                                                                       FILED 

                                                                    MARCH 17,2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 31894-0-III
                     Respondent,             )
                                             )
      v.                                     )
                                             )
DEXTER JOHN BUSH,                            )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

      FEARING, J. - Dexter Bush sexually enslaved his adopted daughter, Fawn. Ajury

convicted Bush of one count of rape in the first degree, five counts of rape in the second

degree, one count of assault in the second degree, two counts of intimidating a witness,

and one count of felony harassment, all with domestic violence as an aggravating factor.

The jury also found sexual motivation for the second degree assault and witness

intimidation charges.
No. 31894-0-II1
State v. Bush


       Dexter Bush appeals, contending: (1) his two convictions for witness intimidation

violated the prohibition against double jeopardy, (2) evidence presented at trial was

insufficient to prove felony harassment, (3) evidence was insufficient to prove the second

degree assault and witness intimidation offenses were committed with sexual motivation,

and (4) the trial court did not have authority to order a mental health evaluation as a

condition of community custody. We affirm all convictions and the sexual motivation

sentencing enhancements. We vacate the requirement that Bush undergo a mental health

evaluation as a condition of community custody.

                                          FACTS

       Dexter Bush began dating Fawn's mother when Fawn was five years old. He

married the mother several years later. Bush legally adopted Fawn when she was 12

years old at a time the family lived in Montana. Because of the violent and coercive

nature of the sexual activity, we reluctantly refer to the contact between Dexter Bush and

Fawn as "sex." Nevertheless, Bush began having sex with Fawnjust before the adoption

became final.

       Fawn's mother suffered from health problems. She often napped during the day.

She wore earplugs when she napped and slept at night. The first rape occurred while

Fawn's mother was asleep. Bush then held a serrated knife to Fawn's lip, told her to

keep quiet, and ordered her not to tell anyone of his conduct or he would kill her. Dexter

Bush had sex with his adoptive daughter almost every day thereafter, and he made

                                             2

No. 31894-0-III
State v. Bush


multiple, repeated threats to kill Fawn and drive from town to town to kill family

members while she watched, if she told.

       When Fawn was 14 years old, she started to tell her mother about the abuse, but

Bush entered the room where the mother and daughter conversed. When Fawn's mother

exited the room, Bush struck Fawn in the arm, grabbed her by the neck, and told her not

to try tattling again. On one occasion after Fawn returned from a sleepover at a friend's

house, Bush strapped Fawn to a chair and attached electrodes from an electrical

stimulation machine to her nipples and genitals. He interrogated her as to whether she

told anyone about the abuse.

       Fawn Bush lived in terror and tried to kill herself several times. Fawn became

pregnant with Dexter Bush's child when she was 15 years old. Bush told her he
                                                                                              I
intentionally impregnated her because of her frequent suicide attempts and his belief that,

if she bore a child, her efforts to end her life would cease.

       Dexter Bush continued to molest Fawn after the birth oftheir son, Jared. Bush's

threats changed to killing Jared in front of Fawn or to having her declared an unfit

mother, and then raising Jared "to be just like him." Report of Proceedings (RP) at 93.

During sex, Bush slapped Fawn when she cried.

       When drinking in the company of others, Dexter Bush occasionally punched Fawn

in the arms and legs, ridiculed her if she cried, and laughed about his violence as being

horseplay. In the presence of company on one occasion, Bush's scraping of Fawn's leg

                                               3

No. 31894-0-III
State v. Bush


caused bleeding, after which he told the company he was 'Just playing." RP at 95. If

Fawn protested or physically defended herselfwhen Bush hit Fawn, Bush punished Fawn

after company left. Bush owned many knives and always wore one, usually the knife he

called "pig sticker." RP at 95. Once when alone, Bush pinned Fawn to the couch, held

her eyelid open, and lowered a lit cigarette to within an inch of her eyeball.

       Fawn Bush and her family moved to Sandpoint, Idaho, when Fawn was eighteen.

Fawn's mother and Dexter Bush separated soon thereafter, and Bush dated Cheena, a

woman from Goldendale who was the same age as Fawn. Bush and Cheena married and

had a child. Bush continued to sexually attack Fawn.

       In June or July 2009, Fawn, Jared, Dexter Bush, Cheena, and the new arrival

moved to Goldendale. A year later the group moved into a motor home at a trailer park ..

Occasionally, Dexter Bush took Fawn to an empty motor home across the field from their

trailer and raped her. Bush owned the empty motor home.

       The State of Washington could not charge Dexter Bush for most of the rapes

because many occurred in another jurisdiction and charges for most assaults were time

barred. The State nonetheless introduced evidence of the many sexual assaults beginning

when Fawn was twelve years of age, in order to show the intimidation Fawn underwent at

the time of the rapes for which Bush was charged and to counter Bush's defense that all

sexual acts were consensual. We now outline the sexual batteries that comprise the




                                             4

No. 31894-0-III
State v. Bush


charges against Bush. Understandably, Fawn could not recall exact dates for rapes, but

testified to a date range for each incident.

       Count One: Rape in the first degree

       On July 4,2010, Fawn Bush started a dating relationship that lasted three months.

This new relationship infuriated Dexter Bush. Bush warned Fawn that her boyfriend

could not protect Jared and her, and he cautioned her again to remain silent about his

conduct. Bush also instructed Fawn not to have sex with the boyfriend.

       One day, between July 15 and August 15, 2010, Bush escorted Fawn to the empty

motor home, ordered her to undress, and, when she cried and protested, battered her on

the head with an empty beer bottle, knocking her unconscious. When Fawn gained

consciousness, Bush dragged her up stairs and forcibly entered her anus. Bush had anally

raped Fawn before, but this rape was the worst. Fawn bled for several days.

       Count Two: Rape in the second degree

       One day, between June 15 and July 31, 2010, Dexter Bush told Fawn to undress.

She cried and begged him not to have sex with her. Bush punched Fawn in the eye,

leaving a bruise that lasted for days. He told her the thump was a warning that she must

not complain but should "tune out" his conduct as she had before. Bush then vaginally

entered Fawn.

       Count Three: Rape in the second degree




                                               5

No. 31894-0-111
State v. Bush


       Fawn Bush engaged in sex with her boyfriend. When Dexter Bush learned of this

activity, he told Fawn he would continue to have anal sex with her since she would not

willingly perform this act with her boyfriend. One day in August 2010, Bush fulfilled the

threat. During the assault in the empty motor home, Bush told Fawn to remain silent and

to continue living with him. Bush threatened the safety of Fawn and Jared.

       Count Four: Rape in the second degree

       Dexter and Cheena Bush separated many times. During one of these splits and

between September 1 and November 15,2010, Bush and Fawn occupied their trailer,

while Jared slept in a compartment over the driver seat. Bush enjoined Fawn to perform

oral sex on him. After some fellatio, Bush vaginally entered Fawn. Fawn did not

remonstrate on this occasion, and later testified her lack of protest resulted from a fear

that Jared would awaken. Bush warned that if Jared awakened, events would tum tragic.

       Count Five: Rape in the second degree

       Because the Bushes' motor home lacked a shower, Fawn bathed at the public pay

showers at the trailer park. She often avoided showers because Bush followed her inside

ifno one else used the showers. Once in January 2011, Bush told Fawn she must shower,

followed her to the public shower, and, after Fawn told him no one else was present,

forced her to have vaginal sex in a shower stall.

       Count Six: Rape in the second degree




                                              6

No. 31894-0-111
State v. Bush


       Dexter Bush last sexually assaulted Fawn on February 9, 2011. Fawn recalls the

date because the attack occurred two days before Fawn stabbed Bush in the neck. On

February 9, Bush again threatened to kill Jared or take him away, and again forcibly

entered her vagina in the nearby empty motor home.

       Count Seven: Assault in the second degree

       Fawn Bush testified that between July 15 and August 15, 2010, Dexter Bush

punched her in the eye socket so violently she thought the assault broke a bone. Fawn

heard a snap when Bush struck her face. Bush was drunk. Fawn's face swelled for two

weeks, and her boss at a restaurant told her that he would fire her if she appeared at work

again with a black eye. Fawn, as instructed by Bush, told the boss she received the bruise

while breaking up a fight between Bush and someone else. Despite the pain, Fawn never

sought medical attention for fear she would be asked questions as to the cause of the

swollen eye.

       Count Eight: Intimidating a witness

       In August 2010, Dexter Bush insisted to Fawn that their sexual relationship

continue. He claimed he would prove her an unfit mother and wrest Jared from her if she

sought to leave him. Fawn testified at trial that she took what Dexter said seriously.

       Count Nine: Intimidating a witness

       Fawn Bush missed a menstrual period between September 1, 2010, and December

31, 2010. Dexter Bush then told her to engage in sex with her boyfriend so others would

                                             7

No. 3 I 894-0-III
State v. Bush


conclude that the boyfriend impregnated her. Bush also told Fawn he would kill her if

she was pregnant because the world could not endure another child looking like him.

       Count Ten: Felony harassment

       Dexter Bush threatened one summer day in 2010 to kill Fawn. Fawn had spent

considerable time with her boyfriend. Bush repeatedly asked Fawn if she had mentioned

his conduct to another. On this occasion, Bush, while seated around friends, told Fawn

that he, "without ever blinking an eye," could kill her, Jared, and Cheena. RP at 127. At

trial, Fawn testified that she considered the threat serious since Bush had never

threatened, in the presence of others, to kill her "without a problem." RP at 128. Fawn

explained that others do not threaten, in front of third persons, to kill a loved one.

       Fawn Bush Stabs Dexter Bush

       On February 11,2011, Dexter Bush drunkenly assaulted Fawn and Cheena. He

slammed Cheena's head into a mirror as she held their infant son. Jared narrowly dodged

objects Bush threw about the fifteen-foot motor home. As Bush screamed he would chop

everyone into little pieces, Fawn grabbed a knife and stabbed him in the neck.

       The State of Washington charged Fawn Bush with first degree assault. During the

pendency ofher prosecution, Fawn withheld from law enforcement, a Child Protection

Services (CPS) caseworker, and her defense counsel, Bush's sexual and physical assaults.

Fawn would rather have served time in jail than face the consequences of Bush learning

she had disclosed his behavior.

                                              8

    No. 31894-0-III
    State v. Bush


           In January 2012, Fawn Bush pled guilty to third degree assault and served jail

    time. After her release and on February 24,2012, Fawn told the couple caring for Jared

    that Bush raped and abused her. She did not realize that one of her confidantes was a
I
    mandatory reporter. When she realized that law enforcement was being notified, she
!   panicked. Her CPS caseworker arranged an emergency appointment with a therapist.

           Goldendale police arrested Dexter Bush on February 25,2012. At trial, Police

    Seargent Jay Hunziker testified that, after he told Fawn that Bush had been arrested,

    Fawn grew more frightened than during a previous night's interview.

           On May 7,2012, the State moved for, and was granted, withdrawal of Fawn

    Bush's guilty plea to third degree assault.

                                           PROCEDURE

           On February 27, 2012, the State of Washington charged Dexter Bush with one

    count of first degree rape, five counts of second degree rape, two counts of intimidating a

    witness, one count of second degree assault, and one count of felony harassment. A jury

    trial was held on June 3,5, and 6, 2013. Before Fawn Bush's trial testimony, the trial

    court granted the State permission to question Fawn about each charged incident by

    directing her to the time frame charged, rather than Fawn relating exact dates for each

    charge. The court denied the State's request to give Fawn a copy of the charging

    document to consult during her testimony.




                                                  9

No. 31894-0-111
State v. Bush


       During trial, Dexter Bush admitted he had sex with Fawn when·she was 15 years

old and fathered her child, Jared. He conceded the sexual contact equated to bad

judgment on his part, but insisted that Fawn consented. Bush admitted that he did not

want anyone to know he fathered Jared, that he avoided placing his name on Jared's birth

certificate, and that he assisted Fawn in sham attempts to identify the father to Montana

authorities. Bush acknowledged that he and Fawn continued a sexual relationship over

the years, but he insisted that the relationship remained consensual. Bush also denied

ever uttering threats to Fawn.

       Dexter Bush protested to the jury that Fawn alleged sexual abuse as part of a

strategy to regain parental control of Jared, since CPS took temporary custody of the boy

after she stabbed Bush. Bush criticized Fawn as a bad mother, in part because she chose

"partying" over Jared.

       On June 6, 2013, ajury convicted Dexter Bush of all charged offenses. For each

offense, the jury found an aggravating factor of domestic violence coupled with a pattern

of abuse. The jury also ruled the assault and two counts of intimidating a witness were

sexually motivated.

      The Department of Corrections (DOC) filed a presentence investigation report on

July 5, 2013. The report, based on information given by Dexter Bush, read that Bush

began seeing mental health counselors when he was approximately ten years of age, and

he spent time in a mental institution in Warm Springs, Montana. Bush claimed to have

                                            10 

No. 31894-0-III
State v, Bush


been diagnosed with anger problems, bi-polar disorder, and schizophrenia. He ceased

taking Risperdal in jail, because the medication rendered him vulnerable to attacks and he

needed to feel anger to protect himself. Bush also reported suffering from many alcohol

induced blackouts. Based on its presentence investigation, DOC recommended 524

months of confinement and conditions of supervision that included a psychosexual

evaluation with treatment recommended by DOC or a treatment provider.

      At sentencing, the trial court calculated Dexter Bush's standard range sentence for

first degree rape to be 240-318 months. The court calculated the standard range for

second degree rape to be 210-280 months. Based on the aggravating domestic violence

found by the jury and Bush's high offender score due to the number of counts, the court

imposed an exceptional sentence consisting of 582 months. The trial court thereby

imposed the high end for first degree rape of 3 18 months, concurrent with most of the

other offenses, but consecutive to a 210 month sentence for one of the second degree rape

convictions, plus 54 months for sentencing enhancements. The court also imposed, as a

condition of community custody, that Bush undergo a mental health evaluation.

                                LAW AND ANALYSIS

      Issue 1: Whether the two witness intimidation convictions violate the prohibition

against double jeopardy?

      Answer 1: No.




                                           11 

No. 31894-0-II1
State v. Bush


       Dexter Bush contends that his two convictions for intimidating a witness violate

the Fifth Amendment's prohibition against double jeopardy. He argues that when he

committed the acts of intimidation in 2010, the statute under which he was eventually

convicted, RCW 9A.72.110, did not count each act as a separate offense. Accordingly,

he forwards the concept of "unit of prosecution" and argues that the unit of prosecution

for witness intimidation should be a course of conduct rather than discrete threats of

intimidation. We disagree and affirm both convictions.

       Both the federal and state constitutions prohibit a person from being punished

twice for the same offense, although within constitutional constraints the legislature is

free to define crimes and punishments as it sees fit. State v. Smith, 177 Wn.2d 533, 545,

303 P.3d 1047 (2013); State v. Calle, 125 Wn.2d 769, 776,888 P.2d 155 (1995).

Washington's double jeopardy clause offers the same protection as the federal

constitution. State v. Womac, 160 Wn.2d 643, 650, 160 P.3d 40 (2007).

       Dexter Bush does not argue that the legislature could not, if it wished, criminalize

two distinct acts of intimidation within a course of continuing threats. He argues the

relevant statute, however, only imposes one crime upon him for his ongoing intimidation.

His argument is more one of statutory construction than constitutional application. When

a defendant is convicted of multiple violations of the same statute, the double jeopardy

question focuses on what "unit of prosecution" the legislature intends as the punishable

act under the statute. State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002).

                                             12 

No. 31894-0-III
State v. Bush


       Whether or not a defendant faces multiple convictions for the same crime can rest

on the unit of prosecution. State v. Hall, 168 Wn.2d 726, 730,230 P.3d 1048 (2010). A

unit of prosecution can be either an act or a course of conduct. Hall, 168 Wn.2d at 731.

If the legislature fails to define the unit of prosecution or its intent is unclear, under the

rule of lenity any ambiguity must be resolved against turning a single transaction into

multiple offenses. Hall, 168 Wn.2d at 730. The unit of prosecution rule is designed to

protect the accused from overzealous prosecution. State v. Turner, 102 Wn. App. 202,

210,6 P.3d 1226 (2000). When conducting a unit of prosecution analysis for the purpose

of double jeopardy:

              the first step is to analyze the statute in question. Next, we review
       the statute's history. Finally, we perform a factual analysis as to the unit of
       prosecution because even where the legislature has expressed its view on
       the unit of prosecution, the facts in a particular case may reveal more than
       one "unit of prosecution" is present.

State v. Hall, 168 Wn.2d at 730; (quoting State v. Varnell, 162 Wn.2d 165, 168, 170 PJd

24 (2007)). We thus peruse the 2010 version of the witness intimidation statute.

       In 2010, RCW 9A.72.11O, Washington's statute criminalizing witness intimidation

provided, in relevant part:

               (1) A person is gUilty ofintimidating a witness if a person, by use of
       a threat against a current or prospective witness, attempts to:
               (a) Influence the testimony of that person;
               (b) Induce that person to elude legal process summoning him or her
       to testify;
               (c) Induce that person to absent himself or herself from such 

       proceedings; or 


                                               13 

No. 31894-0-111
State v. Bush


              (d) Induce that person not to report the information relevant to a
       criminal investigation or the abuse or neglect of a minor child, not to have
       the crime or the abuse or neglect of a minor child prosecuted, or not to give
       truthful or complete information relevant to a criminal investigation or the
       abuse or neglect of a minor child.

              (3) As used in this section:
              (a) "Threat" means:
              (i) To communicate, directly or indirectly, the intent immediately to
       use force against any person who is present at the time; or
              (ii) Threat as defined in RCW 9A.04.110(2[7]).
              (b) "Current or prospective witness" means:
              (i) A person endorsed as a witness in an official proceeding;
              (ii) A person whom the actor believes may be called as a witness in
       any official proceeding; or
              (iii) A person whom the actor has reason to believe may have
       information relevant to a criminal investigation or the abuse or neglect of a
       minor child.

(Emphasis added.) In 2011, the legislature amended RCW 9A.72.110 to clarify the

number of charges that may be brought for intimidating a witness: "For purposes of this

section, each instance of an attempt to intimidate a witness constitutes a separate

offense." LAWS OF 2011, ch. 165, § 2 (effective July 22, 2011).

       Prior to the 2011 amendment, Washington courts provided little help in clarifying

what constituted a unit of prosecution under RCW 9A. 72.110 for double jeopardy

purposes. In State v. Marko, 107 Wn. App. 215, 220-21, 27 P.3d 228 (2001), the

question of whether threats constituted a continuing course of condu"ct arose under

different circumstances and in a different legal context. The defendant, who robbed a gas

station, argued his threats over the course of 90 minutes against two gas station owners



                                             14 

No. 31894-0-III
State v. Bush


who overpowered and subdued him constituted two or more discrete threats such that he

was entitled to a unanimity instruction. This court disagreed.

       State v. Meneses, 149 Wn. App. 707, 714-15, 205 P.3d 916 (2009), ajJ'd, 169

Wn.2d 586, 238 PJd 495 (2010), also addressed RCW 9A.72.11 0 in another context.

This court held that one threatening phone call supported convictions for both

intimidating a witness and criminal harassment, without violating double jeopardy

principles. In other words, the defendant was charged under two statutes. Neither Marko

nor Menses answers the question of what constituted a unit of prosecution under RCW

9A.72.11O in 2010.

       Our Supreme Court provided guidance in State v. Hall, 168 Wn.2d 726 at 730.

The court held that the unit of prosecution for witness tampering, under RCW 9A.72.120,

was "the ongoing attempt to persuade a witness not to testify in a proceeding," rather than

each individual instance of tampering. Hall, 168 Wn.2d at 734. Isiah Hall's girlfriend

agreed to testify against him on charges of burglary and assault. While in jail, Hall tried

to call her over 1,200 times and attempted to convince her not to testify or testify falsely

because his arrests were her fault. Ajury eventually convicted Hall of three counts of

witness tampering, but the Supreme Court reversed after conducting a unit of prosecution

analysis, holding "that the legislature intended to criminalize inducing 'a' witness not to

testify or to testify falsely." Hall, 168 Wn.2d at 737. Because Hall attempted to tamper

with only one witness, he could be. convicted of only one count.

                                             15
No. 3 I 894-0-III
State v. Bush


       Hall is helpful, but this court must conduct its own analysis with regard to RCW

9A.72.110 to determine whether Dexter Bush's two convictions for intimidating Fawn

not to report his abuse violated the prohibition against double jeopardy. As explained

below, the wording ofRCW 9A.72.11O compels a ruling that double jeopardy does not

bar affirming Bush's two convictions.

       The witness tampering statute at issue in Hall differed from the witness

intimidation statute at issue in this case in one crucial aspect: the requirement that a threat

accompany the attempt to intimidate. See RCW 9A.72.110(1); State v. Fuentes, 150 Wn.

App. 444, 451, 208 P.3d 1196 (2009). In contrast with RCW 9A.72.120, the language of

the 20 I 0 version of RCW 9A. 72.110 criminalizes "a threat." Use of the indefinite article

"a" connotes certain instances of particular or individualized threats. Therefore the unit

of prosecution can be based on each threat, rather than each witness. Witness tampering,

under RCW 9A.72.120, only criminalizes the inchoate crime of attempting to induce a

witness not to testify or to testify falsely. The statute reads, in relevant part: "(1) A

person is guilty of tampering with a witness if he or she attempts to induce a witness . ..

to: (a) Testify falsely or ... withhold any testimony." (Emphasis added.)

       A controlling decision is State v. Ose, 156 Wn.2d 140, 146-48, 124 P.3d 635

(2005). In Ose, the Supreme Court focused on the legislature's choice of the indefinite

article "a" in RCW 9A.56.160(1)(c), which render possessing "a stolen access device" a

criminal offense. The court reasoned that because the word "a" is used to precede a

                                              16 

No. 31894-0-111
State v. Bush


singular noun, the legislature's use of the word "a" gave RCW 9A.56.160(1)(c) the plain

meaning that possession of each stolen access device is a separate violation of the statute.

       We reviewed the legislative history behind RCW 9A.72.11O and found the history

of no help in resolving Dexter Bush's contention. Therefore, we tum to the final step in

the unit of prosecution analysis: the facts of Dexter Bush's case. Bush urges this court to

hold, as the Supreme Court did in Hall, that his two convictions for witness intimidation

violate the prohibition against double jeopardy because his course of conduct was

continuous and ongoing, and it was aimed at the same person in an attempt to persuade

her not to disclose the alleged abuse. The State counters that the two counts of witness

intimidation did not concern the same criminal investigation, nor even the same

jurisdiction. The State argues that count eight concerned a threat not to disclose one of

the instances of rape to Fawn Bush's new boyfriend, while the threat alleged in count

nine was made in an attempt to conceal Jared Bush's paternity, for which Dexter Bush

could have been prosecuted in Montana for statutory rape. We agree with the State.

       On the one hand, Fawn Bush testified that, in August 2010, Dexter Bush

threatened to have her declared an unfit mother if she reported, to her new boyfriend, any

abuse she suffered from Bush. On the other hand, Fawn testified that his threat to kill

her, uttered between September and December 2010, related to her possibly being

pregnant with another child and the desire to conceal his paternity for another child.

Bush admitted that he and Fawn agreed that she would not identify him to Montana

                                             17 

No. 3 I 894-0-III
State v. Bush


authorities as Jared's father. This evidence would allow a jury to conclude that the two

threats, although related to Bush's ongoing intention to keep Fawn from reporting any

abuse, concerned different charges and proceedings. The August 2010 threat related to

abuse alleged by Fawn in Washington State. The September-December 2010 threat

related to Dexter's attempts to conceal Jared's paternity as to avoid statutory rape and

incest charges in Montana. Montana's statute of limitations for statutory rape

prosecutions is ten years from the date the alleged victim reaches the age of 18 year's old.

MONT. CODE. ANN. § 45-1-205(l)(b); MONT. CODE ANN. § 45-5-502. Therefore, in

2010, a separate proceeding in Montana was and is still possible.

       Based on the language ofRCW 9A.72.l10 and the unique facts of Dexter Bush's

prosecution, we hold that Bush could be convicted of two counts of witness intimidation.

       Issue 2: Whether sufficient evidence supports the felony harassment conviction?

       Answer 2: Yes.

       Dexter Bush contends that testimony of his threats to kill Fawn is insufficient to

support his conviction for felony harassment. He argues that the State did not meet its

burden of proving that Fawn reasonably feared that he would execute his threat to kill

her. Bush emphasizes Fawn's testimony regarding the threat made by him between June

15,2010, and August 15,2010, to someone else in Fawn's presence. Bush maintains that

Fawn never said she feared he would carry out this threat, and the statute requires the

State to prove that the victim was placed in reasonable fear that the threat made is the one

                                             18 

No. 31894-0-111
State v. Bush


that will be carried out. In other words, Bush argues that the State must prove that Fawn

reasonably feared he would kill her based on the statement of that day alone, without

considering his ongoing pattern of abuse and threats. We disagree.

       A sufficiency of the evidence challenge admits the truth of the State's evidence

while allowing all reasonable inferences to be drawn in the State's favor. State v. Vars,

157 Wn. App. 482, 496, 237 P.3d 378 (2010). Evidence is sufficient if, after viewing it

in the light most favorable to the State, a rational trier of fact could find each element of

the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d

628 (1980).

       RCW 9A.46.020, Washington's criminal harassment statute, provides:

              (1) A person is guilty of harassment if:
                      (a) Without lawful authority, the person knowingly threatens:
                      (i) To cause bodily injury immediately or in the future to the
              person threatened or to any other person ... and
                      (b) The person by words or conduct places the person
              threatened in reasonable fear that the threat will be carried out . ..
              (2) ....
                      (b) A person who harasses another is guilty of a class C
              felony if ...
                      (ii) the person harasses another person under subsection
              (1)(a)(i) ofthis section by threatening to kill the person threatened or
              any other person.

(Emphasis added.) In order to convict an individual of felony harassment based on a

threat to kill, RCW 9A.46.020 requires that the State prove that the person threatened was

placed in reasonable fear that the threat to kill would be carried out as an element of the


                                              19 

No. 3 1894-0-III
State v. Bush


offense. State v. C G., 150 Wn.2d 604,612, 80 P.3d 594 (2003). The nature of a threat

depends on all the facts and circumstances, and it is not proper to limit the inquiry to a

literal translation of the words spoken. C G., 150 Wn.2d at 611.

       Dexter Bush principally relies on State v. C G., wherein the Supreme Court

overturned a student's conviction for felony harassment for threatening to kill her

school's vice principal. At trial, the vice principal testified that the threat caused him

concern, and based on what he knew about C.G., she might try to harm him or someone

else in the future. The court found that these statements did not sufficiently evidence the

teacher's immediate fear that C.G. would actually kill him.

       We do not find State v. C G. controlling. Viewing the evidence in the light most

favorable to the State, a jury could reasonably find, beyond a reasonable doubt, that Fawn

Bush reasonably feared Dexter Bush would carry out his threat to kill her. She testified

that she took Bush's statement that he "could kill [me], my son, and his wife without

batting an eye," as a threat to kill her. RP at 128. Moreover, CG. declares that "the

nature of a threat depends on all the facts and circumstances." 150 Wn.2d at 611. In

CG., the only evidence provided by the State was the vice principal's testimony that he

was concerned by C.G.'s threat. 150 Wn.2d at 607. In contrast here, Fawn testified that

she feared Dexter greatly and believed him capable of making good on his repeated

threats to kill her. In addition, a jury could reasonably infer from Fawn's refusal to




                                             20 

No. 31894-0-111
State v. Bush


disclose the abuse to the authorities as evidence of her belief that Bush would carry out

his threat to kill her.

       The facts on appeal parallel State v. Mills, 154 Wn.2d 1, 109 PJd 415 (2005).

There, the Supreme Court affirmed a felony harassment conviction of a woman for

leaving an explicit death threat on the phone of her former lover's new girlfriend. In

contrasting that case with C. G., the court emphasized that the threat was an explicit threat

to kill the new girlfriend, the woman convicted of harassment had also been convicted of

assaulting another woman who had dated her former lover, and the new girlfriend

testified that she was "very scared" and thought the woman was "capable of doing what

she threatened to do." Mills, 154 Wn.2d at 12.

       Issue 3: Whether sufficient evidence supports the sexual motivation sentencing

enhancements for second degree assault and witness intimidation?

       Answer 3: Yes.

       Dexter Bush contends there is not sufficient evidence to support the sexual

motivation sentencing enhancements the jury found applicable to the second degree

assault and witness intimidation charges. The State concedes that the conduct in the three

counts for which sexual motivation was found does not meet the legal definition of

"sexual motivation," and that these three sentencing enhancements should be reversed.

We disagree with both parties and affirm the sentence enhancements.

        When a defendant is charged with any crime other than a sex offense, the State

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State v. Bush


may file an allegation that the crime was sexually motivated. RCW 9.94A.835(1).

"Sexual motivation" means that one of the purposes for the crime was the defendant's

sexual gratification. Former RCW 9.94A.030(46) (2010). The State has the burden of

proving sexual motivation beyond a reasonable doubt. RCW 9.94A.835(2). The finding

of sexual motivation must be "based on some conduct forming part of the body of the

underlying felony." In other words, the defendant's sexual motivation must be

"manifested by his or her conduct in the course of committing a felony." State v.

Haistien, 122 Wn.2d 109, 120, 857 P.2d 270 (1993) (quoting State v. Haistien, 65 Wn.

App. 845, 853, 829 P.2d 1145 (1992)).

       A finding of sexual motivation has several consequences. The crime becomes, by

definition, a "sex offense." Former RCW 9.94A.030(45). It is therefore subject to the

special scoring rules applicable to sex offenses. RCW 9.94A.525(17). A finding of

sexual motivation is by itself a sufficient basis for a sentence above the standard range.

RCW 9.94A.535(2)(t). On release, the defendant is required to register as a sex offender.

RCW 9A.44.130. A sexual motivation finding results in specific additions to the

standard sentencing range: 24 months for a class A felony, 18 months for a class B

felony, or 12 months for a class C felony. RCW 9.94A.533(8)(a)(i)-(iii). The

enhancements must be consecutive to all other sentencing provisions, including other

sexual motivation enhancements. RCW 9.94A.533(8)(b). If the offender is sentenced for

more than one offense, the enhancement is added to the total period of confinement for

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No. 31894-0-111
State v. Bush


all the offenses. RCW 9.94A.533(8)(a).

       Since Dexter Bush's challenge to the sentencing enhancement asks us to address

the sufficiency of the evidence, the challenge admits the truth of the State's evidence

while allowing all reasonable inferences to be drawn in the State's favor. State v. Vars,

157 Wn. App. 482, 496, 237 P.3d 378 (2010). Fawn testified that Dexter Bush

repeatedly, violently raped her, assaulted her, and attempted to control every aspect of her

life from the time she turned twelve years old. Fawn testified that the punch from Bush

that likely broke her eye socket happened during a time when Bush was angry that Fawn

was seeing another man. A jury could reasonably conclude that Bush intended to send a

message to Fawn to ignore other men and devote her time to Bush, including time for

sex. The first charge of witness intimidation centered around the time of the assault, in

August 2010, and entailed Bush threatening to remove Jared from Fawn if she attempted

to leave Bush. The jury could conclude that Bush desired his intimidation to tell Fawn

that her life would continue under his domination, even though Fawn was seeing a new

man. The second instance of witness intimidation, in fall 2010, involved Bush ordering

Fawn to engage in sex with her boyfriend in order to conceal Bush's possible paternity of

the new child. Bush also threatened to kill Fawn if she did not obey this demand.

Concealing the paternity could allow Bush to continue with forced sex with Fawn.

      A jury could reasonably conclude that the end result of all actions taken by Dexter

Bush was the continuation ofthe enduring nightmarish, coercive sexual relationship he

                                            23 

No. 31894-0-111
State v. Bush


maintained with Fawn. Viewing the evidence in the light most favorable to the State, the

jury could reasonably infer that the assault and intimidation Bush inflicted on Fawn were

for the purpose of continuing the sexual gratification.

       Issue 4: Whether the trial court could impose a mental health evaluation as a

condition of community custody?

       Answer 4: No.

       Dexter Bush contends the trial court erred in requiring him to undergo a mental

health evaluation as a condition of community custody. He argues that the trial court

committed error because it did not enter the statutorily mandated finding that he is a

mentally ill person as defined by RCW 71.24.025 (18), and that a qualifying mental

illness influenced his crime. The State concedes this assignment of error. We agree the

trial court committed error.

       An erroneously imposed sentence may be challenged for the first time on appeal.

State v. Bahl, 164 Wn.2d 739,744,193 P.3d 678 (2008); State v. Ford, 137 Wn.2d472,

477,973 P.2d 452 (1999). We review a crime-related community custody condition for

an abuse of discretion. State v. Brooks, 142 Wn. App. 842, 850, 176 P.3d 549 (2008).

       RCW 9.94B.080 provides:

               The court may order an offender whose sentence includes
       community placement or community supervision to undergo a mental status
       evaluation and to participate in available outpatient mental health treatment,
       if the court finds that reasonable grounds exist to believe that the offender
       is a mentally ill person as defined in RCW 71.24.025, and that this

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No. 31894-0-111
State v. Bush


       condition is likely to have influenced the offense. An order requiring
       mental status evaluation or treatment must be based on a presentence
       report and, if applicable, mental status evaluations that have been filed with
       the court to determine the offender's competency or eligibility for a defense
       of insanity. The court may order additional evaluations at a later date if
       deemed appropriate.

(Emphasis added.) The trial court must make a specific finding that an offender is a

mentally ill person as defined in RCW 71.24.025, and that their condition is likely to

have influenced the crime they committed. See State v. Jones, 118 Wn. App. 199, 209,

76 P.3d 258 (2003); State v. Brooks, 142 Wn. App. at 851-52. Although the presentence

hearing report included some evidence that Dexter Bush has mental health issues, the trial

court made no oral or written finding that Bush is a mentally ill person as defined by

statute, or that the mental health issues noted in the DOC's presentence report influenced

any of the offenses for which he was charged.

                                     CONCLUSION

      We affirm Dexter Bush's two convictions for witness intimidation, his conviction

for felony harassment, and the sexual motivation sentencing enhancements. We vacate

the requirement of a mental health evaluation as a condition of community custody.

             A majority of the panel has determined this opinion will not be printed in




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No. 31894-0-III
State v. Bush


the Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



  d?1f:::v,
r
      Siddoway, C.1.




                                                                                           f• 





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