State Of Washington, Res. v. Vladimir v. Mishkov, App. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 69076-1-1
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
VLADIMIR V. MISHKOV, )
)
Appellant. ) FILED: April 28,2014
)
Appelwick, J. — A trial court is not required to accept a defendant's stipulation to
the fact of prior convictions in a prosecution for felony indecent exposure when the facts
of the prior convictions have relevance beyond establishing the element of existence of
a prior conviction. Sufficient similarities in the circumstances of the prior incidents and
the charged incident were probative of sexual motivation, intent, knowledge, and
common scheme or plan. We find no abuse of discretion rejecting the stipulation and
admitting the evidence. We affirm.
FACTS
On August 9, 2011, Chelsea Connolly was working as a barista at the Sweet
Cheeks Espresso stand in SeaTac, Washington. Sweet Cheeks Espresso is a "bikini
barista" stand featuring service by female baristas dressed in lingerie or bikinis. That
morning, customer Jesse Maltos drove up to the stand, but before he could order
coffee, Connolly directed his attention to a man sitting next to a nearby light pole.
No. 69076-1-1/2
Before Maltos arrived, Connolly had noticed the man wandering around the stand for
about 45 minutes. Maltos saw the man leaning against the pole with his penis exposed
and erect. The man was masturbating while staring at Connolly. Connolly declined to
call the police, but Maltos called 911.
Detective Tim Gillette responded to the 911 call and when he arrived at the
espresso stand, he saw the man looking at the stand and noticed his arm moving
quickly in front of his body. When Gillette ordered the man to show his hands, he
refused to do so immediately. Instead, he rolled away from the officer onto his side. He
was arrested and identified as Vladimir Mishkov.
Later that day, Mishkov's community corrections officer Iris Peterson arrived at
the police station to take custody of him. As Peterson placed him in her van, Mishkov
stated, "Tm really sorry, Iris.'" In a later conversation with Peterson, he told her he
thought he was "'screwed.'"
The State charged Mishkov with felony indecent exposure, with an allegation of
sexual motivation. Before trial, Mishkov agreed to stipulate to two prior convictions of
indecent exposure for purposes of establishing this element of the crime.1 Mishkov
also moved to exclude evidence of the specific facts of these convictions and other
uncharged acts of indecent exposure as inadmissible under ER 404(b). The trial court
allowed the State to present evidence of the facts of the prior convictions as relevant to
the sexual motivation allegation to prove that Mishkov knew his conduct in the charged
crime was likely to cause reasonable affront or alarm to a victim, to rebut claims of
1 Proof that the defendant had a prior sex offense conviction is an element of
felony indecent exposure. RCW 9A.88.010(2)(c).
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No. 69076-1-1/3
diminished capacity, and show intent or knowledge. But, the court excluded evidence of
incidents when Mishkov exposed himself at the jail pending trial, Mishkov's admission
that he had committed 200 to 300 acts of indecent exposure, and that he had a practice
of tanning and waxing before exposing his genitals to unknown women.
At trial, Mishkov presented expert testimony that he suffered from diminished
capacity at the time of the offense due to a major depressive order. The expert also
suggested that Mishkov was intoxicated and suffering from a drug and alcohol induced
blackout at the time of the offense. The State called an expert who testified that while
Mishkov may have been depressed, the evidence did not support a finding of
diminished capacity and there was no credible evidence that he was in a blackout
during the offense.
The State also presented evidence of Mishkov's two prior convictions for
indecent exposure. The evidence showed that in 2006, he was arrested and convicted
for openly masturbating in the parking lot outside the drive-through of a Taco Bell
restaurant, after seeking the attention of a female employee of the restaurant. The
evidence also showed that in 2008, he followed a woman around a Linens and Things
store. He sought out her attention in the parking lot as she left the store, whistling from
his car with the window rolled down so she could see him masturbating.
The jury found Mishkov guilty as charged, returning special verdicts that he had a
prior sex offense and that he committed the crime with sexual motivation. Pursuant to a
plea agreement on another offense, Mishkov agreed that the trial court sentence him on
both matters in the same proceeding. The trial court sentenced him to 24 months
confinement, the top of the standard range. Mishkov appeals.
No. 69076-1-1/4
ANALYSIS
Mishkov first contends that the trial court erred by rejecting his stipulation to the
existence of his prior convictions and instead allowing the State to present evidence of
the facts of those convictions, contrary to State v. Roswell. 165 Wash. 2d 186, 196 P.2d
705 (2008) and Old Chief v. United States. 519 U.S. 172, 191, 117 S. Ct. 644, 136 L
Ed. 2d 574 (1997). Absent a showing of manifest abuse of discretion, we will not
disturb a trial court's ruling on the admission of evidence. State v. Halstein 122 Wash. 2d
109, 126, 857 P.2d 270 (1993).
Both Old Chief and Roswell recognize that a defendant may stipulate to the fact
of a prior conviction to prevent the State from introducing evidence of the details of the
prior conviction to the jury. Roswell, 165 Wash. 2d at 195. But, as the Roswell court also
acknowledged "the prejudicial nature of evidence regarding prior convictions must be
balanced against the crucial role that elements, even prior conviction elements, play in
the determination of guilt." jd. The court noted that the case law recognizes that a
defendant cannot stipulate to the existence of an element and remove it completely
from consideration by the jury. jd.
Here, exclusion of the evidence of these convictions was not required by ER
404(b), which provides,
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Unlike in Old Chief, evidence of the prior convictions was not admitted simply to
establish the element of a prior conviction. It was admitted because it was highly
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No. 69076-1-1/5
relevant to establish other elements of the crime. This evidence was relevant to
establish that Mishkov knew his conduct "was likely to cause reasonable affront or
alarm," as required by the statute. RCW 9A.88.010(1). It provides, "A person is guilty
of indecent exposure if he or she intentionally makes any open and obscene exposure
of his or her person or the person of another knowing that such conduct is likely to
cause reasonable affront or alarm." RCW 9A.88.010(1).
As the trial court concluded, sufficient similarities in the circumstances of these
incidents made them probative of sexual motivation, intent, common scheme or plan,
and to rebut a claim of diminished capacity. See State v. Vars, 157 Wash. App. 482, 496,
237 P.3d 378 (2010). There, the court held that facts of prior convictions were
admissible in a prosecution for indecent exposure. ]g\ The court concluded that the
"common elements permit the reasonable inference that the same motivation underlies
[Var's] offending behavior in each instance." jd. It found that "an objective trier of fact
could logically infer from this record that Var's indecent exposure on this occasion was
sexually motivated as well." jd. As the trial court found, Mishkov had chosen female
victims roughly in the same age range, the exposure occurred in the parking lot of a
business (two of which were drive up food services), and he made overt actions to draw
the victim's attention to himself.
The trial court made the required finding that the probative value of the evidence
outweighed its prejudicial effect. The trial court also appropriately limited the evidence
of prior acts that would be admissible and suppressed evidence of additional uncharged
incidents the prosecution sought to admit. See Id, at 495 (finding no abuse of discretion
in trial court's admission of prior convictions, noting that the trial court appropriately
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No. 69076-1-1/6
recognized the potential prejudicial impact by limiting admissible evidence to three of
eight prior convictions).
The trial court noted it was initially inclined to accept the defense stipulation to
the prior convictions. However, it also recognized that its ruling on the ER 404(b)
evidence "would tend to make that exercise moot, because the jury is going to hear
about these prior convictions, including the -- in a pertinent way, relevant way,
surrounding circumstances." The trial court did not abuse its discretion by admitting
evidence of the two prior convictions.
Mishkov next contends that the trial court erred in calculating his offender score
by including three out-of-state juvenile convictions that were not sufficiently proved by
the State. The trial court included three Pennsylvania juvenile adjudications in
Mishkov's offender score. The State did not offer any supporting documentation of
these adjudications. Therefore, he argues, the trial court erred by including those
offenses in his offender score.
Pursuant to a plea agreement on another offense, Mishkov agreed that his
conviction and the new offense would be sentenced in the same proceeding. The
record indicates that Mishkov agreed that the sentencing guidelines scoring forms,
offender score, and criminal history attached to the plea agreement were accurate and
complete. His juvenile felonies were listed in that criminal history. The standard range
for the unranked felony was 0 to 12 months plus 12 months for the sexual motivation
aggravator. Mishkov agreed to recommend a 24 month sentence. The State agreed to
dismiss an allegation of sexual motivation on the new charge and recommend that the
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No. 69076-1-1/7
time imposed on the two offenses be served concurrently. The court sentenced him to
24 months, the high end of the range, as both parties recommended.
Mishkov contends he did not specifically waive his right to have the State provide
proof of his prior offenses, and the State failed to prove the three juvenile offenses. We
disagree. He entered a plea agreement. He does not challenge the validity of that plea
agreement. He does not argue the convictions do not exist or have been washed out
for scoring purposes, only that they were not proven. In the plea agreement he
acknowledged his criminal history was accurate and complete. This is the affirmative
acknowledgement of facts and information introduced for the purposes of sentencing
necessary to relieve the State from the burden of additional proof. State v. Mendoza,
165 Wash. 2d 913, 927-928, 205 P.3d 113 (2009). It was not error to include the juvenile
offenses in the criminal history or offender score.
Citing In re Pers. Restraint of Call, 144 Wash. 2d 315, 28 P.3d 709 (2001), he
argues his sentence should be remanded for resentencing in light of a lower offender
score of 4. In Cal], the defendant's offender score was incorrectly calculated as 10
rather than 8, because two prior convictions should have washed out. jd. at 334. The
incorrect offender score calculation resulted in increasing the standard range. Id. The
court held that remand for resentencing was required, because the sentence was based
on an erroneous offender score. Id at 333. Since no error was committed in
calculating Mishkov's offender score, Call is of no assistance.
The general rule is that "[a] sentence within the standard range ... for an offense
shall not be appealed." RCW 9.94A.585(1). Mishkov was sentenced within the
standard range. Moreover, Mishkov acknowledges the standard range remains the
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No. 69076-1-1/8
same regardless of his offender score, because this offense is an unranked felony.2
Thus, the trial court did not rely on an offender score to determine the standard range.
The sentence imposed was within the correct standard range, for the term jointly
recommended by Mishkov and the State. Mishkov demonstrates no basis for remand
and resentencing.
We affirm the judgment and sentence.
WE CONCUR:
\tedfe£jj
2 The range on the unranked felony is 0 to 12 months regardless of the offender score.
RCW 9.94A.505(b); RCW 9.94A.515. The sexual motivation finding imposes a
mandatory 12 month enhancement. RCW 9.94A.533(8)(a)(iii).
8