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2015 JUN 30
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IN THE COURT OF APPEALS OF THE STATE OF W
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DIVISION II
STATE OF WASHINGTON, No. 45
Respondent,
i,
YEVGENIY A. SMIRNOV, UNPUBLISHED OPINION
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WORSWICK, P. J. — Yevgeny Smirnov appeals his conviction for one count of attempted
first degree trafficking of stolen property. He argues that the trial court erred by instructing the
jury on an uncharged means of committing attempted trafficking. We agree, reverse Smirnov' s
conviction, and remand for a new trial on the attempted trafficking charge.
FACTS
Loss prevention specialists at several grocery stores in the Vancouver area noticed that
certain personal hygiene items were frequently being stolen. They began an investigation and
located some habitual thieves. One such thief led the investigators to Yevgeniy Smirnov, who
appeared to be a buyer of stolen goods. The loss prevention specialists, along with private
investigators, performed several controlled transactions during which Smirnov bought purported
stolen goods.' During these transactions, Smirnov requested particular items and expressed his
intent to resell the items he was purchasing.
A controlled transaction involves selling the purported stolen items to the suspected buyer of
stolen goods.
No. 45773 -3 - II
The State charged Smirnov with two counts. Count 1 was first degree trafficking in
stolen property, alleging that Smirnov " did knowingly organize, finance, direct or supervise" the
theft of property for sale to others. RCW 9A. 82. 050; Clerk' s Papers ( CP) at 1. Count 2 was
attempted first degree trafficking in stolen property, alleging that Smirnov committed a
substantial step with intent to commit first degree trafficking via " knowingly trafficking in stolen
property." RCW 9A.82. 050; CP at 1. Thus, in count 1 the State charged one alternative means
of committing trafficking, and in count 2 the State charged the other alternative means of
committing attempted trafficking.
The jury instructions did not distinguish between the alternative means of trafficking as
charged. Jury instruction 13 set forth the elements for attempted first degree trafficking. It
stated that the jury must find that the defendant " did an act that was a substantial step toward the
commission of Trafficking in Stolen Property in the First Degree" and that " the act was done
with the intent to commit" that crime. CP at 18. This instruction did not indicate that it .
pertained to count 2, nor did it specify that only one alternative means of attempted trafficking
was charged. Jury instruction 13 did not define " trafficking in stolen property." CP at 18.
Instead, jury instruction 6 defined trafficking in stolen property as knowingly organizing,
financing, directing, or supervising the theft of property for sale to others, or knowingly
trafficking in stolen property. Thus, the definition of trafficking in stolen property included both
alternative means, and did not specify which means was charged in which count. Smirnov did
not object to these instructions.
In closing argument, the State told the jury that count 1 charged knowingly organizing,
financing, directing, or supervising the theft of property for sale to others, whereas count 2
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charged attempt to knowingly traffic in stolen property. Then, the State presented its theory of
the case separately as to counts 1 and 2, correctly mentioning the difference between the two
types of trafficking as charged. The State said, " So there are two crimes here. One in
trafficking, directing, financing ... the theft of property to be sold to others, Count 1. And the
attempted trafficking in stolen property, Count 2. And I just wanted to make those two counts
clear as to where they' re coming from." Verbatim Report of Proceedings ( VRP) at 510.
In rebuttal closing argument, the State attempted to remind the jury of the difference
between counts 1 and 2. The prosecutor said that two " separate and distinct" crimes were
charged: one was " directing and financing the theft of property, the planning, the organizing of
it," but did not specify which count this pertained to. VRP at 569. The prosecutor described the
other crime as
purchasing the stolen items to resell. Now regarding the second Count 2 crime, it
is attempt because the items weren' t actually stolen. But the first means, the first
count is a completed, inchoate criminal offense. He was financing and directing
others to steal property.... So on the front end he' s doing that and he' s telling [ the
investigator] what he wants to get, what he wants stolen.... And that directing is
a crime in and of itself. I ask you to find him guilty of that count.
VRP at 569- 70.
The prosecutor then said, "[ Y] ou have the old— whole converse scenario where he then
purchases product, that' s the attempt. Two separate and distinct counts and evidence regarding
both of them." VRP at 570. The jury acquitted Smirnov of first degree trafficking ( count 1), but
convicted him of attempted first degree trafficking ( count 2). Smirnov appeals.
ANALYSIS
Smirnov argues that the trial court erred by instructing the jury on an uncharged
alternative means of attempted trafficking. The State does not contest that the instructions were
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erroneous, but instead argues that Smirnov waived this argument by failing to raise it below. We
hold that Smirnov did not waive this argument, because he alleges a manifest error affecting a
constitutional right. We further hold that this constitutional error requires reversal of his
conviction because it was not harmless beyond a reasonable doubt.
I. STANDARD OF REVIEW
We review constitutional issues, including claimed instructional errors, de novo. State v.
Brewczynski, 173 Wn. App. 541, 549, 294 P. 3d 825, review denied, 177 Wn.2d 1026 ( 2013).
We review de novo whether the challenged instruction states the law accurately without
misleading the jury. Brewczynski, 173 Wn. App. at 549; State v. Chino, 117 Wn. App. 531, 538,
72 P. 3d 256 ( 2003).
II. MANIFEST CONSTITUTIONAL ERROR
As a threshold matter, the State argues that Smirnov waived this issue because he failed
to raise it below and it was not a manifest constitutional error. We disagree.
Under RAP 2. 5( a), an issue not raised at the trial court is generally waived on appeal.
State v. Powell, 166 Wn.2d 73, 82, 206 P. 3d 321 ( 2009). However, under RAP 2. 5( a)( 3), a party
may raise for the first time on appeal a manifest error affecting 'a constitutional right.2 To merit
review on appeal, the appellant bears the burden of showing that ( 1) the error is of constitutional
Z The State argues that this court should follow its decision in State v. Lindsey, 177 Wn. App.
233, 247, 311 P. 3d 61 ( 2013), review denied, 180 Wn. 2d 1022 ( 2014). In Lindsey, this court
held that a challenge to uncharged alternatives of first degree trafficking in stolen property was
waived because it was raised for the first time on appeal. Lindsey, 177 Wn. App. at 247. But
Lindsey did not argue that any of the exceptions in RAP 2. 5( a) applied. Lindsey, 177 Wn. App.
at 247. By contrast, Smirnov argues that RAP 2. 5( a)( 3) applies.
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magnitude and ( 2) the error is manifest. State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756
2009).
A. Claimed Error is of Constitutional Magnitude
An error is of constitutional magnitude where, if the claim is correct, it truly implicates a
constitutional interest. O' Hara, 167 Wn.2d at 98. It is undisputed that an instruction on
uncharged alternatives is constitutional error. State v. Laramie, 141 Wn. App. 332, 342, 169
P. 3d 859 ( 2007); Chino, 117 Wn. App. at.538. The jury should be instructed only on the crime
charged in an information. Brewczynski, 173 Wn. App. at 549. Instructing a jury on an
uncharged alternative means of committing the crime violates the defendant' s right to be
informed of the charges against him. Laramie, 141 Wn. App. at 343 ( citing U. S. CONST. amend.
VI; WASH. CONST., art. 1, § 22). Where the information alleges just one alternative means of
committing a crime, the trial court errs by instructing the jury on uncharged alternatives, even if
evidence of the uncharged alternatives was presented at trial. State v. Lindsey, 177 Wn. App.
233, 247, 311 P. 3d 61 ( 2013), review denied, 180 Wn.2d 1022 ( 2014); Chino, 117 Wn. App. at
540. Because an instruction on uncharged alternative means is a constitutional error, Smirnov
has shown that his claimed error, if correct, is of constitutional magnitude.
B. Error is Manifest
Manifest error is error that resulted in actual, prejudice. O' Hara, 167 Wn.2d at 99.
Actual prejudice is demonstrated by showing practical and identifiable consequences at trial.
O' Hara, 167 Wn.2d at 99. To distinguish this analysis from that of harmless error, " the focus of
the actual prejudice must be on whether the error is so obvious on the record that the error
warrants appellate review." O' Hara, 167 Wn.2d at 99- 100.
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There are two alternative means of committing first degree trafficking in stolen property:
1) facilitating the theft of property so that it can be sold and ( 2) facilitating the sale of property
3, 4
known to be stolen." Lindsey, 177 Wn. App. at 244.
Here, Smirnov has shown that the error was manifest, because it is obvious from the
record that an instruction on an uncharged alternative means of attempted trafficking caused him
prejudice. Jury instruction 13 listed the elements of attempted trafficking as ( 1) " an act that was
a substantial step toward the commission of Trafficking in Stolen Property in the First Degree,"
2) with the intent to commit first degree trafficking in stolen property. CP at 18. None of the
instructions specified that Smirnov was charged with attempted trafficking under only the second
prong of facilitating the sale of property known to be stolen. The instructions therefore allowed
the jury to convict Smirnov of attempted trafficking under the first prong, which was uncharged.
This error is so obvious from the record that it warrants appellate review. And Smirnov
has carried -his burden of showing that it caused him actual prejudice because it had the practical
and identifiable consequence of allowing the jury to convict him for an uncharged alternative
means of attempted trafficking.
3 A person commits the first alternative means of first degree trafficking if he or she " knowingly
initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale
to others." RCW 9A.82. 050.
4 A person commits the second alternative means of first degree trafficking if he or she
knowingly traffics in stolen property." RCW 9A.82. 050. To traffic, in turn, is defined as " to
sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to
buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute,
dispense, or otherwise dispose of the property to another person." RCW 9A. 82. 010( 19). .
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The State argues that this error is not manifest because the prosecutor distinguished
between the alternatives in closing argument and because the instructions necessarily included
both alternatives as each was charged in separate counts. But this argument appears to address
harmless error, not whether the instruction on uncharged alternatives was so obvious on the
record to warrant appellate review. Because an instruction on uncharged alternatives is a
constitutional error, and because this error was obvious on the record and had practical and
identifiable consequences, we hold that Smirnov did not waive his argument. RAP 2. 5( a)( 3).
C. ' Instructions Were Not Harmless Beyond a Reasonable Doubt
Once the appellant has shown that an error raised for the first time on appeal was a
manifest constitutional error, the burden shifts to the State to show that the error was harmless
beyond a reasonable doubt. State v. Grimes, 165 Wn. App. 172, 186, 267 P. 3d 454 ( 2011). An
instruction on an uncharged alternative may be harmless where, for example, other instructions
define the crime in a manner that leaves only the charged alternative before the jury." Lindsey,
177 Wn. App. at 247; see also State v. Severns, 13 Wn.2d 542, 549, 125 P. 2d 659 ( 1942);
Brewczynski, 173 Wn. App. at 549; State v. Nicholas, 55 Wn. App. 261, 273, 776 P. 2d 1385
1989). In other words, an instruction on uncharged alternatives " is not harmless unless other
instructions clearly and specifically' define the charged crime." State v. McDonald, 183 Wn.
App. 272, 276, 333 P. 3d 451 ( 2014).
The State argues that the prosecutor clarified the two counts as charged during closing
argument and that the instructions necessarily defined both alternative means, as both were
charged. We disagree that the error was harmless.
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Even assuming that a prosecutor' s closing argument statements could render this
instructional error harmless, the prosecutor' s closing arguments here did not do so. The
prosecutor said briefly that courit 2 charged attempted trafficking by means of knowingly
trafficking, which was correct. But later remarks confused the issue: in rebuttal closing, the
prosecutor discussed both counts simultaneously, and did not specify that only one alternative
means of trafficking was charged in count 2. 5 As a whole, these remarks did not clarify which
means of trafficking were charged for which counts. And the prosecutor did not tell the jury that
their instructions were incorrect or in need of clarification.
The State' s need to instruct the jury on both alternative means did not render the error
harmless. It is true that, because both alternative means were charged in separate counts, the jury
instructions necessarily included both alternative means. But this fact does nothing to lessen the
resulting prejudice of the instruction on an uncharged alternative, and -the State does not explain
how it renders the error harmless.
We presume that juries follow instructions. See State v. Emery, 174 Wn.2d 741, 766, 278
P. 3d 653 ( 2012). Here, the instructions were erroneous and we presume the jury followed them.
The instructions as a whole did not leave only the charged alternative before the jury. Lindsey,
177 Wn. App. at 247; McDonald, 183 Wn. App. at 276. The prosecutor' s remarks did not clarify
5 He said, apparently discussing count 2:
I] t is attempt because the items weren' t actually stolen. But the first means, the
first count is a completed, inchoate criminal offense. He was financing and
directing others to steal property... So on the front end he' s doing that and he' s
telling [ the investigator] what he wants to get, what he wants stolen.... And that
directing is a crime in and of itself. I ask you to find him guilty of that count.
VRP at 569- 70.. These comments obscure the difference between counts 1 and 2.
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the charged alternatives sufficiently to render the error harmless. Nor did the fact that the
instructions had to include both alternatives lessen the prejudice. Thus, the State fails to carry its
burden of showing that the constitutional error was harmless beyond a reasonable doubt. We
reverse Smirnov' s conviction and remand for a new trial on the attempted trafficking charge.
Brewczynski, 173 Wn. App. at 549- 50; Chino, 117 Wn. App. at 540- 41. 6
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 in accordance with RCW 2. 06. 040, it
is so ordered.
Worswick, P.J.
We concur:
L „e
Sutton, J.
6 Because we reverse Smirnov' s conviction, we do not address his arguments regarding
ineffective assistance of counsel or evidentiary error.
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