FILED
SEPTEMBER 28, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF TH* STATE OF WASHINGTON
DIVISION T~E
STATE OF WASHINGTON, )
) No. 33770-7-111
Respondent, )
)
v. )
)
VENIAMIN "BEN" GLUSHCHENKO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. -Veniamin Glushchenko ~peals his convictions for first degree
I
burglary, first degree assault, residential burglary,! and first degree robbery arising out of
back to back crimes committed at two homes in a lresidential neighborhood. He
I
challenges (1) the sufficiency of the evidence to sppport the jury's verdict finding him
!
guilty of first degree assault, (2) the trial court's srntencing determination that his first
I
degree burglary was not the same criminal condutt as the robbery and assault into which
it escalated, and (3) the trial court's failure to conruct a Blazina 1 inquiry into his ability
to pay legal financial obligations. We are unpers4aded by those three challenges or by
additional errors alleged in a pro se statement of ~dditional grounds. We affirm.
i
1
State v. Blazina, 182 Wn.2d 827, 344 P .3~ 680 (2015).
No. 33770-7-111
State v. Glushchenko
FACTSANDPROCEDURA~BACKGROUND
On a late afternoon in December 2014, Ven amin Glushchenko broke into a home
on 32nd Avenue in Spokane. He was in the proces of taking a laptop computer from a
coffee table near where the homeowner, Ugur Erol was sleeping, when Mr. Erol woke up.
Upon seeing Mr. Erol awake, Mr. Glushchenko tol him to "tum around" but Mr. Erol
did not-he saw that Mr. Glushchenko was holdin what appeared to be two steak
knives, and he feared that ifhe turned around, Mr. lushchenko would stab him in the
back. Report of Proceedings (RP) 2 at 74. When h failed to tum away, an angered Mr.
Glushchenko began swinging the knives at Mr. Er 1, slashing him several times. Hurt,
bleeding, and fearing additional injury, Mr. Erol fl d out his front door. He called 911
from a neighbor's home.
Not long thereafter, Brenda Eberhart was ta ing a nap at her 32nd Avenue home
when she was awakened by the sound of shattering glass. When she entered her kitchen
and turned on the light, she saw Mr. Glushchenko tanding outside her broken kitchen
window. He tried to grab her and demanded that s e give him her money. When she
said she did not have any and then began screamin , Mr. Glushchenko left.
2
All citations to the verbatim report of proc edings are to the two consecutively-
paginated volumes containing trial proceedings tak ng place from August 10 through 13,
2015, and Mr. Glushchenko's sentencing on Augu t 27, 2015.
2
No. 33770-7-111
State v. Glushchenko
Officer Nathan Gobble responded to Mr. Er l's 911 call and obtained his
description of the intruder. Lieutenant Rex Olson pprehended Mr. Glushchenko, who fit
the description, a few blocks from Mr. Erol's horn , in a parking lot near the Off Regal
Bar. Mr. Glushchenko drew the lieutenant's attent on because he appeared to have been
hiding between cars, but got up and approached th door of the bar when the lieutenant
pulled into the lot. The lieutenant noticed blood o the back of Mr. Glushchenko's hands
as he was handcuffing him.
Officers responding to Ms. Eberhart's home took her to where Mr. Glushchenko
was being held following his apprehension and she identified him as the man who broke
the window at her home. Later that evening, Mr. rol, who had been taken to the
hospital for treatment of his wounds, identified Mr Glushchenko froin a photo array.
Officers who had been given permission by Mr. Er 1 to search his home found what Mr.
Erol would identify as Mr. Glushchenko's weapon : two of the household's steak knives,
with blades between four and a half and five inche in length.
As crimes against Mr. Erol, the State event lly charged Mr. Glushchenko with
first degree burglary, first degree robbery, and first degree assault, all with deadly
weapon enhancements. It charged him with reside tial burglary for his crime against Ms.
Eberhart. The challenges made on appeal focus on the convictions for the crimes against
Mr. Erol.
3
No. 33770-7-111
State v. Glushchenko
At trial, evidence was presented that when o ficers responded to Mr. Erol's 911
call, he was bleeding from his neck, his knee, and ad wounds on his shin, shoulder,
head, and ear. In addition to offering photographs f his wounds as evidence, the State
called Dr. Rana Ahmad, who treated Mr. Erol at th emergency room. Dr. Ahmad
testified that Mr. Erol's 11-centimeter neck wound and thigh wound were the most
prominent of his wounds. He testified that Mr. Er1l's neck wound would have been life
threatening if he had not received treatment, becau~e he could have bled to death or the
wound could have become infected. Dr. Ahmad cl ssified the wound as "deep" even
though neither the esophagus nor any of the large eries or veins were injured, because
the slash wound passed through both the fat layer d a muscle layer. RP at 136.
Mr. Erol testified that when he ran out of th front door of his house, he believed
he was escaping a life-threatening assault by Mr. lushchenko.
At the conclusion of trial, the jury found Mr Glushchenko guilty of all charges. It
returned special verdicts finding that he was armed with a deadly weapon when
committing the first degree burglary, first degree r bbery, and first degree assault.
At sentencing, the trial court heard argumen about whether the burglary, robbery,
and assault involving Mr. Erol constituted the sam i criminal conduct for sentencing
purposes. It determined that only the robbery and ssault constituted the same criminal
conduct, based on its finding that Mr. Glushchenk 's original intent, before Mr. Erol
awoke and the situation escalated, had been only t steal. It sentenced Mr. Glushchenko
4
No. 33770-7-III
State v. Glushchenko
to a midrange sentence of 243 months' confineme and an additional 48 months'
confinement for two deadly weapon enhancements for a total of 291 months. It also
imposed $800 in legal financial obligations, to whi h Mr. Glushchenko did not object.
Mr. Glushchenko appeals.
ANALYSIS
Evidence suffici ncy
"A person is guilty of assault in the first deg ee if he or she, with intent to inflict
great bodily harm ... [a]ssaults another with ... a y deadly weapon." RCW
9A.36.01 l(l)(a). Mr. Glushchenko first argues tha the State's evidence was insufficient
to support the essential element of first degree assa It that the defendant intended to
inflict great bodily harm. The jury was properly in tructed that for purposes of that
element, "Great bodily harm means bodily injury t at creates a probability of death, or
that causes significant serious permanent disfigure ent, or that causes a significant
permanent loss or impairment of the function of an bodily part or organ." Clerk's
Papers (CP) at 164; RCW 9A.04.l 10(4)(c).
Evidence is sufficient if, viewed in a light ost favorable to the State, it permits
any rational trier of fact to find the essential eleme ts of the crime beyond a reasonable
doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 .2d 1068 (1992). "A claim of
insufficiency admits the truth of the State's eviden e and all inferences that reasonably
can be drawn therefrom." Id. We defer to the fact finder on issues of witness credibility
5
No. 33770-7-III
State v. Glushchenko
and persuasiveness of the evidence. State v. Thom1s, 150 Wn.2d 821, 874-75, 83 P.3d
970 (2004).
First degree assault requires proof of specifit intent, which is intent to produce a
I
specific result: in the case of first degree assault, to inflict great bodily harm. State v.
I
Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Ii determining intent, the 'jury may
consider the manner in which the defendant exerte~ the force and the nature of the
I
victim's injuries to the extent that it reflects the am unt or degree of force necessary to
cause the injury." State v. Pierre, 108 Wn. App. 3 8,385, 31 P.3d 1207 (2001). While
specific intent may not be presumed, the jury may i fer it "as a logical probability from
all the facts and circumstances." State v. Wilson, 1 5 Wn.2d 212, 217, 883 P.2d 320
(1994).
Mr. Glushchenko argues that the State prese ted no evidence that Mr. Erol's
wounds presented a risk of probable death, or any s ·gnificant permanent disfigurement, or
any impairment of the function of any body part or organ. But RCW 9A.36.01 l(l)(a)
does not require proof that the defendant inflicted g eat bodily harm; it requires that the
defendant intended to inflict great bodily harm. St te v. Alcantar-Maldonado, 184 Wn.
App. 215, 225, 340 P.3d 859 (2014).
Mr. Glushchenko also argues that his intent as only to steal, but there was
evidence from which jurors could find otherwise. r. Erol testified that Mr.
Glushchenko assaulted him angrily, repeated;y tellilg him, "[T]urn around bitch," and
No. 33770-7-111
State v. Glushchenko
continued the assault even after Mr. Erol tried to c nvince Mr. Glushchenko to take what
he wanted and leave. RP at 76. Mr. Erol told juro that he "realized that my life was in
danger," and he thought he was "going to bleed ou "unless he made a run for the front
door and escaped. RP at 78. Dr. Ahmad affirmed hat the wounds inflicted by Mr.
Glushchenko were deep. And since Mr. Erol did ake a run for it, rational jurors could
infer that Mr. Glushchenko had intended to inflict ven more harm had Mr. Erol not
escaped.
The evidence was sufficient.
Same criminal co duct
Mr. Glushchenko argues next that the trial c urt abused its discretion in finding,
for purposes of calculating his offender score, that he first degree burglary of Mr. Erol's
home was not the same criminal conduct as the rob ery and assault.
If concurrent offenses encompass the same riminal conduct, they are treated as
one crime for the purpose of calculating the defend nt's sentence. RCW
9.94A.589(1)(a). The Sentencing Reform Act of 1 81 (SRA), chapter 9.94A RCW,
defines "same criminal conduct" as "two or more c imes that require the same criminal
intent, are committed at the same time and place, a d involve the same victim." RCW
9.94A.589(1)(a). All three criteria must be present for a finding of same criminal
conduct. State v. Lessley, 118 Wn.2d 773, 778, 82 P.2d 996 (1992). For purposes of the
"same criminal intent" criterion, intent can be mea ured by whether one crime furthered
7
No. 33770-7-111
State v. Glushchenko
another. Id. Although this issue would be moot if he trial court applied the burglary
antimerger statute, Mr. Glushchenko insists that th court did not consider that statute in
his case. Br. of Appellant at 12. 3 To avoid the nee to remand we will assume he is
correct. 4
This court will not disturb a trial court's State of Washington v. Veniamin Ben Glushchenko
Combined Opinion