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                                                                               2015 JUN 30
                                                                                              g:         31

    IN THE COURT OF APPEALS OF THE STATE OF W
                                                                               l

                                          DIVISION II

 STATE OF WASHINGTON,                                                 No. 45


                                Respondent,


         i,




 YEVGENIY A. SMIRNOV,                                          UNPUBLISHED OPINION


                                0

       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.
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             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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No. 45773 -3 - II



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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No. 45773 -3 -II



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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No. 45773 -3 -II



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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No. 45773 -3 - II



         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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No. 45773 -3 - II



         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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No. 45773 -3 -II



       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.
No. 45773 -3 -II



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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