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State v. Barbarosh

Court of Appeals of Washington, Division 3

August 29, 2019

STATE OF WASHINGTON, Respondent,
v.
MIKHAIL S. BARBAROSH, Appellant.

          LAWRENCE-BERREY, C.J.

         Mikhail Barbarosh appeals his conviction and sentence for possession of a controlled substance, methamphetamine. He raises two arguments why his conviction should be reversed. We reject those arguments.

         He raises one argument why his sentence should be reversed. We hold that a trial court errs by imposing a sentence not authorized by a jury's express findings as reflected in the jury instructions as a whole. Because the jury instructions as a whole do not establish that the jury expressly found that Barbarosh possessed methamphetamine, we remand for the trial court to impose a misdemeanor sentence.

         FACTS

         Corrections Officer Cynthia Young was assigned to master control at Benton County jail. She monitored and controlled the doors for everyone who came in and out of the jail. Officer Young saw Barbarosh, a laundry trustee inmate, bend down near the kitchen door-a prohibited movement. After Barbarosh bent down near the door, an inmate on the other side, Daniel Kapitula, bent down and then stood up and put something in his shirt pocket. Officer Young notified Corrections Officer Terry Blumenthal of the incident.

         Officer Blumenthal searched inmate Kapitula and found various items, including a small, folded, white piece of paper wrapped in blue painter's tape. The officer took the items to booking and inspected them with Corrections Officer Boris Draskovic. They removed the tape, unfolded the paper, and found a small crystal-like substance. It was then given to Corporal Dallas Murray. Corporal Murray gave the evidence to Deputy Bruce Surplus, and the deputy placed it into the evidence locker.

         Jennifer Allen, a forensic scientist with the Washington State Patrol Crime Laboratory, performed a test on the crystal-like substance. The test concluded the substance contained methamphetamine.

         By amended information, the State charged Barbarosh with one count of unlawful possession of a controlled substance, methamphetamine, with a county jail allegation and enhancement. Barbarosh went to trial. Prior to opening statements, the trial court orally advised the jury:

The defendant is charged by first amended information as follows: Count I: That the said Mikhail S. Barbarosh in the County of Benton, State of Washington, on or about the 4th day of November, 2017, did unlawfully possess a controlled substance, to wit: methamphetamine, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.

Report of Proceedings (RP) (Jan. 8, 2018) at 3-4.

         The State presented its evidence to the jury. Barbarosh chose not to call any witnesses. The court then instructed the jury on the law. Instruction number 10, the to- convict instruction, failed to specify the controlled substance at issue. That instruction read:

To convict the defendant of the crime of possession of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about November 4th, 2017, the defendant possessed a controlled substance; and
(2) That this act occurred in the State of Washington.

Clerk's Papers (CP) at 28; see also RP (Jan. 9, ...


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