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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RUSLAN YURIEVICH BEZHENAR,                         UNPUBLISHED OPINION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
No. 71646-8-1/2


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 Wn.2d 696, 703, 286 P.3d 673 (2012).
       2 Id. at 703-04.
No. 71646-8-1/3


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 Wn. App. 354, 363, 810 P.2d
74(1991)).




       7 State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009).
       8 Glasmann. 175 Wn.2d at 713.
No. 71646-8-1/4


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 Wn.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 Wn. 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 Wn. App. 284, 293, 183 P.3d 307 (2008).
       14jcL
       15RP(Nov. 29, 2012)171.
        16 See State v. Smith. 67 Wn. 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 Wn. App.
727, 746, 255 P.3d 784 (2011) affd, 176 Wn.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 Wn. App. 511, 518, 111 P.3d 899 (2005).
       18 175 Wn.2d 696, 286 P.3d 673 (2012).
       19 jcL at 713 (internal citations omitted).


                                               6
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 Wn.2d 97, 103, 954 P.2d 900 (1998).
       21 State v. Williams, 144 Wn.2d 197, 212, 26 P.3d 890 (2001).
       22 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
      23 State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308 (1989); State v. Walton.
64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
       24 RCW 9A.46.020(1)(a)(i), (2)(b).
       25 State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004).
No. 71646-8-1/8


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 Wn. App. 250, 261, 872 P.2d 1123 (1994).
       27 State v.C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003).


                                                8
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 Wn.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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