IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

MIKHAIL S. BARBAROSH,

Appellant.

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No. 36010-5-III

PUBLISHED OPINION

LAWRENCE-BERREY, C.J. — Mikhail Barbarosh appeals his conviction and 

sentence for possession of a controlled substance, methamphetamine. He raises two 

arguments why his conviction should be reversed. We reject those arguments. 

He raises one argument why his sentence should be reversed. We hold that a trial 

court errs by imposing a sentence not authorized by a jury’s express findings as reflected 

in the jury instructions as a whole. Because the jury instructions as a whole do not 

establish that the jury expressly found that Barbarosh possessed methamphetamine, we 

remand for the trial court to impose a misdemeanor sentence.

FILED

AUGUST 29, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36010-5-III

State v. Barbarosh

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FACTS

Corrections Officer Cynthia Young was assigned to master control at Benton 

County jail. She monitored and controlled the doors for everyone who came in and out of 

the jail. Officer Young saw Barbarosh, a laundry trustee inmate, bend down near the 

kitchen door—a prohibited movement. After Barbarosh bent down near the door, an 

inmate on the other side, Daniel Kapitula, bent down and then stood up and put 

something in his shirt pocket. Officer Young notified Corrections Officer Terry 

Blumenthal of the incident. 

Officer Blumenthal searched inmate Kapitula and found various items, including a 

small, folded, white piece of paper wrapped in blue painter’s tape. The officer took the 

items to booking and inspected them with Corrections Officer Boris Draskovic. They 

removed the tape, unfolded the paper, and found a small crystal-like substance. It was 

then given to Corporal Dallas Murray. Corporal Murray gave the evidence to Deputy 

Bruce Surplus, and the deputy placed it into the evidence locker. 

Jennifer Allen, a forensic scientist with the Washington State Patrol Crime 

Laboratory, performed a test on the crystal-like substance. The test concluded the 

substance contained methamphetamine. 
No. 36010-5-III

State v. Barbarosh

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By amended information, the State charged Barbarosh with one count of unlawful 

possession of a controlled substance, methamphetamine, with a county jail allegation and 

enhancement. Barbarosh went to trial. Prior to opening statements, the trial court orally 

advised the jury:

The defendant is charged by first amended information as follows: 

Count I: That the said Mikhail S. Barbarosh in the County of Benton, 

State of Washington, on or about the 4th day of November, 2017, did 

unlawfully possess a controlled substance, to wit: methamphetamine, 

contrary to the form of the statute in such cases made and provided, and 

against the peace and dignity of the State of Washington.

Report of Proceedings (RP) (Jan. 8, 2018) at 3-4.

The State presented its evidence to the jury. Barbarosh chose not to call any

witnesses. The court then instructed the jury on the law. Instruction number 10, the toconvict instruction, failed to specify the controlled substance at issue. That instruction 

read: 

To convict the defendant of the crime of possession of a controlled 

substance, each of the following elements of the crime must be proved 

beyond a reasonable doubt: 

(1) That on or about November 4th, 2017, the defendant possessed a 

controlled substance; and 

(2) That this act occurred in the State of Washington.

Clerk’s Papers (CP) at 28; see also RP (Jan. 9, 2018) at 143-44.
No. 36010-5-III

State v. Barbarosh

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The State then gave its closing argument. Barbarosh responded and questioned the 

strength of the State’s circumstantial evidence that linked him with the methamphetamine 

found on Kapitula. Barbarosh urged the jury to return a not guilty verdict. During the 

State’s rebuttal argument, the deputy prosecutor argued in part: 

He possessed a controlled substance. He passed that to another 

inmate. He violated the rules of the trustee to do so, and ultimately 

Kapitula’s found with that substance moments later. I’m satisfied. I’m 

confident that you will be satisfied considering everything that’s been 

presented to you, and I ask you to find the defendant guilty of the crime of 

Unlawful Possession of a Controlled Substance and answer “yes” to the 

Special Verdict Form.

RP (Jan. 9, 2018) at 160-61 (emphasis added). 

On the prepared jury verdict form, the jury foreman filled in the blank: “We, the 

jury, find the defendant MIKHAIL S. BARBAROSH, Guilty of the crime of Unlawful 

Possession of a Controlled Substance as charged in Count I.” CP at 34. The trial court 

entered a judgment of conviction and imposed various legal financial obligations, 

including a $200 criminal filing fee and a $100 DNA1collection fee.

Barbarosh timely appealed to this court. 

 

1 Deoxyribonucleic acid.
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State v. Barbarosh

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ANALYSIS

Barbarosh raises four arguments: (1) prosecutorial misconduct for expressing a 

personal opinion during closing argument, (2) ineffective assistance of counsel for not 

objecting to the prosecutor’s improper argument, (3) the to-convict instruction’s failure to 

identify the specific controlled substance requires remand for a misdemeanor sentence,

and, (4) the criminal filing fee and the DNA collection fee should be struck. 

1. PROSECUTORIAL MISCONDUCT

Barbarosh contends the State committed prosecutorial misconduct by asserting a 

personal opinion of guilt during closing argument. Whether the comment was improper 

or not, we conclude Barbarosh waived the purported error by failing to object. 

To prevail on a claim of prosecutorial misconduct, Barbarosh must establish “‘that 

the prosecutor’s conduct was both improper and prejudicial in the context of the entire 

record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258 

P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 

174, 191, 189 P.3d 126 (2008)). Where lack of prejudice is evident, we may dispose of 

the claimed error by addressing this issue alone. 

To demonstrate prejudice, the defendant must show a substantial likelihood that 

the prosecutor’s misconduct affected the jury’s verdict. Thorgerson, 172 Wn.2d at 443. 
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State v. Barbarosh

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A failure to object to an improper remark waives review of the error unless the remark

“‘is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that 

could not have been neutralized by an admonition to the jury.’” Id. (quoting State v. 

Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). In making that determination, the court 

“focus[es] less on whether the prosecutor’s misconduct was flagrant or ill intentioned and 

more on whether the resulting prejudice could have been cured.” State v. Emery, 174 

Wn.2d 741, 762, 278 P.3d 653 (2012). 

Here, Barbarosh argued in closing that the State’s case was based on 

circumstantial evidence and the jury should acquit because the evidence was weak. The 

deputy prosecutor responded to this argument by reviewing the circumstantial evidence 

and concluding, “I’m satisfied.” RP (Jan. 9, 2018) at 160. Barbarosh did not object. 

Even if the remark was an improper personal opinion of Barbarosh’s guilt, it was 

sufficiently brief and tied to the evidence so that any resulting prejudice could have been 

cured by a timely objection. For this reason, we conclude that Barbarosh waived the 

purported error.

2. INEFFECTIVE ASSISTANCE OF COUNSEL

Barbarosh contends he received ineffective assistance of counsel when his attorney 

failed to object to the deputy prosecutor’s “I’m satisfied” remark. We disagree. 
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State v. Barbarosh

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To protect a defendant’s right to counsel, a defendant has the right to receive 

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a 

mixed question of law and fact that we review de novo. Id. at 698. To determine whether 

counsel provided effective assistance, we apply a two-pronged test: (1) whether counsel’s 

performance was deficient, and (2) whether that deficient performance prejudiced the 

defendant to an extent that changed the result of the trial. Id. at 687. We can address the 

second prong initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground 

of lack of sufficient prejudice.” Id. at 697. 

Here, the deputy prosecutor’s remark was brief and tied to the evidence. The 

remark did not incite the jury’s passion, but focused the jury on the State’s evidence. For 

these reasons, we conclude that defense counsel’s failure to object did not change the 

result of the trial. We, therefore, reject Barbarosh’s ineffective assistance of counsel 

claim. 

3. SENTENCE AUTHORIZED BY JURY VERDICT

“[U]nder both the Sixth Amendment to the United States Constitution and article 

I, sections 21 and 22 of the Washington Constitution, the jury trial right requires that a 

sentence be authorized by the jury’s verdict.” State v. Williams-Walker, 167 Wn.2d 889, 
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State v. Barbarosh

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896, 225 P.3d 913 (2010). If a court imposes a sentence not authorized by the jury’s 

verdict, the harmless error analysis does not apply. Id. at 900-01.

Barbarosh contends the to-convict instruction’s failure to identify the specific 

controlled substance requires remand for a misdemeanor sentence. We have previously 

discussed the sentencing consequences for failing to identify the controlled substance in 

jury instructions for drug offenses. We summarize these cases below.

In State v. Clark-El, 196 Wn. App. 614, 384 P.3d 627 (2016), the defendant was 

charged with delivering a controlled substance, methamphetamine. The to-convict 

instruction required proof only that he “‘delivered a controlled substance’” and failed to 

identify methamphetamine as the substance. Id. at 619. We held that omission of 

“methamphetamine” from the to-convict instruction authorized the trial court to impose 

only the lowest possible sentence for delivery of a controlled substance. Id. at 624. And,

because delivery of a controlled substance could result in conviction for a class C felony 

(rather than the class B felony for delivering methamphetamine), we remanded for the 

trial court to resentence the conviction as a class C felony. Id. at 624-25. 

In State v. Gonzalez, 2 Wn. App. 2d 96, 408 P.3d 743, review denied, 190 Wn.2d 

1021, 418 P.3d 790 (2018), the defendant was charged in count II with possessing a 

controlled substance, methamphetamine. The to-convict instruction required proof that 
No. 36010-5-III

State v. Barbarosh

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the defendant possessed a controlled substance “‘as charged in Count II.’” Id. at 104. 

The jury instructions did not advise the jury what count II alleged. We reasoned, 

“[w]ithout a finding regarding the nature of the controlled substance, the jury’s verdict 

did not provide a basis on which the trial court could impose a sentence based on 

possession of methamphetamine.” Id. at 114. We held that the jury’s finding that the 

defendant possessed an unidentified controlled substance authorized the trial court to 

impose the lowest possible sentence for unlawful possession of a controlled substance. 

Id. We concluded that the lowest possible sentence for possession of a controlled 

substance was a 90-day misdemeanor sentence for possession of marijuana and remanded 

for resentencing. Id. at 109, 114. 

In State v. Rivera-Zamora, 7 Wn. App. 2d 824, 827, 435 P.3d 824 (2019), the 

defendant was charged with various crimes, including possession with intent to deliver, 

methamphetamine. The to-convict instruction omitted the identity of the controlled 

substance. Id. at 829. We nevertheless affirmed the felony sentence because the verdict 

form stated the jury found the defendant guilty of “unlawful possession of a controlled 

substance with intent to deliver—methamphetamine.” Id. at 829-30. Rivera-Zamora

stands for the proposition that express language in the verdict form may establish a 

sufficient jury finding. This is consistent with Williams-Walker, which held that “the jury 
No. 36010-5-III

State v. Barbarosh

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trial right requires that a sentence be authorized by the jury’s verdict.” 167 Wn.2d at 896 

(emphasis added). 

The State argues that Clark-El and Gonzalez were wrongly decided because they 

conflict with State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010). In Sibert, the 

defendant was convicted of three counts of unlawful delivery of a controlled substance 

and one count of possession of a controlled substance with intent to deliver. Id. at 310. 

The to-convict instructions failed to identify the specific drug. Instead, the various toconvict instructions referred to the charges by saying: “‘To convict the Defendant . . . of 

the crime of Delivery of a Controlled Substance as charged . . . .” Id. at 312 (alterations 

in original). The charges, although not contained within the jury instructions, repeatedly 

alleged that the controlled substance was methamphetamine. Id. A plurality of four 

justices determined that the reference to the charging documents impliedly incorporated 

the language “methamphetamine” into the jury instructions. Id. The plurality affirmed 

both the defendant’s conviction and sentence because the defendant had clear notice that 

the charges involved only methamphetamine, and because methamphetamine was the 

only substance mentioned throughout trial. Id. at 312-13.2 A fifth justice concurred only 

 

2 Although not expressly stated, it appears that the plurality affirmed Sibert’s 

sentence because he could not show he was prejudiced by the instructional error.
No. 36010-5-III

State v. Barbarosh

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in the result. Id. at 317. Four justices dissented. Three of these four would have required 

the trial court to resentence the defendant to the lowest possible offense for delivery of a 

controlled substance. Id. at 325 (Alexander, J., dissenting). The other dissenting justice 

would have reversed the conviction. Id. at 334 (Sanders, J., dissenting).

We agree with Clark-El: A plurality opinion “‘has limited precedential value and 

is not binding on the courts.’” 196 Wn. App. at 619-20 (quoting In re Pers. Restraint of 

Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004)). And as noted by the three dissenting 

justices, the plurality disregarded its own recent precedent of State v. Recuenco, 163 

Wn.2d 428, 440-41, 180 P.3d 1276 (2008), which held that harmless error does not apply 

when a trial court imposes a sentence not authorized by the jury. For these reasons, we 

decline to follow the plurality decision. 

Here, Barbarosh was charged with possession of a controlled substance, 

methamphetamine. The to-convict instruction did not identify the controlled substance, 

but the jury verdict form stated that the jury found Barbarosh guilty of “Unlawful 

Possession of a Controlled Substance as charged in Count I.” CP at 34 (emphasis added). 

Similar to Gonzalez, the jury instructions did not advise the jury what count I alleged. If 

it had, there would have been an express jury finding that the controlled substance 

possessed by Barbarosh was methamphetamine. Nor does it matter that the trial court 
No. 36010-5-III

State v. Barbarosh

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orally advised the jury before trial what amended count I alleged. The verdict form refers

to count I, not amended count I. Also, the oral advisement, occurring before opening 

statements, is too attenuated from the verdict to constitute an express jury finding. 

Without an express jury finding based on the instructions as a whole, the trial court was 

not authorized to sentence Barbarosh as if the jury had found he had possessed 

methamphetamine. We conclude that remand is required for resentencing to the lowest 

possible offense for possession of a controlled substance, consistent with the jury’s 

express finding. 

Lowest possible offense

Barbarosh asserts that the lowest possible offense consistent with the jury’s 

express finding is possession of marijuana, 40 grams or less. RCW 69.50.4014. The 

State disagrees. It asserts that Barbarosh cannot be sentenced under RCW 69.50.4014 

because, as noted in the charging document, Barbarosh is older than 21. We agree with 

Barbarosh. 

RCW 69.50.4014 provides: “Except as provided in RCW 69.50.401(2)(c) or as 

otherwise authorized by this chapter, any person found guilty of possession of forty grams 

or less of marijuana is guilty of a misdemeanor.” RCW 69.50.4013(3)(a) permits persons 

21 years of age or older to possess up to one ounce of usable marijuana. 
No. 36010-5-III 

State v. Barbarosh 

Here, the jury found that Barbarosh possessed a controlled substance. It did not 

make any finding as to Barbarosh's age. The jury's verdict, therefore, supports a 

misdemeanor sentence under RCW 69.50.4014. 

4. CRIMINAL FILING FEE AND DNA COLLECTION FEE 

Citing State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), Barbarosh asks that 

we direct the trial court to strike his criminal filing fee and his DNA collection fee. The 

State concedes this issue. We direct the trial court to strike those fees. 

Affirmed in part; remanded. 

WE CONCUR: 

'-J ' . Fearing, J. (f Pennell, J. 

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