State of Washington v. Andrey N. Romashevskiy ( 2020 )

FILED
NOVEMBER 12, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37196-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ANDREY N. ROMASHEVSKIY, )
)
Appellant. )
LAWRENCE-BERREY, J. — Andrey Romashevskiy appeals his conviction for
burglary in the second degree. He argues his trial counsel was ineffective for not
requesting a voluntary intoxication instruction. We disagree and affirm.
FACTS
In June 2019, Andrey Romashevskiy entered a Walmart store in Colville,
Washington. While in the store, he took keys from the automotive section, breast
enhancements, makeup, and two sets of headphones. He placed the items in his cargo
pockets and left the store without paying for them. Romashevskiy was able to leave the
store undetected because he had removed security devices attached to the headphones.
No. 37196-4-III
State v. Romashevskiy
Walmart’s loss prevention agents noticed missing inventory in the areas where
Romashevskiy had been. The agents reviewed surveillance video and identified
Romashevskiy, who had been trespassed from the store multiple times.
Colville Police Officer Adam Kowal responded to Walmart’s call, learned that
Romashevskiy had stolen multiple items, and viewed security video. He left the store and
soon found Romashevskiy. In a search incident to arrest, Officer Kowal found the stolen
items in Romashevskiy’s cargo pockets. Officer Kowal advised Romashevskiy he was
under arrest for theft from Walmart. While being driven to jail, Romashevskiy asked
Officer Kowal to write him a ticket for theft and to let him go so he could get drug
treatment.
The State charged Romashevskiy with one count of burglary in the second degree.
The case proceeded to a jury trial. The State presented surveillance video and testimony
from a Walmart loss prevention agent and Officer Kowal.
Romashevskiy testified in his defense. He testified he did not remember being in
Walmart that day and “it was kind of a blur” because he was high on heroin and
methamphetamine. Report of Proceedings (RP) at 103. When defense counsel asked
how those drugs impact Romashevskiy’s memory, he answered, “I’m not myself, I
guess.” RP at 105. When asked whether he remembered taking the headphones,
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Romashevskiy said: “To be honest I was not in—right state of mind.” RP at 106. On
cross-examination, Romashevskiy said he had “no idea” what he was going to do with the
merchandise he stole that day. RP at 110.
The court read and provided the jury its instructions on the law, which did not
include a voluntary intoxication instruction.
Defense counsel’s closing argument emphasized that people under the influence of
methamphetamine and opioids do not think logically. He reminded the jury that
Romashevskiy could not remember stealing the items and argued his client lacked the
intent to commit burglary. The jury disagreed and found Romashevskiy guilty.
Romashevskiy timely appealed to this court.
ANALYSIS
Romashevskiy contends he received ineffective assistance of counsel because his
trial attorney did not request a voluntary intoxication instruction. We disagree.
“[T]he Sixth Amendment [to the United States Constitution] right to counsel
exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland
v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An
ineffective assistance of counsel claim presents a mixed question of law and fact that this
court reviews de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). A
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defendant carries the burden of demonstrating ineffective assistance of counsel, and must
show (1) trial counsel’s performance was deficient and (2) that deficiency prejudiced the
defendant. Strickland, 466 U.S. at 687.
“Effective assistance of counsel includes a request for pertinent instructions which
the evidence supports.” State v. Kruger, 116 Wash. App. 685, 688, 67 P.3d 1147 (2003).
Counsel’s failure to propose an instruction to which a defendant is legally entitled does
not constitute per se ineffective assistance; rather, we look to the facts of each case. State
v. Cienfuegos, 144 Wash. 2d 222, 228-29, 25 P.3d 1011 (2001). Those asserting ineffective
assistance of counsel for failing to request a voluntary intoxication instruction must
establish they were entitled to the instruction, not requesting it was inappropriate, and
they were prejudiced. Kruger, 116 Wash. App. at 690-91.
Romashevskiy was not entitled to the instruction
A defendant is entitled to a voluntary intoxication instruction when: (1) the
charged offense has a particular mens rea, (2) there is evidence the defendant was
intoxicated, and (3) there is evidence the intoxication affected the defendant’s ability to
form the required mens rea. State v. Webb, 162 Wash. App. 195, 209, 252 P.3d 424 (2011).
“‘[T]he evidence must reasonably and logically connect the defendant’s intoxication with
the asserted inability to form the required level of culpability to commit the crime
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charged.’” Id. at 210 (quoting State v. Gabryschak, 83 Wash. App. 249, 252-53, 921 P.2d
549 (1996)). A person can be intoxicated yet still able to form the requisite mens rea to
commit certain crimes. State v. Classen, 4 Wash. App. 2d 520, 537, 422 P.3d 489 (2018).
Romashevskiy did not present evidence that he was sufficiently intoxicated to
warrant the instruction. Romashevskiy removed the security devices from both sets of
headphones before leaving Walmart, allowing him to leave the store undetected. This
shows he knew what he was doing was wrong when he did it. Also, not long after,
Romashevskiy asked Officer Kowal to issue him a ticket for theft and to let him go so he
could get drug treatment. This shows he knew what he did was wrong shortly after doing
it. Romashevskiy’s lack of memory at trial was insufficient to warrant a voluntary
intoxication instruction.
It was appropriate not to request the instruction
When counsel’s conduct can be characterized as a legitimate trial tactic,
performance is presumed effective. State v. Carson, 184 Wash. 2d 207, 218, 357 P.3d 1064
(2015). This presumption may be overcome if the defendant establishes “‘there is no
conceivable legitimate tactic explaining counsel’s performance.’” Id. (internal quotation
marks omitted) (quoting State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011)). Our
scrutiny of counsel’s performance is highly deferential, as “it is all too easy for a court,
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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.
Had defense counsel requested an involuntary intoxication instruction, the jury
would have been advised:
No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of that condition. However, evidence
of intoxication may be considered in determining whether the defendant
[acted] . . . with [intent].
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
18.10, at 297 (4th ed. 2016) (first alteration in original).
Not requesting the instruction was appropriate. Defense counsel’s closing
argument permitted a sympathetic jury to find Romashevskiy not guilty because he could
not remember his actions. The first sentence of the above instruction would have made
this argument more difficult.
We conclude that Romashevskiy did not receive ineffective assistance of counsel.
He was not entitled to a voluntary intoxication defense and it was appropriate for defense
counsel not to request it.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Pennell, C .J.
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