                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41435

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 348
                                               )
       Plaintiff-Respondent,                   )    Filed: February 12, 2015
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
ANDREY SERGEYEVICH YERMOLA,                    )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge.

       Judgment of conviction for felony concealment of evidence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Andrey Sergeyevich Yermola appeals from his judgment of conviction for misdemeanor
false imprisonment, felony concealment of evidence, and misdemeanor possession of drug
paraphernalia.    Specifically, he contends there was insufficient evidence to support the
concealment of evidence charge. For the reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Yermola drove to his estranged wife’s place of employment in Spokane and she
voluntarily got into the passenger seat. As they were driving, his wife allowed Yermola to
borrow her cell phone, but when she demanded it back, he refused to return it. Yermola then
refused to allow his wife to exit the vehicle and “sped off” and drove in a “crazy” manner toward
the Coeur d’Alene tribal casino in Idaho. After entering the casino parking lot, Yermola turned


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the car around and drove to an open area off the side of the road and stopped. There, he pulled
out a Beretta .40 caliber pistol from behind the back seat, wiped it off with a sweater, and threw
it outside into the snow. Yermola then drove back to the casino parking lot, exited the vehicle,
and threw his wife’s cell phone into a pond.
       Yermola’s wife alerted casino security personnel to the incident, and law enforcement
responded to the scene. Yermola’s wife accompanied officers to the location off the highway
where Yermola had thrown the gun. A Beretta .40 caliber pistol, which had been reported stolen
months earlier by its owner, was found. Officers also retrieved the cell phone from the pond and
found various drug paraphernalia in Yermola’s vehicle.
       Yermola was charged with second degree kidnapping, Idaho Code §§ 18-4501, 18-
4504(2); unlawful possession of a firearm by a felon, I.C. § 18-3316; grand theft by possession
of stolen property (the handgun), I.C. §§ 18-2403(4), 18-2407(1); two counts of felony
concealment of evidence for the cell phone and the gun respectively, I.C. § 18-2603; and
possession of drug paraphernalia, I.C. § 37-2734A.        The State subsequently amended the
kidnapping charge to misdemeanor false imprisonment, I.C. § 18-2901, and dismissed one count
of concealment of evidence, charging Yermola with a single count of felony concealment of
evidence for the gun “and/or a cell phone.”
       Following the State’s case-in-chief, upon Yermola’s motion the district court dismissed
the unlawful possession of a firearm charge, determining the State failed to present evidence that
Yermola was a convicted felon who was barred from possessing a firearm. The jury found
Yermola guilty of false imprisonment, felony concealment of evidence, and possession of drug
paraphernalia, but acquitted him of grand theft by possession of stolen property. Yermola filed a
motion for a new trial and a motion for judgment of acquittal. In regard to his conviction for
felony concealment of evidence, Yermola argued he was entitled to a judgment of acquittal
because “the jury was never given instructions as to what constitutes a felony making it
impossible for them to know if the evidence related to a felony.” The district court denied the
motions. Yermola now appeals.
                                               II.
                                          ANALYSIS
       Yermola’s sole argument on appeal is that there was insufficient evidence to support his
conviction for felony concealment of evidence because the jury was never presented with any

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evidence that either of the items alleged to have been concealed tended to demonstrate the
commission of an offense classified as a felony. Idaho Criminal Rule 29 provides that when a
verdict of guilty is returned, the court, on motion of the defendant, shall order the entry of a
judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense. The
test applied when reviewing the district court’s ruling on a motion for judgment of acquittal is to
determine whether the evidence was sufficient to sustain a conviction of the crime charged.
State v. Fields, 127 Idaho 904, 912-13, 908 P.2d 1211, 1219-20 (1995). When reviewing the
sufficiency of the evidence where a judgment of conviction has been entered upon a jury verdict,
the evidence is sufficient to support the jury’s guilty verdict if there is substantial evidence upon
which a reasonable trier of fact could have found that the prosecution sustained its burden of
proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131
Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822
P.2d 998, 1001 (Ct. App. 1991).
        Idaho Code § 18-2603 defines the crime of “Destruction, alteration or concealment of
evidence” as follows:
                Every person who, knowing that any book, paper, record, instrument in
        writing, or other object, matter or thing, is about to be produced, used or
        discovered as evidence upon any trial, proceedings, inquiry, or investigation
        whatever, authorized by law, wilfully destroys, alters or conceals the same, with
        intent thereby to prevent it from being produced, used or discovered, is guilty of a
        misdemeanor, unless the trial, proceeding, inquiry or investigation is criminal in
        nature and involves a felony offense, in which case said person is guilty of a
        felony and subject to a maximum fine of ten thousand dollars ($10,000) and a
        maximum sentence of five (5) years in prison.

(emphasis added).
        In State v. Peteja, 139 Idaho 607, 83 P.3d 781 (Ct. App. 2003), this Court discussed the
dual structure of the statute:
               Section 18-2603 establishes two classifications for the crime of the
        destruction, alteration, or concealment of evidence. First, the statute classifies the
        crime as a misdemeanor offense. Parsing out the statute’s text and linguistic
        meaning, the elements of this misdemeanor offense are as follows:
               1. The defendant knew that an object was about to be produced, used, or
                   discovered as evidence in any legally authorized trial, proceeding,
                   inquiry, or investigation;
               2. The defendant willfully destroyed, altered, or concealed that object;
                   and

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                3. The defendant in acting to destroy, alter, or conceal that object
                   intended to prevent the object’s production, use, or discovery.
       Second, section 18-2603 elevates the misdemeanor to a felony offense where “the
       trial, proceeding, inquiry or investigation is criminal in nature and involves a
       felony offense.” This language modifies only the first above-stated statutory
       element, which may be restated for a felony destruction of evidence offense as
       follows:
                1. The defendant knew that an object was about to be produced, used, or
                   discovered as evidence in any legally authorized trial, proceeding,
                   inquiry, or investigation involving a felony offense.

Id. at 610, 83 P.3d at 784 (emphasis added). Whether the investigation “involves a felony
offense” depends upon on whether the evidence that was destroyed, altered, or concealed would
have tended to demonstrate the commission of a felony. Id. at 612, 83 P.3d at 786.
       Here, in regard to the concealment of evidence charge, the jury was instructed, in relevant
part, that the State must prove:
       3.      the defendant . . . knowing that a Beretta .40 caliber pistol and/or a cell
               phone were about to be produced or used or discovered as evidence in a
               felony trial or inquiry or investigation;
       4.      did willfully conceal the same with the intent to prevent it from being
               produced or used or discovered.

       Yermola contends the State was required to prove the underlying offense was a felony
and there was no specific evidence presented in this case that the evidence alleged to have been
concealed--a handgun or cell phone--tended to demonstrate the commission of a crime classified
as a felony (as opposed to a lesser offense). He contends the officers only testified that they
conducted an investigation, but did not testify as to the severity of the crimes investigated and
that although Yermola was charged with at least one felony relating to this evidence (grand theft
by possession), the jury was not actually presented with evidence that the crime was a felony.
       The State does not dispute that there was no evidence presented that the alleged
underlying crime 1 was a felony. Rather, the State argues it was sufficient that it presented
substantial evidence that Yermola concealed evidence (the handgun) that would have tended to

1
        It is unclear what underlying felony the State was alleging Yermola attempted to conceal
by throwing the cell phone into the pond. The only possible underlying crime appears to be
kidnapping, which was reduced to a misdemeanor false imprisonment charge before trial. On
appeal, the State appears to recognize this and focuses nearly exclusively on the handgun and the
felony grand theft charge.


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demonstrate the commission of grand theft by possession of stolen property which is, in fact, a
felony.     That the jury was not presented with evidence that grand theft is a felony is
inconsequential, the State contends, because whether an offense is a felony or misdemeanor is a
question of law outside the jury’s domain.
          We agree with the State that this element of the offense does not require the jury to find
that a particular offense is classified as a felony; rather, it is sufficient that the jury finds that the
concealment occurred in regard to a crime that is, in fact, a felony. In other words, if a jury finds
that a defendant engaged in concealment of evidence as to a crime that is classified as a felony, it
inherently finds that the defendant engaged in concealment of evidence in the context of a
criminal, felony investigation as required by the statute.           Here, the jury was specifically
instructed that it must find that the evidence was concealed in regard to a “felony trial or inquiry
or investigation” which substantively mirrors the elements set forth in Peteja. 2 And, as the State
points out, there was substantial evidence presented to the jury that the gun at issue in the
concealment charge would have tended to demonstrate the commission of another crime that
Yermola was charged with, grand theft by possession of stolen property, which is, in fact, a
felony. At trial, the registered owner of the gun testified that it had been stolen from his vehicle
in November 2012 and had remained missing until law enforcement found it in the snow where
Yermola’s estranged wife said Yermola had thrown it. The registered owner identified the gun
in court, both visually and by serial number, as the same gun he had purchased and that was
stolen from his vehicle. Thus, there was sufficient evidence for the jury to have found that the
gun tended to demonstrate the commission of grand theft by possession of stolen property and
thus, inherently, that it involved a felony offense. Yermola’s conviction for felony concealment
of evidence is affirmed.
          Chief Judge MELANSON and Judge GRATTON, CONCUR.




2
       Idaho does not have a model jury instruction for the crime of destruction, alteration, or
concealment of evidence.
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