State of Washington v. Vladimir Borisov

• Court: Court of Appeals of Washington
• Decided: December 8, 2020
• Docket: 36832-7
• Status: Unpublished

Opinion

FILED DECEMBER 8, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 36832-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) VLADIMIR BORISOV, ) ) Appellant. )

PENNELL, C.J. — Dr. Vladamir Borisov appeals his convictions and sentences for

assault and resisting arrest. We affirm the convictions but remand for resentencing on the

resisting conviction and a correction of sentence on the assault.

FACTS

Dr. Vladimir Borisov called law enforcement to his home regarding a dispute over

his parenting plan. When an officer arrived, Dr. Borisov was on his front porch, holding

a bottle of alcohol. He appeared impaired and drank alcohol in the officer’s presence.

The officer’s interactions with Dr. Borisov led him to call for backup. An officer spoke to

Dr. Borisov’s wife and Dr. Borisov became increasingly angry. Dr. Borisov grabbed one

of the officers by the shoulder and tried to push him. A scuffle ensued. Dr. Borisov was

placed under arrest, but remained actively resistant. No. 36832-7-III State v. Borisov

The State charged Dr. Borisov with two counts of third degree assault and one

count of resisting arrest. The case proceeded to a jury trial.

The court issued a voluntary intoxication jury instruction: “No act committed by

a person while in a state of voluntary intoxication is less criminal by reason of that

condition. However, evidence of intoxication may be considered in determining whether

the defendant acted with intent.” Clerk’s Papers (CP) at 49.

During summation, the State addressed the issue of voluntary intoxication by

pointing out Dr. Borisov’s appearance and conduct before the altercation.

No question that alcohol’s at play. But it’s got to be enough alcohol to destroy the intent to do something. .... [I]t’s the state’s position that [the level of intoxication is] not enough to not form that intent to commit these crimes. That’s just not there. He did several things that night. He’s able to—he is to stand, he is able to talk. Slurring, there’s other signs of belligerence, but just not enough. You don’t have to find that the alcohol—was enough to exacerbate, or to make him angry, or that he’s violent when he’s drunk. That’s not the issue here. It has to be so much that he can’t form an intent to do something. That’s just not here.

Report of Proceedings (May 13, 2019) at 216-17. Defense counsel did not object to these

comments.

The jury convicted Dr. Borisov on one count of third degree assault and resisting

arrest; it acquitted him of one of the assault counts.

2 No. 36832-7-III State v. Borisov

At sentencing, the trial court adopted the State’s recommended sentence of

60 days in jail for his assault conviction, followed by 12 months of community custody.

A community custody condition required Dr. Borisov to undergo a “substance use

disorder evaluation and treatment.” CP at 65. For the resisting conviction, the court

imposed 364 days in jail with 304 suspended. It also ordered Dr. Borisov to read “three

books on Domestic Violence and how it affects children” and to write and file with the

court a five-page report on each. Id. at 67.

Dr. Borisov timely appeals.

ANALYSIS

Prosecutor’s statements during summation

Dr. Borisov argues the prosecutor committed misconduct in summation by

misstating the law of involuntary intoxication. He also argues his attorney provided

ineffective assistance in failing to object to the prosecutor’s statements. We reject both

claims.

A defendant alleging prosecutorial misconduct must show the prosecutor’s actions

were both improper and prejudicial. State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646

(2006). An unpreserved claim of misconduct will not result in appellate relief unless the

prosecutor’s conduct was “so flagrant or ill-intentioned that the prejudice could not have

3 No. 36832-7-III State v. Borisov

been obviated by a curative instruction.” State v. Echevarria, 71 Wn. App. 595, 597,

860 P.2d 420 (1993).

We disagree with Dr. Borisov’s claim that the prosecutor’s comments conveyed

that proof of intent only required proof of ability to form some sort of intent, instead of

the ability to form the intent required of the two crimes at issue. The prosecutor was not

arguing abstractions; he was pointing out circumstantial evidence. The prosecutor

claimed Dr. Borisov’s actions leading up to the assault showed he was capable of forming

the requisite intent for the charged offenses. This line of argument is consistent with how

courts have assessed voluntary intoxication evidence. See, e.g., State v. Webb, 162 Wn.

App. 195, 210, 252 P.3d 424 (2011); State v. Garbyschak, 83 Wn. App. 249, 254-55,

921 P.2d 549 (1996). There was no misconduct.

Because there was no misconduct, defense counsel was not ineffective for

failing to object. In re Pers. Restraint of Yates, 177 Wn.2d 1, 58, 296 P.3d 872 (2013).

Dr. Borisov has therefore failed to establish a basis for undermining his convictions.

Sentencing

The parties agree resentencing is required because the trial court exceeded the

statutory maximum penalty in imposing sentence for Dr. Borisov’s resisting conviction.

Resisting arrest is a simple misdemeanor, punishable by no more than 90 days in jail.

4 No. 36832-7-III State v. Borisov

RCW 9A.76.040(2); RCW 9A.20.021(3). The trial court’s sentence of 364 days with

304 suspended exceeded this maximum term. Given this circumstance, resentencing is

required.

In addition to challenging his term of incarceration, Dr. Borisov claims the court

illegally imposed two sentencing conditions. As part of the community custody conditions

for Dr. Borisov’s assault conviction, the court required a substance use disorder

evaluation and treatment. A condition of Dr. Borisov’s resisting condition was that

he write several book reports. The State concedes both challenges. 1

We accept the State’s concession regarding the community custody condition.

There is no indication Dr. Borisov’s crime was driven by drug use. The substance at

issue was alcohol. Under the Sentencing Reform Act of 1981, chapter 9.94A RCW,

a community custody condition requiring treatment must be crime related. RCW

9.94A.703(3)(c). Given this legal framework, Dr. Borisov’s judgment and sentence must

be amended to specify alcohol treatment instead of substance use disorder treatment.

State v. Munoz-Rivera, 190 Wn. App. 870, 892-93, 361 P.3d 182 (2015).

1 Community custody is authorized under the Sentencing Reform Act of 1981, chapter 9.94A RCW, which applies only to felonies. RCW 9.94A.010. Community custody is inapplicable to Dr. Borisov’s misdemeanor conviction for resisting arrest. See State v. Whitney, 78 Wn. App. 506, 517, 897 P.2d 374 (1995).

5 No. 36832-7-III State v. Borisov

Because we reverse Dr. Borisov’s sentence for resisting arrest, we need not

address his challenge to the book report condition. This issue is not likely to come up on

remand since the State concedes the book report condition was improper.

CONCLUSION

Dr. Borisov’s convictions are affirmed. This matter is remanded for resentencing

on Dr. Borisov’s misdemeanor conviction for resisting arrest. The community custody

condition requiring a substance use disorder evaluation and treatment shall be modified

to require only an alcohol evaluation and recommended treatment.

A majority of the 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.

_________________________________ Pennell, C.J.

WE CONCUR:

______________________________ Korsmo, J.

______________________________ Fearing, J.