State v. Fuller ( 2016 )

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App. 1045 (2014). Fuller petitioned this court for review, which we granted. State v.
Fuller, 183 Wn.2d 1007, 352 P.3d 187 (2015).
ANALYSIS
The United States Constitution and the Washington State Constitution protect
individuals from being twice put in jeopardy for the same offense. U.S. CONST. amend.
V ("nor shall any person be subject for the same offence to be twice put in jeopardy of
life or limb"); WASH. CONST. art. I,§ 9 (''No person shall ... be twice put in jeopardy
for the same offense."). "The double jeopardy doctrine protects a criminal defendant
from 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. Linton, 156 Wn.2d 777, 783, 132 P.3d
127 (2006). "The prohibition against double jeopardy applies when (1) jeopardy
previously attached, (2) jeopardy was terminated, and (3) the defendant is again
prosecuted for the same offense." State v. George, 160 Wn.2d 727,741, 158 P.3d 1169-3-
State v. Fuller (Johnny Dale), 91193-2
(2007). This court reviews double jeopardy claims de novo. See State v. Jackman, 156
Wn.2d 736, 746, 132 P.3d 136 (2006).
Fuller argues that prosecuting him again for assault in the second degree violates
the constitutional bar on reprosecuting the same offense after acquittal. Suppl. Br. of
Pet'r at 4. He reasons that counts I and II were alternative means of committing a single
assault, and that he was acquitted of committing that assault. Although Fuller is correct
that the State may not reprosecute count li-the count on which he was acquitted-he
is incorrect regarding reprosecution of the other charged means. Jeopardy did not
terminate on count I specifically or on the overall offense of second degree assault. The
State may therefore retry Fuller on count I without implicating double jeopardy.
Retrial on Count I Does Not Implicate Double Jeopardy Because Jeopardy Did Not
Terminate on That Count or on the Assault Offense
The second degree assault statute, RCW 9A.36.021, articulates a single criminal
offense and currently provides seven3 separate subsections defining how the offense
may be committed. State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 (2007); see also
RCW 9A.36.02l(l)(a)-(g). Although Fuller was charged with two separate counts,
whether a case involves separate counts based on alternative means or a single count
with two alternative means does not change the double jeopardy analysis. 4 In Sanabria
v. United States, the United States Supreme Court stated, "The precise manner in
3
Since Smith, the legislature added subsection (g), which includes strangulation and
suffocation. LAws OF 2007, ch. 79, § 2; LAws OF 2011, ch. 166, § 1.
4
Because Fuller did not object to the State charging the alternative means in separate
counts, we do not consider whether this unusual method of charging a single assault
implicates issues other than double jeopardy.
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State v. Fuller (Johnny Dale), 91193-2
which an indictment is drawn cannot be ignored, because an important function of
the indictment is to ensure that, 'in case any other proceedings are taken against [the
defendant] for a similar offence, ... the record [will] sho[w] with accuracy to what
extent he may plead a former acquittal or conviction."' 437 U.S. 54, 65-66, 98 S. Ct.
2170, 57 L. Ed. 2d 43 (1978) (alterations in original) (quoting Cochran v. United
States, 157 U.S. 286, 290, 15 S. Ct. 628, 39 L. Ed. 704 (1895)). However, as this
court explained in State v. Wright, "[a] defendant charged and tried under multiple
statutory alternatives experiences the same jeopardy as one charged and tried on a
single theory. The defendant is in jeopardy of a single conviction and subject to a
single punishment, whether the State charges a single alternative or several." 165
Wn.2d 783, 801, 203 P.3d 1027 (2009). 5 For purposes of this double jeopardy
analysis, it does not matter that the State charged Fuller with alternative means of
committing the same crime in separate counts because ultimately he was charged
with one offense. See Smith, 159 Wn.2d at 784.
The situation here is analogous to one in which a reviewing court reverses a
conviction due to insufficient evidence of one alternative means of committing an
offense, but remands for retrial on the remaining, valid, means. In State v. Ramos, we
explained the alternative means principle:
The alternative means principle dictates that when a jury renders a guilty
verdict as to a single crime, but one of the alternative means for committing that
crime is later held to be invalid on appeal and the record does not establish that
5
Fuller relies on this language to support his argument that an acquittal on one
means of committing an offense is an acquittal of the entire offense, barring retrial. See
Suppl. Br. ofPet'r at 8. As explained in this section, Fuller's reliance is misplaced because
in his case jeopardy did not terminate as to the offense overall.
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State v. Fuller (Johnny Dale), 91193-2
the jury was unanimous as to the valid alternative in rendering its verdict, double
jeopardy does not bar retrial on the remaining, valid alternative mean.
163 Wn.2d 654, 660, 184 P.3d 1256 (2008).
This principle holds true "even when one alternative mean has been reversed on
appeal due to a finding of insufficient evidence, a finding that has the same double
jeopardy implications as an outright acquittal in other circumstances." Id. at 661. For
double jeopardy purposes, a reversal for insufficient evidence is equivalent to an
acquittal "because it means 'no rational factfinder could have voted to convict' on the
evidence presented." Wright, 165 Wn.2d at 792 (quoting Tibbs v. Florida, 457 U.S. 31,
40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982)). Generally, an acquittal is a final
adjudication that terminates jeopardy, thereby triggering double jeopardy protections
and barring retrial for the same offense. See id. at 791-92; State v. Ahluwalia, 143
Wn.2d 527, 538, 22 P.3d 1254 (2001) (explaining mistrial due to a hung jury does not
tenninate double jeopardy because double jeopardy "require[s] a final adjudication to
bar retrial of a charge"). However, in alternative means cases where a conviction is
reversed because one means lacks sufficient evidence (the functional equivalent of an
acquittal), this court has remanded for a new trial based on the remaining valid means
for which jeopardy never terminated. See State v. Garcia, 179 Wn.2d 828, 318 P.3d
266 (2014); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
Our decision in Garcia guides our reasoning here. In Garcia, the defendant was
convicted of first degree kidnapping, second degree burglary, and first degree criminal
trespass. 179 Wn.2d at 832. Relevant here, Garcia challenged his kidnapping
conviction, arguing there was "insufficient evidence to support each of the alternative
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State v. Fuller (Johnny Dale), 91193-2
means of kidnapping presented to the jury." Id. This court agreed, finding there was
insufficient evidence to support two of the three alternative means. I d. at 843. The
court reversed Garcia's conviction, but remanded for a new trial on the remaining third
valid alternative means. Id. at 844 (noting that where '"it is impossible to rule out the
possibility the jury relied on a charge unsupported by sufficient evidence ... [;] a
defendant ... is entitled only to a new trial, not an outright acquittal, unless the
record shows the evidence was insufficient to convict on any charged alternative"'
(quoting Wright, 165 Wn.2d at 803 n.12)). Although the State was not allowed to
retry Garcia on the two means the court found unsupported by sufficient evidence, the
State was permitted to retry Garcia on the third means for which sufficient evidence
existed. See id.
The same principle applies here. Clearly, jeopardy never terminated as to the
count on which the jury deadlocked, even though it terminated with respect to the count
on which the jury acquitted. Cf, e.g., State v. Russell, 101 Wn.2d 349,351,678 P.2d
332 (1984) (double jeopardy does not prevent retrial after a hung jury). As this court
recognized in Ramos, reversal on an alternative means unsupported by sufficient
evidence "has the same double jeopardy implications as an outright acquittal." 163
Wn.2d at 661. Because jeopardy did not terminate on count I, the State may retry Fuller
on the deadly weapon means of committing assault in the second degree without
violating double jeopardy. The Hawaii Supreme Court recognized this outcome under
similar circumstances. See State v. Dow, 72 Haw. 56, 806 P.2d 402, 406 (1991)
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State v. Fuller (Johnny Dale), 91193-2
(holding no double jeopardy violation when the State retried the defendant on one
means of committing driving under the influence after the jury hung on that means).
The double jeopardy principles that apply in the context of lesser included
offenses also apply to alternative means crimes. For double jeopardy purposes, a lesser
included offense is the "same offense" as the greater offense. See Brown v. Ohio, 432
U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Where an individual is
acquitted of the greater offense but the jury is declared hung on the lesser included
offense, retrial of that lesser included offense is permitted and does not violate double
jeopardy. See, e.g., Russell, 101 Wn.2d at 351-52 (holding retrial of lesser included
offense of intentional second degree murder not barred by double jeopardy where
petitioner was acquitted of premeditated first degree murder but the jury deadlocked on
the lesser included offense); Ahluwalia, 143 Wn.2d at 540 (holding double jeopardy
does not prohibit retrial of petitioner for second degree murder "following a mistrial in
the first trial after the jury acquitted him of murder in the first degree and was unable to
reach a verdict on the lesser charge of murder in the second degree").
In this case, the jury acquitted Fuller of one means of committing assault and
deadlocked on the other. As in cases in which the jury acquits the defendant of the
greater crime but is hung on the lesser included offense-the "same crime" for double
jeopardy purposes-Fuller may be retried on the means on which the jury could not
agree. Jeopardy as to that means, and for the crime as a whole, has not terminated.
It is important to recognize that Fuller could not have reasonably relied on the
jury's acquittal as terminating jeopardy for second degree assault because it took place
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State v. Fuller (Johnny Dale), 91193-2
at the same time the jury deadlocked on the same offense. All of the charges were
brought in one trial, before one jury. In one proceeding, the jury simultaneously
acquitted Fuller on one means of committing an offense and was hung on the other
means. Fuller stands in the same position as a defendant who is simultaneously
acquitted and convicted of the same offense under two subsections of a statute. He
cannot reasonably rely on an acquittal on one means as being sufficient to terminate
jeopardy for the overall offense when the jury simultaneously deadlocked on the other
means. See Williams v. Warden, 422 F.3d 1006 (9th Cir. 2005) (holding double
jeopardy is not violated when an individual is simultaneously acquitted and convicted
of driving under the influence of a controlled substance and proximately causing death).
Fuller's Reliance on Sanabria and Wright Is Misplaced
Fuller relies heavily on Sanabria and Wright for the proposition that an acquittal
on one means of committing assault in the second degree is "'an absolute bar to any
further prosecution."' Suppl. Br. of Pet'r at 8 (quoting Sanabria, 437 U.S. at 73).
Fuller's reliance on both cases is misplaced. Fuller's case is distinguishable from
Sanabria because Fuller's acquittal and mistrial occurred in a single proceeding, and
because Fuller was never acquitted of the crime of assault in the second degree.
Regarding Wright, the language Fuller relies on is overbroad dicta.
In Sanabria, a single-count indictment charged the defendant with involvement
in an illegal gambling business that concerned numbers betting and horse betting. 437
U.S. at 57. The trial court stn1ck all evidence of the numbers betting because the
indictment laid out the wrong section of state law. Id. at 58-59. With evidence of the
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State v. Fuller (Johnny Dale), 91193-2
numbers betting excluded, the defendant moved for a judgment of acquittal, "arguing
that there was no evidence of his connection with horse-betting activities." Id. at 59.
The trial court granted the motion, finding that the government had not presented
sufficient evidence to connect Sanabria with the horse-betting operation. Id. The trial
court then entered a judgment of acquittal on the single count of being engaged in an
illegal gambling business. Id. at 59, 66-67. The government sought to retry the
defendant on that portion of the indictment related to numbers betting. Id. at 61.
Because the acquittal was on the count as a whole, however, the United States Supreme
Court held that the defendant could not be retried on a different basis of liability for
engaging in the gambling business. I d. at 72-73. As Fuller highlights, the Court held
that an acquittal on one means of committing the crime charged barred future
prosecution on a different means of committing the same offense. Suppl. Br. ofPet'r
at 8 (quoting Sanabria, 437 U.S. at 72-73).
Fuller's case is distinguishable from Sanabria in two key ways. First, in
Sanabria, the Court was contemplating a new prosecution after a full acquittal. It
prohibited ''fitrther prosecution for participation in that [gambling] business," because
there was an acquittal on an element of the crime which the current and future crimes
would share. 437 U.S. at 73 (emphasis added). Sanabria thus concerned the collateral
estoppel element of double jeopardy preventing future prosecution of new charges.
However, in Fuller's case there is no new prosecution. The State brought its charges in
one prosecution, for which there was a simultaneous acquittal and mistrial. The retrial
the State seeks is not "further" prosecution; it is continued prosecution of the same
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State v. Fuller (Johnny Dale), 91193-2
charge on which the jury was declared hung. Cf Williams, 422 F.3d at 1011 (noting,
"Sanabria ... protects Williams from further prosecution on the same offense under a
different theory, but it does not apply in this case, where the two theories of culpability
were presented to the same jury simultaneously" and the jury convicted on one theory
and acquitted on the other).
Second, in Sanabria, the trial court acquitted "on the entire count and found
petitioner not guilty of the crime of violating 18 U.S.C. § 1955 (1976 ed.), without
specifying that it did so only with respect to one theory ofliability." 437 U.S. at 66-67.
The judgment of acquittal was for the crime as a whole. In contrast, the jury acquitted
Fuller of only one means of committing assault in the second degree. Two means of
committing the same offense were presented to the jury: assault causing substantial
bodily harm and assault with a deadly weapon. Although it is clear that the jury
acquitted Fuller of committing assault by substantial bodily harm, it is equally clear the
jury did not acquit him of assault with a deadly weapon. Thus, Fuller was not acquitted
of the offense as a whole.
Fuller's reliance on Wright is likewise ineffectual. Fuller depends specifically
on this statement in Wright: "When a proceeding ends in an undisturbed verdict or
verdict equivalent on any alternative, the State may not prosecute the defendant on any
other means of committing the same offense." 165 Wn.2d at 802. Wright cites
Sanabria for this proposition, id., but it is clearly an overstatement of Sanabria's
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State v. Fuller (Johnny Dale), 91193-2
holding. 6 As explained, Sanabria is distinguishable because it contemplated further
prosecution after a full acquittal on the offense as a whole.
Furthermore, recent case law undermines the dicta in Wright. In Garcia, the
court found insufficient evidence to support two of the three presented alternative
means of committing kidnapping. 179 Wn.2d at 843. Although that finding is
functionally equivalent to an acquittal for double jeopardy purposes, see Ramos, 163
Wn.2d at 661, the court allowed retrial on the remaining alternative means. Garcia,
179 Wn.2d at 843-44. The court held that retrying the defendant on a different
alternative means, even after a functional acquittal on other means of committing that
same offense, did not violate the prohibition against double jeopardy.
Fuller was charged with alternative means of committing assault in the second
degree, each means presented in a different count. The jury acquitted him of one means
and was declared hung on the other. Jeopardy thus terminated as to only one means of
committing the offense; it did not terminate as to the offense overall or as to the means
on which the jury could not agree. Because jeopardy never terminated as to the offense
as a whole, retrying Fuller on the means on which the jury deadlocked does not
implicate double jeopardy.
6
This statement is also dicta. It was not necessary to the court's decision in Wright,
permitting retrial despite the jury having returned a general guilty verdict after the conviction
was overturned due to the jury being instructed on a legally invalid means. 165 Wn.2d at 788-
89; see generally Ruse v. Dep 't of Labor & Indus., 138 Wn.2d 1, 8-9, 977 P.2d 570 (1999)
(explaining dicta as legal statement not necessary to holding).
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State v. Fuller (Johnny Dale), 91193-2
CONCLUSION
We hold that when the State charges alternative means of committing an offense
in separate counts and the jury acquits on one count but deadlocks on the other, the State
may retry the defendant on the count on which the jury was declared hung. Retrial on
that count does not violate the prohibition against double jeopardy because jeopardy
never terminated as to that count or as to the overall offense. We affirm.
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State v. Fuller (Johnny Dale), 91193-2
7
WE CONCUR:
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