State v. Leming

Decision Date11 July 2006
Docket NumberNo. 32843-7-II.,32843-7-II.
Citation133 Wn. App. 875,138 P.3d 1095
PartiesSTATE of Washington, Respondent, v. Paul W. LEMING, aka Leader, Appellant.
CourtWashington Court of Appeals

Patricia Anne Pethick, Tacoma, Thomas Edward Doyle, Hansville, for Appellant.

Monty Dale Cobb, Shelton, for Respondent.

PART PUBLISHED OPINION

HUNT, J.

¶ 1 Paul W. Leming appeals his convictions for assault in violation of a court order, second degree assault, felony harassment, and the jury's special verdict finding that these convictions involved domestic violence. He argues that (1) double jeopardy precluded these multiple convictions because both the felony harassment and the assault in violation of a court order were incidental to the second degree assault; (2) the trial court erred in failing to dismiss the felony harassment charge for lack of sufficient evidence; (3) the trial court erred in failing to find that assault in violation of a court order, the second degree assault, and the felony harassment constituted the same criminal conduct for offender score purposes; and (4) he received ineffective assistance of counsel when his attorney failed to object to the court's offender score calculation.

¶ 2 In his Statement of Additional Grounds for Review,1 Leming also argues that (1) insufficient evidence supported his conviction for second degree assault; (2) he received ineffective assistance of counsel when his attorney failed to object to a witness's testimony; and (3) the trial court erred in refusing to admit photographic evidence.

¶ 3 Holding that Leming's felony harassment conviction violates double jeopardy and, as a result, his offender score needs recalculation, we reverse Leming's felony harassment conviction, affirm his convictions for second degree assault and assault in violation of a court order, and remand for resentencing.

FACTS
I. THE CRIMINAL ACTS

¶ 4 Leming's uncle, Terry Strom, agreed to serve divorce papers and a restraining order on Leming on behalf of Leming's wife, Leah Leming.2 Strom and his wife, Beverly, went to Leming's home, where Strom served Leming with the papers. Strom told Leming that the papers included a restraining order.

¶ 5 The Stroms drove to the Shelton Inn, where Leah was working, and told her that they had served Leming. As they got in their car to leave the Inn, Leming pulled into the parking lot next to them. Beverly told Leming that he needed to leave because there was a valid restraining order preventing him from contacting Leah. Leming said he wanted to know what was going on because Leah was supposed to have cancelled the restraining order, saying, "[S]he's just signed her death warrant ... [S]he shouldn't have been doing this ... she knew better." Report of Proceedings (RP) at 30. Leming went into the room where Leah was working, and Beverly followed.

¶ 6 Beverly saw Leming push Leah into the bathroom wall and hit her with the folded legal papers, yelling and calling Leah names. Leming said, "I can snap you like a twig." RP at 67. Beverly told him to stop, stating that someone would call the police. As Leming left the room, Beverly heard him say, "[S]he's a dead bitch and that baby, too."3 RP at 32. Apparently, Leah did not hear this threat.

¶ 7 Terry called the police, who arrived shortly thereafter.

II. PROCEDURE

¶ 8 The State charged Leming with assault in violation of a court order (domestic violence), fourth degree assault (domestic violence), second degree assault (domestic violence) predicated on felony harassment, and felony harassment (domestic violence).

¶ 9 At trial, there was some dispute about Beverly's exact location during Leming's assault of Leah. The State showed the jury the security video tape footage taken outside the motel room, which Beverly used during direct examination to illustrate her position outside the room. Leming did not object. Beverly also testified that she had been inside the room. Leming testified that she was not.

¶ 10 The following day, the State sought to recall Beverly as a rebuttal witness. Leming objected, arguing that Beverly would change her testimony about her exact location after she reviewed the surveillance tape. The trial court overruled the objection and allowed the State to recall Beverly. During her rebuttal testimony, Beverly stated that, upon closer review of the videotape, she realized that she had not been inside the motel room; rather, she had been standing in the doorway. Beverly testified that, from her vantage point in the doorway, she had a clear view of Leah and Leming inside the room.

¶ 11 Leming attempted unsuccessfully to offer into evidence a photo Officer Ohlson had taken of Leah, showing some of her injuries.4 The court ruled the photo inadmissible until such time as Leming first laid a proper foundation. Thereafter, Leming did not seek to establish a proper foundation or to offer the photo into evidence again.

¶ 12 The jury found Leming guilty of all charges. The trial court dismissed the fourth degree assault conviction, count II, because the State had charged it in the alternative with Count I, assault in violation of a court order.

¶ 13 Leming's offender score was 9+. The trial court sentenced Leming to 47 1/2 months confinement for count I, assault in violation of a court order; 73 1/2 months confinement for count III, second degree assault, predicated on felony harassment; and 29 months confinement for count IV, felony harassment. At sentencing, Leming neither challenged his offender score nor argued that his convictions merged or constituted double jeopardy.

¶ 14 Leming appeals.

ANALYSIS
I. DOUBLE JEOPARDY

¶ 15 The double jeopardy clauses of the United States and the Washington Constitutions guarantee that no person shall be twice put in jeopardy, i.e., subject to multiple prosecutions or punishments for the same offense. State v. Baldwin, 150 Wash.2d 448, 453-54, 78 P.3d 1005 (2003). Leming argues that the trial court twice placed him in double jeopardy (1) when it convicted him of both assault in violation of a court order and second degree assault, counts I and III, respectively; and (2) when it convicted him of both felony harassment and second degree assault, counts IV and III, respectively. We disagree with Leming's first argument and agree with the second.

A. Standard of Review

¶ 16 We review double jeopardy questions de novo. State v. Freeman, 153 Wash.2d 765, 770, 108 P.3d 753 (2005).

¶ 17 That the Legislature specifically authorizes multiple punishments for a single offense does not necessarily violate the double jeopardy clause. In re Restraint of Burchfield, 111 Wash.App. 892, 895, 46 P.3d 840 (2002). Where a criminal act violates more than one criminal statute, the court must determine whether the Legislature intended to punish that act under both statutes. Baldwin, 150 Wash.2d at 454, 78 P.3d 1005. We follow three steps to determine whether the Legislature authorized multiple punishments for a single criminal act. Burchfield, 111 Wash.App. at 895, 46 P.3d 840.

¶ 18 First, we look to the statutory language to determine whether the Legislature specifically authorized separate punishments. Burchfield, 111 Wash.App. at 895, 46 P.3d 840. Second, if the statute is silent about whether the Legislature intended separate punishments, we apply the same evidence test to determine whether each legislatively-defined offense has an element not contained in the other. Burchfield, 111 Wash.App. at 896, 46 P.3d 840; See also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Third, if each offense contains a separate element, we look for evidence of legislative intent to treat the crimes as one offense for double jeopardy purposes. Burchfield, 111 Wash.App. at 896, 46 P.3d 840.

¶ 19 We may also apply the merger doctrine. Under the merger doctrine, when separately criminalized conduct raises another offense to a higher degree, we presume that the Legislature intended to punish both offenses only once, namely for the more serious crime with the greater sentence. Freeman, 153 Wash.2d at 772-73, 108 P.3d 753.

B. Second Degree Assault

¶ 20 In RCW 9A.36.021, our Legislature provided several methods by which an assault can be raised to the second degree. Here, the State charged Leming with second degree assault with intent to commit felony harassment. Thus, at issue is only one method of second degree assault, defined as follows:

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

.... (e) With intent to commit a felony, assaults another ....

....

(2)(a) Except as provided in (b) of this subsection, assault in the second degree is a class B felony.

RCW 9A.36.021(1)(e); (2)(a) (emphasis added).

¶ 21 Felony harassment, the underlying felony raising Leming's assault of Leah to the second degree, is defined, in pertinent part, as follows:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i) To cause bodily injury immediately or in the future to the person threatened or to any other person ...

....

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out....

....

(b) A person who harasses another is guilty of a class C felony if either of the following applies: ... (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.

RCW 9A.46.020.

C. Second Degree Assault and Assault in Violation of a Court Order: No Double Jeopardy

¶ 22 The State charged Leming with both second degree assault, Count III, and assault in violation of a court order, Count I. We apply the three-step legislative-intent analysis to these two crimes.

¶ 23 RCW 26.50.110, assault in violation of a court order, provides in pertinent part:

(1) Whenever...

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