     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                                     No. 71911-4-1
                                                                                     CO
                                                                                     m
                                                                                     -a

                     Respondent,

       v.



RUVIM ALEKSANDROVICH KHOMYAK,                            UNPUBLISHED OPINION           ^

                     Appellant.                          FILED: September 21, 2015


       Verellen, A.C.J. — Ruvim Khomyak appeals his conviction for residential

burglary. He contends the trial court violated his right to a speedy trial and improperly

admitted evidence of plea negotiations. He also argues that insufficient evidence

supported his conviction. We affirm.

                                          FACTS


       On the afternoon of June 24, 2013, Carol Williams saw a group of five or six

people running into the backyard of her neighbor Patricia Spromberg's house. She later

saw a man getting into a blue Nissan Pathfinder and another man walking away

carrying a bag. Both men were wearing gloves. Williams called 911.

       Officers found Spromberg's back door kicked in. Officers also discovered a

cigarette butt on the ground next to the door. The cigarette butt still had ash on the tip,

indicating it had recently been discarded. The interior of Spromberg's house had been
No. 71911-4-1/2



"ransacked" with "property strewn about."1 When Spromberg returned home, she

noticed that her jewelry, some antiques, and her deceased husband's ashes were

missing, as well as a pillowcase from her bed.

       DNA2 on the cigarette butt matched that of Khomyak. Detective Daniel Rabelos

of the Everett Police Department interviewed Khomyak in connection with the burglary.

Khomyak stated he could not recall what he was doing on the day of the burglary

because he was using Xanax, methamphetamine, and heroin at the time. When

Detective Rabelos asked Khomyak "if he was saying that he did not do it," Khomyak

"said that he was not saying that, he was saying that he did not remember."3 At the end

of the interview, Khomyak asked Detective Rabelos to "hurry up and charge him so that

he could plead guilty."4

       The State charged Khomyak with residential burglary. Prior to trial, the State

sought to introduce Khomyak's statement to Detective Rabelos regarding his desire to

plead guilty. Khomyak objected, arguing that the statement was barred by Evidence

Rule (ER) 410. The trial court admitted the statement, stating, "I don't think that's what

the rule is for. That's in relation to whether or not your client is going to plead guilty

during the proceedings, not statements that he made to the police at the time of the

arrest.5

       A jury convicted Khomyak as charged. Khomyak appeals.



       1 Report of Proceedings (RP) (Apr. 16, 2014) at 61.
       2 Deoxyribonucleic acid.
       3RP(Apr. 16, 2014) at 117.
       4Jd,at118.
       5RP(Apr. 15, 2014) at 14.
No. 71911-4-1/3



                                         DECISION

                                        Speedy Trial

       Khomyak argues that his conviction must be reversed and dismissed because

the trial court violated his right to a speedy trial pursuant to CrR 3.3 by granting

continuances requested by the prosecutor without a sufficient showing of good cause.

       CrR 3.3(b)(1)(i) requires that a defendant who is in custody be brought to trial

within 60 days of arraignment. However, under CrR 3.3(f)(2), a trial court may continue

the trial date "when such continuance is required in the administration of justice and the

defendant will not be prejudiced in the presentation of his or her defense."

Continuances are excluded from the 60-day time for trial period.6

       We review a trial court's decision to grant a continuance under CrR 3.3 for an

abuse of discretion.7 A trial court abuses its discretion when its decision is manifestly

unreasonable or exercised on untenable grounds or for untenable reasons.8

       Khomyak was arraigned on November 27, 2013, and the trial court set a trial

date of January 10, 2014, with a speedy trial expiration date of January 27. On

January 3, the parties agreed to continue the trial date to February 28, with an

expiration date of March 30.

       On February 28, the State requested to continue the trial date until April 4. The

prosecutor informed the trial court that Spromberg was "a snow bird" who lived in

California during the winter months.9 The prosecutor stated that Spromberg did not


       6 CrR 3.3(e).
       7 State v. Downing. 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).
       8 State v. Lord. 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).
       9RP(Feb. 28, 2014) at 3.
No. 71911-4-1/4



plan to return to Seattle until early April and "it would be an inconvenience for her to

have to come up and testify" before that time.10 The prosecutor also stated that he was

unavailable the following week due to another trial. Khomyak objected to the

continuance. The trial court stated that it would find good cause to continue the case to

March 14, with an expiration date of April 15, due to the prosecutor's trial schedule, and

that it would permit the State to renew its motion "after they get additional information in

relation to the witness who's unavailable."11 The trial court's order continuing the case

cited the reason for the continuance as "the deputy prosecutor's unavailability due to

being in trial on another matter."12

       On March 13, the State again moved to continue the trial date until April 4.

Khomyak again objected. The trial court found there was not good cause for a

continuance excludable under CrR 3.3 because the State failed to show that Spromberg

was "unavailable" instead of merely "unwilling."13 However, the trial court agreed to

continue the trial date until April 4 "because time for trial doesn't even run out until

nearly two weeks after she evidently is going to be back."14 Defense counsel

responded, "I would be prepared on that date as well."15

       On April 4, the State moved to continue the trial date to April 11 because its DNA

expert was unavailable due to her responsibility for conducting an audit of the




        1 Id at 10.
        2 Clerk's Papers (CP) at 146.
        3RP(Mar. 13, 2014) at 5.
        4 Id at 9.
        5 Id. at 10.
No. 71911-4-1/5



Washington State Patrol Crime Laboratory. The trial court continued the trial date to

April 11, with an expiration date of May 12, due to "unavailability of essential State's

witness Dr. Beverly Himick."16

       On April 11, the trial date was continued to April 15, but the basis for this

continuance was not made a part of the record on appeal. Trial began on April 15.

       Khomyak argues that the trial court violated CrR 3.3 in granting the continuances

on February 28 and March 13, contending that Spromberg's living arrangements were

not a legitimate reason to continue the trial date. But neither continuance violated

Khomyak's speedy trial rights. The trial court's order on February 28 indicates that the

purpose of the continuance was to accommodate the prosecutor's trial schedule. It is

well established that a trial court does not abuse its discretion by granting a continuance

based on a prosecutor's scheduling conflict from a different trial assignment.17 And the

March 13 continuance did not extend the speedy trial expiration period. "[Djismissal is

mandated . . . only when the applicable speedy trial period has expired. Absent such a

violation, a defendant must demonstrate actual prejudice to obtain dismissal."18

Khomyak does not identify how he was prejudiced by the March 13 continuance.

                                    Evidence Rule 410

       Khomyak contends the trial court erred in allowing Detective Rabelos to testify

that Khomyak asked to be charged quickly so that he could plead guilty. Khomyak

argues that the trial court should have excluded the statement pursuant to ER 410.


       16 CP at 144.
      17 See, e.g., State v. Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005); State v.
Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996); State v. Krause. 82 Wn. App. 688,
698, 919 P.2d 123 (1996).
       18 State v. Hall. 55 Wn. App. 834, 841, 780 P.2d 1337 (1989).
No. 71911-4-1/6


       We review the interpretation of an evidentiary rule de novo.19 If a trial court has

correctly interpreted the rule, we review the decision to admit or exclude evidence for

abuse of discretion.20

       ER 410 involves the admissibility of evidence of plea negotiations. It provides, in

relevant part:

       [Ejvidence of a plea of guilty, later withdrawn, or a plea of nolo
       contendere, or of an offer to plead guilty or nolo contendere to the crime
       charged or any other crime, or of statements made in connection with, and
       relevant to, any of the foregoing pleas or offers, is not admissible in any
       civil or criminal proceeding against the person who made the plea or offer.

But application of the rule is limited to plea negotiations between the defendant and

prosecuting attorneys or their agents who possess express authority to plea bargain.21

There is no evidence that Detective Rabelos had authority to negotiate a plea

agreement or represented to Khomyak that he had such authority. The trial court

correctly determined that ER 410 did not apply to Khomyak's statement.

       Khomyak's reliance on State v. Nowinski22 and State v. Hatch23 is misplaced. In

Nowinski. during an interview with detectives, the defendant expressed interest in a plea

agreement. Detectives told the defendant they did not have the authority to negotiate a

plea agreement and called in a prosecutor to speak to the defendant. The prosecutor

told the defendant that he could not offer a plea agreement "that night" but would take




       19 State v. DeVincentis. 150Wn.2d 11, 17, 74 P.3d 119(2003).
       20 Id
       21 State v. Pizzuto, 55 Wn. App. 421, 434, 778 P.2d 42 (1989).
       22 124 Wn. App. 617, 102 P.3d 840 (2004).
       23 165 Wn. App. 212, 267 P.3d 473 (2011).


                                             6
No. 71911-4-1/7


the information back to his office to consider.24 Here, no prosecutor was present or

involved in Detective Rabelos's interview. In Hatch, the defendant requested multiple

continuances of the trial date in order to obtain a psychological evaluation to

demonstrate that he was a suitable candidate for a treatment-based alternative

sentence. The prosecutor agreed to the continuances and suggested a plea hearing

could be set if the evaluation provided "all the information we need."25 The defendant's

incriminating statements made to the psychologist were inadmissible because they

were made during the course of ongoing plea negotiations with the prosecutor.26 Here,

Khomyak's statements were made spontaneously to Detective Rabelos rather than as

part of plea negotiations.

                                 Sufficiency of the Evidence

       Finally, Khomyak argues that the evidence was insufficient to convict him of

residential burglary. He contends that the evidence at best showed he was merely

present at the scene of the crime. We disagree.

       Evidence is sufficient to support a conviction if, when viewed in a light most

favorable to the State, it permits a rational trier of fact to find the elements of the crime

beyond a reasonable doubt.27 A defendant challenging the sufficiency of the evidence

admits the truth of the evidence and all rational inferences that may be drawn from it.28




       24 Nowinski. 124 Wn. App. at 624-25.
       25 Hatch. 165 Wn. App. at 215.
       26 |d at 215-19.
       27 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       28 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
No. 71911-4-1/8


Circumstantial and direct evidence are equally probative, and we defer to the trier of fact

on conflicting testimony, witness credibility, and the persuasiveness of the evidence.29

       A person is guilty of residential burglary if he "enters or remains unlawfully in a

dwelling other than a vehicle" with "intent to commit a crime against a person or

property therein."30 A person is an accomplice of another person in the commission of a

crime if, "[wjith knowledge that it will promote or facilitate the commission of the crime,

he or she (i) [sjolicits, commands, encourages, or requests such other person to commit

it; or (ii) [ajids or agrees to aid such other person in planning or committing it."31

However, "[m]ere presence at the scene of the crime, even if coupled with assent to it, is

not sufficient to prove complicity. The State must prove that the defendant was ready to

assist in the crime."32

       Here, the State's evidence was sufficient to convict Khomyak of residential

burglary. Williams called police immediately after she observed men entering

Spromberg's backyard and leaving with a bag. Police found Spromberg's back door

kicked in and several valuable items from her house stolen. DNA on a cigarette butt

found next to the back door matched that of Khomyak. The cigarette butt still had ash

on the tip, which showed that Khomyak had recently discarded it. Spromberg did not

know Khomyak and he did not have any reason to be at her home. A rational trier of

fact could have found, based on the circumstantial evidence, that Khomyak was an

accomplice to the burglary by acting as a lookout. Moreover, Khomyak asked


       29 State v. Raleigh. 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010).
       30RCW9A.52.025(1).
       31 RCW 9A.08.020(3)(a).
       32 State v. Luna. 71 Wn. App. 755, 759, 862 P.2d 620 (1993).


                                               8
No. 71911-4-1/9



Detective Rabelos to charge him with the crime so that he could plead guilty. The

evidence, taken together, was sufficient to support the conviction.

      Affirmed.




WE CONCUR:




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