State Of Washington v. Ruslan Bezhenar ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 71646-8-
Respondent,
v.
RUSLAN YURIEVICH BEZHENAR, UNPUBLISHED OPINION
Appellant. FILED: June 16, 2014
Verellen, A.C.J. — Ruslan Bezhenar appeals his conviction for harassment-
threat to kill, arguing, in part, that the prosecutor committed misconduct during closing
argument. The State concedes the prosecutor's misstatement of the burden of proof
and bolstering of witnesses were improper, but argues that any error is harmless.
Misstatements of the burden of proof are implicitly flagrant, ill intentioned, and
prejudicial. Additionally, the cumulative effect of the misstatement of the burden of
proof and improper bolstering likely affected the outcome of the trial. Therefore, we
accept the State's concession, reverse Bezhenar's conviction, and remand for a new
trial.
We also conclude that the State presented sufficient evidence that Bezhenar
threatened to kill a police officer, but decline to reach Bezhenar's additional arguments
on appeal.
FACTS
Bezhenar's mother owned a building in downtown Centralia and allowed him to
live in an upstairs apartment. In July 2012, the city determined that the building was
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uninhabitable and posted a sign indicating that any "unauthorized" person that entered
the building would be subject to arrest.
A few days later, police responded to a call that someone had entered the
building by climbing up a drain pipe. They found Bezhenar inside. After Bezhenar was
removed from the building, he made veiled threats to Officer Michael Lowrey.
The State charged Bezhenar with one count of harassment-threat to kill and one
count of criminal trespass in the first degree. The State alleged that there was an
aggravating circumstance because the threat to kill was made against a law
enforcement officer. A jury found Bezhenar guilty of felony harassment and answered
yes to the special allegation regarding Lowrey's status as an officer, but it was unable to
reach a verdict on the trespass charge. Bezhenar appeals.
DISCUSSION
Prosecutorial Misconduct
Bezhenar argues that the prosecutor committed numerous instances of
misconduct that require reversal of his conviction. The State concedes that the
prosecutor's misstatement of the burden of proof and bolstering of the police officers'
testimony were improper, but contends the misconduct does not compel reversal.
"The right to a fair trial is a fundamental liberty secured by the Sixth and
Fourteenth Amendments to the United States Constitution and article I, section 22 of the
Washington State Constitution."1 "Prosecutorial misconduct may deprive a defendant of
his or her constitutional right to a fair trial."2 "Although a prosecutor has wide latitude to
1 In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703, 286 P.3d 673 (2012).
2 Id. at 703-04.
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argue reasonable inferences from the evidence," he or she "must 'seek convictions
based only on probative evidence and sound reason.'"3
In order to prevail on a claim of prosecutorial misconduct, a defendant is required
to show that the prosecutor's conduct was both improper and prejudicial.4 The
prejudice prong requires that the defendant show a substantial likelihood that the
misconduct affected the jury verdict.5 If the defendant fails to object at trial, the errors
he complains of are waived unless he establishes that the misconduct was so flagrant
and ill intentioned that an instruction would not have cured the prejudice.6 We consider
the prosecutor's alleged improper conduct in the context of the total argument, the
issues in the case, the evidence addressed in the argument, and the jury instructions.7
First, Bezhenar argues, and the State concedes, that the prosecutor committed
misconduct by misstating the burden of proof. We accept the State's concession.
"Misstating the basis on which a jury can acquit insidiously shifts the requirement
that the State prove the defendant's guilt beyond a reasonable doubt."8 "Due process
requires the State to prove, beyond a reasonable doubt, every element necessary to
3]g\ at 704 (quoting State v. Casteneda-Perez. 61 Wash. App. 354, 363, 810 P.2d
74(1991)).
7 State v. Anderson, 153 Wash. App. 417, 430, 220 P.3d 1273 (2009).
8 Glasmann. 175 Wash. 2d at 713.
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constitute the crime with which the defendant is charged."9 Misstating or trivializing this
burden is misconduct.10
Here, the prosecutor paraphrased the jury instruction describing reasonable
doubt, offered an explanation of what "abiding belief means, but then made a sweeping
simplification of reasonable doubt:
Now, reasonable doubt, "Reasonable doubt is a doubt for which a
reason exists and may arise from the evidence or lack of evidence. It's
doubt that would exist in the mind of a reasonable person after fully, fairly,
and carefully considering all the evidence or lack of evidence."
Now, "[l]if after such consideration you have an abiding belief in the
truth of the charges, then you are satisfied beyond a reasonable doubt."
What does that mean? Abiding belief. It's a belief that sticks with you. If
you feel it in your gut today, if you feel it in your gut next week that he's
guilty, then you are satisfied beyond a reasonable doubt. Ifyou think he
did it, then you are satisfied beyond a reasonable doubts
The prosecutor's statements that the jury could convict if they "feel it in [their] gut"
and "think he did it" improperly minimized the State's burden of proof.12 This was a
serious misstatement of the law. A person can "think" or "feel" that a defendant "did it"
10 Id,; see also State v. Warren, 165 Wash. 2d 17, 27, 195 P.3d 940 (2008) (holding
improper prosecutor's statement that the burden of proof beyond a reasonable doubt
"doesn't mean, as the defense wants you to believe, that you give the defendant the
benefit of the doubt").
11 Report of Proceedings (RP) (Nov. 29, 2012) at 163 (emphasis added).
12 We note that in State v. Curtiss. 161 Wash. App. 673, 205 P.3d 496 (2011),
Division II of this court held that the following statement by the prosecutor during
rebuttal in closing argument was not improper: "Do you know in your gut—do you know
in your heart that Renee Curtiss is guilty as an accomplice to murder? The answer is
yes." jd. at 701. Curtiss is distinguishable from this case because the prosecutor did
not make the above statement when describing reasonable doubt or the burden of
proof. Rather, it was a simplistic argument urging the jury to render a just verdict that
was supported by the evidence. Id. at 701-02.
No. 71646-8-1/5
whether or not the State has proven all elements of the charged crime beyond a
reasonable doubt.
Next, the State concedes that the prosecutor committed misconduct by bolstering
the testimony of the police officers with facts not in evidence. We accept the State's
concession.
"Although prosecuting attorneys have some latitude to argue facts and inferences
from the evidence, they are not permitted to make prejudicial statements unsupported
by the record."13 "And it is generally improper for prosecutors to bolster a police
witness's good character even if the record supports such argument."14
Here, the State's only witnesses were three police officers, each of whom
testified that Bezhenar threatened Officer Lowrey. The prosecutor posed the following
question to the jury during his closing argument:
Honestly, think about credibility. Who has more to lose? The
officers? I mean, they're going to put their career on the line for conspiring
to make all this stuff up?t15]
There was no evidence that the police officers could lose their jobs if they falsely
accused Bezhenar. Instead, the prosecutor improperly relied upon the good character
of the officers to bolster their credibility.16
13 State v. Jones. 144 Wash. App. 284, 293, 183 P.3d 307 (2008).
14jcL
15RP(Nov. 29, 2012)171.
16 See State v. Smith. 67 Wash. App. 838, 844, 841 P.2d 76 (1992) (acknowledging
that prosecutors should not bolster a police witness's good character and citing cases
from other jurisdictions in accord with that proposition); State v. Allen, 161 Wash. App.
727, 746, 255 P.3d 784 (2011) affd, 176 Wash. 2d 611 (2013) (improper vouching occurs
if the prosecution places the prestige of the government behind the witness).
No. 71646-8-1/6
Because defense counsel did not object to closing argument, we must determine
whether these improper statements were so flagrant and ill intentioned that they could
not have been cured by an instruction to the jury. In determining whether the
misconduct is so flagrant and ill intentioned that it warrants reversal, we consider its
prejudicial nature and its cumulative effect.17
In State v. Glasmann,18 our Supreme Court recently held that a misstatement of
the burden of proof is per se flagrant and ill intentioned:
Shifting the burden of proof to the defendant is improper argument,
and ignoring this prohibition amounts to flagrant and ill-intentioned
misconduct. Due process requires the prosecution to prove, beyond a
reasonable doubt, every element necessary to constitute the crime with
which the defendant is charged. Misstating the basis on which a jury can
acquit insidiously shifts the requirement that the State prove the
defendant's guilt beyond a reasonable doubt.[19]
Here, the prosecutor's misstatement of the burden of proof was flagrant and ill
intentioned and supports reversal of the conviction.
Further, the cumulative effect of the misstatement of the burden of proof and the
bolstering of the police officers' testimony supports reversal. The State did not present
overwhelming evidence of guilt. The State's only evidence in this case rested upon the
testimony of three police officers. The entire case turned upon whether the jury found
the police officers more credible than Bezhenar and his mother. There is a substantial
likelihood the cumulative impact of the prosecutor's improper statements affected the
jury's verdict. The prosecutorial misconduct requires reversal.
17 State v. Boehninq. 127 Wash. App. 511, 518, 111 P.3d 899 (2005).
18 175 Wash. 2d 696, 286 P.3d 673 (2012).
19 jcL at 713 (internal citations omitted).
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No. 71646-8-1/7
Sufficiency of the Evidence
Because reversal and dismissal would be the remedy for insufficient evidence,20
we address Bezhenar's argument that the State presented insufficient evidence that he
threatened to kill Officer Lowry and that Officer Lowry reasonably feared that Bezhenar
would kill him.
When reviewing a sufficiency of the evidence challenge, this court views the
evidence in the light most favorable to the State to determine if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.21 All
reasonable inferences from the evidence must be drawn in favor of the State and
interpreted strongly against the defendant.22 It is the role of the trier of fact, not the
appellate court, to resolve conflicts in the testimony and to evaluate the credibility of
witnesses and the persuasiveness of evidence.23
For felony harassment, the State bears the burden of proving beyond a
reasonable doubt that the defendant made a threat to kill and the victim reasonably
feared that the threat would be carried out.24 The fact finder applies an objective
standard to determine whether the victim's fear that the threat will be carried out is
reasonable.25 This requires the trier of fact to "consider the defendant's conduct in
context and to sift out idle threats from threats that warrant the mobilization of penal
20 State v. Hickman, 135 Wash. 2d 97, 103, 954 P.2d 900 (1998).
21 State v. Williams, 144 Wash. 2d 197, 212, 26 P.3d 890 (2001).
22 State v. Salinas. 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
23 State v. Carver, 113 Wash. 2d 591, 604, 781 P.2d 1308 (1989); State v. Walton.
64 Wash. App. 410, 415-16, 824 P.2d 533 (1992).
24 RCW 9A.46.020(1)(a)(i), (2)(b).
25 State v. Kilburn, 151 Wash. 2d 36, 43, 84 P.3d 1215 (2004).
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sanctions."26 "[T]he nature of a threat depends on all the facts and circumstances, and
it is not proper to limit the inquiry to a literal translation of the words spoken."27
Here, Officer Lowrey testified to the threats Bezhenar made to him:
A: When we were doing some other stuff there, casework, he was
making comments to me stating that he was going to—he was
going to get me. He told me he'd see me again, to which I replied,
"You said that last time I dealt with you." And he continued making
threats to me, telling me that this was different, that he was going to
get me.
We hear it a lot on patrol. I hear it quite often that I'm going to sue
you or I'm going to get you or I'm going to own your house. I mean,
it's a common occurrence. So my reply is only, "Just do me a favor
and spell my name right in a lawsuit." You know, I hear it all the
time so we kind of let it slide off. But stating that to him, he made it
clear that it was not going to be a lawsuit, this did not involve
monetary issues, this was going to be dealt with a different way.
Q: How did he say that it was going to be dealt with?
A: He told me that this is about revenge, this is not a lawsuit, and that I
was going to be sorry.
I told him that he was crossing the line and that if he showed up at
my house, he would be shot on sight. And he laughed and said not
to worry, it wouldn't be him, it would be somebody that I didn't know
that shows up to my house.
Q: What did you take these threats to mean?
A: I took them to mean he was planning on doing something harmful
to me or my family.
Q: Were you in fear that he was going to kill you at some point?
A: I was more in fear for my family than me. When you take the job
you realize it's a dangerous job. But there's lines that you cross and
when you start threatening your family, have a newborn baby, my
wife, that's too much. And then going further and even stating—
saying that it's not going to be me, it's going to be somebody you
26 State v. Alvarez, 74 Wash. App. 250, 261, 872 P.2d 1123 (1994).
27 State v.C.G., 150 Wash. 2d 604, 611, 80 P.3d 594 (2003).
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No. 71646-8-1/9
don't know, it just—I believed it 100 percent, so much so that I
called not only my current wife, I called my ex -wife as well just
because she still lives halfway local and depending on how you find
an address, God forbid you find her address and show up thinking
that I'm there and do something to her and my kids up there so.
Q: So you thought he was serious? You took these threats seriously?
A: Absolutely. I've been threatened, 15 years, probably 3, 400 times
minimum, lawsuits, even people saying, "I'm going to—if I see you
off duty I'm going to kick your rear." They don't make that nice of a
statement. But I've been threatened hundreds and hundreds of
times, probably three I've taken serious.
Q: Was this instance one of them?
A: This was one of them.'281
Bezhenar argues there was no evidence that he threatened to kill Officer Lowrey.
But under the facts and circumstances of this case, that argument is unpersuasive. It is
true that there is no evidence that Bezhenar said outright that he was going to kill
Officer Lowrey. But taking the evidence in a light most favorable to the State, a
reasonable jury could have found that Bezhenar's statements implied that he was going
to kill Officer Lowrey. Bezhenar did not need to use the word "kill" in order to
communicate a threat to kill.29
Similarly, there is sufficient evidence that Officer Lowrey reasonably feared that
Bezhenar would carry out the threat. Officer Lowrey did not explicitly state that he
feared for his life. But when asked whether he feared Bezhenar was going to kill him,
Officer Lowrey implied that he had that fear both for himself and for his family, although
he was "more in fear for my family than me."30 He took Bezhenar's threat so seriously
28 RP (Nov. 28, 2012) at 46-48.
29 See C.G.. 150 Wash. 2d at 611.
30RP(Nov. 28, 2012) at 47.
No. 71646-8-1/10
that he called his family to warn them. Taking this evidence in the light most favorable
to the State, a reasonable jury could have found that Officer Lowrey reasonably feared
that Bezhenar would carry out the threat to kill him.
We reverse Bezhenar's conviction for felony harassment based on prosecutorial
misconduct and remand to the trial court. Given this disposition, we need not reach the
other issues raised on appeal.
WE CONCUR:
t^rOP., C
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