       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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STATE OF WASHINGTON,                          )         No. 74637-5-1
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                      Respondent,                       DIVISION ONE                            -4 a
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DMITRY V. NAGORNYUK,                          )         UNPUBLISHED
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                      Appellant.              )         FILED: March 6, 2017
                                              )                                           Cil




       Cox, J. — Dmitry Nagornyuk appeals his judgment and sentence for

possession of a stolen vehicle. The evidence was sufficient to convict him of this

felony. We do not reach his challenge to the trial court not giving an instruction

he failed to request below. We affirm.

       On June 10, 2015, Jose Sandoval reported his red 1995 Honda stolen.

While on a routine patrol, Sergeant William Santos saw two people in an early

1990s maroon Honda. The occupants of the vehicle were a male driver and a

female passenger. Sergeant Santos suspected the vehicle was stolen and

followed it into a casino parking lot to run its license plate. He lost sight of the

vehicle but soon observed a woman standing near a similar looking vehicle

parked in the parking lot. The vehicle was running. He also saw Nagornyuk

going through items in the trunk.

       The woman standing near the vehicle walked away towards the casino.

Nagornyuk retrieved a pair of shoes from the trunk, shut the trunk's lid, and
No. 74637-5-1/2


walked towards the casino. Sergeant Santos received an alert that the vehicle

had been stolen and detained Nagornyuk. Nagornyuk explained he did not know

the vehicle had been stolen. He explained that he met people at a gas station

and asked for a ride. He also claimed that he sat in the back seat and that the

driver told him to stay by the vehicle while it was running.

       Sergeant Santos removed the key from the ignition and noticed that it had

been filed down. In a search of Nagornyuk incident to his arrest, Sergeant

Santos found a metal file in Nagornyuk's pant pocket.

       The State charged Nagornyuk with one count of taking a motor vehicle

without permission in the second degree and one count of possession of a stolen

vehicle. A jury found him guilty as charged.

       Based on agreement of all counsel at the sentencing hearing, the trial

court decided that it could only sentence Nagornyuk on count two, possession of

a stolen vehicle. The stated reason for this was that the two counts involved the

"same course of conduct" and thus "merged." The court then signed the

judgment and sentence that is at the heart of this appeal.

       Nagornyuk appeals.

                           SUFFICIENCY OF EVIDENCE

       Nagornyuk argues that insufficient evidence supports the possession

conviction. We disagree.

       Due process requires the State to prove every element of a crime beyond

a reasonable doubt) An insufficient evidence claim "admits the truth of the



       1 State   v. Rodriquez, 187 Wn. App. 922, 930, 352 P.3d 200 (2015).

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State's evidence and all reasonable inferences from that evidence."2 The critical

inquiry is "whether the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt.m3 "[W]e view the 'evidence in the light most

favorable to the prosecution and determine whether any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt."4

      "Circumstantial evidence and direct evidence can be equally reliable."5

We defer to the jury on questions regarding conflicting evidence, witness

credibility, and the persuasiveness of evidence.6

                                    Possession

      Nagornyuk argues that the evidence fails to establish he possessed the

stolen vehicle. He is wrong.

      Under RCW 9A.56.068(1), a person is guilty of possession of a stolen

vehicle if he possesses a stolen motor vehicle. Possession may be actual or

constructive.7 At issue here is whether there is sufficient evidence of constructive

possession of the vehicle. This "means that the goods are not in actual, physical

possession, but that the person charged with possession has dominion and

       2   Id.

       3Id. (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979)).

       4 State v. Garcia, 179 Wn.2d 828, 836, 318 P.3d 266 (2014) (quoting
State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009)).

       5   Rodriguez, 187 Wn. App. at 930.

       6   Id.

       7   State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969).



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control over the goods."8 To establish this type of possession, the State "'must

prove more than a passing control; it must prove actual control.' The length of

time in itself does not determine whether control is actual or passing; whether

one has actual control over the item at issue depends on the totality of the

circumstances presented."8 Additionally, the State "need not show exclusive

control, but it must show more than mere proximity.""

      Here, the State presented sufficient evidence to support the jury verdict of

guilt beyond a reasonable doubt for the possession charge. It is undisputed that

the Honda was stolen. Sergeant Santos testified that he saw two people in the

Honda. The driver appeared to be a male and the passenger appeared to be a

female. He later saw Nagornyuk going through items in the trunk of the car while

it was parked in a casino parking lot and still running. Sergeant Santos also

observed a woman standing near the vehicle but she later walked away towards

the casino. He then saw Nagornyuk retrieve a pair of shoes from the trunk, shut

the trunk's lid, and walk towards the casino.

      Sergeant Santos detained Nagornyuk and explained that the vehicle had

been reported stolen. Nagornyuk claimed he was a passenger and that the

alleged driver of the car asked him to stay by the car.




       8 Id.; see also State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014)
(lead opinion of Fairhurst, J.), 234 (dissenting opinion of Stephens, J.).

       9 Davis, 182 Wn.2d at 227 (lead opinion of Fairhurst, J.) (quoting State v.
Staley, 123 Wn.2d 794, 801-02, 872 P.2d 502 (1994)).

       19   State v. Bowen, 157 Wn. App. 821, 828, 239 P.3d 1114 (2010).



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       The record shows that Nagornyuk exercised dominion and control over

the vehicle. Nagornyuk was first seen driving the vehicle with a female

passenger. When they reached the casino, he was then seen searching the

trunk's contents, removing shoes from the trunk, and closing the trunk.

       He claimed when Sergeant Santos approached him that someone else

was driving the vehicle and told him to stay by the vehicle while it was running.

Even if the jury accepted this explanation as true, it demonstrates Nagornyuk

was left in charge of the vehicle. Of course, the jury was also entitled to

disbelieve that the female was driving on the basis that Sergeant Santos testified

that he first saw a male, not a female, driving the vehicle. In sum, viewing the

evidence in the light most favorable to the State, these facts provide sufficient

evidence for the jury to find beyond a reasonable doubt that Nagornyuk had

dominion and control over the stolen Honda.

                                    Knowledge

       Nagornyuk argues that the evidence fails to establish he knew the vehicle

was stolen. We disagree.

       Under RCW 9A.56.140(1), "'[p]ossessing stolen property' means

knowingly to receive, retain, possess, conceal, or dispose of stolen property

knowing that it has been stolen and to withhold or appropriate the same to the

use of any person other than the true owner or person entitled thereto."11

       Here, Sergeant Santos removed the key from the ignition and noticed that

it had been filed down. He testified that Honda keys could be filed down to

       11 (Emphasis added.)



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"create[] a master blank or a master key which works on just about every Honda

vehicle in that same age bracket."12 In a search of Nagornyuk, incident to his

arrest, Sergeant Santos found a metal file in Nagornyuk's pant pocket.

       On direct examination, counsel asked Nagornyuk to explain the metal file

found in his pocket. Nagornyuk responded: "I had a small knife for sharpening a

blade, because at that time I had no place . . . to live, and using this knife I

opened the containers—canned food."13 He also testified he did not know the

vehicle had been stolen.

       Additionally, the vehicle's stereo was missing. Nagornyuk claimed that he

and the other passengers did not talk very much because they played music. He

also alleged that they played music from a telephone, and that he "did not look in

the front" to see that the stereo was missing.

       Nagornyuk asserted an innocent explanation for the metal file, claiming he

did not notice the missing stereo, and that he did not know the vehicle had been

stolen. The jury was free to reject this evidence as not credible. It apparently did

so. Because we view the evidence in the light most favorable to the State, and

defer to the jury on questions regarding witness credibility, we conclude that the

above facts provided the jury with sufficient evidence to find that Nagornyuk

knew the Honda had been stolen.




       12   Report of Proceedings Vol. 1 (January 19, 2016) at 163.

       13   Report of Proceedings Vol. 2 (January 20, 2016) at 193.



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       Nagornyuk argues "nothing more than speculation" remained regarding

what he knew. Speculation is "[t]he act or practice of theorizing about matters

over which there is no certain knowledge."14

       Based on these facts, the jury could reasonably infer that Nagornyuk knew

the Honda had been stolen. Thus, without speculation, the jury could find him

guilty beyond a reasonable doubt of possessing a stolen vehicle.

       In addition to the guilty verdict for possession of a stolen vehicle, the jury

also found Nagornyuk guilty of count one, taking a motor vehicle without

permission in the second degree. We need not discuss whether there was

sufficient evidence to support this count because the trial court sentenced him

solely on count two, possession of a stolen vehicle.

                               DUAL CONVICTIONS

       Nagornyuk argues that he could only have been convicted of second

degree taking a motor vehicle, not the possession charge. He further argues that

inquiry on the possession charge was precluded. Because this raises an

argument for the first time on appeal, we decline to address it.

       He relies on the quotation in State v. Melick15 that states:

       If the State charges both theft (or, in this case, TMV) and
       possession arising out of the same act, the fact finder must be
       instructed that if it finds that the defendant committed the
       taking crime, it must stop and not reach the possession
       charge. Only if the fact finder does not find sufficient evidence of
       the taking can it go on to consider the possession charge.[161


       14   BLACK'S LAW DICTIONARY 1617 (10th ed. 2014).

       15   131 Wn. App. 835, 129 P.3d 816 (2006).

       16   Id. at 841 (emphasis added).


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       This argument is basically a challenge to the absence of a jury instruction

that he did not request the trial court to give. Because he did not propose such

an instruction, he has failed to preserve the claim for review.17

       There, the State charged Matthew Melick with one count of taking a motor

vehicle without permission (TMV) in the second degree and one count of first

degree possession of stolen property (PSP).18 Melick allegedly drove away in

another person's vehicle, and police stopped him while he was driving the

vehicle.19 After a bench trial, the trial court imposed standard-range sentences

for the TMV charge and the PSP charge.2° Melick appealed.

       The State conceded that Melick should not have been convicted for both

offenses but argued "that double jeopardy/merger case law require[d] that the

lesser offense be vacated."21 This court concluded that double jeopardy

principles did not apply because TMV and PSP were not identical offenses in law

or in fact.22 Each offense required an element that the other did not.23




       17   See Gorman v. Pierce County, 176 Wn. App. 63, 86, 307 P.3d 795
(2013).

       18   Melick, 131 Wn. App. at 838.

       18   Id.

       28   Id.

       21 Id.     at 839.

       22   Id. at 839-40.

       23   Id. at 840.



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       But this court determined that the two convictions could not stand

because:

      "one cannot be both the principal thief and the receiver of stolen
      goods." If the State charges both theft (or, in this case, TMV) and
      possession arising out of the same act, the fact finder must be
      instructed that if it finds that the defendant committed the taking
      crime, it must stop and not reach the possession charge. Only if
      the fact finder does not find sufficient evidence of the taking can it
      go on to consider the possession charge.1241

      We then remanded the case for the trial court to vacate the PSP

conviction because the fact finder was not instructed that it should not consider

the PSP charge if it found Melick guilty of taking a motor vehicle without

permission.25

       Here, there is no evidence in the record showing Nagornyuk was the

principle thief of the Honda because there was no evidence that he initially took

it. According to the State's theory at trial, Nagornyuk committed the taking crime

because he drove, or voluntarily rode in, the vehicle with knowledge that it was

unlawfully taken. Under RCW 9A.56.075(1):

      A person is guilty of taking a motor vehicle without permission in
      the second degree if he or she, without the permission of the owner
      or person entitled to possession, intentionally takes or drives away
      any automobile or motor vehicle. . . that is the property of another,
      or he or she voluntarily rides in or upon the automobile or motor
      vehicle with knowledge of the fact that the automobile or motor
      vehicle was unlawfully taken.




      24 Id. at 840-41 (internal citation omitted) (quoting State v. Hancock, 44
Wn. App. 297, 301, 721 P.2d 1006 (1986)).

       25   Id. at 844.
No. 74637-5-1/10


       Because there is no evidence in the record showing Nagornyuk was the

principle thief of the Honda, Melick does not control. Further, Nagornyuk makes

this argument for the first time on appeal, and we need not consider it further.26

                          CORRECTION OF JUDGMENT

       The State requests that this matter be remanded to "correct[] the judgment

and sentence to remove any reference to [count 1, taking a motor vehicle without

permission in the second degree]." We express no opinion whether double

jeopardy principles require this.27 Nevertheless, we grant this request. The trial

court should strike all references in the judgment and sentence to the conviction

for count one.

                                      COSTS

       Nagornyuk argues that this court should decline to award the State

appellate costs should the State prevail on appeal. We decline to award

appellate costs to the State.

       RCW 10.73.160(1) gives us discretion to decline to impose appellate costs

on appea1.28 Under State v. Sinclair, there is a presumption that indigency

continues unless the record shows otherwise.29




       26   See RAP 2.5(a).

       27   Melick, 131 Wn. App. at 839-40.

       28   State v. Nolan, 141 Wn.2d 620, 629, 8 P.3d 300 (2000).

       29   192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034
(2016).



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      Here, after the trial court entered the judgment and sentence, the trial

court executed an order authorizing Nagornyuk to seek appellate review at public

expense and appointment of an attorney. Nagornyuk's declaration demonstrated

his indigence.

      Nothing in this record overcomes the presumption of Nagornyuk's

indigence. Thus, an award to the State for appellate costs is inappropriate under

these circumstances.

      We affirm the conviction for possession of a stolen vehicle. We also

remand for correction of the judgment and sentence by removing any reference

to the conviction for count one. We deny appellate costs to the State.




WE CONCUR:




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