State Of Washington, V Vasiliy v. Slobodyanyuk ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 70368-4-1
Respondent, DIVISION ONE I
CJ1
v.
VASILIY SLOBODYANYUK, UNPUBLISHED OPINION
oc:
Appellant. FILED: August 5, 2013
Lau, J. —Vasiliy Slobodyanyuk appeals his assault, theft, and identity theft
convictions. He argues that insufficient evidence supports the convictions. Finding no
error, we affirm.
FACTS
The State charged Slobodyanyuk with second degree theft (count 1), third
degree assault (count 2), second degree possession of stolen property (count 3), and
second degree identity theft (counts 4-6). Testimony at trial established the following
facts.
Brandon Kilian works for Nighthawk Protection as a private security guard. His
duties include patrolling businesses and apartment complexes, looking for suspicious
70368-4-1/2
activities, and responding to noise complaints. While on duty, he drives a Ford Crown
Victoria that is marked with Nighthawk's logo and the words "Rapid Response" on the
back with the company's phone number. Kilian's uniform consists of black pants with
blue stripes, tan shirt, badge, and patches that say "Nighthawk Protection."
The night of April 23, 2011, Kilian was patrolling the Madison Park apartment
complex in Clark County on the 7:30 PM to 6:00 AM shift for Nighthawk. The complex
had an entry and exit gate requiring a pass code for access. That day the gate was
broken and stuck in the open position. Consequently, apartment management asked
Nighthawk to conduct extra patrols around the complex.
Kilian conducted six patrols of the complex the night of April 23. Approximately
two hours elapsed between each patrol. Kilian conducted his sixth and final patrol
around 3:30 AM. At that time, he noticed a black car double-parked behind several
other cars at the back of the parking lot about a quarter mile from the complex's front
gate. The black car was not there during Kilian's previous patrols of the parking lot.
The car was about 40 yards from the apartment buildings, and the parking lot in that
area was "extremely dark" because the nearby light pole was burned out. RP (Jan. 30,
2012) at 136-37.
Kilian exited his patrol car and approached the black car. He heard a noise that
sounded like a trunk or car door closing and saw a man, later identified as Vasiliy
Slobodyanyuk, standing next to the black car. No one else was nearby. Kilian asked
Slobodyanyuk for his name and he replied, "William Brown." RP (Jan. 30, 2012) at 138-
39. When Kilian asked what he was doing, he said he was waiting for a friend. Kilian
-2-
70368-4-1/3
asked for the friend's name and where the friend lived. Slobodyanyuk said, "I don't
know." RP (Jan. 30, 2012) at 140.
Kilian could see through the black car's window to the inside and noticed "a
bunch of miscellaneous items" in the car, including multiple stereo faceplates, a laptop
case, and miscellaneous electronics. RP (Jan. 30, 2012) at 140. Kilian asked
Slobodyanyuk if he would open his trunk and he replied, "No problem." RP (Jan. 30,
2012) at 141. Inside the trunk, Kilian saw a toolbox with latex gloves on top. Based on
all of the circumstances, Kilian believed Slobodyanyuk was car prowling. Kilian asked
Slobodyanyuk to walk with him to his patrol car. On the way, Kilian used his handheld
radio to contact his dispatcher.1 Dispatch advised Kilian that the Vancouver police
would arrive in approximately 10 minutes. Slobodyanyuk grew agitated and said, "I'm
just going to go." RP (Jan. 30, 2012) at 143. Kilian told Slobodyanyuk to "hang out just
for a couple more minutes until the police got there." RP (Jan. 30, 2012) at 144. Kilian
placed his hand on top of Slobodyanyuk's right hand, which was on Kilian's patrol car.
Kilian again contacted dispatch and asked if the police could come faster. The moment
Kilian completed this transmission, Slobodyanyuk turned and swung at Kilian's face with
his left hand. Kilian ducked, but Slobodyanyuk's left fist grazed Kilian's left eyebrow.
Kilian grabbed Slobodyanyuk and both men tripped and fell to the ground.
Slobodyanyuk then jumped up and ran back to the black car. Kilian followed and tried
to grab Slobodyanyuk as he was getting into the car, but he lost his grip and
Slobodyanyuk drove away. Kilian reached for his radio and found it missing. Kilian had
1 Kilian's Kenwood radio, issued to him by Nighthawk Protection, had an antenna
on top, several different buttons, volume on one side, and different channels on the top.
-3-
70368-4-1/4
previously provided dispatch with the black car's make, model, and license plate
number. Kilian ran back to his patrol car and used its bolted-in radio to advise dispatch
that Slobodyanyuk was driving off the property.
Vancouver Police Department (VPD) Officer Todd Schwartz responded to
Kilian's dispatch call. At about 3:45 AM, he located a car matching Kilian's description
on the road near the Madison Park apartment complex. Officer Schwartz followed the
car as it made several turns and eventually pulled into a residential driveway. Officer
Schwartz exited his patrol vehicle and approached the car in the driveway. The items in
the car initially obstructed his view of the driver. Officer Schwartz contacted the driver,
later identified as Slobodyanyuk, through the driver's side window and asked if he lived
at the residence. Slobodyanyuk responded, "No." RP (Jan. 30, 2012) at 187. Officer
Schwartz could hear what he described as "police radio traffic" coming from
Slobodyanyuk's car. Officer Schwartz ordered Slobodyanyuk to get out of the car and
then noticed a portable police-style radio sitting on the driver's seat. The radio was
turned on. Kilian arrived at the scene and identified the driver as the person who swung
at him. He also identified his radio, which had been missing since Slobodyanyuk fled
the apartment complex.
VPD Sergeant John Schultz arrived at the scene to assist Officer Schwartz. By
that time Slobodyanyuk was detained in handcuffs outside Officer Schwartz's patrol car.
Sergeant Schultz placed Slobodyanyuk in his own patrol car. Sergeant Schultz then
looked through the window of Slobodyanyuk's car and saw a police radio in the driver's
seat, a Mac laptop between the driver and passenger seats, a large flat screen TV and
several other electronics in the backseat, a piece of luggage in the area above the
-4-
70368-4-1/5
backseat, and another piece of luggage in the front passenger seat. From outside the
car, Sergeant Schultz could read the names on the luggage tags: "Jim Lowne" and
"Jolene Conzatti." RP (Jan. 30, 2012) at 203. Sergeant Schultz later learned that
Lowne and Conzatti's residence was burglarized while they were out of town the
weekend of April 23-24, 2011.
VPD Officer Spencer Harris obtained a search warrant for Slobodyanyuk's car.
Inside the car he found several items including a Samsung Blu Ray disc player, a
stereo, speakers, a 47-inch LG flat screen TV, a laptop computer, and luggage. A bag
found above the backseat contained vintage fishing gear belonging to Lowne. Officer
Harris also found a small box in one of the bags that contained Lowne's diamond and
gold ring. Officer Harris later determined the items were stolen from Lowne and
Conzatti's residence during the burglary. Lowne valued the flat screen TV at $1,200,
the Blu Ray disc player at $250, the stereo with speakers at $500, the laptop at $1,200,
the fishing gear at $900, and the ring at $24,000.
Officer Harris also searched the trunk. There he found identification cards, credit
cards, checkbooks, and other personal documents belonging to three people—Asya
Carducci, Nicola Carducci, and Victoria Overholser. Officer Harris found no
accompanying purses or wallets. Police later learned that Asya and Nicola Carducci's
residence and Victoria Overholser's residence were burglarized between April 17 and
April 18, 2011. Asya Carducci testified that she last saw her identification card, bank
cards, and checkbook in her purse, which was in her apartment's hallway the night the
burglary occurred. When she woke up the next morning, her purse and its contents
were missing. Asya's husband, Nicola, testified that his wallet—containing his
-5-
70368-4-1/6
identification and bank cards—was also taken in the burglary. Victoria Overholser
testified that her purse, containing her identification and bank cards, was taken when
her apartment was burglarized. Overholser's debit card was used at a gas station soon
after the burglary.
Slobodyanyuk spoke to Officer Harris on the morning of April 24. He told Officer
Harris that he lived in Portland, Oregon. Slobodyanyuk said he was at a party with
some friends in Vancouver the night of April 23. He told Officer Harris that he went to
the Madison Park apartment complex during the early morning hours of April 24 when
some friends called him and asked for a ride because they were drunk. Officer Harris
asked him to identify his friends but he refused.
Slobodyanyuk testified at trial. He said he lived in Vancouver, Washington when
the crimes were committed. He testified that he was at home asleep on the night of
April 23, 2011. He said that he went to the Madison Park apartment complex early in
the morning on April 24 because some "acquaintances" called him and said they
needed him to "carry something in [his] car." RP (Jan. 31, 2012) at 335. Slobodyanyuk
stated that when he arrived at the apartment complex, he met two men who loaded
items into his car. He denied knowing that the items were stolen or participating in the
burglaries. He said one of the men was nicknamed "Max," "David," or "Danick." RP
(Jan. 31, 2012) at 351. The other man was called "Small Guy," "Mali," or "Tim." RP
(Jan. 31, 2012) at 352. Slobodyanyuk admitted at trial that the statements he made to
Officer Harris on the morning of April 24 were false.
Based on the evidence presented at trial regarding the radio's value, the State
asked the court to instruct the jury on third degree theft rather than second degree theft
-6-
70368-4-1/7
on count 1 2 The court also instructed the jury on fourth degree assault in addition to
third degree assault on count 2.3 The jury convicted Slobodyanyuk ofthird degree theft
on count 1 and convicted him of the remaining crimes as charged. The court imposed a
sentence at the high end of the standard range. Slobodyanyuk appeals.
ANALYSIS
Slobodyanyuk argues that insufficient evidence supports his assault, theft, and
identity theft convictions.
Evidence is sufficient to support a conviction if, viewed in the light most favorable
to the State, it permits any rational trier of fact to find the essential elements of the crime
beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068(1992).4 "A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201.
Circumstantial and direct evidence are equally reliable. State v. Moles. 130 Wn. App.
461,465, 123P.3d 132(2005). We defer to the trier of fact on issues of conflicting
testimony, witness credibility, and persuasiveness of the evidence. State v. Fiser, 99
Wn. App. 714, 719, 995 P.2d 107 (2000).
2 Count 1 alleged theft of Kilian's portable radio.
3 Count 2 alleged that Slobodyanyuk assaulted Kilian with intent to prevent lawful
apprehension or detention.
4 In determining whether sufficient evidence exists, the reviewing court
determines not "whether it believes the evidence at trial established guilt beyond a
reasonable doubt," but whether "'any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216,
221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61
L Ed. 2d 560 (1979)).
-7-
70368-4-1/8
Third Degree Assault
Slobodyanyuk does not dispute that he assaulted Kilian with intent to resist
Kilian's attempt to apprehend or detain him. See Appellant's Br. at 4. But he claims
insufficient evidence supports his conviction because Kilian lacked probable cause to
believe Slobodyanyuk was committing a crime and, thus, lacked lawful authority to
apprehend or detain him. The State responds that Kilian had probable cause to believe
Slobodyanyuk was committing second degree vehicle prowl or second degree
possession of stolen property.
The State charged Slobodyanyuk with third degree assault under RCW
9A.36.031(1)(a). Under that subsection, a person is guilty of third degree assault if,
under circumstances not amounting to first or second degree assault, he or she "[w]ith
intent to prevent or resist the execution of any lawful process or mandate of any court
officer or the lawful apprehension or detention of himself, herself, or another person,
assaults another." RCW 9A.36.031(1)(a).
This statute's protection extends to private citizens who are lawfully arresting or
detaining another person. State v. Mierz. 127 Wn.2d 460, 478, 901 P.2d 286 (1995). A
private citizen can make a citizen's arrest "when a felony or a misdemeanor that
constitutes a breach of the peace is committed in that individual's presence." State v.
Malone. 106 Wn.2d 607, 609 n.1, 724 P.2d 364 (1986). The Restatement (Second) of
Torts § 116 (1965) defines breach of the peace as "a public offense done by violence,
or one causing or likely to cause an immediate disturbance of public order." See also
Stone Mach. Co. v. Kessler. 1 Wn. App. 750, 754, 463 P.2d 651 (1970) (quoting
Restatement § 116).
-8-
70368-4-1/9
"To constitute a 'breach of the peace' it is not necessary that the peace be
actually broken, and if what is done is unjustifiable and unlawful, tending with
sufficient directness to break the peace, no more is required, nor is actual
personal violence an essential element of the offense."
Kessler. 1 Wn. App. at 754 (quoting McKee v. State. 75 Okla. Crim. 390, 132 P.2d 173(1942)). While "breach of the peace" is required for a citizen to arrest for a
misdemeanor, a citizen may arrest for a felony based on reasonable and probable
cause to believe the arrested party is guilty of a felony. State v. Jack. 63 Wn.2d 632,
637, 388 P.2d 566 (1964).
Probable cause is not knowledge of evidence sufficient to establish guilt beyond
a reasonable doubt but, rather, is "reasonable grounds for suspicion coupled with
evidence of circumstances to convince a cautious or disinterested person that the
accused is guilty." State v. Bellows. 72 Wn.2d 264, 266, 432 P.2d 654 (1967). We
consider the totality of the circumstances when determining whether probable cause
exists. State v.Graham. 130 Wn.2d 711, 724, 927 P.2d 227 (1996).
Objective facts and circumstances determine the validity of an arrest. State v.
Huff. 64 Wn. App. 641, 646, 826 P.2d 698 (1992). "[A]n arrest supported by probable
cause is not made unlawful by an officer's subjective reliance on, or verbal
announcement of, an offense different from the one for which probable cause exists."
Huff. 64 Wn. App. at 646; see also State v. Stebbins. 47 Wn. App. 482, 485-86, 735
P.2d 1353 (1987) (police arrested suspect for armed robbery; although State failed to
present evidence supporting a finding of probable cause for that crime, arrest was held
lawful because probable cause existed to support arrest for crime of burglary).
-9-
70368-4-1/10
We conclude Kilian had probable cause to believe Slobodyanyuk committed
second degree vehicle prowl on the night of April 23, 2011. A person commits second
degree vehicle prowl when he or she enters or remains unlawfully in a vehicle with
intent to commit a crime against a person or property therein. Former RCW 9A.52.100
(2011). Kilian heard a car door or trunk close and saw Slobodyanyuk standing outside
his car, which was double-parked behind two other cars. Slobodyanyuk was in an unlit
portion of the parking lot in the early morning hours at a time when the apartment
complex's security gate was broken. Kilian saw miscellaneous valuable electronics
inside Slobodyanyuk's car and a toolbox and gloves in the trunk. Slobodyanyuk
provided no plausible explanation for his presence in the parking lot. Based on the
totality of the circumstances, Kilian had reasonable grounds to suspect Slobodyanyuk
was car prowling. This unjustifiable and unlawful conduct constitutes breach of the
peace. Kilian had lawful authority to apprehend or detain Slobodyanyuk.
Further, even if Kilian lacked probable cause to believe Slobodyanyuk was car
prowling, probable cause existed to believe Slobodyanyuk was guilty of second degree
possession of stolen property. Under RCW 9A.56.160(1)(a), a person commits second
degree possession of stolen property when he or she possesses stolen property
exceeding $750 in value. "'Possessing stolen property' means knowingly to receive,
retain, possess, conceal, or dispose of stolen property knowing that it has been stolen
and to withhold or appropriate the same to the use of any person other than the true
owner or person entitled thereto." RCW 9A.56.140(1). Here, Slobodyanyuk's car was
filled with valuable electronics, including a flat screen TV, a laptop computer, and a
stereo. Considering the totality of the circumstances discussed above, Kilian had
-10-
70368-4-1/11
reasonable grounds to suspect Slobodyanyuk was guilty of second degree possession
of stolen property—a felony under RCW 9A.56.160(2). Kilian had lawful authority to
apprehend or detain Slobodyanyuk. Sufficient evidence supports Slobodyanyuk's third
degree assault conviction.
Second Degree Identity Theft
Slobodyanyuk argues that insufficient evidence supports his second degree
identity theft convictions because the State failed to prove that he knowingly possessed
identification cards, credit cards, or checkbooks or that he intended to use these items
to commit additional crimes. The State responds that the totality of the circumstances
demonstrates both knowledge and intent.
A person commits identity theft when he or she "knowingly obtain[s], possess[es],
use[s], or transfers] a means of identification or financial information of another person,
living or dead, with the intent to commit, or to aid or abet, any crime."5 RCW
9.35.020(1). Slobodyanyuk possessed identification cards and financial information
belonging to three different people. As discussed above, Asya Carducci, Nicola
Carducci, and Victoria Overholser each testified that when their identification cards and
financial information were stolen, those items were contained in either their wallets or
their purses. When Officer Harris found the items in Slobodyanyuk's car, they were
scattered in the trunk without the corresponding wallets or purses. The jury could
reasonably infer that at some point Slobodyanyuk extracted the items and discarded the
5 First degree identity theft occurs when the accused obtains credit, money,
goods, services, or anything else of value in excess of $1,500 in value. RCW
9.35.020(2). Second degree identity theft is identity theft committed under
circumstances not amounting to first degree identity theft. RCW 9.35.020(3).
-11-
70368-4-1/12
victims' wallets and purses. The jury could also reasonably infer that when
Slobodyanyuk discarded the purses and wallets but retained the victims' identification
cards and financial information, he intended to use those items to aid, abet, or commit a
crime. Viewed in the light most favorable to the State, the evidence indicates that
Slobodyanyuk sought out identification and financial information and retained those
items while discarding other items. While Slobodyanyuk claimed that he did not know
exactly what items were in his car and did not intend to use the items for further criminal
activity, we defer to the jury's credibility determinations, which will not be overturned on
appeal. The evidence sufficiently supports Slobodyanyuk's second degree identity theft
convictions.
Third Degree Theft
Slobodyanyuk contends that insufficient evidence supports his third degree theft
conviction because the State failed to prove he intended to steal Kilian's radio. The
State responds that the evidence shows Slobodyanyuk exercised unauthorized control
over the radio and failed to return it.
A person commits theft when he or she "wrongfully obtain[s] or exert[s]
unauthorized control over the property or services of another or the value thereof, with
intent to deprive him or her of such property or services." RCW 9A.56.020(1 )(a). Third
degree theft is theft of property or services not exceeding $750 in value. RCW
9A.56.050(1).
Here, Slobodyanyuk fled the Madison Park apartment complex with Kilian's radio
inside his car immediately after he assaulted Kilian. Given that the radio was later
found on Slobodyanyuk's driver's seat and was turned on to a loud volume, it is
-12-
70368-4-1/13
reasonable to conclude Slobodyanyuk knew it was in his car. No evidence indicates
that Slobodyanyuk attempted or intended to return the radio.6 Slobodyanyuk contends
that "Kilian's radio ended up in [his] car, likely because it fell in as the two men
struggled" and, thus, "the testimony proved only that [he] ended up with the radio by
accident, and had no opportunity to return it before he was stopped by police."
Appellant's Br. at 12, 13. We disagree. Even if Slobodyanyuk did not "wrongfully
obtain" Kilian's radio, he "exert[ed] unauthorized control" over it when he knowingly kept
it in his car, deprived Kilian of its use, and fled the scene without returning the radio.
RCW 9A.56.020(1)(a). Viewed in the light most favorable to the State, the evidence
sufficiently supports Slobodyanyuk's third degree theft conviction.
CONCLUSION
Sufficient evidence supports Slobodyanyuk's assault, theft, and identity theft
convictions. We affirm.
WE CONCUR:
t*Jfis\&- £. JL/ e.
6 It is also reasonable to conclude that Slobodyanyuk benefited from possessing
Kilian's radio, given that he fled the crime scene and prevented Kilian from using the
radio to communicate with dispatch.
-13-