STATE v. POPKOV, 50989-6-I (Wash.App. 6-2-2003)

COX, J.

Igor Popkov appeals his conviction of one count of misdemeanor stalking. He contends that a police officer's reference to domestic violence criminal history deprived him of a fair trial. We disagree and affirm.

In April 2001, Irina Velichko reported to police that Popkov was stalking and harassing her. Irina had dated Popkov the year before while she was separated from her husband Boris, but had ended the relationship and returned to her husband. Refusing to accept that the relationship was over, Popkov repeatedly contacted Irina against her wishes and left messages on her car. In May, Popkov began distributing flyers that discussed Boris's and Irina's sexual abilities in crude terms and included a photograph of himself with Irina. He distributed the flyers on cars at four churches attended by members of the Russian immigrant community, including the church where Irina's father was a deacon. He also left flyers at Irina's workplace and home, her parents' home, and at Boris's workplace. Irina saw more than 60 copies of the flyers. Despite a restraining order, Popkov continued sending Irina letters through the summer of 2001. In them, he told Irina he would not allow her to have a life with Boris, that he would find her new phone number, that he would keep fighting for her, that he watched her at home and at work, that he would cause `tragedies' in her relatives' lives, and that her relatives who kept her from him would `choke.' In addition to changing her phone number, Irina changed her church, changed her parking place at work, and stopped going for walks in the evening with her children. The police arrested Popkov in August 2001.

The State charged Popkov with misdemeanor stalking. Before trial, the court granted a defense motion to exclude any reference to Popkov's prior convictions for domestic violence in California or another incident with a different victim in Washington. When the State's first witness, a King County Sheriff's deputy, was asked about locating Popkov, she said that she called California and `got a criminal history on previous domestic violence.' The prosecutor interrupted the deputy just before defense counsel objected. The court sustained the objection and instructed the jury to `disregard any testimony about any alleged prior history.' The defense did not move for any further relief and no other mention was made concerning Popkov's alleged criminal history. Popkov did not testify at trial. He was convicted by the jury. Popkov argues that the deputy's remark denied him a fair trial. We agree that the deputy sheriff's unsolicited reference to prior domestic violence was a serious irregularity. To determine whether reversal is required, we consider `whether the remark when viewed against the backdrop of all the evidence so tainted the entire proceeding that the accused did not have a fair trial.' In evaluating the prejudicial effect of such an irregular occurrence, we examine the occurrence's seriousness, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it, an instruction we presume the jury will follow. Here the remark was not cumulative, but the trial court issued a prompt instruction to disregard it. Popkov relies on State v. Escalona to argue that the remark requires reversal because no limiting instruction could have been effective. In Escalona, this court held that a witness's reference to Escalona's prior conviction for stabbing someone else deprived him of a fair trial and reversed his assault conviction. We reasoned that the trial court's instruction to disregard the statement could not cure its prejudicial effect in such a `close case' in which the victim's testimony was `essentially the State's entire case, contained many inconsistencies,' and '[t]here were no other witnesses to the alleged crime except Escalona himself, whose testimony was not substantially impeached.' To convict Popkov of stalking, the State was required to prove that he (a) intentionally and repeatedly harassed or repeatedly followed Irina; (b) that Irina was placed in fear that Popkov intended to injure her, another person, or her or another's property and her fear was reasonable under the circumstances; and (c) Popkov either: (i) intended to frighten, intimidate, or harass Irina; or (ii) knew or reasonably should have known she would feel afraid, intimidated, or harassed even if he did not intend to place her in fear or intimidate or harass her. In his writings, Popkov described following Irina to her home and to her workplace, essentially admitting the element of repeatedly following her. He threatened that Irina's family members would suffer tragedies, which, because he blamed them for his breakup with Irina, strongly supported her testimony that she reasonably feared he would injure them. He further acknowledged knowing she changed her phone number and was obtaining a restraining order. That he nonetheless continued his threats and said he would not stop until she returned to him supported the third element that he should have reasonably known she would feel harassed and afraid.

The evidence against Popkov provided by his writings was so strong that his counsel had to acknowledge in closing argument that his behavior was reprehensible. Contrary to Popkov's assertion, cross-examination of Irina about the precise dates involved in their relationship did not establish that she was not credible about the central events of the case that took place after the relationship was unquestionably over. Viewed against the backdrop of this overwhelming evidence, the trial irregularity, though serious, did not so taint the entire proceeding that Popkov did not have a fair trial.

We affirm.

ELLINGTON and SCHINDLER, JJ., concur.