Opinion
42374-0-II
02-21-2013
STATE OF WASHINGTON, Respondent, v. ROSTISLAV VIKTOR IZHEVSKIY, Appellant.
UNPUBLISHED OPINION
WORSWICK, C.J.
Rostislav V. Izhevskiy appeals his conviction of first degree criminal impersonation, contending that the evidence was insufficient to prove the offense and that the trial court improperly required him to pay his legal financial obligations without first determining if he had the ability to pay them. We affirm.
FACTS
On June 17, 2010, Kelso Police Officer Sarah Hoffman stopped at Holt's Quick Check in Kelso to speak to the driver of a car reported for a traffic violation. The car was unoccupied but when a young man entered the passenger side, she approached the vehicle. The young man pointed out the driver and Officer Hoffman contacted him. The driver explained that he was driving his boss's son from Seattle to the Vancouver area.
When she asked him for identification, he took out his wallet, looked at it, put it back in his pocket, and said that he had left his identification at home. She asked him his name and he responded, "Vitaliy Izhevskiy." Report of Proceedings at 56. She asked him how to spell it and he confirmed that she had written it down correctly. He then gave his date of birth as November 26, 1983.
Vitaliy Izhevskiy is Rostislav Izhevskiy's brother. The date of birth he gave Officer Hoffman is also his brother's. Though both parties used this fact in their closing arguments, no witness testified to it at trial. It was only presented during the CrR 3.5 hearing.
When Kelso Police Officer Beebe McFall, who had arrived to back up Officer Hoffman, heard that dispatch had no records matching the driver's information, she told Officer Hoffman, based on information she had gotten from the passenger, that the driver had given incorrect information. Officer Hoffman then placed the driver under arrest for obstructing a public servant, searched the driver's wallet incident to that arrest, and found a Washington State identification card bearing the driver's photograph, listing the name "Rostislav Izhevskiy" and an August 1, 1985 birth date. RP 59-60. A records check showed that Izhevskiy had a suspended driver's license and an ignition interlock device requirement.
The State charged Izhevskiy by amended information with first degree criminal impersonation, operating a vehicle without an ignition interlock, and third degree driving with a suspended license. Before trial, Izhevskiy pleaded guilty to the interlock device charge and the State dropped the driving while suspended charge.
At the criminal impersonation trial, Officers Hoffman and McFall testified as set out above. After the State rested, Izhevskiy moved to dismiss, arguing that criminal impersonation requires proof that one assumes a false identity and uses that false identity to defraud another or for some other unlawful purpose. And he argued that the State proved that he assumed a false identity but not that he used it for a criminal purpose. The trial court denied the motion, ruling that Izhevskiy assumed a false name when he told the officer his name was Vitaliy Izhevskiy and that he did two acts under that assumed name; he spelled the name for Officer Hoffman and he confirmed that the spelling was correct.
The jury found Izhevskiy guilty as charged. Izhevskiy then filed a motion for arrest of judgment and dismissal. The trial court denied the motion and proceeded to sentencing whereat it imposed 5 days of confinement for the criminal impersonation conviction and 90 days with 88 days suspended for the ignition interlock conviction. The trial court also imposed $1,973.69 in legal financial obligations (LFOs). Finding 2.5 on the judgment and sentence provides:
Ability to Pay Legal Financial Obligations. The court has considered the total amount owing, the defendant's past, present, and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court finds that the defendant has the ability to pay or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753.
Clerk's Papers (CP) at 87. The trial court required Izhevskiy to pay $50 per month without specifying a commencement date, though the judgment and sentence required Izhevskiy to have fulfilled his LFOs within 24 months. Izhevskiy appeals.
ANALYSIS
I. Sufficiency of the Evidence
Izhevskiy first argues that the State failed to present sufficient evidence to convict him of first degree criminal impersonation. He argues that the State only proved that he gave a false name not that he assumed that name and committed an unlawful act.
As support for his claim that he only assumed a false persona, though did not act under it, Izhevskiy notes, without challenging the sufficiency of the information on appeal, that in describing his criminal act, the information states that he "assume[d] a false identity, to-wit: . . . claimed to be Vitaliy Izhevskiy, for any unlawful purpose, to-wit: to avoid other criminal charges." CP at 22. The State concedes that this court could find the information insufficient but applying the liberal standard set out in State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d (1991), we find that it adequately apprised Izhevskiy of all elements of the offense.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). We defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
The trial court instructed the jury on four elements of first degree criminal impersonation that it had to find beyond a reasonable doubt in order to find Izhevskiy guilty:
(1)That on June 17, 2010, the defendant assumed a false identity;
(2)That the defendant did an act in that assumed identity;
(3)That the act was for an unlawful purpose; and
(4)That the acts occurred in the State of Washington.CP at 55 (Jury Instruction 7); RCW 9A.60.040. At issue in this appeal is the second of these elements. Izhevskiy asserts that he did not commit any act in an assumed identity. He claims that he did nothing more than give Officer Hoffman a false name.
Izhevskiy relies on State v. Williamson, in which this court discussed a former version of the obstructing a police officer statute that made it unlawful if a person "willfully hinders, delays, or obstructs any law enforcement officer." 84 Wn. App. 37, 44, 924 P.2d 960 (1996) (quoting former RCW 9A.76.020 (Laws of 1994, ch. 196, § 1)). Williamson told police officers his name was Christopher Columbus. 84 Wn. App. at 40. Because there was no evidence that Williamson did any act, other than declaring his name as Christopher Columbus, this court held that the State had failed to prove the offense because the statute required both speech and conduct. 84 Wn. App. at 45 . Izhevskiy argues by analogy that his actions were speech, not conduct, and thus the State failed in its burden of proof.
The State responds that over a period of about five minutes, Izhevskiy assumed the false name and acted within that pretense. First, he spelled the false name. Second, he confirmed the spelling of the false name. And third, he gave a false birth date. And he knowingly did these acts to prevent the officer from discovering his true identity and charging him with driving with a suspended license and driving without an ignition interlock device.
Taking the evidence in a light most favorable to the State, as we must, we find it sufficient for a jury to conclude that he had indeed acted under a false identity. While the Williamson case is instructive, it is also distinguishable. Williamson made it difficult for the police to identify him, requiring the police to identify him through his fingerprints, but he did not pretend to be Christopher Columbus, spelling his name, confirming the spelling, and giving a false birth date. 84 Wn. App. at 40. Here, Izhevskiy hoped the police would believe that he was his brother and not discover his traffic infractions. This was sufficient evidence for a jury to decide whether he had acted in his false persona. See, e.g., Alvarado v. People, 132 P.3d 1205, 1206–07 (Colo. 2006) (upholding criminal impersonation conviction under nearly identical statute as Washington's where the defendant used another's identity to unlawfully avoid arrest during a traffic stop by writing a false name and date of birth and providing more specific information when questioned by the police officer). Izhevskiy's claim thus fails.
II. Legal Financial Obligations
Izhevskiy next asserts that the trial court erred in entering finding 2.5 on his judgment and sentence, indicating that he had the present or future ability to pay his financial obligations. Relying on State v. Bertrand, 165 Wn. App. 393, 267 P.3d 511 (2011), review denied, 175 Wn.2d 1014 (2012), he asks this court to strike finding 2.5 from his judgment and sentence because the trial court took no testimony or evidence about his ability or future ability to pay these obligations.
The State responds that the trial court did consider Izhevskiy's financial resources when it made its pretrial bail decision. The bail study states that Izhevskiy earns $1,800 per month and has expenses of $1,000 per month. We agree. Finding 2.5 is not clearly erroneous as the record shows that Izhevskiy had the present or future ability to pay his legal financial obligations when the sentencing court imposed his legal financial obligations. See State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991) (presentence report indicating that the defendant had future ability to pay legal financial obligations was sufficient under a clearly erroneous standard of review).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: Quinn-Brintnall, J. Van Deren, J.