                                                               2015 MAR 30 AM 9=5




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 71309-4-1
                     Respondent,
                                                  DIVISION ONE
              v.



D'ANDRE JOVON CORBIN,                             UNPUBLISHED OPINION

                     Appellant.                   FILED: March 30, 2015


       Becker, J. — This appeal of a conviction for felony cyberstalking

challenges the sufficiency of the evidence to prove a true threat. Notwithstanding

the victim's testimony that she was not frightened, there was sufficient evidence

to prove it was objectively foreseeable that the appellant's threats to kill would be

taken seriously.

       On December 14, 2012, appellant D'Andre Corbin conducted a long and

hostile conversation via text messages with his wife while she was at work. The

messages from Corbin stated that he was going to try to kill her that night.

Several messages simply said, "Ur dead." Corbin's wife texted back that she

hated him. She called him a loser. Corbin responded with promises that he was

coming that night to hurt her, to knock her out, and to kill her. Exhibit 14 is a

series of photographs of these and similar text messages between 7 and 8 p.m.
No. 71309-4-1/2



Corbin also left a voice mail message on his wife's phone that evening in which

he expressed his intent to kill her.

       Shortly after the text message exchange ended, Corbin appeared at his

wife's workplace. She called 911. Corbin found her and chased her out the back

door of the workplace and into a roadway where he was seen holding her hair

and punching her with his arms and fists. Police intervened and took the victim

to the hospital.

       The State charged Corbin with one count of attempted first degree assault

and two counts of felony cyberstalking. The jury was given the following to-

convict instruction for felony cyberstalking, requiring proof that the defendant

used electronic communication to threaten injury and that "the threat consisted of

a threat to kill the other person":

                To convict the defendant of the crime of felony cyberstalking,
       . . . each of the following five elements must be proved beyond a
       reasonable doubt:
               (1) That on or about December 14, 2012, the defendant
       made an electronic communication to another person Denise
       Corbin;
            (2) That at the time the defendant initiated the electronic
       message the defendant intended to harass, intimidate, torment, or
       embarrass that other person;
             (3) That the defendant threatened to inflict injury on the
       person or property or of any member of the family or household of
       the person;
               (4) That the threat consisted of a threat to kill the other
       person; and
               (5) That the electronic communication was made or received
       in the State of Washington.

Instruction 16. A Petrich instruction was also given:

              The State alleges in counts 2 and 3 that the defendant
       committed acts of cyberstalking on multiple occasions. To convict
       the defendant of any count of cyberstalking in either count 2 or
No. 71309-4-1/3



       count 3, one particular act of cyberstalking must be proved beyond
       a reasonable doubt, and you must unanimously agree as to which
       act has been proved. You need not unanimously agree that the
       defendant committed all the acts of cyberstalking.

Instruction 22. The jury convicted Corbin as charged.

       Where a threat to commit bodily harm is an element of a crime, the State

must prove the threat was a "true threat." State v. Kilburn. 151 Wn.2d 36, 54, 84

P.3d 1215 (2004). This is because of the danger that the criminal statute will be

used to criminalize pure speech and impinge on First Amendment rights. The

test for determining a "true threat" is an objective test that focuses on the

speaker. Kilburn, 151 Wn.2d at 54. The State need not prove the speaker

actually intended to carry out the threat. The question is whether a reasonable

person would foresee that the threat would be interpreted as a serious

expression of intention to inflict the harm threatened. Kilburn. 151 Wn.2d at 46.

True threats are not protected speech because of the "fear of harm aroused in

the person threatened and the disruption that may occur as a result of that fear."

Kilburn, 151 Wn.2d at 46.

       Consistent with Kilburn, instruction 17 informed the jury that a statement

or act, to be a threat, "must occur in the context or under such circumstances

where a reasonable person, in the position of the speaker, would foresee that the

statement or act would be interpreted as a serious expression of intention to

carry out the threat rather than as something said in jest or idle talk." Kilburn,

151 Wn.2dat43.


       Felony cyberstalking is an offense with the potential to be based on

protected speech. For that reason, this court conducts an independent

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No. 71309-4-1/4



examination of the entire record to be sure that the speech in question actually

falls within the unprotected category. Kilburn, 151 Wn.2d at 50.

          Corbin argues that an examination of the record in this case shows that

taken in context, his threats to kill were not true threats. His wife testified that

she did not take the threats seriously because she and Corbin had made similar

threats to each other in previous arguments. She said it was "something he said

to get under my skin, to make me mad, and I know that. And it wasn't something

where, immediately, it was, like, 'Okay, he's going to kill me; I'm scared.' That

wasn't the case." A coworker testified that Corbin's wife did not seem alarmed

when she received and read the text messages before Corbin arrived. Corbin

argues that his wife's caustic and insulting replies to his messages supply

additional context proving Corbin would not have reasonably foreseen that his

threats to kill would be regarded as a serious expression of intent to carry out the

threat.


          We disagree. The jury was not obligated to accept the wife's testimony

that Corbin's threats to kill were routine and familiar. The jury could have

concluded that she was minimizing the threats, perhaps to protect Corbin. The

fact that the wife called the police and ran outside screaming as soon as she saw

Corbin entering her workplace contradicts her testimony that she did not take the

messages seriously. The evidence supports an inference that a reasonable

person in Corbin's situation would have foreseen that his threats to kill his wife

would have been interpreted as a serious expression of intent to carry out the

threats.
No. 71309-4-1/5



       Corbin next argues that his sentence exceeded the statutory maximum for

attempted first degree assault. The State concedes that because attempted first

degree assault is treated as a Class B felony, the statutory maximum is 120

months. RCW 9A.28.020(3)(b); RCW9A.20.021(1)(b). We accept the State's

concession. The imposition of 36 months' community custody in combination

with 120 months' imprisonment exceeds the statutory maximum. This must be

corrected by resentencing.

       Corbin has filed a statement identifying additional grounds for review

pursuant to RAP 10.10.

          First, Corbin asserts that the trial court violated his right to remain silent by

compelling him to produce documentary evidence against himself. We find no

basis for review.


       Second, he alleges the State suppressed Brady1 material and the result

was ineffective assistance of counsel. This ground does not warrant further

review.


       Third, Corbin asserts that he received ineffective assistance of counsel

when his attorney proposed a unanimity instruction on count 1 that misstated the

law, relieving the State of its burden to prove specific intent. That unanimity

instruction, instruction 13A, does not misstate the law.

          Fourth, he asserts that he received ineffective assistance of counsel when

his attorney failed to argue that the acts underlying all three convictions

constituted the same criminal conduct. This ground does warrant review. At this



       1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).
                                              5
No. 71309-4-1/6



court's request, the State provided a brief.2 The briefwas unresponsive to our

request, in that it treated our inquiry about same criminal conduct as if it were an

inquiry about a continuing course of conduct.

       Two or more crimes constitute the "same criminal conduct" when they

"require the same criminal intent, are committed at the same time and place, and

involve the same victim." RCW 9.94A.589(1)(a). Count 1 was attempted assault

in the first degree. Counts 2 and 3 were felony cyberstalking. Attempted assault

and felony cyberstalking do not require the same criminal intent and, in this case,

were not committed at the same time and place. The two convictions for felony

cyberstalking do, however, likely satisfy the test for same criminal conduct.

       It is the defendant who must establish that crimes constitute the same

criminal conduct at sentencing. State v. Graciano, 176 Wn.2d 531, 539-40, 295

P.3d 219 (2013). Here, the issue was not raised at sentencing. Nevertheless, it

may be raised on appeal as an issue of ineffective assistance of counsel. See,

e.g.. State v. Brown, 159 Wn. App. 1, 16, 248 P.3d 518 (2010), review denied,

171 Wn.2d 1015 (2011).

      A reasonable possibility exists that the sentencing court would have found

that the two felony cyberstalking convictions constituted the same criminal

conduct had Corbin's counsel argued that the two offenses were committed at

the same time and place and involved the same victim and the same intent.

Corbin received ineffective assistance of counsel with respect to this issue. He is




      2 The State's motion for an extension of time to file this brief is granted.
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No. 71309-4-1/7



entitled to a remand for a new sentencing hearing in which counsel may argue

that the two cyberstalking offenses encompass the same criminal conduct.

       Fifth, Corbin asserts that convictions for counts 2 and 3 violate double

jeopardy under a unit of prosecution analysis, citing State v. Morales, 174 Wn.

App. 370, 298 P.3d 791 (2013). This ground also warrants review.

       No case has yet addressed the unit of prosecution either for felony

cyberstalking, RCW 9.61,020, or for the similarly worded offense of telephone

harassment, RCW 9.61.230. Morales provides a unit of prosecution analysis for

the related, but differently worded, offense of harassment, RCW 9A.46.010.

Given the particular scenario in Morales, the court concluded the unit of

prosecution was a threat to cause bodily harm to a single identified person at a

particular time and place, regardless of how many times it is communicated.

Morales. 174 Wn. App. at 387.

       At this court's request, the State responded by pointing out that the

cyberstalking statute states that a person is guilty when he or she "makes an

electronic communication to such other person or a third party."

RCW 9.61.260(1) (emphasis added). This is different from the wording of the

statute in Morales. In the scenario here, this language suggests the legislative

intent was that each distinct electronic communication amounting to a threat to

kill would constitute a separate crime of felony cyberstalking. Accordingly, we

conclude Corbin's assertion of a double jeopardy violation does not warrant

further review.
No. 71309-4-1/8



       Sixth, Corbin contends that the trial court miscalculated his offender score

because it counted two juvenile criminal adjudications from 1994 and 1995,

before he turned 15 years old. Prior to an amendment to the Sentencing Reform

Act in 1997, juvenile offenses committed before the age of 15 were not included

as prior offenses in the calculation of offender scores for current offenses. In re

Pers. Restraint of LaChapelle, 153 Wn.2d 1, 4, 100 P.3d 805 (2004). However, a

series of later legislative amendments and court cases established that for

crimes committed after the legislature's 2002 amendments to the Sentencing

Reform Act, criminal history includes all juvenile adjudications that have not since

been vacated. State v. Varqa, 151 Wn.2d 179, 191-95, 86 P.3d 139 (2004).

Corbin was sentenced for offenses that occurred in 2012. Therefore, his

statement does not provide a basis to review his contention that his 1994 and

1995 juvenile adjudications were improperly reflected in his offender score.

       The felony cyberstalking convictions are affirmed. The case is remanded

for a new sentencing hearing in which Corbin may argue that the two

cyberstalking offenses encompass the same criminal conduct. At resentencing,

the court shall also ensure that the sentence does not exceed the statutory

maximum.




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WE CONCUR:




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