FILED 


FEB 24, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31847-8-111 

Respondent, ) 

) 

v. ) 

) 

ANATOLIY MELNIK, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, J. - Anatoliy Melnik appeals his convictions on two counts of first 

degree trafficking in stolen property, alleging that the evidence was insufficient and that 

the court erred in giving an instruction describing the process for claiming lost property. 

We affinn. 

FACTS 

Tiffany Glassick's home was burglarized while she was at church on January 13, 

2013. A television, numerous small jewelry items including an engagement ring with a 

very large diamond, three bottles ofperfume, and a portable hard drive were missing. 

Within 24 hours, Mr. Melnik appeared at a Money Tree store and offered to sell several 

gold jewelry items including a ring with a large diamond. When told that the store would 

only purchase gold, but not precious stones, Mr. Melnik removed the diamond and sold 

the band along with the other gold jewelry to Money Tree. 
No. 3 I 847-8-III 

State v. Melnik 

Mr. Melnik was arrested after he attempted to sell a large diamond to a pawn shop 

two days after the jewelry sale. Suspicious, the pawn shop retained the diamond and 

notified police. Officers obtained a search warrant for Mr. Melnik's residence and 

recovered two bottles ofperfume from his residence. The perfume matched the popular 

brands stolen from Ms. Glassick. 

The prosecutor charged one count oftrafficking in stolen property for each sale. 

Ms. Glassick identified the gold sold to Money Tree and the diamond sold to the pawn 

shop as items stolen from her. Mr. Melnik did not testify at trial, but the prosecutor 

called a detective to testify to the contents of a recorded jail telephone conversation 

between Mr. Melnik and a woman named Brooke. In that conversation, Mr. Melnick 

claimed to have found the jewelry near a bridge in a Pasco park. 

The prosecutor proposed a jury instruction describing Washington's civil 

procedure for claiming found property. The defense did not object and the court gave the 

instruction. Defense counsel argued to the jury that Mr. Melnik did not know the jewelry 

was stolen and pointed to the detective's testimony concerning the jail telephone 

recording as the only evidence of how the jewelry came into Mr. Melnik's possession. 

He also discounted the found property instruction on the basis that it did not apply to Ms. 

Glassick's obviously stolen property. The prosecutor briefly mentioned the instruction in 

both ofher arguments. 

2 

No. 31847-8-111 

State v. Melnik 

The jury convicted Mr. Melnik as charged. Based on an offender score of 10, the 

court imposed an exceptional sentence consisting of concurrent 100-month sentences. 

Mr. Melnik then timely appealed to this court. 

ANALYSIS 

Mr. Melnik contends that the found property instruction improperly shifted the 

burden ofproof in this case and that the evidence does not support the jury's 

determination that he knew the property was stolen. He also filed a pro se statement of 

additional grounds (SAG). We address those contentions in the noted order. 

Jury Instruction 

Mr. Melnik contends that the found property instruction put the burden on him to 

establish a right to the property and therefore shifted the burden from the State to prove 

he knew the property was stolen. We disagree. 

"Jury instructions, taken in their entirety, must inform the jury that the State bears 

the burden ofproving every essential element of a criminal offense beyond a reasonable 

doubt." State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). An instruction that 

relieved the State of its burden would constitute reversible error. Id. This type of 

challenge is reviewed de novo "in the context ofthe instructions as a whole." Id. 

As instructed in this case, the jury was required to determine whether the State had 

proved beyond a reasonable doubt that Mr. Melnik "knowingly trafficked in stolen 

3 

No. 3 I 847-8-III 

State v. Melnik 

property." Clerks' Papers (CP) at 46,47 (Instructions 6, 7). In tum, "knowingly" was 

defined as being aware of a fact or circumstance. CP at 48 (Instruction 8). 

The instruction at issue was number 14. It provided: 

(I) Any person who finds property that is not unlawful to possess, the owner of 

which is unknown, and who wishes to claim the found property, shall: 

(a) Within seven days ofthe finding acquire a signed statement setting forth an 

appraisal ofthe current market value of the property prepared by a qualified 

person engaged in buying or selling like items or by a district court judge, unless 

the found property is cash; and 

(b) Within seven days report the find of property and surrender, ifrequested, the 

property and a copy ofthe evidence ofthe value ofthe property to the chieflaw 

enforcement officer, or his or her designated representative, ofthe governmental 

entity where the property was found, and serve written notice upon the officer of 

the finder's intent to claim the property if the owner does not make out his or her 

right to it under the appropriate RCW. 

(2) Within thirty days ofthe report the governmental entity shall cause 

notice ofthe finding to be published at least once a week for two successive 

weeks in a newspaper of general circulation in the county where the 

property was found, unless the appraised value of the property is less than 

the cost of publishing notice. Ifthe value is less than the cost ofpublishing 

notice, the governmental entity may cause notice to be posted or published 

in other media or formats that do not incur expense to the governmental 

entity. 

CP at 54. 

Viewed "in the context ofthe instructions as a whole," this instruction did not 

impermissibly shift the burden ofproof in this case. The elements instructions each told 

the jury that the State was required to prove that Mr. Melnik knowingly trafficked in 

stolen property. Nothing in instruction 14 changed that burden. It described the process 

for a person to file a claim for found property, but the instruction did not indicate that Mr. 

4 

No. 31847-8-III 

State v. Melnik 

Melnik or anyone else was required to invoke the process simply because they found 

property. It likewise did not change the definition of knowledge. 

The State's burden remained as described in instructions 6 and 7. While the 

relevancy of instruction 14 can be questioned, it did not impermissibly shift the burden of 

proof. This contention is without merit. 

Sufficiency o/the Evidence 

Mr. Melnik also argues that the evidence did not support the jury's determination 

that he knew the property was stolen. Properly viewed, the evidence allowed the jury to 

make that determination. 

Well settled standards govern appellate challenges to the sufficiency ofthe 

evidence to support a conviction. We review such challenges to see ifthere was evidence 

from which the trier offact could find each element of the offense proven beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 

560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). The reviewing 

court will consider the evidence in a light most favorable to the prosecution. Id. 

Reviewing courts also must defer to the trier of fact "on issues of conflicting testimony, 

credibility ofwitnesses, and the persuasiveness ofthe evidence." State v. Thomas, 150 

Wn.2d 821, 874-75, 83 P.3d 970 (2004). "Credibility determinations are for the trier of 

fact and are not subject to review." Id. at 874. 

5 

No. 31847-8-111 

State v. Melnik 

Mr. Melnik argues that the only evidence of knowledge is his own statement that 

he found the property. We disagree. Not only did the jury not have to credit that story, 

the evidence ofMr. Melnik's actions allowed an entirely different view of the facts. It 

has long been the law ofthis state that possession of recently stolen property, coupled 

with some slight corroborating evidence, is sufficient to establish knowledge. E.g., State 

v. Couet, 71 Wn.2d 773, 775,430 P.2d 974 (1967); State v. Portee, 25 Wn.2d 246, 253­

54, 170 P.2d 326 (1946); State v. Salzman, 186 Wash. 44, 47, 56 P.2d 1005 (1936); State 

v. Rockett, 6 Wn. App. 399, 402-03, 493 P.2d 321 (1972). 

The evidence showed that Mr. Melnik, whose residence contained two perfume 

bottles similar to those stolen from the victim, was in possession of the stolen jewelry 

within 24 hours of its taking from Ms. Glassick. That evidence of possession ofrecently 

stolen property was corroborated by his unlikely story, repeated efforts to rapidly sell the 

jewelry for discounted rates, and an inconsistent statement to the Money Tree employee 

that he was trying to settle a bet over whether the diamond was real or not. These were 

not the actions of an actual or innocent owner, but could easily be construed by the jury 

as the actions of a man with guilty knowledge that he possessed stolen property that 

needed to be disposed of in a hUrry. 

The evidence was sufficient to support the jury's determination that Mr. Melnik, 

whether or not he stole the property himself, knew it was stolen when he trafficked in the 

stolen property. 

6 

No. 31847-8-III 

State v. Melnik 

Statement ofAdditional Grounds (SAG) 

In his SAG, Mr. Melnik argues that his exceptional sentence was improper, the 

prosecutor committed misconduct, and his counsel performed ineffectively. We again 

disagree with his arguments. 

Mr. Melnik asserts that the exceptional sentence was improperly imposed in the 

absence of a jury finding of the aggravating factor. He is incorrect. The United States 

Supreme Court allows judges to decide questions of law that affect sentencing ranges. 

See generally State v. Mutch, 171 Wn.2d 646, 656-59, 254 P.3d 803 (2011); State v. 

Alvarado, 164 Wn.2d 556,563-69, 192 P.3d 345 (2008). Here, the offender score was 10 

points for each offense. Since the sentencing ranges stop when an offender reaches nine 

points, the extra offense in this case would go unpunished under the standard range. Id. 

Accordingly, the trial judge had authority to impose an exceptional sentence because the 

second count was otherwise a "free" crime without penalty. Id. There was no error. 

Mr. Melnik also argues that the prosecutor committed misconduct in closing 

argument, isolating seven sentences from the prosecutor's closing remarks, none of 

which were challenged at trial. He does not persuasively argue that any error occurred. 

RAP 10.1 O(c). He also fails to show that he was so prejudiced by the claimed errors that 

a timely objection could not have cured it. To prevail on this claim, he needed to do 

both. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). This claim, too, fails. 

7 

No. 31847-8-III 

State v. Melnik 

Finally, Mr. Melnik contends his attorney rendered ineffective assistance by not 

objecting to the prosecutor's closing argument. To prevail on this claim, Mr. Melnik also 

needed to show that his counsel failed to perform to the standards ofthe profession and 

that significant prejudice therefore resulted. Strickland v. Washington, 466 U.S. 668, 

690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As we have already determined that 

the challenged statements were not erroneous, this argument fails to meet the first prong 

ofthe Strickland test. Since he had to satisfy both prongs of Strickland, this argument, 

too, is unavailing. Id. at 692. 

The issues presented by the SAG are without merit. Accordingly, the convictions 

are affirmed. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 


WE CONCUR: 


Fe g,J. 

8