Opinion
A-13651
06-22-2022
VICTOR NIKOLAYEVICH REVYTSKIY, Appellant, v. STATE OF ALASKA, Appellee.
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Prineville, Oregon, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Trial Court No. 3PA-17-01047 CR
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Prineville, Oregon, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Victor Nikolayevich Revytskiy was convicted, following a jury trial, of one count of third-degree weapons misconduct (for being a felon in possession of a concealable firearm) after police discovered a gun in the passenger door of his girlfriend's car. The trial court imposed a sentence of 3 years to serve. On appeal, Revytskiy challenges both his conviction and his sentence.
AS 11.61.200(a)(1).
First, Revytskiy challenges the sufficiency of the evidence presented at trial to support his conviction for third-degree weapons misconduct. Specifically, Revytskiy argues that the State failed to prove that he had actual or constructive possession of the gun.
See AS 11.81.900(b)(50); see also Dirks v. State, 386 P.3d 1269, 1271-72 (Alaska App. 2017) (holding that "possession" of an item requires something more than mere physical access to the property or knowledge of its presence).
When we evaluate a claim of insufficient evidence, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to upholding the verdict. We then consider whether a reasonable juror could find the defendant guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Viewed in the light most favorable to the jury's verdict, the evidence showed the following: A trooper testified that he was on patrol when he observed a person slumped over the wheel of a car parked at a gas station. The trooper saw drug paraphernalia in the vehicle as he approached. He questioned the female driver, who told him that she was waiting for her boyfriend.
The boyfriend then exited the station store and the trooper identified him as Revytskiy. According to the trooper, both Revytskiy and his girlfriend acknowledged that Revytskiy had been seated in the passenger seat of the car prior to entering the store. With Revytskiy's permission, the trooper searched Revytskiy's backpack and found a pistol magazine loaded with ammunition. The trooper subsequently found a gun in the pocket of the front passenger door. The pistol magazine found in Revytskiy's backpack was identical to the magazine found in the gun. Upon discovery of the pistol, Revytskiy's girlfriend told the trooper that the gun was hers and that Revytskiy had given it to her.
At trial, Revytskiy's girlfriend testified that she had driven to the station alone. Based on this claim, Revytskiy's attorney argued that Revytskiy had never been in the car. Revytskiy's attorney also impeached the trooper's trial testimony by presenting evidence that the trooper's police report differed in some respects from what the trooper said at trial.
On appeal, Revytskiy argues that "it is not possible to verify whose account of the incident is credible." He claims that the trooper's uncorroborated testimony was insufficient to prove that he was ever in the car or in possession of the gun.
But when this Court evaluates the sufficiency of the evidence to support a conviction, we do not weigh the credibility of witnesses, as witness credibility is exclusively a question for the jury. Instead, we view the evidence in the light most favorable to the jury's verdict. Viewed in this manner, a reasonable juror could conclude that Revytskiy possessed the gun found in the car. We therefore reject Revytskiy's argument that the evidence was insufficient to support his conviction.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 1989).
Second, Revytskiy challenges his sentence as excessive. As a third felony offender, Revytskiy was subject to a sentencing range of 2 to 5 years. The court imposed a sentence of 3 years to serve. On appeal, Revytskiy argues that the court failed to consider his potential for rehabilitation and erroneously concluded that his offense was "very serious."
Former AS 12.55.125(e)(3) (2017).
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" test reflects that reasonable judges, confronted with identical facts, may differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence unless it falls outside "a permissible range of reasonable sentences."
Smith v. State, 349 P.3d 1087, 1091 (Alaska App. 2015); McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (quoting McClain, 519 P.2d at 813).
At sentencing, the court focused on Revytskiy's issues with substance abuse and his disruptive behavior during court proceedings. Revytskiy repeatedly showed up to court proceedings while under the influence of controlled substances, once telling the court that he was "high as fuck right now." Revytskiy also arrived late for court proceedings; refused to appear in court, claiming that he was ill (a claim that was repudiated by medical personnel at the Mat-Supretrial facility); and routinely interrupted and refused to cooperate with the trial judge. The court also emphasized Revytskiy's long criminal history and his poor performance on supervised release and in substance abuse programs. Based on these findings, the court determined that Revytskiy would not "get any benefit from the type of structure that we have for probation and parole," and emphasized the sentencing goal of deterrence over the goal of rehabilitation. The court further noted that while Revytskiy's conduct was neither the most nor the least serious, it was still "a very serious situation" given Revytskiy's "history of repeated criminality."
We have independently reviewed the record. Given Revytskiy's extensive criminal history and his poor performance on supervised release in the past, we conclude that neither the court's prioritization of deterrence over rehabilitation, nor the ultimate sentence, was clearly mistaken.
See Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998); see also Smith v. State, 691 P.2d 293, 295 (Alaska App. 1984) (noting that it is the sentencing court's "prerogative to decide the weight and order of priority to be given to each goal, based on the circumstances of the individual case").
Accordingly, the judgment of the superior court is AFFIRMED.