State Of Washington, V Nikolay I. Kalachik ( 2015 )

FINED
COURT OF APPEALS
DIVISION II
2015 BAR 17
M1 8: 42
IN THE COURT OF APPEALS OF THE STATE OF WASHING ; . F SN_ GTO, I
3Y.
DIVISION II Y
STATE OF WASHINGTON, No. 45477 -7 -II
Respondent,
v.
NIKOLAY IVANOVICH KALACHIK, UNPUBLISHED OPINION
Appellant.
WoRSwIcK, J. — Nikolay Kalachik appeals his conviction for intimidating a public
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servant, arguing that insufficient evidence supports his conviction. Specifically, he argues the
evidence does not support that he made his threats with the purpose of influencing a public
servant' s official action. We affirm.
FACTS
A. Background
Trial testimony supported the following facts. Officer Ilia Botvinnik and Deputy Paul
Uminski pulled over Kalachik while he was driving his vehicle. Officer Botvinnik printed out
written citations for Kalachik. With Kalachik still in the vehicle, Officer Botvinnik attempted to
give Kalachik the citations. Because Kalachik refused to accept the citations, Officer Botvinnik
slipped them through the vehicle' s rear window. Officer Botvinnik told Kalachik he was free to
leave.
1
RCW 9A.76. 180; RCW 9A. 04. 110( 23).
No. 45477 -7 -II
As Officer Botvinnik and Deputy Uminski returned to their patrol car, Kalachik grabbed
the citations, exited the vehicle, and confronted the officers. Kalachik ripped up the citations,
dialed his cell phone, and told Officer Botvinnik, "` You have no idea who are [ sic] you messing
with and I' m going to call my brigade and they' re going to come right here, right now after
you. "' Verbatim Report of Proceedings ( VRP) at 91. Officer Botvinnik and Deputy Uminski
then arrested Kalachik for intimidating a public servant.
While transporting Kalachik to jail, Kalachik said, "' You have no idea what you are
doing right now, I will guarantee that you will regret this. "' VRP at 159. Kalachik also asked
Officer Botvinnik if he knew about Maxim Ukimetz. Ukimetz was a man who was allegedly
killed.
B. Charges, Conviction, and Sentence
The State charged Kalachik with one count of intimidating a public servant and one count
of felony harassment involving threat to a criminal justice system participant.2 The case went to
a jury trial where Kalachik was convicted of both counts.
The trial court ruled Kalachik' s two convictions merged due to double jeopardy, and
vacated Kalachik' s count for felony harassment involving threat to a criminal justice system
participant. Kalachik now appeals his conviction for intimidating a public servant.
ANALYSIS
Kalachik concedes sufficient evidence supports that he made threats, but argues
insufficient evidence supports that he made his threats with the purpose of influencing a public
servant' s official action. We disagree.
2
RCW 9A.46. 020( 1), ( 2)( b).
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No. 45477 -7 -II
Evidence is sufficient to support a conviction if any rational trier of fact could find the
crimes' essential elements beyond a reasonable doubt when viewing the evidence in the light
most favorable to the State. State v. Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 ( 2004). An
appellant claiming insufficient evidence admits the truth of the State' s evidence and all
inferences that may be reasonably drawn from that evidence. 150 Wash. 2d at 874.
RCW 9A.76. 180( 1) states:
A person is guilty of intimidating a public servant if, by use of a threat, he or she
attempts to influence a public servant' s vote, opinion, decision, or other official
action as a public servant.
RCW 9A.76. 180 requires " evidence both that the defendant made a threat and that the threat was
made with the purpose of influencing a public servant' s official action." State v. Montano, 169
Wash. 2d 872, 876, 239 P.3d 360 ( 2010). The influence element requires " evidence suggesting an
attempt to influence, aside from the threats themselves or the defendant' s generalized anger at
the circumstances." 169 Wash. 2d at 877.
Kalachik cites Montano and State v. Burke, 132 Wash. App. 415, 132 P.3d 1095 ( 2006) to
support his argument. In Montano, the State charged the defendant with intimidating a public
servant after he violently resisted two arresting police officers, became increasingly angry, and
hurled insults and threats. 169 Wash. 2d at 874 -75. The defendant said to the officers, " I know
when you get off work, and I will be waiting for you "; " I' ll kick your ass "; and " I know you are
afraid, I can see it in your eyes." 169 Wash. 2d at 875. Our Supreme Court affirmed pretrial
dismissal:
T] here is simply no evidence to suggest that [ the defendant] engaged in this
behavior, or made his threats, for the purpose of influencing the police officers'
actions. Instead, the evidence shows a man who was angry at being detained and
who expressed that anger toward the police officers.... Some evidence is required
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No. 45477 -7 -II
to link the defendant' s behavior to an official action that the defendant wishes to
influence.
169 Wash. 2d at 879 -80 ( emphasis added).
In Burke, a jury found the defendant guilty of intimidating a public servant after he, while
drunk, rushed toward and " belly bump[ ed]" an investigating police officer at a house party,
disobeyed commands to step back, yelled profanities and " fighting threats," took a " fighting
stance," and swung his fists. 132 Wn. App. at 417 -18 ( alteration in original). The defendant
admitted he was disappointed the house party might end. 132 Wn. App. at 418. We reversed the
conviction, concluding that there was no direct evidence supporting the intent to influence and
that the way in which the defendant attacked the officers did not show an attempt to suggest that
the officer take a particular action. 132 Wn. App.. at 421.
Kalachik' s case is unlike Montano or Burke. Kalachik became irate and agitated by
Officer Botvinnik giving him citations and arresting him. Kalachik' s first threat was made while
ripping up the citations, and the second threat was made in the patrol car soon after his arrest.
Kalachik' s threats included statements-that were clearly attempting to dissuade the officer' s
actions, including "` [y] ou have no idea who are [ sic] you messing with, ' and "` [ y]ou have no
idea what you are doing right now, I will guarantee that you will regret this. ' VRP at 91, 159.
This presented some evidence to link Kalachik' s behavior to an official action that Kalachik
wished to influence. See Montano, 169 Wash. 2d at 879 -80. Viewing the evidence in the light
most favorable to the State, a rational jury could find beyond a reasonable doubt that Kalachik
No. 45477 -7 -II
made his threats with the purpose of influencing law enforcement officers to withdraw the
citations and take no further action against him.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Worswick, J.
Cf°'.
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