State Of Washington v. Dimitri Evanoff ( 2014 )

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STATE Os- ViKi.'i""- -
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 68845-6-1
)
Respondent, )
)
v. )
)
DIMITRI NICHOLAS EVANOFF, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: January 13,2014
)
Verellen, J. — Dimitri Evanoff appeals his judgment and sentence for
threatening to bomb or injure property. He argues that the trial court erred in failing to
require jury unanimity as to which act of threatening to bomb or injure property proved
the charge. The necessity for a unanimity instruction only arises in multiple acts cases,
not where the evidence indicates a continuing course of conduct.1 Because Evanoffs
threats formed a continuing course of conduct, we hold that no unanimity instruction
was required. Evanoff also argues, and the State concedes, that the trial court erred in
imposing mental health evaluation and treatment as a condition of his community
custody. Under RCW 9.94B.080, the trial court must comply with certain statutory
prerequisites before imposing that condition, including consideration of a presentence
1 State v. Handran, 113 Wash. 2d 11, 17, 775 P.2d 453 (1989) (quoting State v.
Petrich, 101 Wash. 2d 566, 571,683 P.2d 173 (1984). overruled on other grounds by State
v. Kitchen, 110 Wash. 2d 403, 405-06, 756 P.2d 105 (1988)).
No. 68845-6-1/2
report or mental health evaluation and entry of a finding that Evanoff is a mentally ill
person. Because the trial court did not satisfy either of these prerequisites, this
condition must be vacated. Therefore, we affirm the conviction, but remand with
instructions for correction of the sentencing error.
FACTS
On January 3, 2012, Evanoff visited the North Bend Bank of America branch
because he was unable to obtain access to money in his account. Upon entering the
bank, he approached Charles Delurme, a merchant teller who was helping another
customer. Evanoff stated that his account was messed up and he was not going to
leave until it was fixed. Delurme testified that Evanoff was agitated. Delurme told
Evanoff that he would have to wait at the end of the line or take a seat in the lobby so
that a personal banker could help him. Evanoff then told Delurme "I'm going to blow
you and this place up."2 Then the bank manager, Jana Day, approached Evanoff.
Day took Evanoff to her desk. She testified that he was "rambling," very upset,
and could not understand why his card was not working.3 He said to her "You guys are
going to give me my money."4 Shortly thereafter he said, "I'm just going to kill you guys
and blow up the bank."5 In order to defuse the situation and get Evanoff out of the
bank, Day gave him the cash that he requested and he left. A few minutes later,
Evanoff reentered the bank and Day told another bank employee to call the police.
2 Report of Proceedings (RP) (Apr. 18, 2012) at 30.
3id at 36.
4]± at 37.
5 Id. at 39.
No. 68845-6-1/3
Evanoff requested a temporary debit card and Day gave him one. Just as they were
finishing the transaction, the police arrived.
The State charged Evanoff with one count of threatening to bomb or injure
property. A jury found him guilty on that count. As part of EvanofFs sentence, the trial
court imposed 12 months of community custody and ordered him to obtain a mental
health evaluation within 30 days of release and to follow all treatment
recommendations. Evanoff appeals.
DISCUSSION
Unanimous Jury Verdict
Evanoff challenges his conviction for threatening to bomb or injure property. He
contends that the State presented evidence of two distinct threats to bomb Bank of
America: the threat communicated to Delurme and the threat communicated to Day.
Evanoff argues that because there was evidence of two threats, but only one count
charged, either a unanimity instruction was required or the State was required to elect
one of the two threats as the basis for the charge. Because there was no unanimity
instruction and the State made no election, Evanoff claims that constitutional error
occurred and his conviction should be reversed. We disagree.
"[A] defendant may be convicted only when a unanimous jury concludes that the
criminal act charged in the information has been committed."6 If the State presents
evidence of multiple distinct acts that could form the basis of one charge, the State must
6 Petrich. 101 Wash. 2d at 569.
No. 68845-6-1/4
tell the jury which act to rely on or the court must instruct the jury to agree on a specific
act.7 We review alleged instructional errors de novo.8
The threshold question in determining whether a unanimity instruction was
required is whether the prosecution was a "multiple acts case."9 The necessity for a
prosecutorial election or a unanimity instruction does not arise when the evidence
indicates a "continuing course of conduct."10 To determine whether there is a continuing
course of conduct, we evaluate the facts in a commonsense manner considering the
time separating the criminal acts and whether the criminal acts involved the same
parties, location, and ultimate purpose.11 Evidence that a defendant engaged in a
series of actions intended to secure the same objective supports the characterization of
those actions as a continuing course of conduct rather than as several distinct acts.12
The premise of Evanoff's argument is that this was a multiple acts prosecution.
Viewed in a commonsense manner, the evidence fails to support his argument. The
two acts of threatening to bomb occurred at the same location. Both acts occurred on
the same morning, with only a brief gap between them. And while this case technically
involves multiple victims, both Delurme and Day are Bank of America employees. Each
assisted Evanoff when he visited the bank that morning and no evidence indicates that
Evanoff viewed the bank employees as discrete victims. To the contrary, each act of
7 Id. at 572: State v.Coleman, 159 Wash. 2d 509, 511, 150P.3d 1126(2007).
8 State v. Sibert, 168 Wash. 2d 306, 311, 230 P.3d 142(2010).
9 See State v. Bobenhouse. 166 Wash. 2d 881, 892, 214 P.3d 907 (2009).
10 Handran, 113 Wash. 2d at 17 (Quoting Petrich, 101 Wn.2dat571).
11 State v. Brown, 159Wn.App. 1, 14, 248 P.3d 518 (2010).
12 State v. Fiallo-Lopez. 78 Wash. App. 717, 724, 899 P.2d 1294 (1995).
No. 68845-6-1/5
threatening to bomb furthered a single objective: to retrieve his money from the bank.
The trial court did not err in failing to give a unanimity instruction.
Evanoff argues that the plain language of the threatening to bomb or injure
property statute is aimed at criminalizing a single act, rather than a course of conduct
and, therefore, a continuous course of conduct analysis cannot apply. He relies on
State v. Alvarez, where this court held that a defendant could be convicted of
harassment for a single act or threat based on the unambiguous language of the
statute.13 But that case did not address the issue of unanimity. There, the issue was
whether the court should override the unambiguous elements section of the harassment
statute by adding language from a statement of intent that the purpose of the statute
was to punish repeated invasions of a person's privacy by acts and threats showing a
pattern of harassment.14 Forthis reason, Alvarez is not applicable here and does not
require reversal.
Community Custody Condition
Evanoff argues, and the State concedes, that the trial court failed to make the
statutorily required findings for imposing mental health evaluation and treatment as a
condition of community custody.15 The trial court did not obtain a presentence report or
enter the necessary findings regarding Evanoff's mental health, as required by
RCW 9.94B.080. Therefore, we accept the State's concession.
13 74 Wash. App. 250, 258, 872 P.2d 1123 (1994), affd 128 Wash. 2d 1, 904 P.2d 754
(1995).
14 ]d at 257.
15 See RCW 9.94B.080; State v. Jones. 118 Wash. App. 199, 209-10, 76 P.3d 258
(2003).
No. 68845-6-1/6
We affirm the conviction, reverse the section of the judgment and sentence
containing the challenged community custody condition, and remand for further
proceedings consistent with this opinion.16
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WE CONCUR:
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16 See Jones, 118 Wash. App. at 212 n.33 (indicating, without deciding, that the trial
court may have the authority to comply with the RCW 9.94B.080 on remand).