By Kianna Anvari
SACRAMENTO — A jury may soon hear a case where the alleged victim of an assault may be on trial, in a way, for injuring himself and then trying to pocket a quick $5,000 from the accused defendant.
Sacramento County Superior Court Judge Steve White thinks while it’s possible, it’s not probable and that’s why he ruled in favor of the prosecution at a preliminary hearing here late last week and set a trial for Jess Burwell, who faces felony counts of assault upon another person with a deadly weapon other than a firearm, and assault using force likely to produce great bodily injury.
Burwell’s attorney, Joshua Olander maintained throughout the hearing that the alleged victim set the whole thing up as a scam.
The claimed victim was first to provide his testimony with Deputy District Attorney Emilee Divinagracia via Zoom. He was assisted by a Russian language interpreter, Edward Hairullin.
The alleged victim said that on the evening of April 20, he was delivering food for DoorDash with two of his three kids in the car. He explained that he moved to the U.S. from Russia five years prior, when he first started working as a truck driver and then as a driver for Lyft and Uber.
He told DDA Divinagracia that after he made a food delivery, a truck pulled up behind him and signaled for him to move. After he attempted to pull forward his car stalled, so he stayed on the side of the road to restart it.
He claimed that someone started banging violently on his car and scared his children. He could not tell where the sound was coming from due to poor hearing in his left ear. He also said that 
because the light was on in the car, he could not see outside in the dark.
So, he decided to open his door to see what was happening. He said he did not see Burwell standing outside his door when he opened it and ended up hitting him with the door. The alleged victim said that Burwell was yelling aggressively, but he did not know what he was saying. He said his children were frightened and crying.
The alleged victim told the court that he did not understand English.
He said that he pushed Burwell in self-defense and then felt a hard blow to his head, causing him to lose consciousness and hang over his car door for a few seconds.
He then noticed Burwell holding the neck of a broken glass bottle in his right hand and assumed he was trying to threaten him as he waved it back and forth. He said he did not know where the bottle came from. He claimed that Burwell asked him not to call the police, but he did anyway.
The alleged victim told the court that he suffered a cut along his eye from the glass bottle hitting his head. He said he lost feeling in parts of his body and is currently under medical observation.
In cross-examination, the defense asked why the alleged victim did not roll down his window instead of opening the door, and he said it was a split second decision.
DDA Divinagracia then called four deputy sheriff’s from the Sacramento County Sheriff’s Office for questioning via Zoom.
Deputy Mathew Moreno told Divinagracia that one of the neighbor’s heard someone ask for $5,000 leave the area. Deputy Jacob Wilhelm also said a witness heard something about $5,000.
Deputy Wilhelm interviewed the alleged victim’s eight-year-old son, who said he saw Burwell hit his dad.
Deputy Frank Trzaski detained Burwell that evening. Burwell told Trzaski that the alleged victim spoke perfect English. He told him he did not hit the alleged victim, but that he took the bottle of wine from him, hit himself with it, and asked for $5,000.
Deputy Clinton Riggins took a statement from the alleged victim the night of the incident. Riggins said he had a Russian accent but spoke English well enough for him to understand.
Riggins interviewed the 11-year-old daughter, who was sitting in the passenger seat during the incident. She said that a man started hitting the back of the car, then the driver’s window. She said her dad got out and then she heard glass break.
During cross-examination, Olander asked Deputy Riggins if the alleged victim did not know where the bottle came from, as he claimed in his testimony. Riggins referred to his notes, which stated that the alleged victim saw Burwell pull the wine bottle out of a plastic bag.
The deputy also said that the alleged victim told him he did not lose consciousness.
Defendant Burwell then took the stand for questioning. He told the court that he was in the firefighter reserves for 45 years, but at the time of the incident was working for a tow-truck company.
He explained that he recently had a boot taken off his ankle, and that he has bad knees and arthritis in his right hand, which is his dominant hand. He showed the court that he could not make a fist with his right hand.
Burwell said that he got home from work that day at 3:30 p.m. and had two beers. Later in the evening he picked up dinner and a bottle of white wine and drove to his girlfriend’s house.
Burwell said he saw the alleged victim’s car parked behind his girlfriend’s car, where he typically parked. Burwell pulled up behind the car and waited for him to move. The car moved after a few minutes and then stopped at the intersection with its hazard lights blinking.
Burwell thought that was strange, so he stayed in his car to watch what the car was doing.
Olander asked Burwell about his reserve firefighter training regarding this type of incident. Burwell said that they are trained to approach vehicles cautiously by tapping on the car and identifying themselves as firefighters. DDA Divinagracia objected twice due to relevance during this line of questioning, but was overruled both times.
Burwell explained that he exited his vehicle, grabbing his bag of food and placing the bottle of wine under his armpit. He said that he had his hands full because he did not think there would be any trouble.
He performed the welfare check to see if they were okay in the vehicle. He noticed the two children and saw that one was crying. He said that the driver was lying over the steering wheel. He peered up and said, “I’m going to kick your a**.”
Burwell backed up a bit as the alleged victim swung the car door open, jumped out of the vehicle and started punching and kicking at Burwell, hitting him in the legs. Burwell put his right hand up to block the punches and said, “you need to quit.”
He then backed up towards his own car and twisted his ankle. He did not notice, but said that the alleged victim must have grabbed the bottle from him as he was backing up. Burwell said he was 15 feet away from him at this point and heard the bottle break.
The alleged victim came back with a bloody face and said, “now I gotcha for injuring me.”
He told Burwell that he was going to call the cops, and Burwell said go ahead. That’s when the victim asked him for $5,000 in exchange for leaving before the cops arrived. Burwell said he wouldn’t give him anything.
During cross-examination, DDA Divinagracia pointed out that Burwell told the officers that night that he saw the alleged victim hit himself with the bottle, but that his testimony today demonstrated that he did not actually see it happen.
In re-direct, Burwell told Olander that he did not have time to tell the police that the alleged victim had kicked him because they immediately detained him. He said he was angry that he was going to jail for trying to help somebody.
In closing arguments, Olander said that the victim in this matter had zero credibility and that his statements were inconsistent.
“For the first time this morning we are hearing that Mr. Burwell was using the broken neck of the bottle to threaten and wave in his face, after Mr. Burwell has allegedly broken this bottle over his head and he’s lost consciousness. That is outrageous,” Olander said.
“This is a scam. This is just like how he demanded $5,000 from Mr. Burwell. He didn’t even deny today that he asked for $5,000. That is bizarre. He’s bleeding from the head, he needs medical attention, but what is on his mind is, how can I make some money really quick?” Olander added. “Mr. Burwell is the victim of an assault and a victim of someone looking for a quick payday.”
Olander requested dismissal of the complaint for insufficient evidence, but if the court was unwilling, he would ask for both counts to be reduced to misdemeanors.
DDA Divinagracia argued that these inconsistencies were to be expected due to the language barrier. Instead, she claimed that Burwell’s statements were inconsistent.
She argued that Burwell’s testimony placed the alleged victim’s car in the middle of the road, not parked on the shoulder as the officers reported. She also reiterated that he did not see the victim hit himself as he claimed.
Divinagracia said that the seven stitches and continued medical attention demonstrate felonious behavior.
Judge White made a lengthy statement, explaining that the issues presented were sufficiently nuanced.
“To me, one of the least probable aspects of this case is the suggestion that the victim hit himself in the head with the bottle. That was a very serious injury. I’m not saying it’s impossible that the alleged victim did that,” Judge White said.
“I think it’s highly improbable that the victim hit himself to set himself up for a quote payday, as Mr. Olander describes it,” Judge White added.
He stated that this case has issues and he would like to hear from the witnesses from the street that evening.
Judge White said there was sufficient cause to believe Burwell was guilty, thus ordering him to answer at trial.
Burwell pleaded not guilty and remains out on bond.
Kianna Anvari will earn a Master’s in Public Administration from San Diego State University in May 2021. She is from San Diego.
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