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Respondent, UNPUBLISHED OPINION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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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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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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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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State Of Washington v. Konstantin v. Statovoy
Combined Opinion