Both the Washington State Constitution and the Fifth Amendment to the U.S. Constitution protect individuals from being “twice put in jeopardy” for the same offense. The double jeopardy clause protects a person from being tried twice for the same offense and from receiving multiple punishments for the same offense. Double jeopardy may be an issue even if a defendant’s sentences are concurrent. In fact, the Washington Supreme Court has held that multiple convictions for the same offense are prohibited by the double jeopardy clause. The Washington Supreme Court recently considered whether a defendant’s convictions for second degree assault and felony harassment violated double jeopardy.
According to the Court’s opinion, the family was watching a movie on the night of the incident. Their sixteen-year-old asked for a ride the following day. The defendant offered, but the child requested the wife do it instead. The defendant “got very angry” and claimed the wife was “undermining him.” According to the wife, the defendant yelled at her for about 30 minutes before she went upstairs to help the children get ready for bed.
The children went to bed on the third floor and the wife went the second floor. The defendant went to the garage to get his guns ready for the shooting range.
The wife heard him yelling when she came downstairs, so she closed a door. She testified this seemed to anger him and he started yelling at her again.
She testified she could still hear him when she went to the second floor. She thought he would come upstairs, so she went up to the third floor because he usually would not argue in front of the children. He followed her upstairs, however.
The defendant testified he “vaguely” remembered going upstairs to tell the wife not to call 911.
When the defendant did not find the wife on the second floor, he went to the third floor. The wife saw he had a gun. She testified he started yelling and was coming toward her. She called 911 and backed into the younger children’s bedroom.
She testified he came into the room, pointed the gun at her, and yelled for her to hang up. The defendant denied pointing the gun at her.
The wife testified things “escalated very quickly” after she called 911. She said she fell and the defendant pointed the gun at her and kicked her. She crawled between the bed and the wall where the children would not see if he shot her. He followed her, kicking her in the face with the gun pointed at her. The children screamed for him not to kill her.
He left the room, but immediately returned and kept yelling and pointing the gun at her. When he left again, the wife got up and closed the door. She tried to block it with a bookcase, but the defendant kicked the door open and broke the bookcase.
The wife testified he pointed the gun at the children and she jumped in front of them. The defendant initially kept the gun on her, but then kicked the bookcase apart. He turned the lights off and pointed the gun at them again. The wife believed he would shoot them all and decided to escape.
When she tried to run out with the children, the defendant blocked the door. She yelled at him to let the kids go, and he stepped back. She pushed the two children out the door, and yelled for the 16-year-old to go, too. The defendant raised the gun at her as she and the children ran out, but did not shoot.
After the wife and children ran out, the defendant entered into a standoff with law enforcement that lasted for almost two hours. He went onto the balcony several times and put a gun to his head, but ultimately surrendered. He was discharged from the military. He was diagnosed with service-related PTSD, traumatic brain injury, and additional physical disabilities.
The defendant was charged with multiple offenses, including a count of second degree assault with a deadly weapon for pointing the gun at the wife and one count of felony harassment for threatening to kill her. The other charges were not relevant to the review.
For the second degree assault charge, the jury was instructed it must find the defendant intentionally assaulted the wife with a deadly weapon by committing an act that was intended to and did make her feel “reasonable apprehension and imminent fear of bodily injury.” For the harassment charge, the jury was instructed that it must find he “knowingly threatened to kill” her by “directly or indirectly” communicating an intent to kill her through “words or conduct” that put her “in reasonable fear” he would carry out the threat.
The state said in its closing argument that the second degree assault with a deadly weapon charge was based on the defendant’s “yelling and screaming and pointing the gun.” It focused on the entire incident as a single ongoing assault and did not point to any particular act as the assault being charged. The state argued the jury was not required to find he pointed the gun directly at the wife.
Likewise, the state did not identify a particular act or statement as the threat to kill upon which the felony harassment charge was based.
The defendant was convicted of second degree assault and felony harassment, with findings of aggravated domestic violence and use of a firearm for each. The court found the convictions were the “same criminal conduct” for purposes of sentencing and sentenced the defendant to a total of 60 months’ confinement.
The defendant appealed, arguing the convictions violated double jeopardy. The appeals court affirmed and the Washington Supreme Court granted review.
To determine if the double jeopardy clause was violated, the Court had to determine whether the convictions at issue punished the same offense or two different offenses.
Unclear Legislative Intent
The Court noted that the convictions arose from different statutes. It therefore applied a four-part analysis. It first considered whether there was “express or implicit legislative intent” to impose or prohibit separate punishments. The Court noted “legislative intent is not immediately clear” for the relevant statutes. There was no language specifically authorizing or prohibiting punishments for violation of both statutes with a single act.
Blockburger or Same Elements Test
The second step of the analysis compares the elements of the offenses to determine if they are the same. The result of this analysis leads to a presumption of legislative intent. The court does not just compare the statutory elements, but considers the elements “as charged and proved.”
The Court concluded that, although the convictions were based on the same conduct and were therefore the same in fact, they were not the same in law. Two offenses are the not the same in law if each requires proof of a fact that is not required by the other. The Court noted the offenses required different mental states. To convict the defendant of the assault charge, the state had to prove he acted with intent, while the harassment charge only required him to act knowingly. Additionally, felony harassment, as instructed to the jury, required proof the defendant threatened to kill, while the assault charge required proof the defendant’s actions made the wife feel “reasonable apprehension and imminent fear of bodily injury.” Based on its analysis, the Court determined the two offenses were presumptively not the same offense.
Merger Doctrine Inapplicable
If one offense is a lesser included offense of the other, the court will apply the merger doctrine as the third step. The merger doctrine was inapplicable in this case.
Other Indicators of Legislative Intent
In the final step, the court considers any other indicators of legislative intent to determine if there is clear evidence to overcome the presumption the offenses were not the same. The Court concluded other indicators of legislative intent were mixed because the legislature had not acted following cases with different results. The Court found no clear evidence of legislative intent that would overcome the presumption.
The Court affirmed the defendant’s convictions.
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