FILED
COURT OF APPEALS
DIVISION II
701U1
AUG 18 AM 9: 02
STATE Or WASFIINSTON .
8Y
UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, I` No. 43878 -0 -II
Respondent, I UNPUBLISHED OPINION
V.
FRED HENRY CARPENTER, IV,
Appellant.
MORGEN, A. C. J. — After we issued our opinion affirming Fred Henry Carpenter' s
convictions of two counts of second degree assault, two counts of felony harassment, one count
of fourth degree assault, and one count of obstruction of a law enforcement officer, our Supreme
Court accepted review in part on Carpenter' s double jeopardy challenge to his second degree
assault convictions and remanded for us to reconsider our opinion on that issue in light of its
recent decision in State v. Villanueva -Gonzalez, 180 Wn.2d 975, 329 P. 3d 78 ( 2014). Following
Villanueva -Gonzalez, we hold that Carpenter' s two convictions of second degree assault violate
the constitutional prohibition against double jeopardy. We thus remand to the trial court to
vacate one of Carpenter' s second degree assault convictions.
No. 43878 -0 -II
FACTS
The pertinent background facts have been set forth in our prior unpublished opinion,
State v. Carpenter, noted at 179 Wn. App. 1029, 2014 WL 548085 ( Wash. App.), review
granted, 337 P. 3d 326 ( 2014), and need not be repeated here. After a jury returned verdicts
finding Carpenter guilty of two counts of second degree assault, two counts of felony
harassment, one count of fourth degree assault, and one count of obstruction of a law
enforcement officer,'the sentencing court found that the two assault convictions encompassed the
same criminal conduct for purposes of calculating Carpenter' s offender score. RCW
9. 94A. 589( 1)( a). Among other issues, Carpenter argued on appeal that his two convictions for
second degree assault violated the constitutional prohibition against double jeopardy, which
argument we rejected.' After issuing our opinion, our Supreme Court accepted review in part
and remanded for us to reconsider that portion of our opinion in light of Villanueva -Gonzalez.
ANALYSIS
Upon reconsideration, we agree that Carpenter' s convictions of two counts of second
degree assault violate the constitutional prohibition against double jeopardy.
We review de novo whether multiple convictions transgress the constitutional prohibition
against double jeopardy. State v. Womac, 160 Wn.2d 643, 649, 160 P. 3d 40 ( 2007). Both our
I Carpenter originally framed his double jeopardy claim as challenging the prosecutor' s decision
to charge him with two counts -of second degree assault, which claim we rejected noting that " the
constitutional prohibition against double jeopardy ... neither bars the State from bringing, nor
bars the jury from considering, ` multiple charges arising from the same criminal conduct in a
proceeding."' Carpenter, noted at 179 Wn. App. 1029, at * 6- 9 ( quoting State v. Freeman,
single
153 Wn.2d 765, 770, 108 P. 3d 753 ( 2005)). In light of our Supreme Court' s order on remand
and in the absence of any objection from the State, we liberally construe Carpenter' s double
jeopardy claim to encompass the issue we now address here, whether his two convictions for
second degree assault violate the constitutional prohibition against double jeopardy.
2
No. 43878 -0 -II
federal and state constitutions prohibit "` being ( 1) prosecuted a second time for the same offense
after acquittal, ( 2) prosecuted a second time for the same offense after conviction, and ( 3)
punished multiple times for the same offense."' State v. Turner, 169 Wn.2d 448, 454; 23 8 P. 3d
461 ( 2010) ( quoting State v. Linton, 156 Wn. 2d 777, 783, 132 P. 3d 127 ( 2006)); U. S. CONST.
amend. V; WASH. CONST. art. I, § 9. Carpenter' s claim implicates the third prohibition, in that
he contends the trial court punished him multiple times for the. same offense.
In Villanueva -Gonzalez, our Supreme Court held that the crime of assault is a course of
conduct offense rather than a separate act offense. 180 Wn.2d at 984- 85. The Villanueva -
Gonzalez court stated that the test for determining whether multiple assault convictions violate
the prohibition against double jeopardy is a highly fact -specific inquiry and takes into account:
1)] The length of time over which the assaultive acts took place, [( 2)] Whether
the assaultive acts took place in the same location, [( 3)] The defendant' s intent or
motivation for the different assaultive acts, [( 4)] Whether the acts were
uninterrupted or whether thereintervening
were any 5)]
acts or events, and [(
Whether there was anopportunity for the defendant to reconsider his or her actions.
180 Wn.2d at 985.
In its supplemental response brief, the State concedes that Carpenter' s assaults occurred
against the same victim, at the same location, and within a short period of time. The State
argues, however, that the assaults were not uninterrupted and that Carpenter had an opportunity
to reconsider his actions during the interruptions to his assaults on the victim. Although the State
cites to testimony at trial indicating that Carpenter briefly relented in his choking of the victim
when witnesses intervened, this is only one relevant factor in determining whether his assaultive
acts constituted one course of conduct. Villanueva -Gonzales, 180 Wn. 2d at 895. Evaluating the
totality of circumstances present here, and in consideration of the State' s concession that
Carpenter' s assaults occurred against the same victim, at the same location, and within a short
No. 43878- 0- 11
period of time, we conclude that Carpenter' s assaultive acts constituted one course of conduct for
double jeopardy purposes. Accordingly, we remand for the trial court to vacate one of
Carpenter' s second degree assault convictions.
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.
We concur:
HAZSON, C. J.
MAXA,
M