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STATE OF WASHINGTON, ) No. 36504-2-III ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DEMETRIUS R. ROBINSON, ) ) Appellant.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.
2 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
3 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
4 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.
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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.
2 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
3 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
4 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).
5 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).
To determine whether multiple assaultive acts constitute a single course of
conduct, the court examines five factors: (1) the length of time during which the
assaultive acts took place, (2) whether the assaultive acts occurred at the same location,
(3) the defendant’s intent or motivation for the different acts, (4) whether the acts were
uninterrupted or whether there were intervening acts or events, and (5) whether there was
an opportunity for the defendant to reconsider his actions. Villanueva-Gonzalez, 180
Wn.2d at 985.
The majority of these factors weigh in favor of finding a single course of conduct.
The assaultive acts took place within approximately eight minutes and occurred at the
same location. The intent or motivation for the acts appeared to be the same: Mr.
Robinson was upset that Mr. Johnson apparently groped Ms. Geidl, and that Mr. Johnson
was eating Mr. Robinson’s food. The acts were also generally uninterrupted. There was
potentially an opportunity for Mr. Robinson to reconsider his actions when the bystanders
6 No. 36504-2-III State v. Robinson
initially attempted to intervene and again when he made the decision to get out of the hot
tub and chase down Mr. Johnson. However, the totality of the circumstances support a
finding that this was a single course of conduct.
The State agrees that, pursuant to this five-part test, at least some of the punches
and kicks that formed the basis of the fourth degree assault conviction were part of the
same course of conduct as the act of suffocation that formed the basis for the conviction
of the second degree assault. We accept the State’s concession and find that the fourth
degree assault conviction violates the double jeopardy clause and, therefore, must be
vacated.
Mr. Robinson also argues that the trial court violated his right to a unanimous
verdict because insufficient evidence supported the deadly weapon alternative means.
Specifically, he contends the empty beer bottles did not constitute a deadly weapon for
purposes of RCW 9A.36.021.
An alternative means crime is one that presents multiple ways of committing and
proving the same offense. State v. Owens, 180 Wn.2d 90, 96, 323 P.3d 1030 (2014).
Assault in the second degree is an alternative means crime. State v. Fuller, 185 Wn.2d
30, 34, 367 P.3d 1057 (2016). When a criminal statute creates an alternative means
crime, a defendant is entitled to an express unanimous jury determination as to which
means forms the basis of the guilty verdict unless the State presents sufficient evidence to
7 No. 36504-2-111 State v. Robinson
support each of the alternative means. Owens, 180 Wn.2d at 95; see also State v.
Woodlyn, 188 Wn.2d 157, 164, 392 P.3d 1062 (2017).
This court need not determine whether the deadly weapon alternative means was
supported by sufficient evidence because the jury returned a special verdict form
indicating it unanimously found that Mr. Robinson committed second degree assault by
suffocation. Accordingly, Mr. Robinson received an express unanimous jury
determination as to the means that formed the basis of the guilty verdict. His argument
that the trial court violated his right to a unanimous verdict fails.
CONCLUSION
We affirm Mr. Robinsons' conviction for second degree assault, but remand for
the trial court to vacate the fourth degree assault conviction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Bei;.ey, C.J. ~
WE CONCUR:
Fearing, J. Pennell, J.