State of Washington v. Demetrius R. Robinson
Opinion
FILED
DECEMBER 19, 2019
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. 36504-2-III )
)
Respondent, )
)
v. ) UNPUBLISHED OPINION )
DEMETRIUS R. ROBINSON, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Demetrius Robinson appeals his convictions for fourth degree assault and second degree assault. He contends that the fourth degree assault conviction violates the prohibition against double jeopardy and that the trial court violated his right to a unanimous jury verdict with respect to the second degree assault conviction. The State concedes the double jeopardy issue. We affirm the second degree assault conviction but remand for the trial court to vacate the fourth degree assault conviction.
FACTS
On July 7, 2018, Mr. Robinson spent the afternoon with Bright Johnson, drinking beer and spending time at two different apartment complex pools. Later in the evening,
No. 36504-2-III State v. Robinson
the two joined several other friends and acquaintances and went to various private parties around Pullman. The group eventually returned to the indoor pool area located at the Campus Commons Apartments on the early morning of July 8.
Mr. Robinson had plans to meet up with his friend Madison Geidl. When Ms.
Geidl arrived at the pool and saw Mr. Johnson, she retreated to her car and called Mr. Robinson, who came outside. Ms. Geidl informed him that the night before she had been at a party where Mr. Johnson groped her and that seeing him was giving her a panic attack. Ms. Geidl left and Mr. Robinson, who was visibly frustrated, returned to the pool area to find Mr. Johnson eating Mr. Robinson’s food. Mr. Robinson angrily confronted Mr. Johnson about eating his food, and Mr. Johnson got into the hot tub.1 Mr. Robinson kicked a cell phone charger into the pool and asked Mr. Johnson to get in the pool and retrieve it. Mr. Johnson entered the pool, where he had difficulty retrieving the charger from the bottom of the pool. While standing on the side of the pool, Mr. Robinson hit and kicked Mr. Johnson one time. After retrieving the charger, Mr. Johnson handed it to Mr. Robinson and pulled himself out of the pool to sit on the edge with his feet still in the pool.
1 The parties disagree as to the exact sequence of events that occurred after Mr.
Johnson entered the hot tub. During trial, the State played security camera footage from the Campus Commons Apartments that shows part of the incident. See Report of Proceedings at 116-43 (Ex. 16). This opinion describes the incident as depicted in the video footage.
No. 36504-2-III State v. Robinson
While Mr. Johnson was sitting on the edge of the pool, Mr. Robinson took a swing at Mr. Johnson’s face and then began punching and kicking him. Mr. Johnson attempted to escape across the pool deck into the hot tub, where Mr. Robinson caught him and attempted to hold Mr. Johnson’s head under water. Mr. Johnson managed to writhe away and, at this point, two of the bystanders in the pool area ineffectually attempted to intervene before returning to their pool chairs to continue drinking and watching the incident unfold. Mr. Robinson continued to pace around the hot tub, attempting to hit and kick Mr. Johnson, who retreated to the middle of the hot tub. Mr. Robinson threw a chair at Mr. Johnson, then removed his belt and tried to whip Mr. Johnson with it. He then proceeded to throw several empty beer bottles at Mr. Johnson.
Mr. Robinson eventually emptied his pockets and jumped into the hot tub, at which point Mr. Johnson got out of the tub and tried to run away. He ran into a column, fell down, and Mr. Robinson proceeded to hit and kick Mr. Johnson while he was on the ground, aiming several kicks at his head. The bystanders finally intervened, and Mr. Johnson was able to escape. The entire episode, from the time Mr. Robinson initially hit and kicked Mr. Johnson to when Mr. Johnson escaped, lasted approximately eight minutes.
Mr. Johnson reported the incident to the Pullman Police Department, who was able to obtain the security camera footage of the incident from the Campus Commons
No. 36504-2-III State v. Robinson
Apartments. They also interviewed Mr. Johnson, who reported injuries to his ribs, jaw, and eye socket.
The State originally charged Mr. Robinson with one count of second degree assault and alleged three alternative means: that he (i) intentionally assaulted Mr. Johnson and thereby recklessly inflicted substantial bodily harm, (ii) assaulted Mr. Johnson with a deadly weapon, and (iii) assaulted Mr. Johnson by suffocation. Prior to trial, the State amended the information to remove the substantial bodily harm alternative means and to add one count of fourth degree assault based on the punches and kicks that occurred during the incident.
The court instructed the jury on two alternative means of committing second degree assault: assault with a deadly weapon and assault by suffocation. The jury returned a verdict of guilty as to both counts. The jury also returned a special verdict form indicating it was not unanimous as to whether Mr. Robinson assaulted Mr. Johnson with a deadly weapon, but it was unanimous that Mr. Robinson assaulted Mr. Johnson by suffocation. The trial court sentenced Mr. Robinson to a standard range sentence of 15 months. Mr. Robinson filed a timely notice of appeal.
ANALYSIS
On appeal, Mr. Robinson claims the conviction for fourth degree assault violates the prohibition on double jeopardy because it is based on the same acts underlying his
No. 36504-2-III State v. Robinson
second degree assault conviction, and the State agrees.2 He also contends the court erred by giving the alternate means instruction for the second degree assault count where there was insufficient evidence that he assaulted Mr. Johnson with a deadly weapon. We address each argument in turn.
Washington’s double jeopardy clause offers the same scope of protection as that provided by the federal double jeopardy clause. In re Pers. Restraint of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003). Both prohibit “multiple punishments for the same offense imposed in the same proceeding.” Id. at 49 (citing State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000). This court reviews double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 979-80, 329 P.3d 78 (2014). The appropriate remedy for a double jeopardy violation is to vacate the offending convictions. State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (2008).
When a defendant has multiple convictions under the same statutory provision, the courts apply the “unit of prosecution” test to analyze claims of double jeopardy. Villanueva-Gonzalez, 180 Wn.2d at 980-81. Under this test, the court must determine
2 Neither party addresses whether Mr. Robinson raised this double jeopardy argument below, and the record is silent as to this issue. To the extent Mr. Robinson raises this argument for the first time on appeal, this court and the Supreme Court have often held that a double jeopardy argument may be considered for the first time on appeal because the contention implicates a manifest error affecting a constitutional right. See e.g., State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998); State v. Allen, 150 Wn. App. 300, 312, 207 P.3d 483 (2009).
No. 36504-2-III State v. Robinson
whether the punishable act is each of the defendant’s separate actions or the entire course of conduct. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998).
Assault is considered a course of conduct crime. Villaneuva-Gonzalez, 180 Wn.2d at 985. Accordingly, a defendant cannot be convicted for two separate assaults when the acts underlying those convictions are part of a single course of conduct. In re Pers. Restraint of White, 1 Wn. App. 2d 788, 797-98, 407 P.3d 1173 (2017).
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