                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          January 9, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49620-8-II

                                Respondent,                   UNPUBLISHED OPINION

        v.

 KONSTANTIN V. STATOVOY,

                                Appellant.

       BJORGEN, C.J. — Konstantin V. Statovoy appeals his felony sentence for assault in the

second degree, which the State designated as a domestic violence offense.

       Statovoy argues the superior court violated his right to a jury trial under the Sixth

Amendment of the United States Constitution because it failed to provide the jury with an

individualized special verdict form on each count designated as a domestic violence offense. As

a result, he argues the superior court erred when it calculated his offender score because it

counted his misdemeanor convictions under the repetitive domestic violence provision of the

Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, without an individualized finding

that each misdemeanor involved domestic violence.
No. 49620-8-II


       We hold that individualized special verdict forms are not required for a superior court to

properly calculate a defendant’s offender score under the repetitive domestic violence provision

of the SRA.

       Accordingly, we affirm Statovoy’s sentence.

                                              FACTS

       Statovoy contacted his ex-wife, Olga Yermilova, in violation of a protection order, which

had been duly served upon him. They were former spouses of 18 years, and they had three

children together. During the incident, Statovoy assaulted and threatened Yermilova multiple

times. Two neighbors came to her aid, and they detained Statovoy until the police arrived.

       The police arrested Statovoy, and he was charged by amended information as follows:

count 1, assault in the second degree (domestic violence); count 2, felony domestic violence

court order violation (assault) (domestic violence); count 3, assault in the fourth degree

(domestic violence); count 4, assault in the fourth degree; and count 5, reckless driving.

       The case went to trial. Before deliberations, the jury was provided with jury instruction

25, among others, which instructed as follows:

              You will also be given a Special Verdict Form A for the crimes charged in
       counts 1, 2, and 3. If you find the defendant not guilty of all of these crimes, do not
       use Special Verdict Form A. If you find the defendant guilty of any of these crimes
       (Counts 1, 2 or 3), you will then use Special Verdict Form A and fill in the blank
       with the answer “yes” or “no” according to the decision you reach.
              You will also be given Special Verdict Form B for the crime of Violation
       of a Court Order as charged in Count 2. If you find the defendant not guilty of
       Violation of a Court Order, do not use Special Verdict Form B. If you find the
       defendant guilty of Violation of a Court Order, you will then use Special Verdict
       Form B and fill in the blank with the answer “yes” or “no” according to the decision
       you reach.




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No. 49620-8-II


               In order to answer the special verdict form “yes,” you must unanimously be
       satisfied beyond a reasonable doubt that “yes” is the correct answer. If you
       unanimously have a reasonable doubt as to the question, you must answer “no.”

Clerk’s Papers (CP) at 116.

       Special verdict form A asked the jury: “Were Konstantin V. Statovoy and Olga

Yermilova members of the same family or household?” CP at 124. Special verdict form B

asked the jury: “Was the conduct that constituted a violation of the court order an assault which

did not amount to an assault in the second degree?” CP at 125. Statovoy did not object to

special verdict form A or any of the associated jury instructions; nor did he request additional

special verdict forms be given on counts 1, 2, or 3, each of which included a special allegation of

domestic violence.

       The jury convicted Statovoy on all five counts. The jury also answered “yes” to special

verdict form A in which it unanimously agreed, beyond a reasonable doubt, that Statovoy and

Yermilova were members of the same family or household. CP at 124. The jury answered “no”

to special verdict form B, which does not play a role in our analysis. CP at 125.

       The superior court noted on Statovoy’s felony judgment and sentence that “[f]or the

crime(s) charged in Count 01 domestic violence was pled and proved.” CP at 143 (emphasis

omitted). The court’s misdemeanor judgment and sentence reflected that Statovoy was guilty of

counts 2 through 5 and noted that domestic violence was pled and proved in counts 2 and 3. The

superior court scored Statovoy’s concurrent domestic violence offenses (counts 1, 2, and 3)

under former RCW 9.94A.525(21) (2013) and calculated Statovoy’s offender score as 2. The

superior court sentenced Statovoy to 23 months total confinement.

       Statovoy appeals.


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No. 49620-8-II


                                           ANALYSIS

                                      I. SIXTH AMENDMENT

       Statovoy contends that using a single special verdict form asking whether he and Olga

Yermilova were members of the same family or household violated his right to a jury trial under

the Sixth Amendment of the United States Constitution. We disagree.

A.     Statovoy May Raise His Claimed Sixth Amendment Error for the First Time on Appeal

       Statovoy failed to object to the use of a single special verdict form at trial. However,

errors implicating a criminal defendant’s Sixth Amendment right to a jury trial may be raised for

the first time on appeal. State v. Dyson, 189 Wn. App. 215, 224, 360 P.3d 25 (2015), review

denied, 184 Wn.2d 1038 (2016); State v. Hughes, 154 Wn.2d 118, 143, 110 P.3d 192 (2005),

abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L.

Ed. 2d 466 (2006). Statovoy claims such an error. Thus, it is properly before us.

B.     The Basis of Statovoy’s Offender Score

       Former RCW 9.94A.525(21)(c) states:

       If the present conviction is for a felony domestic violence offense where domestic
       violence as defined in [former] RCW 9.94A.030 [2015] was plead and proven,
       count priors as in subsections (7) through (20) of this section; however, count points
       as follows:

       ....

       (c) Count one point for each adult prior conviction for a repetitive domestic
       violence offense as defined in [former] RCW 9.94A.030, where domestic violence
       as defined in [former] RCW 9.94A.030, was plead and proven after August 1, 2011.

       Under these provisions, Statovoy’s offender score on his felony second degree assault

conviction involving domestic violence may be calculated under (c) using his misdemeanor



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No. 49620-8-II


convictions designated as domestic violence offenses if they also were repetitive domestic

violence offenses as defined in former RCW 9.94A.030(42). See State v. Rodriguez, 183 Wn.

App. 947, 953-58, 335 P.3d 448 (2014), review denied, 182 Wn.2d 1022 (2015).

       The superior court noted on Statovoy’s felony judgment and sentence that domestic

violence was pled and proved on count 1, second degree assault. The superior court also noted

on his misdemeanor judgment and sentence that domestic violence was pled and proved on

counts 2 and 3. These misdemeanors also fall within the definition of “repetitive domestic

violence offenses” in former RCW 9.94A.030(42). The superior court thus calculated Statovoy’s

offender score for his felony conviction as 2 under former RCW 9.94A.525(21)(a). The issue

presented by Statovoy’s appeal is whether the offender score calculated on this basis violates the

Sixth Amendment because individual special verdict forms were not used for each count

involving domestic violence.

C.     Individualized Special Verdict Forms Are Not Required

       The Sixth Amendment by its express terms guarantees a criminal defendant the right to

an impartial jury. The jury serves as an intermediary between the State and a judge as an agent

of the State, on the one hand, and the criminal defendant, on the other hand. United States v.

Gaudin, 515 U.S. 506, 510-11, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). The right to a jury

trial is a great bulwark of civil and political liberties. Alleyne v. United States, 570 U.S. 99, 133

S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013).     It is not disputed in this appeal that the jury must

make a finding supporting the domestic violence designation. The issue is whether that was

properly done through the single special verdict form.




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No. 49620-8-II


        Statovoy cites Apprendi, 530 U.S. 466 and Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531, 159 L. Ed. 2d 403 (2004), for the proposition that a single special verdict form

provides an insufficient basis on which a sentencing court can properly construe the jury’s

findings. Apprendi and Blakely, however, dealt with which facts in sentencing must be proved to

a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490; Blakely, 542 U.S. at 301. They did

not deal with the extent to which those facts could be proved through a single special verdict

form.

        In this case, the jury instructions, verdict forms, and special verdict forms clearly directed

the jury through its task of deliberations. They also clearly imparted the jury’s findings to the

sentencing judge. The jury unanimously found that Statovoy was guilty beyond a reasonable

doubt with regard to counts 1, 2, and 3: assault in the second degree, violation of a court order,

and assault in the fourth degree. Jury instruction 25 stated: “If you find the defendant guilty of

any of these crimes (Counts 1, 2 or 3), you will then use Special Verdict Form A and fill in the

blank with the answer ‘yes’ or ‘no’ according to the decision you reach.” CP at 116. Special

verdict form A asked the jury whether Statovoy and Yermilova were members of the same

family or household. Under RCW 10.99.020(3), “[f]amily or household members” includes

former spouses and persons who have a child in common regardless of whether they have been

married or have lived together at any time. Yermilova testified that Statovoy was her ex-

husband of 18 years, and they had three children together. The jury unanimously agreed, beyond

a reasonable doubt, that Statovoy and Yermilova were members of the same family or

household. A jury is presumed to follow the court’s instructions, State v. Barry, 183 Wn.2d 297,




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No. 49620-8-II


306, 352 P.3d 161 (2015), and the record presents no indication that the jury did not grasp that

special verdict form A applied to counts 1, 2, and 3.

       Jury instruction 25 referenced each count involving domestic violence and stated, “If you

find the defendant guilty of any of these crimes (Counts 1, 2 or 3), you will then use Special

Verdict Form A.” CP at 116. Special verdict form A, in turn, asked whether Statovoy and

Yermilova were “members of the same family or household.” CP at 124. It was phrased in this

way because asking the same question, three separate times, whether Statovoy and Yermilova

were members of the same family or household, would be redundant. The answer would not

change depending on the underlying offense. Indeed, it would be absurd for a victim to be a

member of the same family or household for the crime of assault in the second degree, but not

for the crime of assault in the fourth degree. On these facts, a single finding that the parties were

members of the same family or household was sufficient; Statovoy could not cease being

Yermilova’s former spouse (or the father of their children in common) because the jury did not

fill out a separate form for each count.

       Because domestic violence includes crimes committed by one family or household

member against another, RCW 10.99.020, all that is required is a finding that the prescribed

criminal conduct occurred and that it was committed between members of the same family or

household. The jury’s answer to the single special verdict form made this finding for each of the

three counts.

       The State argues further that the domestic violence designation is not a separate crime,

which must be pled and proven. See State v. Goodman, 108 Wn. App. 355, 359, 30 P.3d 516

(2001), holding that “domestic violence is not a separate crime with elements that the State must


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No. 49620-8-II


prove.” See also State v. O.P., which held that “‘identify[ing] . . . criminal actions arising from

acts of domestic violence’ does not itself alter the elements of the underlying offense; rather, it

signals the court that the law is to be equitably and vigorously enforced.” 103 Wn. App. 889,

892, 13 P.3d 1111 (2000) (quoting RCW 10.99.040). Statovoy argues to the contrary that

Goodman and O.P. are no longer good law, and the elements of domestic violence must be pled

and proven under former RCW 9.94A.525(21).

       Under Goodman and O.P., supra, a domestic violence designation does not alter the

elements of the underlying offense, and it is not a separate crime. However, for the designation

to apply, the State must plead and prove that the parties involved are members of the same

family or household. Former RCW 9.94A.525(21). Once this showing has been made, though,

the domestic violence designation may be applied to each of the underlying offenses.

       Finally, Statovoy argues that sentencing enhancements must be proved for each count. In

support, he cites State v. Mandanas, 168 Wn.2d 84, 228 P.3d 13 (2010), holding that the superior

court was statutorily required to impose multiple enhancements for a defendant who was

convicted of multiple enhancement-eligible offenses that constituted same criminal conduct,

State v. Conover, 183 Wn.2d 706, 355 P.3d 1093 (2015), holding that bus stop enhancement

statute required enhancements to be run consecutively to base sentences for delivery of heroin,

but not consecutively to each other, and State v. Halgren, 137 Wn.2d 340, 971 P.2d 512 (1999),

holding the future dangerousness aggravating sentencing factor cannot be applied when

determining whether to impose an exceptional sentence.

       The domestic violence designation is not a sentencing enhancement under the SRA. The

domestic violence designation increased Statovoy’s offender score because his domestic violence


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No. 49620-8-II


misdemeanor convictions were repetitive domestic violence offenses as defined in former RCW

9.94A.030(42). The cases cited above address sentencing enhancements, not other convictions

or repetitive domestic violence offenses used to calculate an offender score. Therefore,

Statovoy’s reliance on these cases is misplaced, and his argument fails.

        The superior court did not act as a fact finder. Rather it applied the jury’s findings to the

law, and the law clearly defines the crimes Statovoy committed against Yermilova as domestic

violence. See RCW 10.99.020. The superior court properly calculated Statovoy’s offender score

taking into account his other convictions and repetitive domestic violence offenses. On these

facts, the use of a single special verdict form did not violate the Sixth Amendment or Apprendi

and Blakely.

                                          CONCLUSION

        We affirm Statovoy’s sentence.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 MELNICK, J.


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