IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 81079-1-I
v.
UNPUBLISHED OPINION
BENJAMIN CARL BLOOM,
Appellant.
DWYER, J. — Benjamin Bloom appeals from the judgment entered on a
jury’s verdict finding him guilty of one count of assault in the first degree and two
counts of assault in the second degree. Bloom contends that, by entering
judgment on the jury’s verdicts, the trial court deprived him of the right against
double jeopardy. This is so, he asserts, because the count of assault in the first
degree constituted the same offense as one of the counts of assault in the
second degree. However, because the State proved each crime with different
evidence, the two crimes were not the same in fact for double jeopardy purposes.
Accordingly, we affirm.
Additionally, Bloom asserts that the trial court mistakenly ordered him to
pay supervision fees as determined by the Department of Corrections. Because
the record indicates that the trial court waived the requirement that he pay
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supervision fees, we remand for the trial court to strike this requirement from the
judgment.
I
Benjamin Bloom rented an apartment in Everett that his parents, Robert
and Sally Richards, owned. On May 28, 2019, Bloom found a notice to vacate
on the front door of the apartment. After finding the notice to vacate on the door,
Bloom went to a home into which the Richards were moving.
Bloom entered this house with a handgun drawn and threw a board game
that he had brought with him across the room. Bloom then put the handgun in
Robert’s face and told him to sit down and be quiet. Bloom struck Robert in the
back of the head with the gun, knocking him face down onto the floor. Bloom
then pushed Robert down and ordered him to stay down.
Bloom then approached Sally and pointed the handgun at her face.
Bloom demanded that Sally tell him “the truth” about an identity theft conspiracy
in which he believed Robert and Sally to be involved. Each time Robert or Sally
could not answer one of his questions, Bloom pointed the gun at them and
threatened them. During the questioning, Bloom repeatedly kicked Robert every
time he tried to look up. Bloom also jammed the handgun in Sally’s face, hit her
with the gun, and smashed Sally’s laptop computer on her head.
Approximately 30 minutes after Bloom started questioning and beating the
couple, Sally decided to create a diversion. Sally used an oxygen concentrator
to assist in breathing. She screamed that she needed more oxygen and
implored Bloom to allow Robert to help her. Robert begged Bloom to let him
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assist Sally with her oxygen tank. Bloom allowed Robert to get up from the floor
so that Robert could assist Sally. Robert used this opportunity to run from the
living room to the bedroom, which was located down a hallway. Inside the
bedroom, a handgun was hidden underneath a pillow.
Bloom followed Robert to the bedroom. When Bloom reached the
bedroom, Robert was on the bed, kneeling, shaking, and trying to remove the
gun from its holster. Robert begged Bloom not to shoot him and Bloom
responded by insulting Robert. Robert finally got the handgun out of the holster
and shot at Bloom. Bloom ran away down the hallway, with Robert giving chase.
Robert continued to shoot at Bloom, striking him twice. When Bloom reached the
end of the hallway, he turned and fired once at Robert, striking Robert in the right
leg. As Bloom fled out the back door, he and Robert exchanged more gunfire.
The State charged Bloom with one count of assault in the first degree, two
counts of assault in the second degree, and one count of burglary in the first
degree. The count for assault in the first degree (count one) alleged that Bloom,
with intent to inflict great bodily harm, did assault another person,
to-wit: Robert Richards, with a firearm and any deadly weapon and
by any force or means likely to produce great bodily harm or death,
to-wit: a firearm; proscribed by RCW 9A.36.011(1)(a), a felony.
Additionally, one of the counts for assault in the second degree (count
two) alleged that Bloom,
did intentionally assault another person, to-wit: Robert Richards,
and thereby recklessly inflicted substantial bodily harm, and did
intentionally assault another person, to-wit: Robert Richards, with a
deadly weapon, to-wit: a firearm; proscribed by RCW
9A.36.021(1)(a) and (c), a felony.
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The second count of assault in the second degree (count three) alleged
that Bloom assaulted Sally Richards.
Following a jury trial, the jury found Bloom guilty of assault in the first
degree and both counts of assault in the second degree. The jury found that
Bloom was not guilty of burglary in the first degree. The trial court entered
judgment on each guilty verdict, including those for assault in the first degree and
assault in the second degree regarding Robert.
At sentencing, the trial court found that the assault in the first degree and
the assault in the second degree regarding Robert constituted the same criminal
conduct.1 The trial court sentenced Bloom to 111 months of incarceration on
count one and 14 months of incarceration on count three, to run concurrently.
The trial court also imposed firearm enhancements on all three counts,
amounting to 132 months of incarceration. In total, Bloom was sentenced to 243
months of incarceration.
The trial court additionally imposed 54 months of community custody. The
judgment provided that Bloom was to pay supervision fees as determined by the
Department of Corrections.
Bloom appeals.
1 The trial court appears to have incorrectly ruled that the first and second degree
assaults of Robert constituted the same criminal conduct. Pursuant to RCW 9.94A.589(1)(a),
“‘Same criminal conduct,’ as used in this subsection, means two or more crimes that require the
same criminal intent, are committed at the same time and place, and involve the same victim.”
As explained below, although the victim, time, and place for the two assault counts at issue were
the same, the intent for each assault of Robert was different. However, as the State did not
cross-appeal from this ruling, we impose no remedy.
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II
Bloom contends that the trial court violated the double jeopardy clauses of
the United States and Washington Constitutions by entering judgment on
separate convictions for assault in the first degree (count one) and assault in the
second degree with regard to Robert (count two). Accordingly, he avers, his
conviction for assault in the second degree with regard to Robert should be
vacated. Because the convictions for each of these assaults were based on
separate acts, entering judgment on each did not violate the double jeopardy
protection of either the federal or the state constitution.
“Claims of double jeopardy are questions of law, which we review de
novo.” State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). “The United
States Constitution provides that a person may not be subject for the same
offense to be twice put in jeopardy of life or limb.” Hughes, 166 Wn.2d at 681
(citing U.S. CONST. amend. V). “Similarly, the Washington State Constitution
provides that a person may not be twice put in jeopardy for the same offense.”
Hughes, 166 Wn.2d at 681 (citing WASH. CONST. art. I, § 9).
The protection against double jeopardy prevents a person from being (1)
prosecuted for the same offense after acquittal, (2) prosecuted a second time for
the same offense after conviction, or (3) subjected to multiple punishments for
the same offense. State v. Fuller, 185 Wn.2d 30, 33-34, 367 P.3d 1057 (2016).
The legislature determines what constitutes an “offense” for purposes of the
double jeopardy clause. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S. Ct.
2170, 57 L. Ed. 2d 43 (1978).
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When a defendant is charged with violating the same statute more than
once, there is no double jeopardy violation if each crime constitutes a separate
unit of prosecution. State v.Graham, 153 Wn.2d 400, 404-05, 103 P.3d 1238
(2005). Our Supreme Court has determined that the unit of prosecution for
assault is a course of assaultive conduct. State v. Villanueva-Gonzalez, 180
Wn.2d 975, 984-85, 329 P.3d 78 (2014). “[W]hen a statute defines a crime as a
course of conduct over a period of time, ‘then it is a continuous offense and any
conviction or acquittal based on a portion of that course of action will bar
prosecution on the remainder.’” State v. McReynolds, 117 Wn. App. 309, 339,
71 P.3d 663 (2003) (quoting Harrell v. Israel, 478 F. Supp. 752, 754-55 (E.D.
Wis. 1979)).
To determine whether multiple assaultive acts constitute separate acts or
a single course of conduct, we consider the totality of the circumstances in light
of various factors, including: (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 there were any intervening acts or events, and (5)
whether there was an opportunity for the defendant to reconsider his or her
actions. Villanueva-Gonzalez, 180 Wn.2d at 985.
Here, the acts forming the bases for the convictions of assault in the first
degree and assault in the second degree with regard to Robert demonstrate that
each conviction was based on separate acts. The initial assault occurred when
Bloom struck Robert in the back of the head and kicked him numerous times
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over approximately half an hour. The second assault occurred when Bloom shot
Robert.
In applying the five-part inquiry required of us, we first note that the length
of time between these assaults is not itself determinative of whether the assaults
were separate acts. However, the fact that both assaults occurred inside the
same house weighs slightly in favor of Bloom’s claim that the assaults were part
of the same course of conduct.
On the other hand, the remainder of the evidence demonstrates that the
assaults were two separate acts. When Bloom entered the house, his initial
motivation was to learn “the truth” and avoid eviction by intimidating his parents
with violence and threats of death. However, when Robert began shooting at
him, Bloom’s motive changed from attempting to learn “the truth” to trying to get
Robert to cease Robert’s acts of self-defense. In addition, the diversion created
by Robert and Sally interrupted the initial assault. Bloom found it necessary to
follow Robert to the bedroom. This interrupted the flow of the initial assaultive
conduct. This distraction also provided Bloom with the opportunity to reconsider
his actions. When Robert dashed for the bedroom, Bloom plainly had the choice
to simply leave the house. He chose not to. Thus, prior to shooting Robert in the
leg, Bloom had time to decide whether to commit another assault or flee the
scene.
Considering the totality of circumstances as applied to the mandated five-
part test, the record establishes that the convictions for assault in the first degree
and assault in the second degree were based on separate acts. Hence, the
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entry of judgment on each conviction did not violate the double jeopardy clauses
of either the state or federal constitution.
Bloom’s assignment of error fails.
III
Bloom also contends that the trial court mistakenly ordered, as a condition
of community custody, that he pay supervision fees as determined by the
Department of Corrections.2 We agree.
RCW 9.94A.703(2) provides that “[u]nless waived by the court, as part of
any term of community custody, the court shall order an offender to: . . . (d) Pay
supervision fees as determined by the department.” Because “the supervision
fees are waivable by the trial court, they are discretionary [legal financial
obligations].” State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199, review
denied, 195 Wn.2d 1022 (2020).
At sentencing, the trial court found Bloom to be indigent, imposed the
mandatory $500 victim assessment and $100 DNA fee, and “waiv[ed] all
nonmandatory fines, fees, and assessments.” The trial court did not mention
supervision fees. However, the judgment and sentence signed by the judge
required Bloom to “pay supervision fees as determined by [the Department of
Corrections].” Pursuant to Dillon, this requirement must be vacated on remand.
2 The State contends that Bloom waived his right to appeal this issue by not objecting in
the trial court. Not so. Our Supreme Court has explained that “[c]onditions of community custody
may be challenged for the first time on appeal.” State v. Wallmuller, 194 Wn.2d 234, 238, 449
P.3d 619 (2019). The requirement that an individual pay supervision fees as determined by the
Department of Corrections is a condition of community custody.
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The convictions are affirmed. The cause is reversed and remanded to the
trial court to eliminate the requirement of payment of supervision fees.
WE CONCUR:
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