, the company had grown to operate several surgical centers in both the
United States and Canada.
In early 2009, Kultin, the director of information technologies at Clearly
Lasik, began to suspect that Mockovak was planning the murder of the
company's former chief executive officer, Brad Klock. Klock, who had been fired
from Clearly Lasik in 2006, had filed suit for wrongful termination, seeking
damages in the amount of $750,000. On several occasions, Mockovak asked
Kultin, a Russian immigrant, whether he had friends in Russia who could do
something that would put an end to Klock's civil case. Kultin first interpreted
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No. 66924-9-1/3
these comments as jokes.1
Then, in March or April of 2009, as the two men sat alone in the Clearly
Lasik lunchroom, Mockovak told Kultin that Klock would be traveling to Europe.
In a quiet voice, Mockovak suggested that this would be a good opportunity for
something to "happen" to Klock. Based upon Mockovak's demeanor, Kultin
began to realize that Mockovak was serious about having Klock killed. After
discussing the situation with his father, Kultin contacted the FBI.
In June 2009, Kultin was contacted by Special Agent Lawrence Carr to
discuss Mockovak's comments. Agent Carr, who did not initially believe that
Mockovak was serious about killing Klock, instructed Kultin that he must not bring
up the subject of murder with Mockovak. Instead, Agent Carr told Kultin to tell
Mockovak that Kultin was planning to visit a friend whom he believed to be a
member of the Russian mafia. Agent Carr hoped that this fictional story would
spark a conversation that would enable the FBI to understand "what Dr.
Mockovak was thinking." However, when Kultin told this story to Mockovak, it did
not prompt Mockovak to further discuss his thoughts regarding Klock. Instead,
Mockovak merely commented that Kultin's story was interesting and that he
would like to someday meet this person.
Then, on August 3, 2009, Mockovak telephoned Kultin and said that he
would like to discuss "that thing that we talked about before." Kultin understood
this to mean that Mockovak wanted to further discuss his thoughts regarding
1 Mockovak had on several occasions jokingly told Kultin that he believed Kultin was
associated with Russian criminal activity.
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No. 66924-9-1/4
Klock. Kultin promptly relayed this information to Agent Carr, who told Kultin that
if Mockovak were to raise the subject of harming Klock, Kultin should tell
Mockovak that he knew people and would "make some calls."
Kultin met with Mockovak on August 5, 2009 at the Clearly Lasik office.
The two men talked in the parking lot. Mockovak expressed his frustration with
Klock, and Kultin understood that it was Mockovak's desire that Klock be
murdered. Mockovak then raised the subject of his growing frustration with his
business partner, King. King was seeking additional compensation for surgeries
that he had been performing at Clearly Lasik's surgery centers in Canada.
Mockovak told Kultin that King was a "greedy snake" who wanted to split up the
business. He said that there was a large insurance policy on King's life that
would be paid to Mockovak if King were to die. Mockovak told Kultin that "maybe
we can look after Joe later."2 As he had been instructed by Agent Carr, Kultin
told Mockovak that he would make some calls.
Kultin next met with Mockovak on August 11, 2009. Agent Carr arranged
for Kultin to wear a recording device.3 At the meeting, Kultin told Mockovak that
he had been in contact with persons regarding the murder of Klock. He told
Mockovak that "they can do it," to which Mockovak responded, "Oh, good, good,
good." Kultin then described the persons who would do the killing and explained
that such murders are usually disguised as street robberies. Kultin told
Mockovak that the men would make sure that the victim was dead.
2 Both Mockovak and Kultin often referred to King by his nickname, Joe.
3The recordings were admitted into evidence at trial. Atranscript of the recordings also
was admitted.
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No. 66924-9-1/5
Mockovak then asked how much the killing would cost. Kultin replied that
it was "twenty grand," with $10,000 to be paid in advance and $10,000 to be paid
after completion of the murder. Mockovak inquired what Kultin would receive,
and Kultin told him that he would receive a portion of the money from the killers.
Mockovak told Kultin, "Okay, you need to."
Mockovak then told Kultin that he did not want the murder to be done
immediately. Rather, Mockovak explained, he wanted to wait until after the
depositions in Klock's lawsuit were completed. If it appeared that Klock would
drop his suit, then the murder, which Mockovak described as a purely "financial
thing," would be unnecessary. Mockovak told Kultin that he must make this clear
to the persons with whom he was discussing the murder-for-hire.
The two men then briefly discussed the possibility of having King killed for
the proceeds of the insurance policy. Mockovak told Kultin that the insurance
moneywould be distributed only in the event that King's death occurred before
the business was split up. Mockovak then reiterated that no further action should
betaken until after the depositions in Klock's lawsuit were completed.4
In the months following this meeting, Mockovak's frustration with King
grew. On September 30, 2009, King sent Mockovak a letter stating that if the
business was not split up by October 31, King would cease to perform surgeries
at Clearly Lasik's surgery center in Alberta, Canada. Mockovak considered this
an ultimatum and was extremely upset. Shortly after King reiterated his demand
4On September 16, the FBI paid Kultin $1,200 for the first two meetings he had with
Mockovak. Kultin was not promised any specific future payment.
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No. 66924-9-1/6
in a second letter on October 13, Mockovak began to search for information
regarding King's vacation travel plans to Sydney, Australia.
Kultin next met with Mockovak on October 20, 2009. Kultin again wore a
wire. Mockovak first reported that the depositions in Klock's lawsuit had been
"outstanding." Mockovak told Kultin that there was nothing urgent about Klock,
whom he described as nothing more than a "fly on the wall," but that the situation
with King was different. Mockovak speculated that King was attempting to force
him out of the business completely.
Mockovak told Kultin that King would be travelling to Australia in
November and showed Kultin the flight information he had discovered during his
investigation the previous week. Kultin told Mockovak that the cost of a murder
might be less expensive in Australia, which Kultin described as "a wild place."
Mockovak replied, "Oh that's good" and "That's what I'm thinking." Kultin said
that he would ask his friend whether the murder could be accomplished in
Australia. Mockovak told Kultin that he had secreted enough cash to pay for the
hit.
On October 21, 2009, Mockovak called his insurance company and
requested a copy of the policy on King's life. The policy, which insured King's life
for $4 million, named Mockovak as the beneficiary.
Kultin and Mockovak met again on October 22, 2009. In this
conversation, which was also recorded by the FBI, Kultin told Mockovak that he
had spoken to his friend and that "Australia is actually very easy." He told
Mockovak that King could be killed "as a robbery" or "as an accident." Mockovak
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No. 66924-9-1/7
remarked that Australia was far away and that any investigation of King's death
would never "come back here ever." Kultin asked whether King's wife, Holly, was
also to be killed, and Mockovak told him "no." Mockovak told Kultin that he had
been gathering cash and had by that time set aside $11,000. The two men then
discussed when the post-murder payment would be required.
The tension between Mockovak and King intensified during the ensuing
weeks. Both doctors threatened to fire a scheduler in the Renton office because
she could not follow the conflicting directives that they imposed for scheduling
surgeries. One employee at Clearly Lasik would later describe Mockovak as
more angry than she had ever seen him.
Mockovak and Kultin next met to discuss the details of the plan on
November 6, 2009. Mockovak described his attempts to discover additional
details of King's travel plans. Mockovak told Kultin that he was trying to sell one
of the Canadian surgical centers in anticipation of King's death. He said that he
was excited about running the business without interference from King.
Kultin asked Mockovak how he would like the murder to be accomplished.
Mockovak proposed that King could be killed while he ran on the beach. When
Kultin inquired whether Mockovak would like King's body to be found, Mockovak
replied that having the body discovered would be better for purposes of collecting
the proceeds of the insurance policy. Mockovak told Kultin that he did not care
whether the killers delivered any message to King before murdering him.
Instead, Mockovak explained, "I just want him the fuck out of my way."
Kultin then asked Mockovak whether he had "thought this through," and
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No. 66924-9-1/8
Mockovak replied that he was a "little uneasy." Kultin asked him whether he was
going to "freak out" if the murder occurred, and Mockovak told him that he would
not. Mockovak explained that although part of him was uneasy, he did not want
to put himself at the mercy of an arbitrator or a judge. He told Kultin that King
really "ha[d] this coming." Killing King, Mockovak explained to Kultin, was "the
only sure way."
Mockovak and Kultin then discussed how to launder the post-murder
payment. Mockovak was concerned that his bank account activity would look
suspicious if he were to withdraw a large sum of money shortly before King's
death. The two men determined that Mockovak would purchase an expensive
(butfake) watch from a jeweler associated with the same criminal organization
for which the hit-men were working. Kultin emphasized that the second payment
must be made or that both Mockovak and he would be in danger. Mockovak told
Kultin that he understood and that he had no desire to get "serious people like
this upset."
The two men then discussed what Kultin would receive for his part in the
plot. Mockovak told Kultin that he would be hired as the director of marketing at
Clearly Lasik. They agreed that no change in Kultin's position within the
company should occur until at least six months after the completion of the
murder. Mockovak then told Kultin that most of the insurance money would be
used to pay Clearly Lasik's obligations and to purchase King's half of the
business from King's wife, who would be a co-owner after King's death.
Mockovak explained that although this would be expensive, he hoped that "at the
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No. 66924-9-1/9
end of it all there's like a hundred grand for you."
Near the end of the conversation Mockovak told Kultin that he had often
considered going to the garage of Clearly Lasik and killing King himself. Kultin
replied, "don't do that." He told Mockovak that it was a "good thing you came to
me because otherwise you would have done it the wrong way."
Mockovak and Kultin agreed to meet the following day near Sea-Tac
International Airport in order for Mockovak to deliver the first payment. The
conversation concluded with Mockovak reiterating that the choice of Australia for
the murder was "almost too good to be true."
On November 7, 2009, Mockovak and Kultin spoke by telephone.
Mockovak told Kultin that he had successfully stolen a portrait of King and his
family from the Clearly Lasik office in Vancouver, Washington. He told Kultin that
he was pleased that they had met on the previous night because it had given him
24 hours to contemplate the murder plan. Mockovak said, "It's absolutely the
right thing to do."
That night, Mockovak and Kultin met at a soccer park near the airport.
The meeting was recorded by the FBI. The men went into a restroom where, as
they had planned, Mockovak gave Kultin $10,000 in cash. Mockovak "wanted to
make sure" that he would get his money back in the event that the hit was
unsuccessful. Kultin replied that Mockovak would not lose his money.
Mockovak then gave Kultin the photograph of King and his family. He
explained that King now had three children and that the children were slightly
older than they appeared in the picture. Kultin assured Mockovak that the picture
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No. 66924-9-1/10
of King's wife would be sufficient for the killers to identify King. Mockovak also
gave Kultin a piece of paper on which he had handwritten King's flight
information. He told Kultin, "we're ready."
On November 11, 2009, at the direction of the FBI, Kultin called Mockovak
and told him that everything was in place for the murder. He explained that the
killers had located King in Australia and that they were now watching him. Kultin
told Mockovak that he was expecting to hear news of the murder within several
days. Mockovak responded, "That sounds good."
Mockovak was arrested on November 12, 2009. He was charged with
solicitation to commit murder in the first degree of Dr. Joseph King, attempted
murder in the first degree of Dr. Joseph King, conspiracy to commit theft in the
first degree, attempted theft in the first degree, and solicitation to commit murder
in the first degree of Brad Klock. Ajury found Mockovak guilty as charged of the
first four charges but acquitted him of solicitation to murder Brad Klock.
At sentencing, the trial court determined that Counts 2 and 3 (solicitation
to commit murder and attempted murder of Dr. King) constituted the same
course of criminal conduct. The court further concluded that Counts 4 and 5
(conspiracy to commit theft and attempted theft) constituted the same course of
criminal conduct. Mockovak was thereafter sentenced to a term of imprisonment
within the standard range.
Mockovak appeals.
II
Mockovak first contends that he received ineffective assistance of counsel
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No. 66924-9-1/11
when his attorney proposed a jury instruction regarding the defense of
entrapment. Mockovak asserts that the instruction was not an accurate
statement of the law, that it was deficient performance for his attorney to propose
it, and that there was a reasonable probability that, but for defense counsel's
error, the outcome of his trial would have been different.5 We disagree.
In order to establish ineffective assistance of counsel, the defendant must
establish both that his attorney's performance was deficient and that the
deficiency prejudiced the defendant. Strickland v. Washington. 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L Ed. 2d 674 (1984); State v. Hendrickson. 129 Wn.2d
61, 77-78, 917 P.2d 563 (1996). Deficient performance is performance falling
"below an objective standard of reasonableness based on consideration of all the
circumstances." State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251(1995). There is a strong presumption that defense counsel's performance was
reasonable. State v. Studd. 137Wn.2d 533, 551, 973 P.2d 1049 (1999). "[I]t is
all too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable." Strickland, 466 U.S. at 689. Accordingly, "[judicial scrutiny of
5The doctrine of invited errorprecludes Mockovak from directly challenging the jury
instruction that was given by the trial court. The invited error doctrine "prohibits a party from
'setting up error in the trial court and then complaining of it on appeal.'" State v. Armstrong. 69
Wn. App. 430, 434, 848 P.2d 1322 (1993) (quoting State v. Young. 63 Wn. App. 324, 330, 818
P.2d 1375 (1991)). Even where constitutional rights are involved, an appellate court is "precluded
from reviewing jury instructions when the defendant has proposed an instruction or agreed to its
wording." State v. Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005). Here, it was Mockovak
who proposed the entrapment instruction. The entrapment instruction given by the trial court was
identical to the instruction proposed by Mockovak. In such circumstances, any challenge to the
entrapment instruction must be reviewed pursuant to the ineffective assistance of counsel
standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed. 2d
674 (1984). See, e.g.. State v. Kvllo. 166 Wn.2d 856, 862-63, 215 P.3d 177 (2009).
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No. 66924-9-1/12
counsel's performance must be highly deferential."6 Strickland, 466 U.S. at 689.
In this case, the entrapment instruction proposed by Mockovak's attorney
and given by the trial court was identical to that set forth in Washington Pattern
Jury Instruction (WPIC) 18.05.7 The entrapment instruction stated:
Entrapment is a defense to each of the charges in this case
if the criminal design originated in the mind of law enforcement
officials, or any person acting under their direction, and Michael
Mockovak was lured or induced to commit a crime that he had not
otherwise intended to commit.
The defense is not established if the law enforcement
officials did no more than afford Michael Mockovak an opportunity
to commit a crime. The use of a reasonable amount of persuasion
to overcome reluctance does not constitute entrapment.
Michael Mockovak has the burden of proving this defense by
a preponderance of the evidence. Preponderance of the evidence
means that you must be persuaded, considering all the evidence in
the case, that it is more probably true than not true. If you find that
Michael Mockovak has established this defense, it will be your duty
to return a verdict of not guilty.
Mockovak contends that the second sentence of the second paragraph of
this instruction—stating that "[t]he use of a reasonable amount of persuasion to
overcome reluctance does not constitute entrapment"—is not a component of an
entrapment defense. Although an identical statement appears in WPIC 18.05,
Mockovak nevertheless contends that it was deficient performance for his
attorney to propose it.
Where there is no case law indicating that a pattern jury instruction
6The prejudice prong requires the defendant to prove that there is a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceedings would
have been different. State v. Leavitt. 111 Wn.2d 66, 72, 758 P.2d 982 (1988). If either element
of the test is not satisfied, the inquiry ends. Hendrickson. 129 Wn.2d at 78.
711 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.05
(3d ed. 2008).
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No. 66924-9-1/13
misstates the law, it is not deficient performance for defense counsel to propose
such an instruction. Studd, 137 Wn.2d at 551. Our Supreme Court has
explained that in such circumstances, "counsel can hardly be faulted for
requesting a jury instruction based upon a then-unquestioned [pattern jury
instruction]." Studd, 137 Wn.2d at 551. On the other hand, where existing case
law indicates that a pattern jury instruction is flawed, counsel's failure to
"research or apply relevant law" may constitute deficient performance. State v.
Kvllo. 166 Wn.2d 856, 868-69, 215 P.3d 177 (2009).
Here, Mockovak fails to identify any decision by a court in our state
indicating that—at the time of his trial—WPIC 18.05 was an incorrect statement
of the law of entrapment. We most recently addressed this instruction in State v.
O'Neill. 91 Wn. App. 978, 967 P.2d 985 (1998). In that case, the government
agent was a corrupt police officer who was illegally soliciting a bribe for his own
personal benefit, not an undercover officer investigating a crime. O'Neill, 91 Wn.
App. at 982-83. In such circumstances, we concluded, no amount of persuasion
by the officer would be reasonable and, accordingly, a jury instruction indicating
that "a reasonable amount of persuasion to overcome reluctance does not
constitute entrapment" was improper. O'Neill, 91 Wn. App. at 982. We noted,
however, that "[t]he 'reasonable amount of persuasion to overcome reluctance'
language is clearly designed for the typical undercover or sting operation."
O'Neill, 91 Wn. App. at 990. Accordingly, we explained, such an instruction is
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No. 66924-9-1/14
"perfectly appropriate in the normal entrapment case."8 O'Neill. 91 Wn. App. at
990.
This statement in O'Neill, of course, would hardly alert defense counsel
that "the reasonable amount of persuasion" language of WPIC 18.05 was
improper in the circumstances presented. Instead, our discussion in O'Neill
would inform counsel that this language is properly utilized in cases involving a
"typical undercover or sting operation." 91 Wn. App. at 990. The case against
Mockovak was built through precisely such an operation and, accordingly,
counsel cannot be faulted for proposing an instruction that, as we noted, is
"perfectly appropriate" in such circumstances.
Nor does any decision of our Supreme Court alter this conclusion. In
State v. Smith, a case upon which we relied in O'Neill, the court explained that
the use of a "normal amount of persuasion" by police to overcome the reluctance
of a suspect to enter into a criminal transaction does not constitute entrapment.
101 Wn.2d 36, 42-43, 677 P.2d 100 (1984) (citing State v. Waggoner, 80 Wn.2d
7, 11,490P.2d 1308(1971)). In that case, because the undercover officer had
done no more than appeal to the defendant's sympathy in attempting to induce a
sale of illegal drugs, the court determined that an entrapment defense must fail
as a matter of law. Smith, 101 Wn.2d at 42-43. Without evidence of "misconduct
or unfair inducement," the defendant's allegations were insufficient to establish
the elements of this defense. Smith, 101 Wn.2d at 43.
8The WPIC commentary, citing to O'Neill, indicates that the law of entrapment in bribery
cases requires special analysis. WPIC 18.05.
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No. 66924-9-1/15
Indeed, both the majority and the dissent in Smith were in agreement with
regard to this underlying point of law. As Justice Utter explained:
[T]he statute speaks only of an actor who is "lured or induced".
RCW 9A.16.070. On its face, this suggests that any inducement,
perhaps even a mere request, is sufficient to prove this element of
entrapment. Indeed, there is weighty authority in other jurisdictions
taking precisely this position. . . .
Despite this authority, the courts in this state have taken
what I believe to be the better approach and required that the
inducement go beyond "a normal amount of persuasion" (State v.
Waggoner, 80Wn.2d7, 11.490P.2d 1308 (1971)) and be such as
can be said to constitute "undue solicitation" (State v. Swain, 10
Wn. App. 885, 889, 520 P.2d 950 (1974)).
Smith, 101 Wn.2d at 46-47 (Utter, J., dissenting). Although Justice Utter went on
to explain that, in his view, the majority had erred by determining that only a
reasonable amount of persuasion had been utilized by the undercover officers in
that case, Smith, 101 Wn.2d at 48-49 (Utter, J., dissenting), nothing in the
majority or dissenting opinions would alert future defense counsel that WPIC
18.05 contained an incorrect statement of the law. Indeed, regarding the
requirement that there be something more than a normal amount of persuasion
to prove entrapment, the court's opinion was unanimous.
Nevertheless, Mockovak contends that Division Three's 1981 decision in
State v. Keller, 30 Wn. App. 644, 637 P.2d 985 (1981), "unequivocally held that
the amount of persuasion used by government agents [is] irrelevant to the
entrapment defense." Br. of Appellant at 76. He points to the following passage:
[l]t is true as the State argues that use by police officials of a
normal amount of persuasion to facilitate the commission of a crime
does not constitute entrapment. State v. Waggoner, 80 Wn.2d 7,
10-11, 490 P.2d 1308 (1971). However, it is not necessary to
prove outrageous conduct when asserting the statutory defense.
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No. 66924-9-1/16
That evidence is relevant only if it is contended the conduct violated
due process.
Keller. 30 Wn. Add, at 647.
This case is not helpful to Mockovak. First, the authority discussed above
postdates Division Three's decision in Keller. It was three years after Keller that
our Supreme Court reiterated that the use of a normal amount of persuasion by
undercover officers does not amount to entrapment. Smith, 101 Wn.2d at 42-43.
Counsel cannot, of course, be faulted for relying upon a subsequent decision of
our Supreme Court—unanimous on this particular point of law—for a proposition
that contradicts a prior decision of an appellate court.
Furthermore, the passage cannot be reasonably interpreted to indicate, as
Mockovak would have it, that the amount of persuasion is irrelevant to an
entrapment defense. Instead, in making this statement, the court was merely
explaining that a defendant need not produce evidence proving outrageous
conduct in order for an entrapment defense to be successful. Evidence of such
extreme conduct, as the court correctly noted, would simply not be "relevant" to
an entrapment defense. Contrary to Mockovak's assertion, this case also would
not tend to apprise defense counsel that the proposed entrapment instruction
was somehow erroneous.9
Because there was no case law at the time of Mockovak's trial indicating
9Mockovak appears to additionally assert that the entrapment instruction is incorrect
because a defendant's entrapment defense must be evaluated pursuant to a subjective standard
and not an objective standard. This argument, however, was raised by Mockovak for the first
time at oral argument. Issues so raised, even constitutional ones, "are not properly before this
court." State v. Johnson, 119 Wn.2d 167, 170, 829 P.2d 1082(1992). We decline to consider
Mockovak's untimely argument.
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No. 66924-9-1/17
that WPIC 18.05 contained an incorrect statement of the law, defense counsel
did not provide ineffective assistance by proposing an instruction based upon this
pattern jury instruction.10 See Studd, 137Wn.2d at 551. Defense counsel's
performance did not fall "below an objective standard of reasonableness based
on consideration of all the circumstances," McFarland, 127 Wn.2d at 334-35,
and, accordingly, Mockovak's ineffective assistance ofcounsel claim fails.11
Ill
Mockovak next contends that his convictions of solicitation to commit
murder in the first degree and attempted murder in the first degree constitute
multiple punishments for the same offense in violation of the double jeopardy
clauses of the state and federal constitutions. In addition, Mockovak contends
that the trial court erred by declining to merge these crimes because, he asserts,
solicitation to commit murder is a lesser included offense of attempted murder.
We disagree on both counts.
10 The absence of such case law distinguishes the circumstances of this case from the
situation at issue in Kyllo. 166 Wn.2d 856. In that case, our Supreme Court determined that the
existence of several relevant appellate decisions should have indicated to defense counsel that a
pattern jury instruction pertaining to the law of self-defense was incorrect. Kyllo. 166 Wn.2d at
867.
11 Mockovak additionally contends that he received ineffective assistance of counsel
when his attorney did not object to the prosecutor's statement during closing argument that there
were "essentially three elements" to Mockovak's entrapment defense. Br. of Appellant at 80.
However, the trial court's instruction to the jury listed four things that Mockovak was required to
prove in order to succeed on this defense: (1) that the crime originated with law enforcement, (2)
that Mockovak was lured or induced to commit a crime he had not otherwise intended to commit,
(3) that law enforcement officials did more than simply afford Mockovak an opportunity to commit
a crime, and (4) that the persuasion used to overcome Mockovak's reluctance was more than a
reasonable amount. Where a prosecutor's argument is based upon the instructions given by the
trial court, there is no misconduct. State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273(2009). Any objection by defense counsel to the prosecutor's statement during closing
argument—which accurately reflected the court's instructions to the jury—would have been
properly overruled. Thus, because Mockovak fails to demonstrate that his attorney's decision not
to object had any effect on the outcome of his trial, this claim of ineffective assistance of counsel
alsofails. See Leavitt, 111 Wn.2d at 72.
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No. 66924-9-1/18
The double jeopardy clauses of our state and federal constitutions protect
a defendant against multiple punishments for the same offense.12 Wash. Const.
art. I, § 9; U.S. Const, amend. 5; State v. Calle. 125 Wn.2d 769, 772, 888 P.2d
155 (1995). Although the State may bring multiple charges arising from the
same criminal conduct, "'[wjhere a defendant's act supports charges under two
criminal statutes, a court weighing a double jeopardy challenge must determine
whether, in light of legislative intent, the charged crimes constitute the same
offense.'" State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005) (quoting
In re Pers. Restraint of Orange. 152 Wn.2d 795, 815, 100P.3d291 (2004)). "If
the legislature authorized cumulative punishments for both crimes, then double
jeopardy is not offended." Freeman, 153 Wn.2d at 771.
"If the language of the criminal statutes under which the defendant has
been punished does not expressly disclose legislative intent with respect to
multiple punishments, the court then considers principles of statutory
construction to determine whether multiple punishments are authorized." In re
Pers. Restraint of Borrero. 161 Wn.2d 532, 536, 167 P.3d 1106(2007). In such
circumstances, "the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not." Blockburqerv. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
76 L. Ed. 306 (1932). "'If there is an element in each offense which is not
12 The Washington double jeopardy provision, Wash. Const, art. I, § 9, is coextensive
with the Fifth Amendment as interpreted by the United States Supreme Court. State v. Gocken,
127 Wn.2d 95, 107, 896 P.2d 1267(1995). Claims of double jeopardy are reviewed de novo.
State v. Freeman. 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
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No. 66924-9-1/19
included in the other, and proof of one offense would not necessarily also prove
the other, the offenses are not constitutionally the same and the double jeopardy
clause does not prevent convictions for both offenses.'" Calle, 125 Wn.2d at 777(quoting State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)). Thus,
where the factual grounds for two crimes are distinct, no double jeopardy issue
arises. State v. Schneider, 36 Wn. App. 237, 243 n.3, 673 P.2d 200 (1983).
"Where one of the two crimes is an attempt crime, the test requires further
refinement." Borrero, 161 Wn.2d at 537. This is because, our Supreme Court
has explained, one of the elements of an attempt crime is that the defendant
"'does any act which is a substantial step toward the commission of that crime.'"
Borrero. 161 Wn.2d at 537 (quoting former RCW 9A.28.020(1) (1975)). The
"substantial step" element is merely a placeholder until the facts of the particular
case give it independent meaning. Borrero, 161 Wn.2d at 537. "Only by
examining the actual facts constituting the 'substantial step' can the
determination be made that the defendant's double jeopardy rights have been
violated." Borrero, 161 Wn.2d at 537.
However, the court explained, even where the same facts supporting the
defendant's conviction for the separate offense could also constitute the
substantial step of the attempt, double jeopardy is not violated where there are
additional facts in the record that would also constitute the substantial step.
Borrero, 161 Wn.2d at 538. The reviewing court should not presume "that the
trier of fact relied on only the facts tending to prove both crimes." Borrero, 161
Wn.2d at 538. Instead, unless the facts providing the basis for the separate
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No. 66924-9-1/20
conviction are also necessary to prove the attempt crime, double jeopardy
principles are not offended. Borrero, 161 Wn.2d at 538-39.
Here, in order to convict Mockovak of the crime of attempted murder in the
first degree, the State was required to demonstrate that Mockovak engaged in an
act "which is a substantial step toward the commission ofthat crime."13 RCW
9A.28.020(1). "[Cjonduct is not a substantial step 'unless it is strongly
corroborative of the actor's criminal purpose.'" State v. Workman, 90 Wn.2d 443,
451, 584 P.2d 382 (1978) (quoting Model Penal Code § 5.01(2)).
By contrast, to prove the crime of solicitation to commit murder in the first
degree, the State was required to demonstrate that Mockovak offered to give
money or some other thing of value to another to engage in conduct constituting
first degree murder.14 State v. Jensen, 164 Wn.2d 943, 949, 195P.3d512
(2008). Solicitation alone, which "involves no more than asking or enticing
someone to commit a crime," does not constitute the crime of attempt. State v.
Gay, 4 Wn. App. 834, 839-40, 486 P.2d 341 (1971). In this case, however,
Mockovak contends that the same evidence used to prove the crime of
solicitation—a payment of money to commit the murder—was also used to prove
13 The criminal attempt statute provides:
A person is guiltyof an attempt to commit a crime if, with intent to commit a
specific crime, he or she does any act which is a substantial step toward the
commission of that crime.
RCW 9A.28.020(1).
14 The criminal solicitation statute provides:
A person is guilty of criminal solicitation when, with intent to promote or facilitate
the commission of a crime, he or she offers to give or gives money or other thing
of value to another to engage in specific conduct which would constitute such
crime or which would establish complicity of such other person in its commission
or attempted commission had such crime been attempted or committed.
RCW 9A.28.030(1).
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No. 66924-9-1/21
the substantial step of the attempted murder.
Mockovak does not demonstrate that this was so. As noted above, a
double jeopardy issue arises only if the same evidence used to prove the crime
of solicitation was necessary to prove the substantial step of the attempted
murder. See Borrero. 161 Wn.2d at 538-39. Here, the jury was instructed that
the conduct supporting the crime of solicitation and the conduct supporting the
crime of attempted murder occurred on different dates. The "to-convict"
instruction on solicitation stated that in order to convict Mockovak of this crime,
the jury must find that Mockovak had offered to give money or other things of
value to Kultin between October 14, 2009 and November 6, 2009. The "to-
convict" instruction for the attempted murder charge, on the other hand, stated
that the jury must find that Mockovak had attempted to cause the death of King
on a single day: November 7, 2009. There was no overlap between the two time
periods and, accordingly, the jury could not have relied upon the same acts by
Mockovak to find him guilty of both solicitation and attempted murder. "A jury is
presumed to follow the court's instructions." State v. Foster, 135 Wn.2d 441,
472, 957 P.2d 712 (1998). Because the two convictions were based on distinct
factual grounds, no issue of double jeopardy arises. Schneider. 36 Wn. App. at243 n.3.
Moreover, with regard to the crime of attempted murder, the jury heard
evidence that Mockovak gave to Kultin not only a payment of money, but also a
copy of King's travel itinerary and a picture of King's family in order to facilitate
the murder. These items were, of course, not "money or other things of value"
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No. 66924-9-1/22
utilized by Mockovak to entice Kultin to commit the murder and, accordingly, the
evidence of these deliveries was not relevant to proving the crime of solicitation.
This evidence was, however, highly relevant to proving the crime of attempted
murder. See Gay. 4 Wn. App. at 841-42 (attempted murder proved by evidence
that defendant delivered not only payment, but also pictures of intended victim
and description of his habits and location). Because such actions were "strongly
corroborative of [Mockovak's] criminal purpose," Workman, 90 Wn.2d at 451(quoting Model Penal Code § 5.01 (2)), the jury would be entitled to determine
that it was this aspect of Mockovak's conduct that constituted the substantial step
of the attempted murder. Thus, because the evidence of Mockovak's delivery of
payment was not the only evidence of the attempted murder, for this reason as
well, no double jeopardy issue arises. Borrero, 161 Wn.2d at 539.
Nevertheless, Mockovak contends that his double jeopardy rights were
violated because our Supreme Court has determined that solicitation is an
"inherently continuous offense." Jensen, 164 Wn.2d at 957. Mockovak is correct
that the unit of prosecution for solicitation centers on the enticement to commit
the unlawful act and that, no matter how many times such a request is repeated,
only one charge of solicitation is permitted. Jensen, 164 Wn.2d at 956-57.
Accordingly, it is likely true that Mockovak's delivery to Kultin of the $10,000
payment would not support a second prosecution for solicitation. However,
Mockovak fails to show how this is relevant in the circumstances of this case.
Only a single charge of solicitation was brought against Mockovak. Mockovak
cites to no authority indicating that where a particular act could serve as evidence
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No. 66924-9-1/23
of an "inherently continuous offense," this act may not be utilized to support a
different crime. Rather, in such circumstances, the proper test "to determine
whether there are two offenses or only one" is the same evidence test set forth in
Blockburqer. 284 U.S. at 304. See State v. Adel, 136 Wn.2d 629, 633, 965 P.2d
1072 (1998). As discussed above, application of the test to the facts of this case
reveals no violation of double jeopardy. Mockovak's observations regarding the
unit of prosecution for solicitation are not helpful to his claim.
Finally, Mockovak contends that his convictions violate the merger
doctrine because, he asserts, the crime of solicitation to commit murder is a
lesser included offense of attempted murder. In instances where the degree of
one offense is elevated by conduct constituting a separate offense, "the merger
doctrine may help determine legislative intent."15 State v. Kier, 164 Wn.2d 798,
804, 194 P.3d 212 (2008) (citing Vladpvic, 99 Wn.2d at 419). Application of this
doctrine is appropriate, however, "only when a crime is elevated to a higher
degree by proof of another crime proscribed elsewhere in the criminal code."
State v. Parmelee. 108 Wn. App. 702, 710, 32 P.3d 1029(2001).
Here, the crime of attempted murder is not elevated to a higher degree by
proof that Mockovak committed solicitation to commit murder and, accordingly,
the merger doctrine does not apply.16 Moreover, the merger doctrine has no
15 Under the merger doctrine, "when the degreeofone offense is raised by conduct
separately criminalized by the legislature," a presumption arises that "the legislature intended to
punish both offenses through a greater sentence for the greater crime." Freeman. 153 Wn.2d at772-73 (citing Vladovic, 99 Wn.2d at 419).
16 Mockovak is also incorrect that solicitation to commit murder in the first degree is a
lesser included offense of attempted murder in the first degree. Our Supreme Court has
explained that "[a] lesser included offense exists when all of the elements of the lesser offense
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No. 66924-9-1/24
applicability in circumstances where a defendant's multiple convictions are based
upon separate and distinct criminal acts. See State v. Eaton, 82 Wn. App. 723,
731-32, 919P.2d 116 (1996), overruled on other grounds bv State v. Frohs, 83
Wn. App. 803, 811 n.2, 924 P.2d 384 (1996). Here, as discussed above,
because different factual bases for the two crimes exist, the merger doctrine is
inapplicable.
Mockovak's convictions of solicitation to commit murder in the first degree
and attempted murder in the first degree do not violate the double jeopardy
clauses of the state and federal constitutions. Nor did the trial court err by
declining to apply the doctrine of merger to the challenged convictions.
IV
Mockovak asserts a similar set of arguments with regard to his convictions
of conspiracy to commit theft in the first degree and attempted theft in the first
degree. He contends that the same evidence used to prove the attempted theft
was also utilized to prove that Mockovak took a substantial step in pursuance of
the criminal agreement to commit theft—an element ofthe crime ofconspiracy.17
are necessary elements of the greater offense." State v. Rovbal, 82 Wn.2d 577, 583, 512 P.2d
718 (1973) (emphasis added). "'[I]f it is possible to commit the greater offense without having
committed the lesser offense, the latter is not an included crime."' State v. Turner. 143 Wn.2d
715, 729, 23 P.3d 499 (2001) (quoting Rovbal. 82 Wn.2d at 583). It is, of course, clearly possible
to commit the crime of attempted murder without committing criminal solicitation. A substantial
step toward murder need not involve circumstances in which the defendant "offers to give or
gives money or other thing of value to another." RCW 9A.28.030. Indeed, we have long so held.
In Schneider. 36 Wn. App. at 243, we expressly stated that "solicitation is not a lesser included
offense of the crime of attempted murder." Mockovak's contention to the contrary is without
merit.
17 Both the crime of conspiracy and the crime ofattempted theft include a "substantial
step" element. Mockovak does not contend, nor could he, that the same evidence necessary to
prove the crime of conspiracy was also required to prove the substantial step of the attempted
theft. Conspiracy includes the additional element of an "agreement," the proof of which is clearly
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No. 66924-9-1/25
However, here as well, the State alleged that the acts underlying each of these
offenses took place on different dates. The jury was instructed that in order to
convict Mockovak of attempted theft, it must find that he took a substantial step
toward the commission of this crime on November 7, 2009. By contrast, the "to-
convict" instruction on conspiracy required the jury to assess Mockovak's actions
between August 5, 2009 and November 6, 2009. Because the two convictions
were based on distinct factual grounds, no issue ofdouble jeopardy arises.18
Schneider, 36 Wn. App. at 243 n.3.
V
Mockovak next contends—for the first time on appeal—that the
information charging conspiracy to commit theft in the first degree improperly
omits an essential element of the crime and that, accordingly, reversal of this
conviction is required. We disagree.
An accused person has a constitutional right to be informed of the charge
he is to meet at trial. State v. Pelkev, 109 Wn.2d 484, 487, 745 P.2d 854 (1987).
Accordingly, the charging document must include all essential elements of a
unnecessary to prove an attempted theft. Accordingly, Mockovak's contention is that the same
evidence used to prove the attempted theft was necessary to prove the substantial step element
of the conspiracy.
18 Mockovak asserts that the crime ofattempted theft in the first degree is a lesser
included offense of the crime of conspiracy to commit theft in the first degree. It is, however,
clearly possible to commit conspiracy to commit theft without committing attempted theft. As our
Supreme Court has explained, the "substantial step" definition for purposes of conspiracy is
broader than the definition applicable to an attempt. State v. Dent. 123 Wn.2d 467, 477, 869
P.2d 392 (1994). Although mere preparation to carry out the criminal agreement is sufficient to
demonstrate the substantial step of a conspiracy, something more is required to demonstrate the
substantial step of attempt. Dent. 123 Wn.2d at 477. Thus, attempted theft in the first degree is
not a lesser included offense of conspiracy to commit theft in the first degree. See Turner. 143
Wn.2dat729.
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No. 66924-9-1/26
crime in order to apprise the accused of the charges and facilitate the preparation
of a defense. State v. Pineda-Pineda. 154 Wn. App. 653, 670, 226 P.3d 164(2010). When the sufficiency of a charging document is first raised on appeal,
however, it must be liberally construed in favor of validity. State v. Kiorsvik, 117
Wn.2d 93,104-05, 812 P.2d 86 (1991). In such circumstances, the information is
constitutionally sufficient where: (1) "the necessary facts appear in any form, or
by fair construction can ... be found" on the face of the charging document, and
(2) the defendant cannot "show that he or she was nonetheless actually
prejudiced by the inartful language which caused a lack of notice." Kiorsvik, 117
Wn.2d at 105-06. Such a construction is required, our Supreme Court has
explained, to discourage "sandbagging"—a "potential defense practice wherein
the defendant recognizes a defect in the charging document but foregoes raising
it before trial when a successful objection would usually result only in an
amendment of the pleading." Kiorsvik, 117 Wn.2d at 103.
It is an essential element of the crime of conspiracy that a party to the
criminal agreement "takes a substantial step in pursuance of such agreement."
RCW 9A.28.040(1). In this case, the information charging conspiracy alleged
that Mockovak "perform[ed] an overt act pursuant to the agreement." Mockovak
contends that the phrase "overt act pursuant to the agreement" does not convey
the same meaning as the statutory phrase "substantial step in pursuance of [the]
agreement" and that, accordingly, he was hindered in his ability to prepare a
defense to the charge of conspiracy to commit theft in the first degree.
However, pursuant to the liberal standard of construction set forth in
-26-
No. 66924-9-1/27
Kiorsvik, a charging document is sufficient so long as there is "some language in
the document giving at least some indication of the missing element." Pineda-
Pineda, 154 Wn. App. at 670. Mockovak is correct that an allegation of
"conspiracy"—standing alone—does not adequately convey the element of a
substantial step. State v. Moavenzadeh, 135 Wn.2d 359, 364, 956 P.2d 1097(1998). In this case, however, there is additional language in the charging
document that gave an "indication" of this element. Pineda-Pineda, 154 Wn.
App. at 670. Although the phase "overt act pursuant to the agreement" is not
identical in its meaning to the phrase "substantial step in pursuance of [the]
agreement," under the more liberal Kiorsvik standard, such precision is not
required. The two phrases fairly convey the same meaning, and the essential
element of a substantial step is sufficiently conveyed. Accordingly, the charging
document is constitutionally adequate.19
Mockovak nevertheless asserts that the information was defective
because it failed to apprise him of the conduct which was alleged to have
constituted the crime. However, a charging document need not state the "when,
where or how" of the charged crime. State v. Noltie, 116 Wn.2d 831, 843-44,
19 Mockovak asserts that the charging document's use of the term "overtact" improperly
implies that a defendant may be convicted of conspiracy based upon evidence of"mere
preparation." Br. of Appellant at 111. Such a state of affairs, he contends, is proscribed by this
court's decision in State v. Gatalski. wherein the court explained that a substantial step must be
an act "'which strongly indicates a criminal purpose and which is more than mere preparation.'"
40 Wn. App. 601,613, 699 P.2d 804 (1985) (quoting former WPIC 100.05). implied overruling on
other grounds recognized by State v. Baldwin. 63 Wn. App. 536, 540-41, 821 P.2d 496 (1991).
That decision, however, related to the substantial step of a criminal attempt, not the substantial
step pursuant to an agreement necessary to provecriminal conspiracy. Gatalski, 40 Wn. App. at
613. Our Supreme Court has explained that the "substantial step" definition for purposes of
conspiracy is broader than the definition applicable to an attempt. Dent, 123 Wn.2d at 477.
Contrary to Mockovak's assertion, in the context of conspiracy, mere preparation to carry out the
agreement may constitute a substantial step. Dent, 123 Wn.2d at 477.
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No. 66924-9-1/28
809 P.2d 190 (1991). As our Supreme Court has noted, "Washington courts
have repeatedly distinguished informations which are constitutionally deficient
and those which are merely vague." Noltie, 116 Wn.2d at 843. Where the
information is overly vague, it is the defendant's burden to request a bill of
particulars to correct the defect. Noltie, 116 Wn.2d at 843. Mere vagueness
does not warrant reversal on appeal. Noltie, 116 Wn.2d at 844.
Here, as judged pursuant to the liberal Kiorsvik standard, the charging
document adequately conveyed the essential elements of the crime of
conspiracy to commit theft in the first degree. Because the information is
constitutionally sufficient, Mockovak's claim fails.20
VI
Mockovak next asserts that the current conspiracy statute violates due
process and constitutes cruel and unusual punishment. He asserts that a 1997
amendment to the statute—which provides that it is no defense to conspiracy
that the defendant's co-conspirator was "a law enforcement officer.. . who did
not intend that a crime be committed," RCW 9A.28.040(2)(f)—is unconstitutional
because it permits a conviction in the absence of a bilateral agreement to commit
the crime. We disagree.
"A legislative act is presumptively constitutional, 'and the party challenging
20 In hisopening brief, Mockovak additionally contends that the information charging
conspiracy is defective because it did not identify his co-conspirator. However, the cases upon
which Mockovak relies do not stand for such a proposition. Instead, these cases hold that where
a co-conspirator is named in the information, the defendant may be convicted only upon proof of
conspiring with the named persons. See, e.g., State v. Stark, 158 Wn. App. 952, 244 P.3d 433(2010). Washington law does not require that the defendant's co-conspirator be identified in the
charging document and, in his reply brief, Mockovak properly withdraws this claim.
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No. 66924-9-1/29
it bears the burden of proving it unconstitutional beyond a reasonable doubt."'
State v. Heckel. 143 Wn.2d 824, 832, 24 P.3d 404 (2001) (quoting State v.
Bravman. 110Wn.2d 183, 193,751 P.2d 294 (1988)). Here, in asserting that the
conspiracy statute is unconstitutional, Mockovak relies exclusively upon our
Supreme Court's decision in State v. Pacheco. 125Wn.2d 150, 882 P.2d 183(1994). The Pacheco decision, however, does not address either of the
constitutional provisions raised by Mockovak in this appeal.
In Pacheco. the court's analysis was limited to construing the intent of the
legislature in drafting a previous version of the conspiracy statute, former RCW
9A.28.040 (1975). 125 Wn.2d at 154. The term "agreement" was not defined by
the statute. Pacheco, 125 Wn.2d at 154. Applying principles of statutory
construction, the court concluded that the legislature had intended to adhere to
the common law definition of "agreement," which required a "genuine or bilateral
agreement" between actual criminal participants. Pacheco, 125 Wn.2d at 155.
The court noted that although the Model Penal Code utilized a unilateral
approach—permitting a conviction so long as the "the defendant believes another
is agreeing to commit the criminal act," Pacheco, 125 Wn.2d at 154—the court
would not presume that our legislature intended to depart from the requirements
of the common law "unless that intention is made very clear." Pacheco, 125
Wn.2dat156.
Mockovak's reliance on the court's reasoning in Pacheco, however, is
plainly unwarranted. First, the legislature has subsequently clarified its intention
to depart from the requirements of the common law. The 1997 amendments to
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No. 66924-9-1/30
the conspiracy statute were adopted by the legislature following the court's
decision in Pacheco. Laws of 1997, ch. 17, §1. The legislature determined that
the unilateral approach to conspiracy should apply where the co-conspirator is "a
law enforcement officer. . . who did not intend that a crime be committed." RCW
9A.28.040(2)(f). In such circumstances, no genuine or bilateral agreement is
required; rather, it is enough that the defendant believed that the undercover
agent was agreeing to commit the criminal act.
Second, and more importantly, the court in Pacheco engaged in no
constitutional analysis. Instead, its reasoning was based solely upon principles
of statutory interpretation. The court did not intimate that the adoption of the
unilateral approach to conspiracy would exceed the legislative power to define
criminal conduct. Indeed, the court noted with approval that the legislature had
explicitly adopted the unilateral approach to conspiracy in circumstances where
"the person with whom the accused is alleged to have conspired has been
acquitted." Pacheco, 125 Wn.2d at 156 (citing State v. Valladares, 99 Wn.2d
663, 670, 664 P.2d 508 (1983)).
Mockovak cites to no case indicating that the unilateral approach to
conspiracy is unconstitutional. Indeed, he falls far short of establishing that the
Washington conspiracy statute is "'unconstitutional beyond a reasonable doubt."'
Heckel, 143 Wn.2d at 832 (quoting Bravman, 110 Wn.2d at 193). Accordingly,
this claim fails.
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No. 66924-9-1/31
VII
Mockovak next asserts that the evidence adduced at his trial was
insufficient to support his conviction of conspiracy to commit theft in the first
degree. Because, he contends, the State failed to prove the existence of an
agreement between Mockovak and Kultin to commit first degree theft, he asserts
that this conviction must be vacated. We disagree.
The State must prove each essential element of a charged crime beyond
a reasonable doubt. State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). In
deciding whether sufficient evidence supports a conviction, we must view the
evidence in the light most favorable to the State in order to determine whether
any rational finder of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). A challenge to the sufficiency of the evidence admits the truth of
the State's evidence. Salinas, 119 Wn.2d at 201. Moreover, "all reasonable
inferences from the evidence must be drawn in favor of the State and interpreted
most strongly against the defendant." Salinas, 119 Wn.2d at 201. Wemust
defer to the finder of fact on "issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence." State v. Ainslie, 103 Wn.
App. 1,6, 11 P.3d 318 (2000).
In order to prove conspiracy to commit theft in the first degree, the State
was required to prove: (1) that Mockovak agreed with one or more persons to
engage in or cause the performance of conduct constituting the crime of theft in
the first degree; and (2) that Mockovak made the agreement with the intent that
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No. 66924-9-1/32
such conduct be performed.21 RCW 9A.28.040. It is not necessary to showa
formal agreement in order to prove a conspiracy to commit a crime. State v.
Barnes. 85 Wn. App. 638, 664, 932 P.2d 669 (1997). Instead, the agreement
may be proved by evidence of a "'concert of action, all the parties working
together understandingly, with a single design for the accomplishment of a
common purpose.'" Barnes, 85 Wn. App. at 664 (quoting State v. Casarez-
Gastelum, 48 Wn. App. 112, 116, 738 P.2d 303 (1987)).
Here, Mockovak contends that the evidence does not establish that he
entered into an agreement with Kultin to commit theft in the first degree. Rather,
he asserts, the scope of Kultin's agreement with Mockovak was limited to
causing the death of King. However, the record is replete with evidence
demonstrating that the plan to kill King was—from its inception—inextricably
linked to the plan to collect the insurance proceeds that would flow to Mockovak
following King's death. From the outset of their discussions, Kultin and
Mockovak contemplated that Mockovak would collect the proceeds of the
insurance policy on King's life. This aspect of the plan was clearly conveyed to
Kultin on multiple occasions; indeed, Kultin agreed to arrange to have King's
body found in order to avoid potential difficulties in collecting the insurance
proceeds. Moreover, pursuant to this plan, it was understood by Mockovak that
Kultin would personally benefit from the collection of the insurance proceeds.
21 In addition, the State was required to prove that a person "involved in the agreement
took a substantial step in pursuance of the agreement" and that "the acts occurred in the State of
Washington." Mockovak does not challenge the sufficiency of the evidence with regard to these
elements.
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No. 66924-9-1/33
Not only was Kultin promised a more lucrative position at Clearly Lasik once the
insurance proceeds were used to repay the company's obligations, but
Mockovak told Kultin that he hoped $100,000 of these monies could be set aside
for Kultin as consideration for his role in arranging the murder.
Given this evidence, a rational jury could properly conclude that Mockovak
agreed with Kultin to engage in or cause the performance of conduct constituting
the crime of theft in the first degree. See RCW 9A.28.040. The State was not
required to prove that Kultin agreed to personally take part in filing the fraudulent
insurance claim in order to establish an agreement to accomplish the theft. The
theft was to be accomplished by murdering King and then applying to the
insurance company for payment of the death benefit. Kultin was aware of this
purpose for the murder and agreed to take specific steps to facilitate this goal.
Mockovak does not assert, nor could he, that the evidence fails to demonstrate
that Mockovak intended that such conduct be performed. Nor does he contend
that the evidence does not satisfy any other element of this crime.
The evidence is sufficient to support Mockovak's conviction of conspiracy
to commit theft in the first degree, and Mockovak's contention to the contrary
provides no basis for reversal.
VIII
Mockovak's final contention is that Kultin's actions as a government
informant constitute outrageous conduct in violation of due process. He asserts
that the trial court erred by denying his motion to dismiss the charges against him
on this basis. We disagree.
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No. 66924-9-1/34
In order to obtain dismissal of a criminal prosecution based upon
outrageous governmental conduct, the police conduct must "shock the universal
sense of fairness." State v. Lively. 130Wn.2d1, 19,921 P.2d 1035 (1996).
Where such conduct is proved to have occurred, '"due process principles would
absolutely bar the government from invoking judicial processes to obtain a
conviction.'" Lively, 130 Wn.2d at 19 (quoting United States v. Russell, 411 U.S.
423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). However, here, "the trial
court was not asked to make findings of fact on this issue. . . . [I]n the absence of
findings of fact or undisputed facts showing outrageous conduct by the
[government]," dismissal on this basis is unwarranted. State v. Valentine, 132
Wn.2d 1, 24, 935 P.2d 1294 (1997).
In response to a query by the trial judge, Mockovak's attorney indicated
that the entry of findings of fact was unnecessary. The prosecutor agreed.22
Accordingly, the trial court denied Mockovak's motion to dismiss without entering
findings of fact or conclusions of law.23
Nor are there undisputed facts from which we can determine that the
government acted in such a manner that due process considerations dictate
dismissal of the charges against Mockovak. Although Mockovak now asserts
that the facts are undisputed, in order to so conclude, we would be forced to
disregard much of the testimony of the prosecution's witnesses. Indeed,
22 The prosecutorwas prepared to hand up proposed findings of fact and conclusions of
law, had the trial court expressed a desire to enter such findings.
23 To the extent that the trial court erred by declining to enter such findings, the error was
invited by Mockovak and cannot provide a basis for reversal. See Armstrong, 69 Wn. App. at
434.
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No. 66924-9-1/35
Mockovak's own counsel expressly noted in the trial court that the relevant facts
were in dispute. In response to the State's offer to submit proposed findings of
fact on this issue, defense counsel noted that Mockovak would object to the
State's proposed findings of fact, which, he asserted, were not "supported by the
record." This indicates a clear disagreement between the parties as to the facts
and the inferences to be drawn therefrom. Thus, there are not undisputed facts
in the record demonstrating outrageous conduct.
The affirmative decision by defense counsel to forego the entry of findings
of fact by the trial court, while surely tactical, is fatal to Mockovak's claim of
outrageous conduct on appeal. In the absence of findings of fact or undisputed
facts establishing outrageous conduct by Kultin, relief cannot be granted on this
claim. Valentine.132 Wn.2d at 24.
Affirmed.
We concur:
6*,^ s'PrVyq-^ -A
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