Filed Washington State Court of Appeals IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division Two
DIVISION II March 9, 2021
STATE OF WASHINGTON, No. 53881-4-II
Respondent,
v.
ISAIAH WILLIAM NEWTON, JR., UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Isaiah William Newton Jr. and Nekisha Richardson fought outside BJ’s
Bingo casino in Fife, Washington. Richardson yelled at Newton, and Newton pushed Richardson
down and then dragged her across the ground by her purse strap. Newton was convicted of
attempted second degree robbery and fourth degree assault, each with a domestic violence finding.
Newton appeals, arguing that because the State relied on the same physical conduct to
convict Newton of attempted second degree robbery and fourth degree assault, the convictions
violate double jeopardy. The State concedes that the fourth degree assault conviction should be
vacated. Newton also argues that the trial court improperly relied on out-of-court statements
Richardson made on the night of the incident because she did not testify at trial and admission of
her statements violated the confrontation clause.
We accept the State’s concession that Newton’s convictions violate double jeopardy, but
we hold that Newton failed to preserve his confrontation clause claim for appeal. Accordingly, we
affirm Newton’s attempted second degree robbery conviction but reverse his conviction for fourth
degree assault and remand for the trial court to vacate that conviction and resentence Newton. No. 53881-4-II
FACTS
Newton went to BJ’s Bingo casino to talk to Richardson, who was his fiancé. When the
two met outside of the casino, they began to argue. Richardson scolded Newton, and Newton threw
Richardson to the ground and grabbed onto her purse. Newton attempted to take the purse and drag
Richardson across the road. Newton let go and walked away when two security guards from the
casino approached the pair. Casino staff called the tribal police who contacted the Fife Police.
Richardson talked to a casino staff member about the incident. A Fife Police officer also talked to
Richardson.
The State first charged Newton with second degree robbery, but later amended the charges
to attempted second degree robbery and fourth degree assault, both with domestic violence
designations. The parties proceeded to a bench trial. Richardson could not be located at the time
of trial. Newton moved in limine to bar the admission of any out-of-court statements that
Richardson made on the night of the incident based on hearsay. Defense counsel then added, “I
would have the same objection to any admission of statements by her absent the right to confront
her.” Verbatim Report of Proceedings (VRP) at 6. The trial court responded, “I think we’ll take
that up when the offer is made since it was a prior motion.” VRP at 7. The trial court therefore did
not rule on the admissibility of any out-of-court statements pretrial.
Richardson did not testify at trial. Cheryl Baker, a lead security guard at BJ’s Bingo casino
who had been on duty the night of the incident, testified. She recalled that after the altercation
between Richardson and Newton, Richardson returned to the casino, she was very upset and
crying, and she said that she had just been hit. Baker testified that Richardson told her she did not
want police involvement. Baker also recalled that Richardson told her Newton must have taken
2 No. 53881-4-II
her wallet and identification because she did not have it with her. Defense counsel did not object
to any of Baker’s testimony regarding these statements.
Newton testified at trial that he lost his temper and assaulted Richardson by pushing her
down. He testified that he had no intention of taking her purse from her. His intention was to make
Richardson come with him across the street.
The trial court also admitted and viewed a video of the incident that was obtained from one
of the casino security cameras.
The trial court found that Newton physically attacked Richardson by throwing her to the
ground and then grabbing onto her purse. The trial court also found that from the totality of the
circumstances, it was clear that Newton intended to permanently deprive Richardson of her purse.
Based on its findings of fact, the trial court concluded that Newton attempted to deprive Richardson
of her purse against her will. The trial court concluded that Newton took a substantial step in
committing second degree robbery by engaging in a physical struggle with Richardson over
possession of her purse and was thus guilty of attempted second degree robbery. The trial court
also concluded that Newton assaulted Richardson when he threw her to the ground and was thus
guilty of fourth degree assault. Finally, the trial court concluded that both crimes were committed
against a family or household member.
Newton appeals.
ANALYSIS
I. DOUBLE JEOPARDY
Newton argues that because the State relied on the same physical conduct to convict
Newton of attempted second degree robbery and fourth degree assault, the convictions violate
3 No. 53881-4-II
double jeopardy. The State concedes that the fourth degree assault conviction should be vacated,
and we accept the State’s concession.
“‘The constitutional guaranty against double jeopardy protects [defendants] against
multiple punishments for the same offense.’” State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803
(2011) (quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)); see U.S. CONST.
amend. V; WASH. CONST. art. I, § 9. Under these provisions, a defendant can be charged with
multiple charges arising from the same conduct, but double jeopardy prohibits multiple convictions
for the same conduct. State v. Hall, 168 Wn.2d 726, 729-30, 230 P.3d 1048 (2010). We review
double jeopardy claims de novo. State v. Classen, 4 Wn. App. 2d 520, 531, 422 P.3d 489 (2018).
The remedy for a violation of double jeopardy is to vacate the lesser conviction or the conviction
that carries a lesser sentence. State v. Albarran, 187 Wn.2d 15, 21-22, 383 P.3d 1037 (2016).
It is clear from the record here that Newton’s fourth degree assault and attempted second
degree robbery convictions were based on the same conduct—pushing Richardson to the ground
and pulling on her purse, dragging her across the ground. Accordingly, we accept the State’s
concession and reverse Newton’s fourth degree assault conviction.
II. CONFRONTATION CLAUSE
Newton also argues that his constitutional right to confront witnesses against him was
violated when the trial court admitted out-of-court testimonial hearsay statements that Richardson
made to casino staff. We hold that Newton failed to preserve this issue for appeal.
The confrontation clause of the Sixth Amendment to the United States Constitution
provides criminal defendants the right to confront the witnesses against them. State v. Davis, 154
Wn.2d 291, 298, 111 P.3d 844 (2005).
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Filed Washington State Court of Appeals IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division Two
DIVISION II March 9, 2021
STATE OF WASHINGTON, No. 53881-4-II
Respondent,
v.
ISAIAH WILLIAM NEWTON, JR., UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Isaiah William Newton Jr. and Nekisha Richardson fought outside BJ’s
Bingo casino in Fife, Washington. Richardson yelled at Newton, and Newton pushed Richardson
down and then dragged her across the ground by her purse strap. Newton was convicted of
attempted second degree robbery and fourth degree assault, each with a domestic violence finding.
Newton appeals, arguing that because the State relied on the same physical conduct to
convict Newton of attempted second degree robbery and fourth degree assault, the convictions
violate double jeopardy. The State concedes that the fourth degree assault conviction should be
vacated. Newton also argues that the trial court improperly relied on out-of-court statements
Richardson made on the night of the incident because she did not testify at trial and admission of
her statements violated the confrontation clause.
We accept the State’s concession that Newton’s convictions violate double jeopardy, but
we hold that Newton failed to preserve his confrontation clause claim for appeal. Accordingly, we
affirm Newton’s attempted second degree robbery conviction but reverse his conviction for fourth
degree assault and remand for the trial court to vacate that conviction and resentence Newton. No. 53881-4-II
FACTS
Newton went to BJ’s Bingo casino to talk to Richardson, who was his fiancé. When the
two met outside of the casino, they began to argue. Richardson scolded Newton, and Newton threw
Richardson to the ground and grabbed onto her purse. Newton attempted to take the purse and drag
Richardson across the road. Newton let go and walked away when two security guards from the
casino approached the pair. Casino staff called the tribal police who contacted the Fife Police.
Richardson talked to a casino staff member about the incident. A Fife Police officer also talked to
Richardson.
The State first charged Newton with second degree robbery, but later amended the charges
to attempted second degree robbery and fourth degree assault, both with domestic violence
designations. The parties proceeded to a bench trial. Richardson could not be located at the time
of trial. Newton moved in limine to bar the admission of any out-of-court statements that
Richardson made on the night of the incident based on hearsay. Defense counsel then added, “I
would have the same objection to any admission of statements by her absent the right to confront
her.” Verbatim Report of Proceedings (VRP) at 6. The trial court responded, “I think we’ll take
that up when the offer is made since it was a prior motion.” VRP at 7. The trial court therefore did
not rule on the admissibility of any out-of-court statements pretrial.
Richardson did not testify at trial. Cheryl Baker, a lead security guard at BJ’s Bingo casino
who had been on duty the night of the incident, testified. She recalled that after the altercation
between Richardson and Newton, Richardson returned to the casino, she was very upset and
crying, and she said that she had just been hit. Baker testified that Richardson told her she did not
want police involvement. Baker also recalled that Richardson told her Newton must have taken
2 No. 53881-4-II
her wallet and identification because she did not have it with her. Defense counsel did not object
to any of Baker’s testimony regarding these statements.
Newton testified at trial that he lost his temper and assaulted Richardson by pushing her
down. He testified that he had no intention of taking her purse from her. His intention was to make
Richardson come with him across the street.
The trial court also admitted and viewed a video of the incident that was obtained from one
of the casino security cameras.
The trial court found that Newton physically attacked Richardson by throwing her to the
ground and then grabbing onto her purse. The trial court also found that from the totality of the
circumstances, it was clear that Newton intended to permanently deprive Richardson of her purse.
Based on its findings of fact, the trial court concluded that Newton attempted to deprive Richardson
of her purse against her will. The trial court concluded that Newton took a substantial step in
committing second degree robbery by engaging in a physical struggle with Richardson over
possession of her purse and was thus guilty of attempted second degree robbery. The trial court
also concluded that Newton assaulted Richardson when he threw her to the ground and was thus
guilty of fourth degree assault. Finally, the trial court concluded that both crimes were committed
against a family or household member.
Newton appeals.
ANALYSIS
I. DOUBLE JEOPARDY
Newton argues that because the State relied on the same physical conduct to convict
Newton of attempted second degree robbery and fourth degree assault, the convictions violate
3 No. 53881-4-II
double jeopardy. The State concedes that the fourth degree assault conviction should be vacated,
and we accept the State’s concession.
“‘The constitutional guaranty against double jeopardy protects [defendants] against
multiple punishments for the same offense.’” State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803
(2011) (quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)); see U.S. CONST.
amend. V; WASH. CONST. art. I, § 9. Under these provisions, a defendant can be charged with
multiple charges arising from the same conduct, but double jeopardy prohibits multiple convictions
for the same conduct. State v. Hall, 168 Wn.2d 726, 729-30, 230 P.3d 1048 (2010). We review
double jeopardy claims de novo. State v. Classen, 4 Wn. App. 2d 520, 531, 422 P.3d 489 (2018).
The remedy for a violation of double jeopardy is to vacate the lesser conviction or the conviction
that carries a lesser sentence. State v. Albarran, 187 Wn.2d 15, 21-22, 383 P.3d 1037 (2016).
It is clear from the record here that Newton’s fourth degree assault and attempted second
degree robbery convictions were based on the same conduct—pushing Richardson to the ground
and pulling on her purse, dragging her across the ground. Accordingly, we accept the State’s
concession and reverse Newton’s fourth degree assault conviction.
II. CONFRONTATION CLAUSE
Newton also argues that his constitutional right to confront witnesses against him was
violated when the trial court admitted out-of-court testimonial hearsay statements that Richardson
made to casino staff. We hold that Newton failed to preserve this issue for appeal.
The confrontation clause of the Sixth Amendment to the United States Constitution
provides criminal defendants the right to confront the witnesses against them. State v. Davis, 154
Wn.2d 291, 298, 111 P.3d 844 (2005). In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct.
4 No. 53881-4-II
1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that an out-of-court
testimonial statement is inadmissible unless the witness is unavailable and the defendant has had
an opportunity to cross-examine that witness. Davis, 154 Wn.2d at 298.
A defendant must assert his right to confrontation at trial to preserve the challenge for
appeal. State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d 1183 (2019) (holding that a RAP 2.5(a)(3)
manifest constitutional error analysis does not apply to unpreserved confrontation clause claims,
relying in part on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3, 327, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009)). The confrontation clause analysis is statement-specific and a general
objection “may not be sufficient to properly apprise the trial court as to the particular statements
to which [they are] objecting.” State v. Dash, 163 Wn. App. 63, 72, 259 P.3d 319 (2011). “[S]uch
a general objection may not be sufficient to preserve the claim of error for appeal.” Id.
Generally, if a judge makes a definite, final ruling on a motion in limine, then the losing
party is deemed to have a standing objection, and further objection is not required to preserve the
error. State v. Powell, 126 Wn.2d 244, 256-57, 893 P.2d 615 (1995). But when a trial judge
reserves the ruling, “‘[A]ny error in admitting or excluding evidence is waived unless the trial
court is given an opportunity to reconsider its ruling.’” Id. at 257 (quoting State v. Carlson, 61 Wn.
App. 865, 875, 812 P.2d 536 (1991)). In that instance, the party is required to object again during
trial to preserve the issue for appeal. Id.
Here, Newton moved in limine to prohibit the admission of any out-of-court statements
that Richardson made on the night of the incident. But the trial court reserved ruling on the motion,
noting that the issue should be taken up when the offer of evidence was made. The trial court did
not rule on the motion pretrial, and Newton failed to further object when Baker discussed things
5 No. 53881-4-II
that Richardson said on the night of the incident during her trial testimony. The trial court never
had an opportunity to rule on the admissibility of specific statements. Because the trial court did
not rule pretrial and Newton did not object during trial, he failed to preserve the issue for appeal,
and we do not address it.
We affirm Newton’s conviction of attempted second degree robbery, but we reverse and
remand for the trial court to vacate his conviction for fourth degree assault and for resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J. We concur:
Sutton, A.C.J.
Maxa, J.