State Of Washington, Respondent v. Robert Ostaszewski, Appellant, 47648-7

Background

On Nov. 12, 2013 Robert Ostaszewski surveilled a couple (Johannessen and Sprague) in a store parking lot, photographed them from his parked van, and later shot at Johannessen from inside his van, wounding him in the neck and wrist.
Ostaszewski claimed he armed himself after his wife reported the couple; he testified he shot in self-defense when Johannessen approached and threatened him.
The State charged murder (attempt), first‑degree assault with a firearm enhancement, and drive‑by shooting; the jury acquitted on attempted murder but convicted on first‑degree assault and drive‑by shooting.
At trial the court gave a first‑aggressor instruction (precluding self‑defense if the defendant provoked a belligerent response) over defense objection, and instructed on the drive‑by statute as discharging a firearm from a motor vehicle or its immediate area.
Post‑trial motions claiming ineffective assistance and that the two convictions were the same criminal conduct were denied; Ostaszewski appealed and the State cross‑appealed the self‑defense instruction.

Issues

Issue	Plaintiff's Argument (State or Ostaszewski)	Defendant's Argument	Held
Whether the first‑aggressor instruction was supported by evidence	State: surveillance and photographing were intentional acts likely to provoke a belligerent response	Ostaszewski: evidence did not show he provoked; he acted lawfully and feared for wife’s safety	Court: Instruction was supported — reasonable jury could find surveillance provoked Johannessen, so instruction proper
Whether RCW 9A.36.045 (drive‑by shooting) is unconstitutionally vague as applied	Ostaszewski: statute requires a spatial/temporal nexus to vehicle; ordinary person would not know his conduct qualified	State: statute plainly prohibits reckless discharge from a vehicle or its immediate area; his conduct fit squarely	Court: Statute not vague as applied — he fired from inside his van, conduct falls squarely within statute
Whether assault in the first degree and drive‑by shooting are the same criminal conduct for sentencing	Ostaszewski: offenses arise from same actions and should be merged; counsel ineffective for not arguing at sentencing	State: offenses involve different elements and victims (drive‑by risked others)	Court: Not same criminal conduct — different victims (assault victim Johannessen; drive‑by covers any person at risk), so separate convictions upheld
State cross‑appeal: whether jury should have been instructed on self‑defense	State argued self‑defense instruction was erroneous	Ostaszewski defended instruction	Court: Did not reach cross‑appeal due to resolution of other issues

Key Cases Cited

State v. Riley, 137 Wn.2d 904 (discusses burden to produce evidence for self‑defense and first‑aggressor instruction)
State v. Bea, 162 Wn. App. 570 (cautions that first‑aggressor instruction should be given sparingly)
State v. Wingate, 155 Wn.2d 817 (provoking act need not be unlawful to justify first‑aggressor instruction)
State v. Anderson, 144 Wn. App. 85 (standards for submitting first‑aggressor instruction)
State v. Locklear, 105 Wn. App. 555 (drive‑by statute held vague as applied where shooter fired blocks from vehicle)
State v. Watson, 160 Wn.2d 1 (framework for evaluating vagueness challenges as applied)
State v. Saunders, 120 Wn. App. 800 (same criminal conduct test for sentencing: same intent, time/place, and victim)
State v. Chenoweth, 185 Wn.2d 218 (narrow construction of same criminal conduct rule)
State v. Graciano, 176 Wn.2d 531 (defendant bears burden to prove same criminal conduct)
State v. Rodgers, 146 Wn.2d 55 (legislative aim of drive‑by statute: discharges from or near vehicles present public safety threat)
In re Pers. Restraint of Bowman, 162 Wn.2d 325 (drive‑by shooting does not require a specific victim; only creation of risk)