IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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STATE OF WASHINGTON,                              No. 68606-2-1
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              Respondent,                         DIVISION ONE
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       v.



YEVGENI OSTROVSKI,                                UNPUBLISHED OPINION                S?         i!—3
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              Appellant.                          FILED: September 16. 2013

       Spearman, J. —Yevgeni Ostrovski appeals his conviction for second

degree assault, arguing the trial court admitted a nonverbal identification of a

knife by a witness who was unavailable for trial in violation of his confrontation

rights. The State concedes error but argues that the error was harmless.

Because the knife was properly admitted based on untainted testimony provided

by other witnesses, the error was harmless. We also reject the claims in his

statement of additional grounds and affirm.

                                       FACTS

       Just before 11:00 p.m. on August 20, 2011, Tatiana Brodiski called 911

and reported that her husband, Yevgeni Ostrovski, had a large knife and                    SOFTA EOFiROU T
threatened to kill her, their child, and himself. In broken English and her native                      F




Russian, Brodiski cried and screamed during the call, telling the 911 operator

that she had taken the knife from her husband, thrown the knife under the table,

and run from the house to hide in a boat in a neighbor's yard.

       When Mercer Island Police arrived at their home, they found Ostrovski

sitting outside on the patio with his friend Gennady Belyaev. While the officers
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were questioning the men, Ostrovski's daughter J.B., who was visibly upset,

came out on the patio. J.B. told an officer that she had seen her father hold a

knife against her mother's neck and heard him say that he was going to kill her

mother and then kill himself. J.B. told the officer she believed her father would

kill her mother and then kill her. The police arrested Ostrovski.

       The State charged Ostrovski with second degree assault while armed with

a deadly weapon and two counts of felony harassment. Based on incidents

occurring after the arrest, the State charged Ostrovski with witness tampering

and six counts of misdemeanor violation of a no contact order.

       At trial, the State called Mercer Island Police Corporal David Herzog as its

first witness. Herzog testified that he learned from the dispatcher that there "was

a domestic violence that had occurred involving a knife." Verbatim Report of

Proceedings (VRP) (12/13/2011) at 78. When he arrived at the home, Herzog

saw two males sitting on the patio and kept them there for questioning. Herzog

explained, "I didn't want them to go back inside the house because ... Ididn't

want them if they did have a knife to go back in there and use it[.]" VRP

(12/13/2011) at 81. Herzog determined that the men were Ostrovski and
Belyaev, who was a family friend or roommate. When J.B. came out to the patio
and Ostrovski began speaking to her, Herzog separated them, sending another

officer to speak to J.B. elsewhere.

       After another officer arrested Ostrovski and took him away from the house,

Herzog assisted other officers in taking statements. Herzog testified, "After [J.B.]
and the witness told us, I asked them where the knife was that we had the
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information that was used, and the roommate went to the kitchen counter and

pointed out where the knife was." VRP (12/13/2011) at 97. Defense counsel

objected on hearsay grounds, but the trial court overruled the objection. Herzog

described the knife and testified that another officer photographed it and placed it

into evidence. Officer Peter Erickson later identified a knife he retrieved from the

evidence room and the trial court granted the State's motion to admit the knife

into evidence.


       Although the 911 call and their prior statements to the police were

admitted at trial as excited utterances, both Brodiski and J.B. testified that

Ostrovski had not threatened them. Brodiski testified that she had been drinking

on the night of the incident when she began bickering with Ostrovski while he

chopped salad. She testified that she overreacted because she has a fear of

knives. J.B. testified that when she came out of her room and saw her parents

arguing while her father chopped salad, she "freaked out like [she] got mixed

messages," and continued crying after she "heard them calm down" because she

didn't like hearing them argue. VRP (12/15/11) at 80, 83. Both Brodiski and J.B.

identified the knife in evidence as the knife Ostrovski had used to chop salad.

       The jury acquitted Ostrovski on the charge of felony harassment as to J.B.

but found him guilty of the remaining charges. The trial court imposed an

exceptional sentence below the standard range.
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       Ostrovski appeals.

                                   DISCUSSION

       Ostrovski contends that the trial court violated his constitutional

confrontation rights by allowing Corporal Herzog to testify about Belyaev's

nonverbal identification of the knife. The State concedes that the trial court

should have sustained defense counsel's hearsay objection and stricken the

testimony because Belyaev had left the country and was unavailable for cross-

examination. However, the State contends that the error was harmless beyond a

reasonable doubt.

       Confrontation Clause errors are subject to harmless error analysis. State

v. Jasper. 174Wn.2d 96, 117, 271 P.3d 876 (2012) (citing Delaware v. Van

Arsdall. 475 U.S. 673, 684, 106 S. Ct. 1431 L.Ed.2d 674 (1986)). The State

bears the burden of proving beyond a reasonable doubt that the error was

harmless. ]d. We look to the "untainted evidence to determine if the untainted

evidence is so overwhelming that it necessarily leads to a finding of guilt." State

v. Gulov, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985) (citing Parker v. Randolph,

442 U.S. 62, 70-71, 99 S. Ct. 2132, 2137-34, 60 LEd.2d 713 (1979)).

       Ostrovski argues that the jury may have accepted the version of events

Brodiski and J.B. offered at trial were it not for the testimony of Belyaev's

identification of the knife. He also contends that Brodiski's identification of the

knife was "somewhat equivocal," [Brief of Appellant at 23] because she said "I

think so, yeah. Yes," when asked whether she recognized the exhibit as one of
her kitchen knives. VRP (12/15/2011) at 25. Finally, he claims that the jury may
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not have believed that the knife admitted into evidence was a deadly weapon or

was the knife used by Ostrovski because Brodiski testified that she threw the

knife under the table but J.B. testified that Brodiski put it on the counter.

       But Ostrovski does not contend that the knife was not properly admitted

into evidence. The jury heard the 911 recording in which the Russian interpreter

translated Brodiski's report that Ostrovski "had a large knife" when he threatened

to kill her. (Pretrial Exhibit 2 at 5). J.B. told police on the night of the incident

that she saw Ostrovski hold a knife against her mother's throat. Although

Brodiski and J.B. testified differently as to the use of the knife at trial, they both

admitted that Ostrovski was holding a knife during an argument in the kitchen

and they both agreed that the knife admitted into evidence was the same knife he

held. Under these circumstances, we are convinced beyond a reasonable doubt

that the improper admission of the fact that Belyaev pointed to the location of the

knife "that was used" was harmless.

       In his statement of additional grounds, Ostrovski contends that (1) the trial

court violated his right to a speedy trial and deprived him of the opportunity to

confront Belyaev at trial by granting a continuance to the State over defense

counsel's objection on October 21, 2011; (2) the jail miscalculated his good time

credits; (3) the witness statements about the location of the knife were

"inconsistent;" and (4) the quality of J.B.'s translation between English and

Russian for the investigating officers "is in question." The third ground appears

to duplicate the issue presented by counsel on appeal and is too conclusory to

permit review. See RAP 10.10(c) (appellate court will not consider argument in
No. 68606-2-1/6


statement of additional ground for review if it does not inform the court of the

nature and occurrence of the alleged errors). The other allegations appear to

involve matters outside of the record and therefore cannot be considered on

appeal. See State v. McFarland. 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).

       Affirmed.




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WE CONCUR:




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