Appeal from Superior Court of King County. Docket No: 92-1-05951-3. Date filed: 03/24/93. Judge signing: Hon. Robert J. Wesley.
Authored by Faye C. Kennedy. Concurring: Ann L. Ellington, William W. Baker
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Johnathan Frohs appeals his convictions of unlawful imprisonment and fourth degree assault, contending that the two crimes merged and that his convictions for both violated the prohibition against double jeopardy. Although we reject the State's argument that the merger doctrine no longer exists, we find no violation of the doctrine and, accordingly, no violation of Frohs' right to be free from double jeopardy. We also find no instructional error. Accordingly, we affirm Frohs' convictions of both crimes.
On February 22, 1992, Johnathan Frohs and Stephanie Smith engaged in an argument in the upstairs bedroom of the home they were sharing with another couple. During the argument, Frohs pushed Smith into a dresser, onto the floor, and onto the bed, and squeezed her mouth until it bled. When Smith expressed her desire to leave, Frohs became angry, told her that he would not let her leave, and threatened to shoot her in the head if she left. Smith testified that she took Frohs' threat seriously because he was very angry and had a gun with him. When she nevertheless attempted to leave, Frohs held her down on the bed and then ordered her to sit in a chair while he watched her. Smith took advantage of a distraction, caused when one of the other residents of the house called upstairs to ask what was wrong, to flee to a neighbor's house and call the police.
Frohs was charged with one count of unlawful imprisonment, in violation of RCW 9A.40.040, and one count of fourth degree assault, in violation of RCW 9A.36.041. At the ensuing jury trial, Frohs was found guilty as charged and was sentenced within the standard range.
Frohs contends that Smith's assault was contemporaneous in time and place with her unlawful imprisonment, and was merely incidental to her unlawful imprisonment, and resulted in no greater injury to her than the unlawful imprisonment, and that the fourth degree assault therefore merged into the offense of unlawful imprisonment. The State responds that "after the recent Washington Supreme Court decision in State v. Calle, [125 Wash. 2d 769, 776, 888 P.2d 155 (1995), the] 'merger doctrine' no longer exists." Respondent's Brief at 1-2. In support of this proposition, the State points to the following language in Calle: "There are no non-double jeopardy reasons for reviewing multiple punishments rather, the foundation for such review is the constitutional prohibition against double jeopardy." Calle, 125 Wash. 2d at 775. At oral argument for this appeal, when asked to clarify the State's contention that the merger doctrine no longer exists, the prosecutor opined that the merger doctrine is not dead, but rather that it has been transformed into the third prong of the Calle analysis, and that there has been a change in the applicable presumption when determining legislative intent that did not exist when our Supreme Court adopted the merger doctrine.
The merger doctrine is a rule of statutory construction which our Supreme Court has ruled only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime the State must prove not only that the defendant committed that crime but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes. State v. Vladovic, 99 Wash. 2d 413, 421, 662 P.2d 853 (1983). Thus, in State v. Johnson, 92 Wash. 2d 671, 600 P.2d 1249 (1979) wherein the defendant had been convicted of first degree rape as well as first degree kidnapping and first degree assault, our Supreme Court struck the convictions for kidnapping and assault because in order to be guilty of first degree rape, the defendant must have accomplished sexual intercourse by forcible compulsion while using or threatening to use a deadly weapon or by kidnapping the victim; thus the assault and kidnapping convictions merged with the first degree rape conviction.
The court examined the legislative history of the rape statutes and determined that the Legislature, in repealing the previous rape statute, which did not differentiate between degrees of rape, and substituting statutes defining first, second and third degree rape and imposing stiffer penalties for the higher degrees of the crime, evidenced its intent that conduct involved in the perpetration of a particular degree of rape, and not having an independent purpose or effect, should be punished as an incident of that degree of rape and not additionally as a separate crime. Johnson, 92 Wash. 2d at 676-78. The court concluded that whenever it is necessary in order to prove a particular degree of crime (e.g., first degree rape) that the State also prove that the crime (e.g., rape) is accompanied by conduct that is defined as a crime elsewhere in the criminal code (e.g., assault or kidnapping) an additional conviction for the "included" crime cannot be allowed to stand unless it involves some injury to the person or property of the victim or others which is separate and distinct from and not merely incidental to the crime of which it forms an element. Johnson, 92 Wash. 2d at 680.
Applying this "separate and distinct injury" exception to the merger doctrine in Vladovic, the Supreme Court concluded that although it was the first degree (armed) robbery of one victim that elevated the kidnappings of four other victims to that of the first degree, the kidnapping and robbery convictions did not merge in that the kidnappings and robbery involved different victims and clearly created separate and distinct injuries. Vladovic, 99 Wash. 2d at 421-22.
Because the State argues that the merger doctrine has been so substantially altered by Calle that the doctrine as pronounced in Johnson and Vladovic "no longer exists", we now turn to an analysis of the portions of Calle that are relevant to this contention. Relying on State v. Birgen, 33 Wash. App. 1, 3, 651 P.2d 240 (1982), review denied, 98 Wash. 2d 1013 (1983) the defendant in Calle argued that non-double jeopardy reasons existed upon which to base review of multiple convictions. The Calle court rejected the Birgen court's assertion that a non-double jeopardy basis existed for reviewing multiple convictions: "There are no non-double jeopardy reasons for reviewing multiple punishments rather, the foundation for such review is the constitutional prohibition against double jeopardy." Calle, 125 Wash. 2d at 775. The court nevertheless concluded that the Birgen court's ruling that convictions for statutory rape and third degree rape arising from a single act of sexual intercourse were prohibited to be sustainable, Calle, at 775, even though the offenses were not the same under the "same evidence" and Blockburger *fn1 tests. Calle, at 779-80.
As had the Birgen court, the Calle court recognized that the Blockburger and "same evidence" tests are significant indicators of legislative intent, but that they are not necessarily dispositive of whether two offenses are the same. Calle, at 780; see also Birgen, 33 Wash. App. at 7. Indeed, legislative history and the purposes of the statutes governing the offenses in question may persuade a reviewing court that the legislative body did not intend multiple punishments, even though the offenses have differing legal elements. Calle, at 780; see also State v. Potter, 31 Wash. App. 883, 887-88, 645 P.2d 60 (1982) (although offenses of reckless driving and reckless endangerment have different legal elements, ...