State Of Washington, V. Artem Valentinovich Plotnikov

• Court: Court of Appeals of Washington
• Decided: March 25, 2025
• Docket: 59063-8
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

March 25, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 59063-8-II

Respondent,

v.

ARTEM VALENTINOVICH PLOTNIKOV, UNPUBLISHED OPINION

Appellant.

CRUSER, C.J.—In July 2023, a man entered the Lucky Seven Food Mart in Lacey, used a

hammer to break a glass display case containing vaporizers (vapes), threatened a store employee,

and proceeded to steal a number of vapes. According to testimony from a Lucky Seven employee

and the 911 call the employee placed to report the crime, after stealing the vapes the perpetrator

walked across the street towards an alleyway next to the O’Reilly Auto Parts. Within minutes,

police officers arrived in the alleyway and found Artem Plotnikov, whose clothing and physical

appearance matched the description of the perpetrator. While Plotnikov was in police custody in

the alleyway, a Lucky Seven customer who witnessed the robbery walked by and confirmed that

Plotnikov was the man who robbed the Lucky Seven. Upon searching Plotnikov’s person, police

found at least four vapes. A few hours after police arrested Plotnikov, an O’Reilly employee found

a hammer and tote bag in a parking spot close to where the officers first encountered Plotnikov. A

jury found Plotnikov guilty of robbery in the first degree while armed with a deadly weapon. No. 59063-8-II

Plotnikov appeals, arguing that the State failed to present sufficient evidence that he was

the perpetrator of the robbery. He also argues that he received ineffective assistance of counsel

because his counsel did not request a missing evidence instruction regarding security footage from

the Lucky Seven, which was deleted before police attempted to obtain it. We affirm and hold first,

that the evidence presented at trial was sufficient for a jury to find Plotnikov guilty; and second,

that Plotnikov fails to demonstrate that he received ineffective assistance of counsel, as he was not

entitled to the missing evidence instruction.

FACTS

In July 2023, Plotnikov was charged with robbery in the first degree while armed with a

deadly weapon, following events that occurred on July 22, 2023. After a 6-day trial, a jury found

Plotnikov guilty as charged. The court sentenced Plotnikov to serve a total of 106 months of

confinement—82 months for the robbery combined with a 24-month enhancement for the use of

a deadly weapon. Additionally, the court sentenced Plotnikov to 18 months of community custody.

I. EVIDENCE PRESENTED AT TRIAL

Relevant to establishing the identity of the perpetrator, the jury heard testimony from two

eyewitnesses (a Lucky Seven employee and a Lucky Seven customer), as well as multiple law

enforcement officers involved in responding to the robbery and the investigation that followed.

The jury also heard a recording of the 911 call from the store employee reporting the robbery, and

the jury viewed footage from a patrol vehicle dashcam that shows police locating Plotnikov in the

alleyway shortly after the robbery. The jury also viewed photographs of physical evidence

recovered by the police. The security footage from the Lucky Seven automatically expired before

police sought to recover it.

2 No. 59063-8-II

A. Testimony of Lucky Seven Employees & the 911 Call

Derek Graves, a Lucky Seven employee who was working at the time of the robbery and

witnessed the event, testified at trial. Graves testified that on the day in question, a man entered

the store, pulled down a glass case using a hammer, shattered the case, and proceeded to rummage

through the glass and steal a number of vapes. The man waved the hammer in Graves’s direction

“in threatening motions,” while Graves stood roughly six to eight feet away from him. 3 Verbatim

Rep. of Proc. (VRP) at 357. When the robbery occurred, Graves was assisting a customer named

Lorenzo Lopez. When asked at trial if he would be able to recognize the perpetrator if he saw him

again, Graves replied, “I wouldn’t say so unless I saw a picture of the day of him, then I could

because then I – my description of his clothing, like, matched up to when I saw him.” 2 VRP at

318.

The jury also heard the audio recording of the 911 call Graves made to report the robbery.

In the recording, Graves explained to the operator that a man entered the store and using a hammer,

pulled down and broke a glass case containing vapes, and swung the hammer in Graves’s direction.

While Graves was on the phone with the operator, he could still see the perpetrator, who had left

the store and was casually walking nearby. Graves described the perpetrator’s appearance to the

operator, stating that he was a white man, who “looked about maybe 35 or so,” and was wearing

glasses, a black hoodie, black sweatpants, white shoes, and carried a black bag and a red bag. Ex.

1, at 1 min., 4 sec. While talking to the operator and watching the perpetrator walk away, Graves

explained that the man walked across the street, near the O’Reilly Auto Parts, and then “into the

alleyway of O’Reilly’s.” 3 VRP at 371. At that point, Graves lost sight of the man but the police

had “pulled up over there,” near the alleyway. Id.

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Chong Namkung, another Lucky Seven employee who was working at the time of the

crime, also testified briefly at trial. Namkung was in the restroom when the robber entered the

store and broke the glass case. When she came out of the restroom, she saw Graves tell the man to

leave and witnessed the man steal a number of vapes and leave. She did not offer any testimony

regarding the appearance or identity of the robber.

B. Testimony of Police Officers & Dashcam Footage

The jury also heard testimony from Officer Keith Mercer, who responded to the 911 call.

Mercer testified that within a few minutes of being dispatched, the officers spotted an individual

near the O’Reilly Auto Parts who matched the description of the perpetrator. He stated, “I was

advised that I was looking for a white male. . . . someone in a black hoodie, black pants, carrying

some type of red colored backpack.” Id. at 382. Mercer explained that as he approached Plotnikov

in the alleyway, “all of that fit,” because Plotnikov had on a dark colored hoodie, dark pants, and

the red backpack. Id. When asked if he could identify the individual he had contact with, Mercer

identified Plotnikov, sitting at the defendant’s table in the courtroom. Mercer testified that when

he interacted with Plotnikov, he had what appeared to be a vape on him.

The jury also viewed the footage from Officer Mercer’s dashcam, which shows the patrol

car approaching Plotnikov in the alleyway. The footage shows the car approaching a man who is

smoking, wearing a black hoodie, glasses, black pants, gloves, and a red messenger style sling bag.

Officer Andrea Moore also testified at trial. Moore testified that after detaining Plotnikov,

the officers searched the area for the hammer but the search was unsuccessful. However, roughly

two hours after Officer Moore initially responded to the scene, she returned to the alleyway near

the O’Reilly Auto Parts after receiving a call from a store employee. Moore explained that “[i]n

4 No. 59063-8-II

the same alleyway that we believed the suspect to have traveled down, there was now an empty

parking spot and a black tote, a smaller, thin black tote, was laying on the ground,” and inside the

tote, the officers found a hammer. Id. at 459. Moore also testified that when the officers searched

Plotnikov, they found that he had a bag of vapes on his person. One of the exhibits published for

the jury was a photograph of the black tote bag and the hammer found in the alleyway, as well as

the small bag of vapes found on Plotnikov’s person.

C. Testimony of Lorenzo Lopez

The jury also heard testimony from Lorenzo Lopez, the customer who Graves was assisting

at the time of the robbery. After leaving the Lucky Seven, Lopez went to the nearby Rite Aid. On

his way to Rite Aid, Lopez walked by the police and Plotnikov, who was sitting on the ground in

handcuffs. When asked what he said to the police, Lopez testified “first, I raised my finger. I said,

‘Good job.’ ” 4 VRP at 560-61. “I told [the police] that that was the individual that had broke the

case.” Id. at 561. Lopez testified that this interaction occurred approximately eight minutes after

the robbery.

II. ALLEGED “MISSING EVIDENCE”

On appeal, Plotnikov takes issue with the fact that defense counsel did not request a missing

evidence instruction for the surveillance footage from Lucky Seven. During the investigation,

Graves informed the police officers of the existence of surveillance footage at the Lucky Seven.

Graves told the officers how to obtain the footage but because he did not have access to it, he did

not show them the footage himself. According to Officer Moore, due to an oversight and lack of

communication, the surveillance footage was never picked up by the police. Moore testified that

the prosecutor asked her to attempt to retrieve the video when it was determined that the case

5 No. 59063-8-II

would be proceeding to trial. By that time, roughly two months after the robbery, the security

surveillance footage was gone, as it automatically deletes after a couple of weeks.

At trial, an evidence technician with the Lacey Police Department testified that the five

vapes that were found on Plotnikov’s person—and photographed in exhibit 26—were marked for

destruction. The vapes were destroyed the month before trial.

ANALYSIS

Plotnikov raises two assignments of error in this appeal. First, he contends that the evidence

was insufficient for the jury to find that he was the perpetrator of the robbery. Second, he argues

that he was deprived of the effective assistance of counsel because his attorney did not request a

missing evidence instruction related to the security footage from the Lucky Seven Food Mart. We

reject both contentions.

I. SUFFICIENT EVIDENCE

Plotnikov argues that the State failed to present sufficient evidence of the identity of the

person who robbed the Lucky Seven Food Mart. We disagree.

The test for determining the sufficiency of evidence is whether any rational trier of fact

could find the elements of the charged crime beyond a reasonable doubt after viewing the evidence

in a light most favorable to the State. State v. Gouley, 19 Wn. App. 2d 185, 194, 494 P.3d 458

(2021). A challenge to the sufficiency of the evidence admits the truth of the State’s evidence and

all reasonable inferences arising from that evidence. State v. Homan, 181 Wn.2d 102, 106, 330

P.3d 182 (2014). We resolve all reasonable inferences in favor of the State and interpret inferences

most strongly against the defendant. Gouley, 19 Wn. App. 2d at 194. Circumstantial and direct

evidence are equally reliable. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017).

6 No. 59063-8-II

Appellate courts defer to the trier of fact on issues of witness credibility, persuasiveness of the

evidence, and conflicting testimony. State v. Truong, 168 Wn. App. 529, 534, 277 P.3d 74 (2012).

Plotnikov argues that the evidence proving his identity was insufficient because the State

did not ask Graves, Namkung, or Lopez to identify Plotnikov in the courtroom at trial; because the

State did not introduce the body cam footage from the officers who responded to the robbery call;

because the on-scene identification by Lopez was suggestive; because the State did not introduce

surveillance footage from the store; and because Graves described the robber to 911 as, among

other things, being in possession of a black bag and a hammer but the black bag and hammer were

not found on Plotnikov’s person when he was apprehended.

Plotnikov points us to our unpublished decision in State v. Green,1 in which we rejected a

challenge to the sufficiency of the evidence. In Green, the State presented evidence that Green

matched the physical description of the perpetrator provided by witnesses; officers found Green in

a vehicle of the same make, model and color that the robber drove away in; officers found a gun

in the car with Green that matched the description of the gun used in the robbery; Green wore the

same shoes as the perpetrator; and the jury viewed a surveillance video of the robbery and had the

opportunity to compare Green to the man in the video. State v. Green, No. 56841-1-II, slip op. at

10-11 (Wash. Ct. App. Nov. 7, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2056841-1-II%20Unpublished%20Opinion.pdf.

Plotnikov opines that the evidence in Green was more compelling than the evidence here,

and thus the evidence in this case is insufficient. Plotnikov’s argument is unpersuasive. The

1 No. 56841-1-II, slip op. (Wash Ct. App. Nov. 7, 2023) (unpublished) https://www.courts.wa.gov/opinions/pdf/D2%2056841-1-II%20Unpublished%20Opinion.pdf. See GR 14.1.

7 No. 59063-8-II

evidence presented here was more than sufficient to sustain the jury’s verdict. Graves described

being six to eight feet away from the robber when the robbery occurred, and that the robber broke

a glass case containing vapes and swung the hammer in Graves’s direction. Graves described the

robber as wearing a black hoodie, black sweatpants, glasses, white shoes, and carrying a black bag

as well as a red bag on his back. Graves further described the perpetrator’s appearance as a white

man, who “looked about maybe 35 or so.” Ex. 1, at 1 min., 4 sec. Graves also described watching

the perpetrator walk across the street near the O’Reilly Auto Parts, and then “into the alleyway of

O’Reilly’s.” 3 VRP at 371. The police found Plotnikov within a few minutes of being dispatched

near the O’Reilly Auto Parts store, and he matched the description of the perpetrator. Officer

Mercer testified, “I was advised that I was looking for a white male. . . . someone in a black hoodie,

black pants, carrying some type of red colored backpack.” Id. at 382. When Plotnikov was

apprehended, he was wearing a black hoodie, black sweatpants, glasses, and carried a red bag on

his back, just as Graves described.

The jury also viewed footage from the patrol vehicle dashcam, which shows that Plotnikov

matched the description that Graves gave of the robber to the 911 operator. Furthermore, officers

found Plotnikov in the exact area where Graves said the robber was heading within minutes of the

crime. The jury also heard from Lopez, who saw the police detain Plotnikov minutes after the

robbery, and identified Plotnikov as the perpetrator. Police found vapes on Plotnikov’s person and

discovered the hammer in the same alleyway where they found Plotnikov shortly after the robbery.

Even though the physical vapes found on Plotnikov’s person were destroyed prior to trial, the jury

saw a photo of the vapes the officers recovered while searching Plotnikov, as well as the hammer

found in the same alleyway where Plotnikov was found.

8 No. 59063-8-II

Viewed in the light most favorable to the State, the evidence presented in this case easily

surpasses the standard for sufficiency of the evidence. We affirm.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Plotnikov next argues that he received ineffective assistance of counsel because his counsel

failed to request a missing evidence instruction regarding the surveillance footage from the Lucky

Seven.2

The State argues that Plotnikov was not entitled to a missing evidence instruction, and

therefore defense counsel was not deficient for declining to propose one. Moreover, the State

contends, Plotnikov cannot demonstrate prejudice.

The United States Constitution and our state constitution guarantee a right to effective

counsel at all stages of a criminal case. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. “Courts

engage in a strong presumption counsel’s representation was effective.” State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance of counsel, a defendant

must show that counsel’s performance was (1) deficient, and (2) resulted in prejudice. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Performance is

deficient if it falls below an objective standard of reasonableness based on all of the circumstances.

Id. at 687-88. Prejudice ensues where there is a reasonable probability that the result of the

2 In introducing his argument regarding ineffective assistance of counsel, Plotnikov briefly states that he was entitled to “a ‘missing evidence’ instruction for both the surveillance footage of the robbery and the vapes found in Mr. Plotnikov’s possession as a result of a search incident to his arrest.” Br. of Appellant at 27. However, he focuses all of his argument on the security footage, not the vapes. We will not review an issue raised in passing or unsupported by authority or persuasive argument. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). Because Plotnikov does not meaningfully argue that he received ineffective assistance of counsel as a result of counsel’s decision not to seek a missing evidence instruction regarding the vapes found on Plotnikov’s person, we decline to reach this issue.

9 No. 59063-8-II

proceeding would have differed had counsel not performed deficiently. In re Pers. Restraint of

Yates, 177 Wn.2d 1, 36, 296 P.3d 872 (2013). If a defendant fails to show either prong of the

ineffective assistance of counsel test, this court’s inquiry need go no further. In re Pers. Restraint

of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).

In addition to these showings, when a defendant’s claim of ineffective assistance of counsel

rests on defense counsel’s decision not to request a particular jury instruction, the defendant must

show that he was entitled to the instruction. State v. Classen, 4 Wn. App. 2d 520, 539-40, 422 P.3d

489 (2018). If that showing is made, the defendant must then demonstrate that the failure to give

the instruction resulted in prejudice. Id.

“The missing evidence instruction derives from the missing witness doctrine.” State v.

Derri, 17 Wn. App. 2d 376, 404, 486 P.3d 901, aff'd but criticized, 199 Wn.2d 658, 511 P.3d 1267

(2022). The instruction provides for a permissive inference that when evidence is within the control

of a party “ ‘whose interest it would naturally be to produce it’ ” and the party fails to produce it,

the jury may infer that the evidence would be unfavorable to the party. Id. (internal quotation marks

omitted) (quoting State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991)). Under the closely

related missing witness doctrine, a party is not entitled to a missing witness instruction where the

witness is equally available to both parties. Blair, 117 Wn.2d at 490. Stated another way, the

evidence must be uniquely available to the State. Derri, 17 Wn. App. 2d 407. A missing evidence

instruction “is not warranted when the evidence is unimportant or merely cumulative, or when its

absence is satisfactorily explained.” Id. at 404.

In Derri, Division One affirmed the trial court’s decision not to give a missing evidence

instruction regarding security camera footage from a bank because, as in this case, the footage was

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in the possession and control of a non-State actor and was deleted by the bank according to their

standard video-retention policy. Id. at 407.

In this case, likewise, the video surveillance footage was not uniquely available to the State.

Indeed, Plotnikov does not explain why his own trial counsel could not have obtained the

surveillance footage had counsel believed it would aid in Plotnikov’s defense. Moreover, the State

adequately explained the reason for the absence of the footage at trial. Accordingly, Plotnikov was

not entitled to a missing evidence instruction and counsel did not perform deficiently by not

proposing one.

CONCLUSION

We conclude that sufficient evidence supports the jury’s verdict. We further conclude that

Plotnikov was not denied the effective assistance of counsel. 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.

CRUSER, C.J. We concur:

LEE, J.

PRICE, J.