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State v. Novikoff

Court of Appeals of Washington, Division 3

October 31, 2017

STATE OF WASHINGTON, Respondent,
v.
ALEX SAMUEL NOVIKOFF, Appellant.

          KORSMO, J.

         Alex 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, we affirm.

         FACTS

         A jury 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.

         At 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.

         Mr. 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 without argument.

         ANALYSIS

         Mr. 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 listed.

         Double Jeopardy

         We 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 this claim.

         Appellate 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.

         Whether 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.

         Mr. Novikoff was charged and convicted of violating RCW 26.50.110(4), which states in relevant[1] 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 ...

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