State Of Washington v. Dandre Jovon Corbin ( 2015 )

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D'ANDRE JOVON CORBIN, UNPUBLISHED OPINION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.
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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
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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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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.
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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).
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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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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.
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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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