State of Washington v. Alex Samuel Novikoff ( 2017 )

FILED
OCTOBER 31, 2017.
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34458-4-111
Respondent, )
)
v. )
)
ALEX SAMUEL NOVIKOFF, ) PUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Alex Novikoff appeals his convictions for felony violation of a
protection order and fourth degree assault, arguing that the latter conviction cannot stand
due to double jeopardy and merger concerns. Since legislative intent, as noted previously
by the other divisions of this court, indicates that the legislature authorized punishment
for both offenses, we affirm.
FACTS
A jury convicted Mr. Novikoff of unlawful imprisonment, third degree theft,
felony violation of a protection order, and fourth degree assault involving an attack on his
former girlfriend. Only the latter two convictions are at issue in this appeal. The
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evidence indicated that the latter two charges were based on a portion of the incident
where Mr. Novikoff struck the victim in the face, causing her to bleed.
At sentencing, Mr. Novikoff successfully argued that the unlawful imprisonment
and violation of a protection order constituted the same criminal conduct. He also argued
that the fourth degree assault conviction should merge into the protection order violation
conviction. The trial court disagreed, determining that the legislature intended both
offenses to be punished separately.
Mr. Novikoff timely appealed to this court, again contending that the assault
conviction should be dismissed or merged into the protection order violation. A panel
considered this matter without argument.
ANALYSIS
Mr. Novikoff contends that his rights against double jeopardy were violated by the
two convictions. He also argues that the two crimes merge. We address those
contentions in the order listed.
Double Jeopardy
We initially consider the claim that Mr. Novikoffs double jeopardy rights were
violated by allowing both convictions to stand. Legislative intent, as previously
discerned by the other two divisions of this court, requires that we reject this claim.
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Appellate courts review claims of double jeopardy de novo. State v. Jackman, 156
Wn.2d 736, 746, 132 P.3d 136 (2006). Double jeopardy can arise in three different
circumstances. State v. Goeken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). As relevant
here, double jeopardy prohibits multiple criminal convictions for one crime, absent
evidence that the legislature intended multiple convictions. Id. at 100-01; In re Pers.
Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); State v. Calle, 125
Wn.2d 769, 776, 888 P.2d 155 (1995). When multiple convictions have been entered
where only one is permitted, the remedy is to vacate the lesser offense. State v. Weber,
159 Wn.2d 252, 265, 149 P.3d 646 (2006). The lesser offense is the lesser included
offense or the one that carries the lesser punishment. Id. at 269.
Whether or not multiple punishments are permitted for the same criminal act is
largely a question of legislative intent. Calle, 125 Wn.2d at 776. Courts apply the test of
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) to
determine whether or not multiple punishments are authorized. That test determines
whether two crimes are the same offense by seeing if each crime requires proof of
elements not found in the other offense. Blockburger, 284 U.S. at 304. In effect, then,
the Blockburger test prohibits multiple convictions when one crime is a lesser offense of
the greater crime. In addition to comparing elements of the offenses, Washington courts
also look at whether the evidence proving one crime also proved the second crime.
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Orange, 152 Wn.2d at 820-21. Elements are compared by looking to the charging
theories of the case rather than merely examining the statutory elements. Id. at 819-20.
Mr. Novikoff was charged and convicted of violating RCW 26.50.110(4), which
states in relevant 1 part that:
Any assault that is a violation of an order issued under ... RCW 10.99 ...
and that does not amount to assault in the first or second degree under
RCW 9A.36.011 or 9A.36.021 is a class C felony.
This statute was authoritatively considered by the Washington Supreme Court in State v.
Ward, 148 Wn.2d 803, 64 P.3d 640 (2003). The issue there involved what elements
needed to be included in the charging document. Id. at 810-14. 2 Two subsequent Court
of Appeals decisions, released only ten weeks apart, have considered the legislative intent
behind this statute in the context of felony assault. State v. Leming, 133 Wn. App. 875,
138 P.3d 1095 (2006); State v. Moreno, 132 Wn. App. 663, 132 P.3d 1137 (2006).
In Moreno, Division One of this Court addressed the situation of a defendant
convicted of both third degree assault and felony violation of a no contact order. 132
Wn. App. at 668. Looking at the "same evidence" test required by Calle, the Moreno
court found that the two offenses were the same in fact, and the court assumed, without
1
The charge was predicated on a violation of a no contact order entered against
Mr. Novikoff in a different pending criminal case. Clerk's Papers at 71-72.
2
The statute previously had been before the court in State v. Azpitarte, 140 Wn.2d
138, 142, 995 P.2d 31 (2000). There the court noted that "all assault convictions
connected to violation of a no-contact order will result in a felony."
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deciding, that the two offenses were the same in law. Id. After noting that this result
raised a presumption that separate punishments were not intended, the court still had to
consider evidence of legislative intent. Id. at 669. Particularly important was the fact
that the order violation statute was located in the domestic violence chapter, RCW 26.50,
while the assault statute was found in the criminal code, Title 9A RCW. Id. That
placement was significant because RCW 26.50.210 expressly provided that remedies
under chapter 26.50 RCW were "in addition to other civil or criminal remedies." Id.
(emphasis omitted). The court found that the statutory placement evinced legislative
intent to punish the no contact violation separately from the assault. Id. at 669-70.
Looking further into the statutory scheme, the Moreno court found additional
support for its conclusion about legislative intent in the different purposes between the
assault and court order statutes. 3 In particular, the primary purpose of the assault statutes
is to prevent assaultive behavior, but chapter 26.50 RCW serves additional purposes
beyond prevention of assault-it addresses the serious societal problem of domestic
violence, it assigns more serious penalties than the assault statutes, and it punishes
contempt of court. Id. at 670-71. Given the wide variety of different purposes served by
3
Moreno found support for this approach in Calle, noting that there the court had
found intent to punish both rape and incest separately due to differences in purpose
between the rape (prevent unlawful sexual intercourse) and incest (family harmony)
statutes. Moreno, 132 Wn. App. at 670 (discussing Calle, 125 Wn.2d at 780-81).
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the two crimes, Moreno concluded that the legislature intended to give effect to the
additional purposes by punishing the crimes separately. Id. at 671.
Leming involved convictions for second degree assault and violation of a no
contact order arising from the same behavior. 133 Wn. App. at 880-81. 4 The court began
its analysis of the double jeopardy problem by noting that the statutes did not expressly
authorize separate punishment. Id. at 885. Applying the Blockburger analysis, Leming
concluded that the two offenses were not the same in law or in fact and were intended to
be treated separately. Id. at 886. It then turned to the question of legislative intent and
also found that the varying purposes between chapter 26.50 RCW and the criminal code
"implicitly expressed" intent to punish the offenses separately. Id. at 886-87.
The legislative session immediately following release of the opinions in Moreno
and Leming resulted in additional amendments to chapter 26.50 RCW. The resulting
amendment to the intent section expressly stated: "The legislature finds this act necessary
to restore and make clear its intent that a willful violation of a no-contact provision of a
court order is a criminal offense and shall be enforced accordingly to preserve the
integrity and intent of the domestic violence act." LA ws OF 2007, ch. 173, § 1. 5 This
4
A conviction for fourth degree assault arising from the same incident was
dismissed because the prosecution had charged that crime as an alternative offense to the
no contact order violation. Leming, 133 Wn. App. at 881.
5
The problem addressed by the legislature was the failure of some courts to treat
as criminal offenses behavior that violated no contact order provisions but was not
otherwise a crime. See State v. Bunker, 169 Wn.2d 571,238 P.3d 487 (2010).
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intent statement, unavailable to the Moreno and Leming courts, lends further support to
the idea that the legislature wanted chapter 26.50 RCW enforced on its own merits
without regard to the criminal code.
The trial court relied on the Moreno and Leming decisions in reaching its
conclusion that the legislature intended separate punishment for the two crimes. In light
of this history, we agree with the trial court's interpretation. Fourth degree assault, under
the charging theory of this case, appears to be the same in law and in fact under the
Blockburger and Calle tests, putting this case analytically closer to Moreno than to
Leming. Nonetheless, while that presumptive test suggests separate punishment was not
intended, the clear legislative intent found by both Moreno and Leming, and reaffirmed
when the legislature amended the statute the following year, compels us to conclude that
the assault and no contact order statutes must both be enforced in this circumstance.
We hold that the legislature intended to separately punish Mr. Novikoff for both
violation of a no contact order and fourth degree assault. His double jeopardy argument
fails in light of legislative intent.
Merger
Mr. Novikoff also argues that the merger doctrine provides an independent basis
for treating the two offenses as one. In light of the noted evidence of legislative intent,
this argument also is unavailing.
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The merger doctrine, independent of double jeopardy concerns, evaluates whether
the legislature intended multiple crimes to merge into a single crime for punishment
purposes. State v. Vladovic, 99 Wn.2d 413,419 n.2, 662 P.2d 853 (1983) (citing
Blockburger, 284 U.S. 299). The merger doctrine applies only when, in order to prove a
more serious crime, the State must prove an act that a statute defines as a separate crime.
Vladovic, 99 Wn.2d at 420-21. 6 In this instance, the assault that provided the factual
basis for the fourth degree assault is also an element of the no contact order violation,
suggesting that merger might apply.
But, as with double jeopardy analysis, the ultimate question is whether the
legislature intended separate punishment. Id. at 419 n.2; State v. Berg, 181 Wn.2d 857,
864, 337 P.3d 310 (2014). Here, as noted in the previous section, the answer to that
question has already been provided by the legislature. Both while enacting the domestic
violence protection act, chapter 26.50 RCW, as well as when amending it, the legislature
has seen separate enforcement of that chapter's provisions as important to addressing the
public policy of this state.
Accordingly, we conclude that the two offenses do not merge because the
legislature intended them to be punished separately.
6
In essence, the merger doctrine provides double jeopardy-like protection in
instances where the double jeopardy would not apply due to failure to meet the
Blockburger standards.
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The convictions are affirmed.
WE CONCUR:
Fearing,C~
Lawrence-Berrey, J.
j
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