IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86217-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHAD THOMAS CLARK,
Appellant.
DÍAZ, J. — In April 2023, a jury convicted Chad Thomas Clark of two counts
of violating a no-contact order protecting L.E. and of residential burglary of her
home. In November 2023, at a separate trial as to a separate incident, a jury
convicted Clark of assault in the second degree and felony harassment of C.W.
Clark primarily claims that the State violated his Fifth Amendment right to silence
and committed misconduct in his first trial. As to his second trial, he claims that
Washington’s harassment statute, chapter 9A.46 RCW, is unconstitutional and
that the court erred by permitting the violation of discovery rules and by violating
his right to be free from double jeopardy. We affirm Clark’s convictions.
I. BACKGROUND
In November 2021, C.W. told police that Clark, her long-term romantic
partner, had attacked her. She claimed inter alia that he strangled her and told her No. 86217-1-I/2
that he would kill her. The State charged Clark with assault in the second degree
and felony harassment.
At trial, Clark objected to the admission of color photographs of C.W.’s
injuries because the State had provided only black-and-white versions during
discovery. The court overruled the objections and admitted the photographs. The
jury found Clark guilty of assault in the second degree and felony harassment by
making a threat to kill.
On December 6, 2021, a court entered a domestic violence no-contact
order, protecting L.E. and prohibiting Clark from entering her residence. Later the
same day, law enforcement arrested Clark at L.E.’s residence. The State charged
Clark with violating the no-contact order and with residential burglary.
Twice during the trial, the prosecutor asked officers who were on the scene
whether, at the time of the arrest, Clark disputed that there was a no-contact order.
During closing arguments, his defense counsel argued that State had not proved
beyond a reasonable doubt that Clark understood the no-contact order. In rebuttal,
the prosecutor argued that the jury should not “consider Mr. Clark’s mental health.”
The court overruled defense counsel’s objection that the State’s argument was
misleading.
The jury found Clark guilty of residential burglary and of two counts of
violating the no-contact order. The court sentenced Clark for both sets of
convictions at the same hearing. Clark timely appeals the convictions from both
trials.
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II. ANALYSIS 1
A. Comment on Right to Remain Silent
For the first time on appeal, Clark claims that the officers’ testimony that he
did not dispute the existence of the no-contact order was an improper comment on
his Fifth Amendment right to remain silent. See U.S. CONST. amend V. Indeed,
the State may not use a defendant’s constitutionally permitted silence “either as
substantive evidence of guilt or to suggest to the jury that the silence was an
admission of guilt.” State v. Romero, 113 Wn. App. 779, 787, 54 P.3d 1255 (2002)
(quoting State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)). However, we
generally may review a claim of error made for the first time on appeal only if it
concerns “manifest error affecting a constitutional right.” RAP 2.5(a). We address
reviewability below before proceeding to the merits.
Clark has the “initial burden of showing that (1) the error was ‘truly of
constitutional dimension’ and (2) the error was ‘manifest.’” State v. Grimes, 165
Wn. App. 172, 185-86, 267 P.3d 454 (2011) (quoting State v. O’Hara, 167 Wn.2d
91, 98, 217 P.3d 756 (2009)). Constitutional questions are issues of law which we
review de novo. State v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012).
In determining whether a comment on defendant’s silence is a manifest
constitutional error, we must first determine whether the comment is direct or
indirect. Romero, 113 Wn. App. at 790. Where there is a direct comment on
1 The parties tried the crimes out of chronological order, i.e., they tried the first
incident after trying the second incident. Clark begins his appellate brief with assignments of error from the first trial, i.e., those arising out of the second incident. We address the errors in the order that Clark raised them. 3 No. 86217-1-I/4
silence, manifest “constitutional error exists that requires a constitutional harmless
error analysis.” Id. But an indirect comment “is more complicated” and requires
the defendant to show that the error “rises to constitutional proportions.” Id. at 790-
91.
Clark first claims that the comment was a direct comment and therefore a
per se manifest constitutional error. We disagree.
A direct comment occurs when “‘(1) it was the prosecutor’s manifest
intention to refer to the defendant’s silence, or (2) the remark was of such a
character that the jury would ‘naturally and necessarily’ take it to be a comment on
the defendant’s silence.’” State v. Butler, 34 Wn. App. 2d 614, 626, 570 P.3d 383
(2025) (quoting United States ex rel. Smith v. Rowe, 618 F.2d 1204, 1210 (7th Cir.
1980)); see also State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008) (holding
that, “if ‘standing alone, [the comment] was ‘so subtle and so brief that [it] did not
‘naturally and necessarily’ emphasize defendant’s testimonial silence[,]’” the
comment is not a direct comment on the right to remain silent) (some alterations
in original) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)). For
instance, an express reference to a defendant’s invocation of their right to remain
silent is a direct comment. State v. Pottorff, 138 Wn. App. 343, 346, 156 P.3d 955
(2007).
An indirect comment or “mere reference” to silence occurs when the witness
comments on an action by the defendant that “could be inferred” to be an
invocation. Pottorff, 138 Wn. App. at 347; Burke, 163 Wn.2d at 216. “[A]n indirect
reference to the defendant’s silence absent further comment from either the
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witness or the State” is not a direct comment. Romero, 113 Wn. App. at
790. Mere reference to silence is not reversible error absent a showing of
prejudice. Burke, 163 Wn.2d at 216
An officer present at Clark’s arrest testified that he did not dispute the
existence of a no-contact order, in the following exchange:
[PROSECUTOR:] [A]t any point, without getting into anything Mr. Clark may have said, did he dispute the fact there was a no- contact order?
[OFFICER]: I don’t remember him disputing that.
The defense did not object to the question. They also did not object when the
prosecutor asked the same question to the sergeant at the arrest:
[PROSECUTOR:] Without getting into what he said, did [Clark] dispute that there was a no-contact order?
[SERGEANT]: No.
It would be a constitutional error if the “‘question and answer were injected
into the trial for no discernable purpose other than to inform the jury that the
defendant refused to talk to the police.’” Romero, 113 Wn. App. at 789 (quoting
State v. Curtis, 110 Wn. App. 6, 13-14, 37 P.3d 1274 (2002)).
Here, Clark did not invoke his right to silence and neither the State’s
questions nor the officers’ testimony mentioned that right or his exercise of that
right when he was being arrested and questioned. And the State did not use the
officers’ answers as an admission or evidence of guilt in their closing argument.
Because we cannot say it was manifestly the intention of the State to comment on
that right, or that such an interpretation “naturally and necessarily” follows
therefore, there was no direct comment. Butler, 34 Wn. App. 2d at 626.
5 No. 86217-1-I/6
On the contrary, when we review de novo the State’s questions in their full
context, it appears that the State had another discernable purpose for their
questions: to recount for the jury the full story of his unlawful presence in a
protected person’s home, and to help them understand Clark’s state of mind during
the arrest.
When the officers gained entry to the apartment, Clark was sitting naked on
the ground. An officer advised Clark that he was under arrest. They asked Clark
to stand up and put clothes on, but Clark did not comply. The officers tried to talk
to Clark for “approximately [] 15 to 20 minutes.” The officers then rolled Clark
facedown on the ground to arrest him. He was sweating and had feces smeared
on him. He squirmed and put his arms underneath him. After putting Clark in
handcuffs, they restrained him further because he continued to “shift his body and
squirm.”
The comment that Clark did not dispute the no-contact order does not
suggest that he admitted guilt. In this context, the officers’ statements are more
naturally understood as further evidence that he was in a mental health crisis and
non-compliant, i.e., not in position to dispute or accept the existence of the order.
Therefore, the officers’ testimony was not a direct comment.
Clark next argues that, even if the testimony was only an indirect comment,
it rises to the level of a manifest constitutional error due to its inferable prejudice.
A reviewing court considers three questions when deciding whether an
indirect comment “rises to constitutional proportions,” subjecting the claim to our
review. Romero, 113 Wn. App. at 790. Namely:
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“First, could the comment reasonably be considered purposeful, meaning responsive to the State’s questioning, with even slight inferable prejudice to the defendant’s claim of silence? Second, could the comment reasonably be considered unresponsive to a question posed by either examiner, but in the context of the defense, the volunteered comment can reasonably be considered as either (a) given for the purpose of attempting to prejudice the defense, or (b) resulting in the unintended effect of likely prejudice to the defense? Third, was the indirect comment exploited by the State during the course of the trial, including argument, in an apparent attempt to prejudice the defense offered by the defendant?”
Id. at 790-91 (citations omitted) (emphasis added) (citing State v. Easter, 130
Wn.2d 228, 236, 922 P.2d 1285 (1996)). “Answering yes to any of these three
questions means the indirect comment is an error of constitutional proportions
meriting review using the constitutional harmless error standard, whether or not
objection is first made at the trial court.” Id. at 791 (emphasis added).
Clark argues that, under the first prong reviewed above—the officers’
comments constituted manifest constitutional error because they were “responsive
to the State’s questioning” and there was a “even slight inferable prejudice to the
defendant's claim of silence.” Romero, 113 Wn. App. at 790. Specifically, Clark
argues that, from the officers’ comments, the jury would assume Clark was guilty
because he did not dispute the existence of a no-contact order.
Indeed, the language of that prong is very broad. Assuming without
deciding that it was an error for the court to permit this testimony, the error is
harmless beyond a reasonable doubt. We review a comment on silence under the
constitutional harmless error standard. Easter, 130 Wn.2d at 242. Constitutional
errors are presumed harmful. State v. Fuller, 169 Wn. App. 797, 813, 282 P.3d
126 (2012). The State bears the burden of showing that this constitutional error
was harmless. Easter, 130 Wn.2d at 242. “We find a constitutional error harmless 7 No. 86217-1-I/8
only if convinced beyond a reasonable doubt any reasonable jury would reach the
same result absent the error and where the untainted evidence is so overwhelming
it necessarily leads to a finding of guilt.” Id. (internal citations omitted).
The untainted evidence of Clark’s guilt was overwhelming. There was no
dispute that on the same day the court entered a no-contact order protecting L.E.
and prohibiting him from entering her residence, and no dispute that Clark was
found in her residence. Thus, Clark’s sheer presence in a location he was
prohibited from being in was well established.
The evidence that Clark knew of the order was also well established. Clark
participated in the hearing where the order was entered when he corrected his
address, asked about a future hearing, and inquired about retrieving a pet from the
protected residence. He also asked about the possibility of L.E. dropping the no-
contact order, and said “yes, sir” to the commissioner. Eli Wainman, Clark’s trial
counsel, did not raise to the commissioner any concerns about Clark’s
understanding the order.
In closing argument, the State told the jury that Clark knew of the existence
of the no-contact order and pointed to audio recording of the hearing and to the
testimony of Wainman. The State did not mention the officers’ testimony that Clark
did not dispute the order during the arrest. The officers’ comments were not central
to the State’s argument. Cf. Easter, 130 Wn.2d at 242-3 (holding that a comment
on a defendant’s silence was not harmless when the State emphasized the silence
“many times in closing argument.”).
Thus, this assignment of error fails, even if viewed as an indirect comment
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on the evidence meriting review, because the jury convicted Clark due to the
State’s overwhelming untainted evidence, not because of any arguable mere
reference to his silence.
B. Prosecutorial Misconduct
Clark claims the State committed prosecutorial misconduct during its
rebuttal closing argument, when it told the jury, over the defense’s objection, “not
to focus on anything that the defense just said” related to Clark’s mental health.
Clark bears the burden of proving that the prosecutor’s conduct was both
improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43
(2011). We review allegations of prosecutorial misconduct under an abuse of
discretion standard. State v. Azevedo, 31 Wn. App. 2d 70, 78, 547 P.3d 287
(2024). A trial court abuses its discretion if “its decision is manifestly unreasonable
or exercised on untenable grounds or for untenable reasons.” State v. Lord, 161
Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Clark does not show the trial court
abused its discretion in overruling his objection as to the argument’s impropriety
and does not establish reversible prejudice.
We assess the propriety of a prosecutor’s conduct “in the context of the
entire record and the circumstances at trial.” Azevedo, 31 Wn. App. 2d at 78. In
their closing argument, Clark’s counsel argued that Clark was too confused to
knowingly violate the no-contact order. They pointed to Wainman’s testimony that
Clark “was in some sort of altered mental state,” that he “would interject strings of
numbers into his speech,” and that it “was not clear on how much . . . of our
conversation he was retaining.”
9 No. 86217-1-I/10
In rebuttal, the prosecutor said, “there is nothing in [your jury instruction
packet] that says you are going to consider Mr. Clark’s mental health. So that is
not something you are going to consider . . . You are not to focus on anything that
the defense just said. You’re to focus on the evidence.”
The State is free to respond to an argument made by the defense.
Thorgerson, 172 Wn.2d at 449 (citing State v. Russell, 125 Wn.2d 24, 87, 882 P.2d
747 (1994)). The prosecutor may not tell the jury to ignore evidence, but they may
contend that the evidence does not support the defense’s argument. Id. That is
what the State did here: it expressly told the jury to “focus on the evidence” and
not on what Clark’s counsel said in their closing argument.
Clark next argues that the prosecutor misstated the law and that the jury
would have gotten the “message . . . that the jury should disregard the evidence.”
But any possible misunderstanding was clarified immediately when the prosecutor
next stated: “[y]ou’re to focus on the evidence.” The prosecutor’s statements were
responsive to Clark’s counsel’s argument, and it was not a misstatement of the law
that the jury had not received a diminished capacity instruction. 2 Thus, Clark has
not carried his burden to show the State’s arguments were improper.
Assuming without holding that the prosecutor’s statements were improper,
Clark also fails to show that the prosecutor’s statement resulted in prejudice that
had a substantial likelihood of affecting the jury’s verdict. In re Pers. Restraint of
2 Clark’s brief argument that his constitutional right to have counsel make a closing
argument was violated is unpersuasive. Nothing in the record indicates that the trial court unduly limited the scope of Clark’s counsel’s closing argument as in State v. Frost, 160 Wn.2d 765, 773, 161 P.3d 361 (2007), on which Clark relies. 10 No. 86217-1-I/11
Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). The jury instructions were
clear that the jury may consider all evidence and that the lawyer’s statements were
not evidence. We presume that the jury followed the instructions. State v. Stein,
144 Wn.2d 236, 247, 27 P.3d 184 (2001). Any confusion resulting from the
prosecutor’s statements would have been resolved by the jury instructions. Clark
nowhere explains why those instructions would not have resolved any prejudice
from the State’s comments and, thus, his claim fails. 3
C. Remedy for Untimely Discovery Disclosure
As to his second trial, Clark argues that the court abused its discretion when
it allowed the State to present color photographs to the jury, even though the State
produced only black-and-white versions during discovery. He claims that the
State’s failure to disclose evidence violated his constitutional right to a fair trial and
the effective assistance of counsel. He asserts that the violation of his
constitutional rights requires reversal of his conviction. We disagree.
1. Discovery Violation
The State is required to turn over photographs “within the prosecuting
attorney’s possession or control no later than the omnibus hearing.” CrR
4.7(a)(1)(v). “[I]f [] additional material or information is discovered during trial,” the
State must promptly notify the other party or their counsel and the court. CrR
4.7(h)(2).
The State disclosed black-and-white photographs of the victim’s injuries to
3 Clark also seeks reversal of the first trial convictions under the cumulative error
doctrine. As we find no error, we do not reach this issue.
11 No. 86217-1-I/12
the defense during discovery. The day the treating physician was to testify, he
provided the State color versions of the same photographs. The State immediately
notified Clark and the court. The court credited the State’s claim that it did not
have the photographs until that day and found the new photographs were not
undue surprise. 4
The State did not violate CrR 4.7 since they did not have the photographs
until the morning of the trial. In compliance with CrR 4.7(h)(2), they notified Clark’s
attorney and the court when they received the color photographs. There is no
violation of discovery rules.
2. Remedy
Even if the State did violate discovery rules, we review sanctions imposed
or denied for discovery violations for an abuse of discretion. State v. Barry, 184
Wn. App. 790, 797, 339 P.3d 200 (2014). The court did not abuse its discretion
when it provided the remedy of extra preparation time.
Clark argues that the color photographs should have been excluded
entirely. “Exclusion or suppression of evidence . . . for a discovery violation is an
extraordinary remedy and should be applied narrowly.” State v. Vance, 184 Wn.
App. 902, 911, 339 P.3d 245 (2014). Courts weigh whether to exclude evidence
for a discovery violation by considering four factors: (1) the effectiveness of less
4 Clark claims that the prosecutor “had actual knowledge of these photographs a
month before trial started.” Insofar as the record indicates any factual dispute as to earlier availability of the photographs, the trial court has discretion to credit the prosecutor’s explanation of events. See Hur v. Lloyd & Williams, LLC, 25 Wn. App. 2d 644, 655, 523 P.3d 861 (2023) (holding that the court may rely on a licensed attorney’s explanation of conduct without administering an oath). 12 No. 86217-1-I/13
severe sanctions; (2) the impact on the evidence at trial and the outcome of the
case; (3) the extent to which the opposing party will be surprised or prejudiced by
the evidence; and (4) whether the violation was willful or in bad faith. See State v.
Venegas, 155 Wn. App. 507, 522, 228 P.3d 813 (2010) (citing State v. Hutchinson,
135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998), abrogated on other grounds by
State v. Jackson, 195 Wn.2d 841, 467 P.3d 97 (2020)).
Although Clark argued that the color photographs offered “a vast difference
in the information” from the black-and-white versions, the court did not agree.
Exclusion was not proper in this case since the court reasonably found that the
introduction of color photographs was not prejudicial to Clark, extra preparation
time could adequately address the violation, and there was no bad faith. Venegas,
155 Wn. App. at 522.
Instead of excluding the photographs, the trial court remedied the discovery
violation by giving defense extra time that morning to interview the witness about
the color photographs. Clark’s trial counsel argued that the remedy was
insufficient and that the difference in the color photographs was so significant that
their admission meant they had been “unable to adequately prepare the defense
to his case and present it to the jury from the very beginning of the case, including
opening statements and cross-examination.” The court overruled the objection,
noting that it could not “understand the defense position that the simple use of
color photographs completely changed the strategy.”
Courts have significant discretion to determine the appropriate remedy
when there is an untimely discovery disclosure. State v. Farnsworth, 133 Wn. App.
13 No. 86217-1-I/14
1, 13, 130 P.3d 389 (2006). The court should impose the “least severe sanction”
that would adequately address the violation. Blair v. TA-Seattle E. No. 176, 171
Wn.2d 342, 348, 254 P.3d 797 (2011). Failure to produce evidence in a timely
manner is often “appropriately remedied by continuing trial to give the nonviolating
party time to interview a new witness or prepare to address new evidence.”
Hutchinson, 135 Wn.2d at 881.
Even if the introduction of the color photographs was a violation of discovery
rules, it was reasonable for the court to find that extra preparation time with the
color photographs and the testifying witness, often a suitable remedy, was
appropriate in this case. See Id. We find no abuse of discretion.
3. Violation of Constitutional Rights
Clark’s claim that the introduction of the color photographs violated his
constitutional right to a fair trial is also unpersuasive. Late disclosure of material
facts may violate a defendant’s constitutional rights. State v. Price, 94 Wn.2d 810,
814, 620 P.2d 994 (1980). Clark bears the burden to show said violation. Barry,
184 Wn. App. at 796-97 (“A defendant must show the prosecution did not act with
due diligence and ‘material facts were withheld from the defendant . . . which
essentially compelled the defendant to choose between two distinct rights’: the
right to a speedy trial and the right to adequately prepared counsel.”) (internal
quotation marks omitted) (citing State v. Woods, 143 Wn.2d 561, 582–83, 23 P.3d
1046 (2001)).
Sanctions and remedies for discovery violations that lead to violations of
constitutional rights are generally governed by CrR 8.3, which primarily addresses
14 No. 86217-1-I/15
dismissal as a sanction. Our Supreme Court has “interpreted CrRLJ 8.3(b) as
authorizing suppression (as well as lesser sanctions) at the discretion of the trial
court.” State v. Salgado-Mendoza, 189 Wn.2d 420, 431, 403 P.3d 45 (2017). If a
defendant argues that a discovery violation led to a constitutional violation, the
defendant must show the prosecutor’s misconduct by a preponderance of the
evidence. Id. The defendant also must show actual prejudice. Id. at 432.
Clark does not cite CrR 8.3 or provide required analysis. Clark knew that
the State would present photographs of the injuries, and the State turned over the
color photographs as soon as they received them. The color in the photographs
does not inject new material facts into this case. We cannot locate unconstitutional
misconduct or reversible prejudice. Thus, no reversal is required in this case.
D. The Constitutionality of Washington’s Harassment Statute
Clark argues his harassment conviction must be reversed because
Washington’s harassment statute, chapter 9A.46 RCW, is unconstitutional under
Counterman v. Colorado, 600 U.S. 66, 82, 143 S. Ct. 2106, 216 L. Ed. 2d 775
(2023). We disagree.
Under RCW 9A.46.020(1)(a)(i), a person is guilty of harassment if they
knowingly threaten “to cause bodily injury immediately or in the future.” Statutes
that criminalize threats can violate the First Amendment. See State v. Williams,
144 Wn.2d 197, 206, 26 P.3d 890 (2001); U.S. CONST. amend I. However, the
First Amendment does not protect true threats. Counterman, 600 U.S. at 72. In
Counterman, the United States Supreme Court held that to avoid free speech
infringement, a state must show a mens rea of recklessness, meaning the speaker
15 No. 86217-1-I/16
is subjectively aware and consciously disregarding the risk that the statements
could be understood as threatening. 600 U.S. at 79.
This court has held that there is “no direct conflict between the statutory
language and the Counterman articulation of what amounts to a true threat.” State
v. Calloway, 31 Wn. App. 2d 405, 420, 550 P.3d 77, review granted, 3 Wn.3d 1031,
559 P.3d 1023 (2024). By proving a mens rea of recklessness, the State can
“comply with Counterman’s articulation of what amounts to a true threat without
undermining the statute.” Id. at 419. Therefore, unless our Supreme Court
declares otherwise, the statute is not facially unconstitutional.
The statute is also not unconstitutional as applied in Clark’s case. At Clark’s
trial, the jury instructions stated that for a harassment conviction, the “speaker must
know of and disregard a substantial risk that the statement or act would be
interpreted [as a threat].” The jury instructions were consistent with the mens rea
requirement of Counterman. We find that Clark’s conviction under the harassment
statute is not unconstitutional.
E. Double Jeopardy
Clark next argues his convictions for second degree assault by
strangulation and felony harassment by means of a death threat violate double
jeopardy. We disagree.
“The constitutional guaranty against double jeopardy protects a defendant .
. . against multiple punishments for the same offense.” State v. Noltie, 116 Wn.2d
831, 848, 809 P.2d 190 (1991); see also U.S. CONST. amend. V; CONST. art. I, § 9.
“In order to qualify as the ‘same offense’ for double jeopardy purposes, the two
16 No. 86217-1-I/17
offenses must be the same both in law and in fact.” State v. Arndt, 194 Wn.2d
784, 815-16, 453 P.3d 696 (2019). “‘If the legislature authorized cumulative
punishments for both crimes, then double jeopardy is not offended.’” Id. at 815
(quoting State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005)).
To assess such claims:
We follow four analytical steps to determine legislative intent regarding whether cumulative punishment is authorized: (1) consideration of any express or implicit legislative intent, (2) application of the Blockburger, or ‘same evidence,’ test, (3) application of the ‘merger doctrine,’ and (4) consideration of any independent purpose or effect that would allow punishment as a separate offense.
Id. at 816 (citing Freeman, 153 Wn.2d at 771-73).
In applying the four-part analysis, Clark bears the burden of showing the
convictions “are identical both in fact and in law.” State v. Ray, No. 103509-8, slip
op. at 16 (Wash. Sept. 11, 2025),
https://www.courts.wa.gov/opinions/pdf/1035098.pdf. (quoting State v. Calle, 125
Wn.2d 769, 777, 888 P.2d 155 (1995)). 5 If they are not identical, we presume the
legislature authorized separate punishments, absent “a clear indication of contrary
legislative intent.” Ray, slip op. at 16. We review a claim of double jeopardy de
novo. Arndt, 194 Wn.2d at 815.
There is no express or implied legislative intent that clearly authorizes
“separate punishments for second degree assault and felony harassment.” Ray,
slip op. at 18. We thus proceed to the Blockburger test. Id. at 19; Blockburger v.
5 Our Supreme Court released the opinion for State v. Ray, on September 11,
2025. Neither party cited to Ray in their briefing since the opinion was not available to them. The State cited to Ray when they submitted a Statement of Additional Authorities under RAP 10.8. 17 No. 86217-1-I/18
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Blockburger’s same evidence test asks whether the two crimes are the
same both in law and in fact. Freeman, 153 Wn.2d at 776. Even if they are the
same in fact, if they are not the same in law, the Blockburger test creates a strong
presumption that the legislature has authorized separate punishments. Ray, slip
op. at 26. “‘[I]f each statute requires proof of an additional fact which the other
does not, an acquittal or conviction under either statute does not exempt the
defendant from prosecution and punishment under the other.’” Blockburger, 284
U.S. at 304 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
Clark argues that his charges for harassment and assault are the same both
in law and in fact. We disagree. The plain language of the statutes shows that the
two charges require different facts to prove each crime. Under RCW
9A.36.021(1)(g), second degree assault by strangulation requires strangulation.
Under RCW 9A.46.020(2)(b)(ii), harassment by means of a death threat requires
a threat to kill. If Clark had not threatened the victim, there could be no harassment
by death threat, but that would not preclude an assault conviction. If he had not
strangled her, there could be no assault by strangulation, but that would not
preclude a harassment conviction.
In response, Clark argues that, under State v. Villanueva-Gonzalez,
convictions for two crimes “that are part of the same course of conduct violate the
prohibition against double jeopardy.” 180 Wn.2d 975, 329 P.3d 78 (2014). This
argument potentially supports Clark’s claim that the convictions are the same in
fact, but does not address whether they are the same in law, since in Villanueva-
18 No. 86217-1-I/19
Gonzalez, the two assault statutes at issue were “plainly the same in law.” 180
Wn.2d at 981-82. Since we find that Clark’s convictions are not the same in law,
we need not address whether they are the same in fact. Ray, slip op. at 26.
We hold that Clark’s convictions for assault and harassment are distinct
under Blockburger. This conclusion creates a strong presumption that the
legislature has authorized separate punishments. Ray, slip op. at 26.
In relevant cases, the next step is the merger doctrine, but the merger
doctrine does not apply here because neither conviction is a lesser included
offense of the other. Id. at 16. Finally, we determine whether there is clear
evidence of legislative intent to overcome the Blockburger presumption. Id. at 26.
Our Supreme Court has held that for these two statutes, “indicators of legislative
intent are not sufficiently clear to overcome the Blockburger presumption.” Id. at
28. We conclude that the legislature authorized separate punishments for second
degree assault and felony harassment. We reject Clark’s double jeopardy claim.
III. CONCLUSION
We affirm Clark’s convictions. 6
WE CONCUR:
6 Because we affirm, we do not address Clark’s final assignment of error, i.e.,
whether at resentencing, he must be assigned a new offender score. 19