State v. Womac

160 P.3d 40

160 Wn.2d 643

STATE of Washington, Respondent, v. Brian Zane WOMAC, Petitioner.

No. 78166-4.

Supreme Court of Washington, En Banc.

Argued October 26, 2006.

Decided June 14, 2007.

Rebecca Wold Bouchey, Mercer Island, WA, for Petitioner.

Michelle Luna-Green, Pierce Co. Pros. Attorney, Tacoma, WA, for Respondent.

SANDERS, J.

¶ 1 Following a jury trial, Brian Womac was convicted of homicide by abuse (Count I), second degree felony murder (Count II), and first degree assault (Count III) for the death of his son, Anthony Owings. The trial court entered judgment on all three convictions but imposed an exceptional sentence on Count I only (homicide by abuse). The court denied Womac's motion to dismiss Counts II and III and left both on his record absent accompanying sentences.

¶ 2 The Court of Appeals affirmed Womac's conviction for Count I. The court also remanded for resentencing within the standard range on that count and directed the trial court to conditionally dismiss Counts II and III, allowing for reinstatement should Count I later be reversed, vacated, or set aside.

¶ 3 Womac now claims the Court of Appeals violated double jeopardy principles by failing to vacate his convictions for felony murder and first degree assault. We agree. Because Womac's three separate convictions constitute the "same offense" for purposes of double jeopardy, his convictions for felony murder and assault in the first degree should be vacated. We reverse the Court of Appeals' order to conditionally dismiss Counts II and III, and we direct the trial court to vacate Womac's convictions for both charges.

FACTS

¶ 4 In December 2002 Brian Womac and Christa Owings brought their four-month-old son Anthony Owings who was suffering head injuries to St. Peter Hospital in Olympia. Anthony was airlifted to Harborview Medical Center in Seattle where he died from his injuries early the next morning on December 2, 2002.

¶ 5 The State charged Womac with homicide by abuse, felony murder in the second degree (based on the predicate offense of criminal mistreatment in the first or second degree¹), and assault of a child in the first degree. In January 2004 a jury convicted Womac of all three charges. The trial court entered judgment on all three counts and imposed an exceptional sentence of 480 months on Count I after finding two aggravating circumstances: particular vulnerability of the victim due to extreme youth and abuse of a position of trust. The court found the convictions for Counts II and III were "valid," but to avoid violating double jeopardy provisions did not impose sentences on either count. 6 Verbatim Report of Proceedings (VRP) at 1067.

¶ 6 Womac moved to dismiss Counts II and III, claiming dismissal was necessary to avoid a double jeopardy violation. The State asked that the charges and verdicts on Counts II and III remain in place until Count I had survived postsentence challenges. The trial court determined double jeopardy did not require dismissal of Counts II and III and left both convictions on Womac's record.

¶ 7 The Court of Appeals affirmed the verdict on Count I but remanded for resentencing on that count within the standard range. State v. Womac, 130 Wash.App. 450, 458, 123 P.3d 528 (2005). Because the aggravating circumstances of particular vulnerability and abuse of trust (justifying Womac's exceptional sentence) were not submitted to a jury and proved beyond a reasonable doubt, the Court of Appeals and the State agreed the trial court erred in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The State, however, argued the error was harmless and requested the Court of Appeals uphold Womac's exceptional sentence. The Court of Appeals, citing State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), for the proposition that a Blakely error cannot be harmless, vacated the 480-month exceptional sentence and remanded for resentencing within the standard range.

¶ 8 Addressing Womac's double jeopardy claim, the Court of Appeals directed the trial court to "conditionally dismiss Counts II and III," allowing for reinstatement should Count I later be reversed, vacated, or otherwise set aside. Womac, 130 Wash.App. at 460, 123 P.3d 528. The court found this solution properly balanced the State's interest in prosecuting its charges and Womac's right to avoid social stigma arising from multiple convictions.

¶ 9 Womac filed a petition for review asking this court to determine (1) whether the Court of Appeals erred when it held the trial court is not required to vacate his convictions for felony murder and assault, (2) whether the Court of Appeals erred when it affirmed the trial court's admittance of Womac's prior bad acts under ER 404(b), and (3) whether the Court of Appeals erred when it held cumulative error did not deprive Womac of a fair trial. Pet. for Discretionary Review at 1.

¶ 10 We granted review as to the double jeopardy issue only and requested the parties to address whether, in light of Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006), the Court of Appeals properly remanded for resentencing within the standard range. We now affirm the Court of Appeals' remand for resentencing on Count I within the standard range and reverse the Court of Appeals' order to conditionally dismiss Counts II and III. Accordingly, we direct the trial court to vacate Womac's convictions for felony murder and assault in the first degree.

STANDARD OF REVIEW

¶ 11 We review questions of law de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

ANALYSIS

I. The Trial Court's Failure to Vacate Womac's Convictions for Felony Murder and Assault in the First Degree Violates Double Jeopardy

A. The United States and Washington Constitutions Prohibit Multiple Punishments for a Single Offense

¶ 12 Brian Womac was found to have committed a single offense against a single victim yet three separate convictions remain on his record. "That it is unjust and oppressive to multiply punishments for a single offense is a concept which has gained recognition in the courts of this state." State v. Johnson, 92 Wash.2d 671, 678, 600 P.2d 1249 (1979) (citing State v. Maloney, 78 Wash.2d 922, 481 P.2d 1 (1971)); see also State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995) (Courts may not exceed legislative authority by imposing multiple punishments for the same offense. (citing Albernaz v. United States, 450 U.S. 333, 334, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)))).

¶ 13 The double jeopardy doctrine protects defendants against "prosecution oppression." 5 WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 25.1(b), at 630 (2d ed.1999). The fifth amendment to the United States Constitution provides "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . ." Article I, section 9 of the Washington Constitution mirrors the federal constitution stating "[n]o person shall be . . . twice put in jeopardy for the same offense." "Washington's double jeopardy clause offers the same scope of protection as the federal double jeopardy clause." In re Pers. Restraint of Percer, 150 Wash.2d 41, 49, 75 P.3d 488 (2003) (citing State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267 (1995)). Both prohibit "(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense imposed in the same proceeding." Percer, 150 Wash.2d at 48-49, 75 P.3d 488 (citing State v. Bobic, 140 Wash.2d 250, 260, 996 P.2d 610 (2000); Gocken, 127 Wash.2d at 100, 896 P.2d 1267). RCW 10.43.050 also affords defendants protections against double jeopardy, providing in part:

Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such crime, or any degree thereof.

¶ 14 "Jeopardy means exposure to danger." 1 LINDA S. PORTNOY, WASHINGTON CRIMINAL PRACTICE IN COURTS OF LIMITED JURISDICTION § 15.05(C), at 15-7 (3d ed.2005). Womac remains exposed to danger as three separate convictions (arising from a single offense) remain on his record after the trial court determined that sentencing on all three would violate double jeopardy. As Womac's counsel correctly asserts, it is unjust

to find a double jeopardy violation and hold these convictions in a safe for a rainy day, in the event that the homicide by abuse gets reversed . . . then they can sort of rise from the dead like Jesus on the third day and bite my client, and he can be sentenced on convictions that the court already ruled violated double jeopardy.

7 VRP at 1072.

¶ 15 To permit such a practice allows the State multiple bites at the apple by labeling one crime by three different names and upholding any and all resulting convictions. And the State, "with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

B. "Same Evidence" Rule

¶ 16 Washington follows the "same evidence" rule which this court adopted in 1896. Calle, 125 Wash.2d at 777, 888 P.2d 155. "[T]he defendant's double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law." Id. at 777, 888 P.2d 155. The "same evidence" rule is sometimes referred to as the "same elements' test." See Gocken, 127 Wash.2d at 101, 896 P.2d 1267 (...