                                                                            FILED 

                                                                          FEB 24, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31847-8-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
ANATOLIY MELNIK,                              )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Anatoliy Melnik appeals his convictions on two counts of first

degree trafficking in stolen property, alleging that the evidence was insufficient and that

the court erred in giving an instruction describing the process for claiming lost property.

We affinn.

                                          FACTS

       Tiffany Glassick's home was burglarized while she was at church on January 13,

2013. A television, numerous small jewelry items including an engagement ring with a

very large diamond, three bottles of perfume, and a portable hard drive were missing.

Within 24 hours, Mr. Melnik appeared at a Money Tree store and offered to sell several

gold jewelry items including a ring with a large diamond. When told that the store would

only purchase gold, but not precious stones, Mr. Melnik removed the diamond and sold

the band along with the other gold jewelry to Money Tree.
No. 3 I 847-8-III
State v. Melnik


       Mr. Melnik was arrested after he attempted to sell a large diamond to a pawn shop

two days after the jewelry sale. Suspicious, the pawn shop retained the diamond and

notified police. Officers obtained a search warrant for Mr. Melnik's residence and

recovered two bottles of perfume from his residence. The perfume matched the popular

brands stolen from Ms. Glassick.

       The prosecutor charged one count of trafficking in stolen property for each sale.

Ms. Glassick identified the gold sold to Money Tree and the diamond sold to the pawn

shop as items stolen from her. Mr. Melnik did not testify at trial, but the prosecutor

called a detective to testify to the contents of a recorded jail telephone conversation

between Mr. Melnik and a woman named Brooke. In that conversation, Mr. Melnick

claimed to have found the jewelry near a bridge in a Pasco park.

       The prosecutor proposed a jury instruction describing Washington's civil

procedure for claiming found property. The defense did not object and the court gave the

instruction. Defense counsel argued to the jury that Mr. Melnik did not know the jewelry

was stolen and pointed to the detective's testimony concerning the jail telephone

recording as the only evidence of how the jewelry came into Mr. Melnik's possession.

He also discounted the found property instruction on the basis that it did not apply to Ms.

Glassick's obviously stolen property. The prosecutor briefly mentioned the instruction in

both of her arguments.




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No. 31847-8-111
State v. Melnik


       The jury convicted Mr. Melnik as charged. Based on an offender score of 10, the

court imposed an exceptional sentence consisting of concurrent 100-month sentences.

Mr. Melnik then timely appealed to this court.

                                        ANALYSIS

       Mr. Melnik contends that the found property instruction improperly shifted the

burden of proof in this case and that the evidence does not support the jury's

determination that he knew the property was stolen. He also filed a pro se statement of

additional grounds (SAG). We address those contentions in the noted order.

       Jury Instruction

       Mr. Melnik contends that the found property instruction put the burden on him to

establish a right to the property and therefore shifted the burden from the State to prove

he knew the property was stolen. We disagree.

       "Jury instructions, taken in their entirety, must inform the jury that the State bears

the burden of proving every essential element of a criminal offense beyond a reasonable

doubt." State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). An instruction that

relieved the State of its burden would constitute reversible error. Id. This type of

challenge is reviewed de novo "in the context of the instructions as a whole." Id.

       As instructed in this case, the jury was required to determine whether the State had

proved beyond a reasonable doubt that Mr. Melnik "knowingly trafficked in stolen




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No. 3 I 847-8-III
State v. Melnik


property." Clerks' Papers (CP) at 46,47 (Instructions 6, 7). In tum, "knowingly" was

defined as being aware of a fact or circumstance. CP at 48 (Instruction 8).

       The instruction at issue was number 14. It provided:

       (I) Any person who finds property that is not unlawful to possess, the owner of
       which is unknown, and who wishes to claim the found property, shall:
       (a) Within seven days of the finding acquire a signed statement setting forth an
       appraisal of the current market value of the property prepared by a qualified
       person engaged in buying or selling like items or by a district court judge, unless
       the found property is cash; and
       (b) Within seven days report the find of property and surrender, if requested, the
       property and a copy of the evidence of the value of the property to the chieflaw
       enforcement officer, or his or her designated representative, of the governmental
       entity where the property was found, and serve written notice upon the officer of
       the finder's intent to claim the property if the owner does not make out his or her
       right to it under the appropriate RCW.
       (2) Within thirty days of the report the governmental entity shall cause
       notice of the finding to be published at least once a week for two successive
       weeks in a newspaper of general circulation in the county where the
       property was found, unless the appraised value of the property is less than
       the cost of publishing notice. If the value is less than the cost of publishing
       notice, the governmental entity may cause notice to be posted or published
       in other media or formats that do not incur expense to the governmental
       entity.

CP at 54.

       Viewed "in the context of the instructions as a whole," this instruction did not

impermissibly shift the burden of proof in this case. The elements instructions each told

the jury that the State was required to prove that Mr. Melnik knowingly trafficked in

stolen property. Nothing in instruction 14 changed that burden. It described the process

for a person to file a claim for found property, but the instruction did not indicate that Mr.



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No. 31847-8-III
State v. Melnik


Melnik or anyone else was required to invoke the process simply because they found

property. It likewise did not change the definition of knowledge.

       The State's burden remained as described in instructions 6 and 7. While the

relevancy of instruction 14 can be questioned, it did not impermissibly shift the burden of

proof. This contention is without merit.

       Sufficiency o/the Evidence

       Mr. Melnik also argues that the evidence did not support the jury's determination

that he knew the property was stolen. Properly viewed, the evidence allowed the jury to

make that determination.

       Well settled standards govern appellate challenges to the sufficiency of the

evidence to support a conviction. We review such challenges to see if there was evidence

from which the trier of fact could find each element of the offense proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). The reviewing

court will consider the evidence in a light most favorable to the prosecution. Id.

Reviewing courts also must defer to the trier of fact "on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150

Wn.2d 821, 874-75, 83 P.3d 970 (2004). "Credibility determinations are for the trier of

fact and are not subject to review." Id. at 874.




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No. 31847-8-111
State v. Melnik


       Mr. Melnik argues that the only evidence of knowledge is his own statement that

he found the property. We disagree. Not only did the jury not have to credit that story,

the evidence of Mr. Melnik's actions allowed an entirely different view of the facts. It

has long been the law of this state that possession of recently stolen property, coupled

with some slight corroborating evidence, is sufficient to establish knowledge. E.g., State

v. Couet, 71 Wn.2d 773, 775,430 P.2d 974 (1967); State v. Portee, 25 Wn.2d 246, 253­

54, 170 P.2d 326 (1946); State v. Salzman, 186 Wash. 44, 47, 56 P.2d 1005 (1936); State

v. Rockett, 6 Wn. App. 399, 402-03, 493 P.2d 321 (1972).

       The evidence showed that Mr. Melnik, whose residence contained two perfume

bottles similar to those stolen from the victim, was in possession of the stolen jewelry

within 24 hours of its taking from Ms. Glassick. That evidence of possession of recently

stolen property was corroborated by his unlikely story, repeated efforts to rapidly sell the

jewelry for discounted rates, and an inconsistent statement to the Money Tree employee

that he was trying to settle a bet over whether the diamond was real or not. These were

not the actions of an actual or innocent owner, but could easily be construed by the jury

as the actions of a man with guilty knowledge that he possessed stolen property that

needed to be disposed of in a hUrry.

       The evidence was sufficient to support the jury's determination that Mr. Melnik,

whether or not he stole the property himself, knew it was stolen when he trafficked in the

stolen property.

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No. 31847-8-III
State v. Melnik


       Statement ofAdditional Grounds (SAG)

       In his SAG, Mr. Melnik argues that his exceptional sentence was improper, the

prosecutor committed misconduct, and his counsel performed ineffectively. We again

disagree with his arguments.

       Mr. Melnik asserts that the exceptional sentence was improperly imposed in the

absence of a jury finding of the aggravating factor. He is incorrect. The United States

Supreme Court allows judges to decide questions of law that affect sentencing ranges.

See generally State v. Mutch, 171 Wn.2d 646, 656-59, 254 P.3d 803 (2011); State v.

Alvarado, 164 Wn.2d 556,563-69, 192 P.3d 345 (2008). Here, the offender score was 10

points for each offense. Since the sentencing ranges stop when an offender reaches nine

points, the extra offense in this case would go unpunished under the standard range. Id.

Accordingly, the trial judge had authority to impose an exceptional sentence because the

second count was otherwise a "free" crime without penalty. Id. There was no error.

      Mr. Melnik also argues that the prosecutor committed misconduct in closing

argument, isolating seven sentences from the prosecutor's closing remarks, none of

which were challenged at trial. He does not persuasively argue that any error occurred.

RAP 10.1 O(c). He also fails to show that he was so prejudiced by the claimed errors that

a timely objection could not have cured it. To prevail on this claim, he needed to do

both. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). This claim, too, fails.




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No. 31847-8-III
State v. Melnik


       Finally, Mr. Melnik contends his attorney rendered ineffective assistance by not

objecting to the prosecutor's closing argument. To prevail on this claim, Mr. Melnik also

needed to show that his counsel failed to perform to the standards of the profession and

that significant prejudice therefore resulted. Strickland v. Washington, 466 U.S. 668,

690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As we have already determined that

the challenged statements were not erroneous, this argument fails to meet the first prong

of the Strickland test. Since he had to satisfy both prongs of Strickland, this argument,

too, is unavailing. Id. at 692.

       The issues presented by the SAG are without merit. Accordingly, the convictions

are 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. 





WE CONCUR: 





                                                               Fe     g,J.




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