### FILED FEB 24, 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31847-8-111 Respondent, ) ) 

### v. ) ) ANATOLIYMELNIK, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J.

- Anatoliy Melnik appeals his convictions ontwo counts offirst degree trafficking in stolenproperty, alleging that the evidence was insufficient and that the court erred in giving an instruction describing theprocess for claiming lostproperty. We affinn. FACTS Tiffany Glassick's home was burglarized while she was at church onJanuary 13, 2013. A television, numerous smalljewelry items including an engagementring 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 goldjewelry items including a ring with a large diamond. When told that the store would onlypurchase gold, butnotprecious stones, Mr. Melnikremoved the diamond and sold the band along with the other goldjewelryto Money Tree.

### No. 3 I847-8-III State v. Melnik
Mr. Melnik was arrested after he attempted to sell a large diamond to apawn shop two days after thejewelry 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 soldto Money Tree and the diamond sold to thepawn shop as items stolen from her. Mr. Melnik did not testify at trial, butthe prosecutor called a detective to testifyto the contents ofa recordedjail telephone conversation between Mr. Melnik and a woman named Brooke. In that conversation, Mr. Melnick claimed to have found thejewelry near a bridge in a Pasco park. The prosecutorproposed ajury 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 thejury thatMr. Melnik did notknow thejewelry
was stolen andpointed to the detective's testimony concerning thejail telephone recording as the only evidence ofhow thejewelry 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 prosecutorbriefly mentioned the instruction in both ofher arguments.

2No. 31847-8-111 State v. Melnik
Thejuryconvicted Mr. Melnik as charged. Based on an offender score of 10, the court imposed an exceptional sentence consisting ofconcurrent 100-month sentences. Mr. Melnik then timely appealed to this court. ANALYSIS Mr. Melnik contends thatthe found property instruction improperly shifted the burden ofproofin this case and thatthe evidence does not support thejury'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 thatthe found property instruction putthe burden on him to establish a right to the property and therefore shifted the burden from the State toprove he knew the property was stolen. We disagree. "Jury instructions, taken intheir entirety, must inform thejurythat the State bears the burden ofproving every essential element ofa 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 ofits 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, thejury was required to determine whether the State had proved beyond a reasonable doubt that Mr. Melnik "knowingly trafficked in stolen

3No. 3 I847-8-III State v. Melnik property." Clerks' Papers (CP) at 46,47 (Instructions 6, 7). In tum, "knowingly"was defined as being aware ofa fact or circumstance. CP at 48 (Instruction 8). The instruction at issue was number 14. Itprovided: (I) Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claimthe found property, shall: (a) Within seven days ofthe finding acquire a signed statement setting forth an appraisal ofthe currentmarketvalue ofthe propertyprepared by a qualified person engaged in buying or selling like items orby a district courtjudge, unless the found property is cash; and (b) Within seven days reportthe find ofproperty and surrender, ifrequested, the property and a copy ofthe evidence ofthe value ofthe property tothe chieflaw enforcement officer, orhis or her designated representative, ofthe governmental entity where the property was found, and serve written notice upon the officer of the finder's intentto claim theproperty ifthe owner does not make outhis orher rightto it under the appropriate RCW. (2) Within thirty days ofthe report the governmental entity shall cause notice ofthe finding to bepublished at least once a week for two successive weeks in a newspaper ofgeneral circulation in the county where the property was found, unless the appraised value ofthe property is less than the cost ofpublishing notice. Ifthe value is less than the cost ofpublishing notice, the governmental entity may cause notice to beposted orpublished in other media or formats that do not incur expense to the governmental entity. CP at 54. Viewed "inthe context ofthe instructions as a whole," this instruction did not impermissibly shiftthe burden ofproofin this case. The elements instructions eachtold thejurythat the State was required to prove thatMr. Melnik knowingly trafficked in stolen property. Nothing in instruction 14 changedthat burden. It described the process for a person to file a claim for found property, butthe instruction did not indicate thatMr.
4No. 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 ofknowledge. The State's burden remained as described in instructions 6 and 7. While the relevancy ofinstruction 14 can be questioned, it did not impermissibly shiftthe burden of proof. This contention is without merit. Sufficiency o/theEvidence 

### Mr. Melnik also argues thatthe evidence did not support thejury's determination that he knew theproperty was stolen. Properly viewed, the evidence allowed thejuryto 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 ofthe 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 offact "on issues ofconflictingtestimony, 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.

5No. 31847-8-111 State v. Melnik
Mr. Melnik argues that the only evidence ofknowledge is his own statement that he found the property. We disagree. Not only did thejury not have to credit that story, the evidence ofMr. Melnik's actions allowed an entirely different view ofthe facts. It has long beenthe law ofthis state that possession ofrecently 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 ofthe stolenjewelry within 24 hours ofits taking from Ms. Glassick. That evidence ofpossession 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 thathe was trying to settle a bet over whether the diamond was real ornot. These were notthe actions ofan actual or innocent owner, but could easily be construed by thejury
as the actions ofa man with guilty knowledge that he possessed stolen property that needed to be disposed ofin a hUrry. The evidence was sufficient to support thejury's determination thatMr. Melnik, whether or not he stole the property himself, knew it was stolen when he trafficked in the stolen property. 

### 6No. 31847-8-III State v. Melnik
Statement of Additional 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 ofajury finding ofthe aggravating factor. He is incorrect. The United States Supreme Court allowsjudgesto decide questions oflaw that affect sentencing ranges. See generallyState 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 trialjudgehad 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 10.1O(c). He also fails to show that he was so prejudiced by the claimed errors that
a timely objection could not have cured it. Toprevail 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.



### 7No. 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 significantprejudice therefore resulted. Stricklandv. 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 meetthe first prong ofthe Stricklandtest. Since he hadto satisfy bothprongs ofStrickland, this argument, too, is unavailing. 

### Id. at 692. The issues presentedby the SAG are without merit. Accordingly, the convictions
are affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

Fe g,J.



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