Novikoff appeals his convictions for felony violation of a
protection order and fourth degree assault, arguing that the
latter conviction cannot stand due to double jeopardy and
merger concerns. Since legislative intent, as noted
previously by the other divisions of this court, indicates
that the legislature authorized punishment for both offenses,
convicted Mr. Novikoff of unlawful imprisonment, third degree
theft, felony violation of a protection order, and fourth
degree assault involving an attack on his former girlfriend.
Only the latter two convictions are at issue in this appeal.
The evidence indicated that the latter two charges were based
on a portion of the incident where Mr. Novikoff struck the
victim in the face, causing her to bleed.
sentencing, Mr. Novikoff successfully argued that the
unlawful imprisonment and violation of a protection order
constituted the same criminal conduct. He also argued that
the fourth degree assault conviction should merge into the
protection order violation conviction. The trial court
disagreed, determining that the legislature intended both
offenses to be punished separately.
Novikoff timely appealed to this court, again contending that
the assault conviction should be dismissed or merged into the
protection order violation. A panel considered this matter
Novikoff contends that his rights against double jeopardy
were violated by the two convictions. He also argues that the
two crimes merge. We address those contentions in the order
initially consider the claim that Mr. Novikoff s double
jeopardy rights were violated by allowing both convictions to
stand. Legislative intent, as previously discerned by the
other two divisions of this court, requires that we reject
courts review claims of double jeopardy de novo. State v.
Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006). Double
jeopardy can arise in three different circumstances.
State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267
(1995). As relevant here, double jeopardy prohibits multiple
criminal convictions for one crime, absent evidence that the
legislature intended multiple convictions. Id. at
100-01; In re Pers. Restraint of Orange, 152 Wn.2d
795, 815, 100 P.3d 291 (2004); State v. Calle, 125
Wn.2d 769, 776, 888 P.2d 155 (1995). When multiple
convictions have been entered where only one is permitted,
the remedy is to vacate the lesser offense. State v.
Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006). The
lesser offense is the lesser included offense or the one that
carries the lesser punishment. Id. at 269.
or not multiple punishments are permitted for the same
criminal act is largely a question of legislative intent.
Calle, 125 Wn.2d at 776. Courts apply the test of
Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932) to determine whether or not multiple
punishments are authorized. That test determines whether two
crimes are the same offense by seeing if each crime requires
proof of elements not found in the other offense.
Blockburger, 284 U.S. at 304. In effect, then, the
Blockburger test prohibits multiple convictions when
one crime is a lesser offense of the greater crime. In
addition to comparing elements of the offenses, Washington
courts also look at whether the evidence proving one crime
also proved the second crime. Orange, 152 Wn.2d at
820-21. Elements are compared by looking to the charging
theories of the case rather than merely examining the
statutory elements. Id. at 819-20.
Novikoff was charged and convicted of violating RCW
26.50.110(4), which states in relevant part that:
Any assault that is a violation of an order issued under . .
. RCW 10.99 . . . and that does not amount to assault in the
first or second degree under RCW 9A.36.011 ...