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### FILED December2,2014 In theOffice oftheClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURTOF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 

### 32014-6-111 ) Respondent, ) ) 

### v. ) ) DAMIAN 

### T. JOHNSON, ) UNPUBLISHED OPINION ) Appe"ant. ) BROWN, J.- Damian T. Johnson appeals his convictionsforfirst and second degree assault against brothers Denis and Aleksey Kozubenko.1 Mr. Johnson contends the trial court erred by instructing ontransferred intentwhen Mr. Johnson shot at Denis in a truckdriven byAleksey. Wedisagree. Additiona"y, we acceptthe State's sentencing errorconcessions regarding Mr. Johnson's offenderscore calculation and concerning an unpermitted lifetime no-contact orderforthevictim ofthe second degree assault, a class Bfelony. Accordingly, we affirm but remand for resentencing. FACTS Alekseyand Denis arranged a drug purchase from Mr. Johnson. Aleksey drove tothe meeting spot and stayed in the truckwhile Denis wentto makethe purchase inside Mr. Johnson'svehicle. Afterthe exchange, Denis gotoutand started walking

1 First names are used to differentiate between the brothers.No. 32014-6-111 State v. Johnson
back to the pickup. Believing he had been underpaid, Mr. Johnson pulled out a gun and yelled at Denis to get back in the car, but he instead ran tothe pickup; Mr. Johnson began shooting at Denis. Denis got in the pickup and told Alekseyto drive away. Mr. Johnson shot atthe truck as it sped away. Bullets hitthe truck, but notthe men. They reported the incidentto the police who arrested Mr. Johnson. The State charged Mr. Johnson with two counts ofattempted first degree murder, or, in the alternative, two counts offirst degree assault. Over Mr. Johnson's objection, the court instructed thejury, "Ifa person actswith intentto kill or assault another, butthe act harms a third person, the actor is also deemed to have acted with intentto kill or assaultthe third person." Clerk's Papers (CP) at 148 Oury instruction no. 14). A juryfound Mr. Johnson guilty offirst degree assault of Denis and the lesser included offense ofsecond degree assault ofAleksey. The court sentenced Mr. Johnson to 285 months including two sentence enhancements for being armed with afirearm based on an offender score of6. The offender score included a pointfor being on probation for a federal offense atthe time ofthe offense. The court imposed a lifetime no-contact orderfor both men. Mr. Johnson appealed. ANALYSIS A. Transferred Intent The issue iswhether the trial court denied Mr. Johnson his due process rights by giving a transferred intentjury instruction. Mr. Johnson contends transferred intent does



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not apply in this case because Alekseywas not injured and the instruction relieved the State of its burden of proof by creating an improper mandatory presumption. We review alleged due process violations de novo. Post v. Cityof Tacoma, 167 Wn.2d 300, 308, 217 P.3d 1179 (2009). We review a challenged jury instruction de
novo in the context ofthe instructions as awhole. State v. Castillo, 150Wn. App. 466, 469,208 P.3d 1201 (2009). Instructions must convey to thejurythat the State bears the burden ofproving every essential element ofa criminal offense beyond a reasonable doubt. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Instructions must properly inform thejuryaboutthe applicable law and not mislead the jury. 

### 'd. The relevant second degree assault elements are (1) an assault and (2) intentto commit afelony. RCW 9A.36.021(1)(e). Washington recognizes three definitions of assault: '''(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or notthe actor intendsto inflict or is incapable of inflicting that harm.'" State v. Aumick, 126Wn.2d 422,426 n.12, 894 P.2d 1325 (1995) (quoting State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992». Underthe transferred intent doctrine, once the intent to inflict harm on afirst victim is established, the mens rea transfers to any other inadvertentvictim harmed by that intent. State v. Clinton, 25 Wn. App. 400, 403,606 P.2d 1240 (1980). "Moreover, transferred intent is applicable to second degree assault charges involving an accidental



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or unintended victim." State v. Wilson, 113 Wn. App. 122,131,52 P.3d 545 (2002). Underthe principle oftransferred intent embodied in RCW 9A.36.011, an assault "does not, under all circumstances, require that the specific intent match a specificvictim." State v. Elmi, 166 Wn.2d 209,216,207 P.3d439 (2009). In Elmi, our Supreme Court affirmed the defendant's convictions forfirst degree assault against three unintended victims. There, the defendantfired shots into a house where his estranged wife was staying with three children. Id. at 212. Thejury convicted him on four counts offirst degree assault. Id. at 213. The defendant argued the State did not prove specific intent to assault the children. Id. at 214. The court disagreed, holding where a defendant intends to shoot into and to hit someone occupying a house
ora car, the defendant bears the risk ofmultiple convictions when multiplevictims are present, regardless ofwhetherthe defendant knows oftheir presence. Id. at 218. Mr. Johnson argues the evidence establishes he was aware ofbut one victim of his assault. He asks us to apply the dissent's position in Elmi, that transferred intent should apply solely to those assaults where an actual battery exists against an unintended victim. Thus, Mr. Johnson argues charging should be limited to the assault against Denis. We reject his argumentfortwo reasons. First, unlike Elmi, the evidence shows Mr. Johnson was aware ofAleksey's presence because somebody otherthan Denis was driving the truck. Thus, unlike Elmi, thejury could find from the evidence that Mr. Johnson intended to cause great bodily harm to both men. Since multiple shots were fired in the truck's direction, thejury could

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# I I I have reasonably inferred Mr. Johnson saw and intended to inflict great bodily harm upon both victims. Finally, Mr. Johnson never presented evidence orargument distinguishing between intended and unintended victims. Second, the Elmicourt decided intent to cause great bodily harm can transfer from an intended victim to an uninjured, unintended victim. We may not disregard directly controlling authority ofthe Supreme Court majority in favor ofa dissenting opinion that Mr. Johnson concludes is better reasoned. 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158Wn.2d 566, 578, 146 P.3d 423 (2006). Accordingly, transferred intentwas properly presented to thejury. Next, Mr. Johnson argues the transferred intent instruction is unconstitutional because it contains a mandatory presumption. Mandatory presumptions violate a defendant's due process right ifthey relieve the State of its obligation to prove all elements ofthe charged crime. State v. Deal, 128Wn.2d 693, 699, 911 P.2d 996 (1996). A mandatory presumption is one that requires ajury "to find a presumed fact from a proven fact." Id. In State v. Shipp, 93 Wn.2d 510, 514-15,610 P.2d 1322 (1980), the court held unconstitutional an instruction that created a mandatory presumption that ifthejury found the defendant had information which would impart knowledge to a reasonably knowledgeable person, the defendant had knowledge. The court concluded a definition ofconstructive knowledge can solely be constitutional ifthejury is permitted but not required to find knowledge ifthejuryfinds the defendant had information which would


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No. 32014-6-111 State v. Johnson
lead a reasonable person in the same situation to believe that the relevant facts exist. Id. at 516. Here, the court instructed thejury, "Ifa person acts with intentto kill orassault another, but the act harms a third person, the actor is also deemed to have acted with intentto kill orassault the third person." CP at 148. The instruction uses the word "if' not "shall," sothere mustfirst be afinding ofthe required mens rea and then that mens rea transfers to a third person. A knowledge instruction is properwhen the offense has
a single mens rea. State v. Sibert, 168Wn.2d 306, 316-17,230 P.3d 142 (2010). Accordingly, no mandatory presumption relieved the State ofits burden ofproving the
mens rea for the assault concerning Aleksey. B. Conceded Sentencing Errors Mr. Johnson contends and the State correctly concedes the sentencing court erred (1) by adding a point to his offenderscore because he was still on community custodyfora priorfederal offense and (2) by imposing a lifetime no-contact orderfor Aleksey when the maximum sentencefor second degree assault is 10years. This court has previously determined that the one-point enhancement to the offenderscore when a crime is committed while the offender is on "community custody" applies solely to supervision required by a conviction underWashington's Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. State v. King, 162 Wn. App. 234, 240, 253 P.3d 120 (2011). The federal probation to which Mr. Johnson was subjectwhen he committed these crimes should not have added one point to the offenderscore.



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Because his offenderscore is less than nine, the court's miscalculation affected Mr. Johnson's standard range; thus, resentencing is necessary. See State v. McCorkle, 137Wn.2d 490,496-97,973 P.2d 461 (1999) (remand necessary to correct offender
score and resentence within the appropriate range). Next, a sentenCing court may not impose crime-related prohibitions, including nocontact provisions, for a period oftime longerthan the statutory maximum sentence for the crime. State v. Warren, 165Wn.2d 17,32,195 P.3d 940 (2008). Second degree assault is a class Bfelony. RCW 9A.36.021(2). Class Bfelonies have a statutory maximum punishment of 10 years. RCW 9A.20.021(1)(b). Thus, the court's lifetime nocontact order regarding Aleksey exceeds the statutory maximum. This can be corrected
on resentencing. Conviction affirmed; sentence vacated and remanded for resentencing. A majority ofthe 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.
Brown, J. WE CONCUR:

Lawrence-Berrey, J.



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