                                                                2015HOV \h IM'-Z1




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



THE STATE OF WASHINGTON,                        No. 75642-7-1


                    Respondent,
                                                DIVISION ONE
                    v.



RUSLAN Y. BEZHENAR,                             UNPUBLISHED OPINION

                    Appellant.                  FILED: November 14, 2016


      Mann, J. — The City of Centralia posted a notice on a building owned by the

parents of Ruslan Bezhenar as unfit for human occupation and prohibited unauthorized

entry. Four days later, while responding to a possible burglary at the Bezhenars'

building, the Centralia Police found Bezhenar and others inside the building with signs

that they were living there. Bezhenar was arrested and charged with felony harassment

and criminal trespass. A jury convicted Bezhenar of criminal trespass in the first

degree. Bezhenar appeals, contending that there was insufficient evidence to sustain

his conviction and for ineffective assistance of counsel.
No. 75642-7-1/2



       Because a rational jury could find beyond a reasonable doubt that Bezhenar

unlawfully entered and remained in the building without authorization, we affirm the

judgment and sentence.

                                           FACTS

       Bezhenar's parents, Galina and Yuriy Bezhenar, own a building in Centralia,

Washington. They allowed Bezhenar to live in the upstairs apartment as well as use it

for storing tools. On July 9, 2012, the City of Centralia (City) posted a notice on the

front door of the building deeming it uninhabitable due to a lack of utilities, including

water and electricity. The notice stated in full:

       This structure has been deemed unfit for habitation per CMC Title 18. Any
       unauthorized person found within these premises is subject to arrest and
       prosecution to the full extent of the law. Removal of this sign is a gross
       misdemeanor and is punishable by a fine of $5,900.00 and one year in jail.
       Centralia Building Department.

       Four days after the notice was posted, on July 13, 2012, Centralia Police Officer

Mike Lowrey responded to a possible burglary in progress at the Bezhenars' building. A

witness called the police after seeing a man climb up the building's drainpipe and enter

through a window. Nobody saw the man leave.

       The Centralia Police Officers knocked on the building's doors and yelled for the

occupants to exit. After the officers announced that a K-9 unit was preparing to search

the building, two women exited the building's side door, locking the door behind them.

       Believing that other people were still inside, the officers used a fire truck's ladder

to climb onto an awning beneath the open second story window. Once on the awning,

Officer Lowrey saw Bezhenar and a woman, Darcy Negrete, through the window.

Eventually, Lowrey handcuffed Bezhenar, pulled him out backwards through the open

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window onto the awning, and brought him down to the sidewalk. Lobo, a police dog,

was also on the awning. While Officer Lowrey was handling Bezhenar on the awning,

Lobo bit Bezhenar on the arm. After Bezhenar and Officer Lowrey climbed down from

the awning, another officer brought Negrete down. Officer Lowrey testified that while

Bezhenar was receiving medical care for his arm, he threatened Officer Lowrey.

       The State charged Bezhenar with felony harassment and criminal trespass in the

first degree. A jury convicted Bezhenar of felony harassment, but deadlocked on the

criminal trespass charge. On appeal, this court reversed and in an unpublished

decision remanded Bezhenar's felony harassment charge due to prosecutorial

misconduct. See State v. Bezhenar, noted at 181 Wn. App. 1034 (2014). We did not

reach the merits of Bezhenar's appeal of his trespass conviction.

       On remand, the State charged Bezhenar with felony harassment and criminal

trespass in the first degree again. In the second trial, a jury convicted Bezhenar of

criminal trespass in the first degree, but deadlocked on the felony harassment charge.

       Bezhenar appeals his criminal trespass charge contending that there was

insufficient evidence for the jury and that he received ineffective assistance from trial

counsel.


                                        ANALYSIS
Sufficiency of the Evidence

       Bezhenar argues that the evidence at his trial was insufficient to sustain a

conviction for criminal trespass in the first degree and that the court erred when it

denied Bezhenar's motion to dismiss the charge for insufficient evidence.
No. 75642-7-1/4



       The State is required under the due process clause to prove all of the necessary

elements of the crime charged beyond a reasonable doubt. U.S. Const, amend. XIV,

§ 1; InreWinship, 397 U.S. 358, 362-65, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). To

determine whether the evidence is sufficient to sustain a conviction, we review the

evidence in the light most favorable to the State and ask whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. State

v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009). When a defendant challenges the

sufficiency of the evidence, he admits the truth of the State's evidence. Washington v.

Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). "[A] reviewing court makes a

limited inquiry tailored to ensure that a defendant receives the minimum that due

process requires: a 'meaningful opportunity to defend' against the charge against him

and a jury finding of guilt 'beyond a reasonable doubt.'" Musacchio v. United States,

U.S. _, 136 S. Ct. 709, 715, 193 L Ed. 2d 639 (2016) (quoting Jackson v. Virginia, 443

U.S. 307, 314-15, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The legal determination of

the sufficiency of the evidence "essentially addresses whether 'the government's case

was so lacking that it should not have even been submitted to the jury.'" Musacchio,

136 S. Ct. at 715 (Quoting Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L

Ed. 2d 1 (1978)). Deference must be given to the trier of fact who resolves conflicting

testimony and evaluates the credibility of witnesses and persuasiveness of material

evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308 (1989).

       "A person is guilty of criminal trespass in the first degree if he or she knowingly

enters or remains unlawfully in a building." RCW 9A.52.070(1). A person "enters or

remains unlawfully" in premises when he is not then licensed, invited, or otherwise

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privileged to so enter or remain. RCW 9A.52.010(2). To convict Bezhenar, the State

had the burden to prove beyond a reasonable doubt, that Bezhenar knowingly entered

or remained in a building and knew that entering or remaining was unlawful—that he

was not licensed, invited, or otherwise privileged to enter or remain.

      At Bezhenar's trial, evidence of knowing "entry or remaining" included: (1)

Bezhenar and three others were in the building; (2) Bezhenar was sleeping on the bed

at the time the police arrived; (3) the interior of the apartment looked like someone lived

there; and (4) Bezhenar's mother testified he was living or "being" in the building at the

time of the arrest.1 Evidence that Bezhenar knew entry was illegal included the obvious

posting on the front door of the building. Evidence also included a witness's

observation that a man was seen climbing an outside drainpipe, then entering and not

leaving the building. While Bezhenar initially testified the person entering through the

drainpipe was named "Marcus," Bezhenar later confirmed that he had not seen Marcus

at the apartment that day. Nobody else testified that Marcus had been at the

apartment.

       Bezhenar argued at trial that that his entry was not unlawful because he was in

the apartment with the owners' (his parents) permission. It is a statutory defense to the

crime of criminal trespass that "[t]he actor reasonably believed that the owner of the

premises, or other person empowered to license access thereto, would have licensed
him to enter or remain." RCW 9A.52.090(3). This statutory defense negates the

unlawful presence element of the criminal trespass crime. City of Bremerton v. Widell.
146 Wn.2d 561, 570, 51 P.3d 733 (2002). When a defendant asserts that his entry was

       1Reportof Proceedings (RP) (Jan. 22, 2015) at 206-207 and 228.
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permissible under RCW 9A.52.090(2), the State bears the burden of proving the

absence of the defense because that defense "negates the requirement for criminal

trespass that the entry be unlawful." City of Bremerton. 146 Wn.2d at 570 (quoting

State v. Finlev, 97 Wn. App. 129, 138, 982 P.2d 681 (1999)). Once a defendant "has

offered some evidence that his or her entry was permissible under RCW 9A.52.090, the

State bears the burden to prove beyond a reasonable doubt that the defendant lacked

license to enter." City of Bremerton. 146 Wn.2d at 570.

       Bezhenar's argument that he was in the building with his parents' permission

ignores that at the time he entered the building, the City had posted a notice on the

building and deemed it uninhabitable and prohibited all but authorized entry. Once the

City has closed and posted a notice on the building for no unauthorized entry, the

owners are no longer empowered to authorize entry. As the trial court explained in

response to Bezhenar's motion to dismiss contending that the owner has the right to

enter or authorize entry into a posted building:

       that would render a notice from the city that a building is not habitable, that
       would render that totally meaningless under your theory, it applies to
       everybody except the owner and the owner could say go ahead, you could
       be inside these premises despite what the notice says.[2]

Once a notification is posted on a building, the authorizing entity is the City. While the

City could authorize the owner to reenter, Bezhenar offered no evidence that the City

authorized either his entry into, or habitation, of the apartment. Because Bezhenar

failed to offer evidence that his right to enter was authorized, the statutory defense in

RCW 9A.52.090(3) did not apply.



       2RP(Jan. 22, 2015) at 279.
No. 75642-7-1/7



       Reviewing the evidence in the light most favorable to the State, there was

sufficient evidence that a rational trier of fact could find the elements of criminal

trespass in the first degree.

Ineffective Assistance of Counsel

       Bezhenar contends that his Sixth Amendment right to counsel was violated by

his trial counsel's deficient performance. Specifically, Bezhenar argues that his counsel

provided ineffective assistance by "failing to fully raise the defense that Bezhenar

reasonably believed that he had license to enter the property and [failing] to propose an

instruction to support the argument."3

       We review ineffective assistance claims de novo. In re Pers. Restraint of

Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). To sustain a claim of ineffective

assistance of counsel, "the defendant must show: (1) 'counsel's performance was

deficient,' and (2) 'the deficient performance prejudiced the defense.'" In re Fleming.

142 Wn.2d at 865 (quoting Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984)). We are highly deferential to counsel's performance, ]n

re Personal Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142 (2014) (citing

Strickland, 466 U.S. at 689), and strongly presume that counsel's representation was

effective. State v. McFarland. 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).

       Bezhenar contends first that his counsel's failure to argue that Bezhenar

reasonably believed that he was licensed to be in the building under RCW 9A.52.090(3)

violated Bezhenar's right to counsel. This argument fails. In renewing his motion to

dismiss for insufficient evidence, Bezhenar's counsel argued extensively that Bezhenar

       3 Br. of Appellant at 16.
No. 75642-7-1/8



had permission to enter the building, which is a defense to the charge under RCW

9A.52.090(2): "So my position on count two is essentially [that Bezhenar] did have

permission which makes the entry or remaining not unlawful."4 Bezhenar's counsel built

his defense strategy around the fact that Bezhenar believed that he had permission to

be there. Bezhenar cannot establish that his counsel's performance was deficient.

       Second, Bezhenar argues that his right to counsel was violated when his trial

counsel failed to propose a jury instruction. Bezhenar argues that his counsel should

have proposed the "reasonable belief instruction WPIC 19.06—a jury instruction

specifically tailored to first degree criminal trespass:

       It is a defense to a charge of criminal trespass in the first degree that the
       defendant reasonably believed that the owner of the premises or other
       person empowered to license access to the premises would have licensed
       the defendant to enter or remain.

       The State has the burden of proving beyond a reasonable doubt that the
       trespass was not lawful. If you find that the State has not proved the
       absence of this defense beyond a reasonable doubt, it will be your duty to
       return a verdict of not guilty as to this charge.

11 Washington Practice: Pattern Jury Instructions: Criminal. 19.06 (4th ed. 2016)
(WPIC).

       Where a claim of ineffective assistance is based on counsel's failure to request a

particular jury instruction, the defendant must show that he was entitled to the

instruction, counsel's performance was deficient in failing to request it, and the failure to

request the instruction caused prejudice. State v. Thompson, 169 Wn. App. 436, 495,

290 P.3d 996 (2012).




       4RP(Jan. 22, 2015) at 279.
No. 75642-7-1/9



       Here, Bezhenar was not entitled to the instruction because, although his parents

licensed him to be in the building, the City of Centralia did not. The City prohibited

habitation in the building. Thus, the City would not have licensed Bezhenar to enter or

live in the building. Because Bezhenar was not entitled to the instruction, we need not

consider whether his counsel's performance was deficient for failing to request it.

       Further, Bezhenar what not prejudiced by the lack of the "reasonable belief"

instruction. The jury was instructed that in order to find Bezhenar guilty of criminal

trespass in the first degree, they needed to find, beyond a reasonable doubt that he

"knew that the entering or remaining was unlawful."5 Bezhenar argued during closing

argument that the unlawful element could not be met because despite the City's notice,

the owners had the right to give permission for their son to enter the building or to

remove things so long as he was not living there. Juries are presumed to follow the

court's instructions. State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008). Had the

jury believed Bezhenar reasonably believed he had permission to enter the building or

had reasonable doubts as to his knowledge, they would not have found that he knew

entry was unlawful. Despite Bezhenar's argument, the jury found him guilty of criminal

trespass.

       Bezhenar cannot establish that his Sixth Amendment right to counsel was

violated by his trial counsel's performance.




       5 Clerk's Papers (CP) at 145.
No. 75642-7-1/10



      We affirm the judgment and sentence.



                                             »vA


WE CONCUR:




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