                                                              FILED
                                                         SEPTEMBER 28, 2017
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )        No. 34702-8-III
                                             )
                    Respondent,              )
                                             )
             v.                              )        UNPUBLISHED OPINION
                                             )
YAN Y. YEFREMOV,                             )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, A.C.J. -Yan Yefremov appeals his conviction for escape

from community custody. The statute defining this crime requires the defendant to have

acted "willfully." RCW 72.09.310. Mr. Yefremov argues the trial court erred when it

refused his proposed jury instruction, which equated willfulness with purpose, and instead

gave an instruction equating willfulness with knowledge. He also argues he received

ineffective assistance of counsel because defense counsel did not object when the

community corrections officer (CCO) testified that he had absconded from community

custody in the past. We disagree with Mr. Yefremov's contentions and affirm.
No. 34702-8-III
State v. Yefremov


                                        FACTS

       In April 2014, Mr. Yefremov began serving a 12-month term of community

custody as part of a felony sentence. His assigned CCO was Jeremy Taylor. One of Mr.

Yefremov's community custody conditions was to report to and be available for contact

with CCO Taylor. Mr. Yefremov was required to report to the Department of Corrections

(Department) two times per month. CCO Taylor advised Mr. Yefremov of the

expectations and conditions of community custody.

       Mr. Y efremov violated the community custody conditions several times. This

extended his term of community custody beyond the time it would have ordinarily ended.

       At one of their meetings, CCO Taylor instructed Mr. Yefremov to personally meet

with him on September 16, 2015. CCO Taylor wrote this date on the back of a business

card and gave it to Mr. Yefremov. The business card also listed CCO Taylor's cellular

telephone number, his office telephone number, and the address where Mr. Yefremov was

required to report.

       Mr. Y efremov did not report for the September 16 supervision meeting. He did

not contact CCO Taylor either before or at any time after the scheduled meeting. CCO

Taylor called Mr. Yefremov's primary number as well as Mr. Yefremov's emergency

contact. CCO Taylor was unable to reach Mr. Yefremov at either number.



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No. 34702-8-III
State v. Yefremov


       A warrant was issued for Mr. Yefremov's arrest. The Department attempted to

arrest Mr. Yefremov at his last known address, but was unable to do so. Mr. Yefremov

was arrested roughly 60 days later.

                                         PROCEDURE

       The State charged Mr. Y efremov with escape from community custody under

RCW 72.09 .310. At trial, the State called CCO Taylor. During direct examination, the

State asked CCO Taylor why Mr. Yefremov was still under community custody in

September 2015, when his 12-month term of community custody began in April 2014.

CCO Taylor responded that community custody sentences are tolled when the supervisees

"abscond from supervision or willfully make themselves not available." Report of

Proceedings (RP) (June 7, 2016) at 76. CCO Taylor noted that "Mr. Yefremov had

multiple prior violations, to include absconding from supervision." RP (June 7, 2016) at

75-76. Defense counsel did not object to this testimony.

       Later on, the State asked CCO Taylor whether Mr. Yefremov had enrolled in any

substance abuse treatment programs that were available to him. CCO Taylor responded

that Mr. Y efremov was enrolled in outpatient services at one point, but that he was

removed from those services due to "one of his prior violation processes of absconding."

RP (June 7, 2016) at 80. Defense counsel did not object to this testimony.



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No. 34702-8-III
State v. Yefremov


       On cross-examination, defense counsel asked CCO Taylor whether Mr. Y efremov

had ever committed a community custody violation that resulted in a criminal

prosecution. CCO Taylor responded that, "Prior to this [Mr. Yefremov] had seven prior

abscondings." RP (June 7, 2016) at 89. Defense counsel did not object to this testimony.

Continuing, CCO Taylor confirmed that none of these prior absconding offenses had

resulted in a criminal prosecution.

       Mr. Yefremov testified. He testified he had been addicted to opiates for 15 years,

which caused him to engage in criminal behavior. He acknowledged his poor attendance

at his supervision meetings. He testified that every time he missed his meetings, it was

because ·he knew he would test positive for drugs. He further testified that this was why

he missed the September 16, 2015 supervision meeting.

       After both parties rested, Mr. Yefremov proposed the following jury instruction:

"Willful means acting intentionally and purposely, and not accidentally or inadvertently."

Clerk's Papers (CP) at 23. The trial court denied Mr. Yefremov's proposed instruction,

reasoning that it differed from the Washington Pattern Jury Instructions (WPICs).

Instead, the court gave the following instruction, consistent with WPIC 10.05: "A person

acts willfully when he or she acts knowingly." CP at 32; see 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.05, at 231 (4th ed. 2016).



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State v. Yefremov


         The jury found Mr. Yefremov guilty as charged. Mr. Y efremov appeals.

                                         ANALYSIS

         ESCAPE FROM COMMUNITY CUSTODY MENS REA REQUIREMENT


         Mr. Yefremov argues that the crime of escape from community custody requires

proof of a purposeful act, and that the trial court erred when it declined to give his

proposed jury instruction defining "willful" as "acting intentionally and purposely." CP

at 23.

         Jury instructions are proper when they correctly inform the jury of the applicable

law. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). This court reviews

alleged errors of law in jury instructions de novo. Id.

         An inmate in community custody is guilty of escape from community custody if he

or she "willfully discontinues making himself or herself available to the department for

supervision by making his or her whereabouts unknown or by failing to maintain contact

with the department as directed by the community corrections officer." RCW 72.09.310

(emphasis added). Since 1975, RCW 9A.08.010(4) has provided that "[a] requirement

that an offense be committed wilfully is satisfied if a person acts knowingly with respect

to the material elements of the offense, unless a purpose to impose further requirements

plainly appears." See LAWS OF 1975, 1st Ex. Sess., ch. 260.



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No. 34702-8-III
State v. Yefremov


       This court recently addressed whether the "willfulness" requirement in the escape

from community custody statute is equivalent to a purposeful mens rea or a knowledge

mens rea. See State v. Buttolph,_ Wn. App._, 399 P.3d 554 (2017). In that case,

Tylor Buttolph was convicted of escape from community custody under RCW 72.09 .310.

Buttolph, 399 P.3d at 555. On appeal, he argued, like Mr. Yefremov does here, that

construing "willfulness" in RCW 72.09 .310 as only requiring knowledge would make it a

crime for a person to inadvertently miss a community custody meeting. Buttolph, 399

P.3d at 555. Mr. Buttolph relied principally on State v. Danforth, 97 Wn.2d 255, 643

P.2d 882 (1982) for the proposition that the legislature plainly intended to impose a

greater mens rea requirement for this statute. Buttolph, 399 P.3d at 555. Mr. Yefremov

also relies on this same case.

       This court rejected Mr. Buttolph's argument, holding that the "willfulness"

requirement in RCW 72.09.310 is satisfied by a person acting knowingly with respect to

the material elements of the crime. Buttolph, 399 P.3d at 557. This court reasoned that

"when the legislature enacted the escape from community custody statute in 1988, it

presumably knew that RCW 9A.08.010(4) equated willfulness with knowledge." Id. at

556. Therefore, this court reasoned, if the legislature had intended a greater mens rea

requirement, it would have stated its purpose directly. Id.



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No. 34702-8-III
State v. Yefremov


       This court further rejected Mr. Buttolph's reliance on Danforth for the proposition

that the legislature plainly intended to impose a greater mens rea requirement. Danforth

involved a former statute that made it a crime to willfully fail to return to a work release

program. Danforth, 97 Wn.2d at 257. To avoid criminal liability under that statute, the

person had to return to the designated place "' at the time specified.'" Id. (emphasis

added) (quoting former RCW 72.65.070 (1967)). The Danforth court reasoned that a

"purposeful" mens rea was required so as not to criminalize a person's inadvertent failure

to return to a specific place on time. Id. at 258.

       However, this court distinguished the escape from community custody statute from

the former failure to return to work release statute. Buttolph, 399 P.3d at 557. Because a

person can avoid criminal liability under RCW 72.09 .310 by simply contacting the

Department-which was not the case under former RCW 72.65.070-this court reasoned

that a purpose to impose a greater mens rea requirement did not plainly appear, as it did in

Danforth. Buttolph, 399 P.3d at 557.

       In light of Buttolph's holding that the "willfulness" requirement in RCW

72.09.310 is satisfied by a person acting knowingly, we conclude that the trial court did

not err in denying Mr. Yefremov's proposed jury instruction.




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No. 34702-8-III
State v. Yefremov


       ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL


       Mr. Yefremov argues defense counsel provided ineffective assistance because he

failed to object to CCO Taylor's testimony that he had "abscond[ed]" from community

custody in the past. RP at 76, 80, 89. Mr. Yefremov argues the only purpose for this

testimony was to show his propensity for criminal activity and to unduly prejudice his

case. For this reason, he argues the trial court would have excluded this t~stimony under

ER 403 and ER 404(b) had defense counsel objected.

       The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant receives

ineffective assistance if the attorney's conduct (1) falls below a minimum objective

standard of reasonable attorney conduct, and (2) prejudiced the defendant, i.e., there is a

reasonable probability the attorney's conduct affected the case's outcome. State v. Benn,

120 Wn.2d 631,663,845 P.2d 289 (1993). Because ineffective assistance of counsel is

an issue of constitutional magnitude, it may be considered for the first time on appeal.

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

       "There is a strong presumption that counsel has rendered adequate assistance and

has made all significant decisions in the exercise of reasonable professional judgment."



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No. 34702-8-III
State v. Yefremov


Benn, 120 Wn.2d at 665. A defendant cannot claim ineffective assistance if defense

counsel's trial conduct can be characterized as legitimate trial strategy or tactic. Id. "The

decision whether to object is a classic example of trial tactics, and only in egregious

circumstances will the failure to object constitute ineffective assistance of counsel." State

v. Kolesnik, 146 Wn. App. 790, 801, 192 P.3d 937 (2008). This court reviews ineffective

assistance claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

         ER 404(b) provides that "[ e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith." Evidence of prior bad acts is not admissible to show a defendant is a

"criminal type." State v. Brown, 132 Wn.2d 529, 570, 940 P.2d 546 (1997). ER 403

provides that the relevant evidence "may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury."

         Applying the strong presumption that counsel has rendered adequate assistance

and has made all significant decisions in the exercise of reasonable professional

judgment, defense counsel's decision not to object to CCO Taylor's testimony can be

properly characterized as a strategic one. CCO Taylor made the first two references to

Mr. Yefremov's multiple acts of absconding while trying to make some other point-he


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No. 34702-8-III
State v. Yefremov


was trying to explain why Mr. Yefremov was still under community custody in September

2015, and why Mr. Yefremov was removed from his substance abuse treatment program.

Objections would have drawn the jury's attention away from the questions at hand and

focused their attention on Mr. Yefremov's prior absconding offenses. By the time CCO

Taylor mentioned the multiple acts of absconding a third time, the jury had already

learned of them. Accordingly, even were we to assume that CCO Taylor's testimony was

improper, we conclude defense counsel was not ineffective by not objecting.

       Moreover, Mr. Yefremov fails to establish prejudice. He testified about his poor

attendance at his supervision meetings and admitted he missed them because he knew he

would test positive for drugs. Given his open discussion of his history of absconding,

there is no reasonable probability that CCO Taylor's references affected the case's

outcome.

      Because defense counsel's trial conduct was likely tactical and Mr. Yefremov has

failed to demonstrate prejudice, we conclude Mr. Yefremov's right to effective assistance

of counsel was not violated.




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No. 34702-8-III
State v. Yefremov


       APPELLATE COSTS


       Mr. Yefremov, noting his indigent status, asks this court to exercise its discretion

and not impose appellate costs in the event the State substantially prevails. The State has

substantially prevailed. The State requests this court to only impose appellate costs in

conformity with RAP 14.2 as amended.

       RAP 14.2, recently amended, governs the award of appellate costs. The rule

generally requires an award of appellate costs to the party that substantially prevails. The

rule permits an appellate court, in its decision, to decline an award of appellate costs, or to

direct a commissioner or clerk to decide the issue. A commissioner or clerk is precluded

from awarding appellate costs if it finds that the defendant lacks the current or likely

future ability to pay such costs. If a trial court earlier found that the defendant was

indigent for purposes of appeal, that finding continues unless the commissioner or clerk

determines by a preponderance of the evidence that the defendant's financial

circumstances have significantly improved since the earlier finding.

       A majority of this panel has determined that our commissioner shall decide the

issue of appellate costs. In the event the State seeks an award of appellate costs, we direct

our commissioner to enter an order consistent with RAP 14.2.




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No. 34702-8-III
State v. Yefremov


      Affirmed.

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

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

RCW 2.06.040.




WE CONCUR:




                                             d]iLLo tO~' ~ '
                                          Siddoway, J.




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