Seattle Attorneys Blog
Generally, the state can bring multiple charges arising from the same conduct in one proceeding, but double jeopardy protections under both the U.S. and Washington Constitutions protect a Washington criminal defendant from multiple punishments for the same offense. If a defendant is charged under different statutes for the same act, the court must determine if those crimes are the same offense. A Washington defendant recently challenged his robbery and assault convictions, arguing they violated his double jeopardy protections.
According to the appeals court’s unpublished opinion, the defendant took trading cards and a package of tuna from a Walmart store on Black Friday in 2021. Loss prevention officers (“LPOs”) thought he was behaving suspiciously when they saw him selecting the cards.
Two LPOs followed him while another observed through the surveillance feed. The LPOs saw him go past the registers without making a purchase. They stopped him in the vestibule. The defendant turned over a box of trading cards and the tuna and moved past one of the LPOs. The two LPOs testified that he had shoved one of them, but the defendant denied it.
They followed him to the parking lot. The other LPO also came outside and took a photo of the defendant.
The defendant displayed a handgun when he got to a vehicle. One of the LPOs also pulled a gun and fired at least three rounds, hitting the defendant in the leg and the arm. The defendant fired at least once, but did not hit anyone. He fled and was caught soon after.
The defendant was charged with robbery in the first degree with a firearm enhancement, assault in the second degree with a firearm enhancement, and unlawful possession of a firearm in the first degree. The first amended information named one LPO as the only victim of both the assault and the robbery.
The defendant admitted taking the cards and tuna. He said he returned the items to the LPOs when they confronted him. The defendant said he drew and racked his handgun before the LPO drew his gun because he wanted the LPOs to leave him alone.
The defendant was convicted as charged. The jury also returned special verdicts that the defendant was armed with a firearm when he committed the assault and the robbery.
The defendant argued at sentencing that the assault conviction merged into the robbery conviction and that it would be a double jeopardy violation to punish him for both. The court rejected his argument and sentenced him to a total of 195 months for all of the convictions.
The defendant appealed, arguing that the assault conviction and accompanying firearm enhancement should be vacated because the combination of the robbery and assault convictions violated double jeopardy.
The state argued the merger doctrine did not apply because the assault had an independent purpose or effect.
Washington courts apply a three-prong test to determine if the legislature intended to allow multiple punishments for the same conduct. First, the court must consider the legislative intent of the criminal statutes. If intent is not clear, the court then applies the “same evidence” Blockburger test and considers if the elements of the crimes are the same. The court then considers whether the degree of one of the offenses is elevated by conduct that constitutes a separate offense. There is an exception to the merger doctrine, however, if the conduct of the defendant shows each offense has an independent purpose or effect. Some courts have identified consideration of factors supporting the exception as a fourth step in the test.
The appeals court noted the Washington Supreme Court has previously held that “second degree assault merges into first degree robbery,” but whether there is an independent purpose or effect must be considered on a case-by-case basis.
Robbery is taking property through “the use or threatened use of immediate force, violence, or fear. . . “ RCW 9A.56.190. To elevate robbery to the first degree, the state must show the defendant was armed with a deadly weapon in the commission of the robbery or the immediate flight therefrom. RCW 9A.56.200. Assault in the second degree requires the state to show the defendant assaulted someone with a deadly weapon. RCW 9A.36.021. With no definition of assault in the criminal code, the trial court instructed the jury on two common law definitions.
The appeals court noted the state had to prove the defendant’s actions “created a reasonable apprehension or fear of harm” for both charges, and that the apprehension or fear was created by the defendant being armed with a deadly weapon. The appeals court therefore applied the holding in State v. Kier that the merger doctrine applies “when second degree assault with a deadly weapon elevates robbery to the first degree because being armed with or displaying a firearm or deadly weapon to take property through force or fear is essential to the elevation.”
The state conceded that the crimes merged pursuant to the rule of lenity. The rule of lenity requires an ambiguity in the jury’s verdict to be resolved in favor of the defendant. The jury instructions had identified one of the LPOs as the victim of the assault, but did not specify a victim of the robbery. According to the state’s appeals briefs, its theory had been that the defendant had and concealed the firearm while in the store, stole the items, and used force to keep them when he was confronted. The state argued the robbery had been completed when the defendant exited the building. The defendant testified, however, that he did not have the weapon inside the store, but had instead left it in the vehicle’s wheel well. The state acknowledged that the jury could have believed the defendant’s testimony and concluded the force occurred not during the confrontation in the vestibule but when the defendant pulled and fired the weapon.
The state argued there was an independent purpose or effect. This exception applies when there is a separate injury to either person or property that is not just incidental to the crime. Application of the exception is based on the specific facts of the case.
The state argued the assault in the parking lot had a separate purpose or effect because the robbery had already been completed. The state argued the defendant’s actions in the parking lot were “manifestly dangerous” and “extremely reckless.”
The defendant argued the state relied on a case, State v. Arndt, involving an arson in the first degree conviction, which required the state to prove the fire was “manifestly dangerous to any human life.” The appeals court noted the defendant’s convictions in this case, however, did not require the jury to find there was “manifestly dangerous” conduct. The exception does not apply to a speculative independent purpose or effect based on facts not found by the jury. The appeals court concluded the exception did not apply.
The appeals court reversed the assault conviction and the associated firearm enhancement and remanded the case to the trial court for resentencing.
If you are facing multiple charges for a single incident, a knowledgeable Washington criminal defense attorney can help you protect your rights. Call Blair & Kim, PLLC, at (206) 622-6562 for a consultation.