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When the State Pursues Multiple Charges Based upon One Act in a Washington Assault Case

On Behalf of | May 16, 2016 | Assault

Criminal laws in Washington, like criminal laws in other states, can allow prosecutors to pursue multiple charges that all arise from a single act or incident. In such a situation, it is important to understand exactly how far your constitutional rights, including the right to be free from double jeopardy, can go to protect you in the event that you are not acquitted on all charges. In one recent example related to this issue, the Washington Supreme Court upheld lower courts’ decisions allowing the state to re-try a man from Tacoma, who initially faced two second-degree assault charges from one act of striking a neighbor with a baseball bat, on the one charge that resulted in a hung jury at the first trial.

In this case, the charges stemmed from a neighborhood dispute in East Tacoma. Vincent Nix and Robert Scott each had children whose bicycles were missing. Their searches led them to Johnny Fuller, who lived nearby and repaired and sold bicycles. Although the fathers found one of the bicycles, they did not locate Scott’s daughter’s bicycle. The fathers refused to leave Fuller’s property and threatened to call the police. Fuller went inside, retrieved an aluminum baseball bat, and struck Scott on the arm, injuring him.

The state brought two charges against Fuller for this single incident. The prosecution accused Fuller of committing second-degree assault in violation of RCW Section 9A.36.021(1)(c), which relates to assault with a deadly weapon. Fuller also faced a charge of second-degree assault for violating Section 9A.36.021(1)(a). That statute covers the reckless infliction of substantial bodily harm. The case went to trial, where the state expressly acknowledged that both charges arose from a single act:  Fuller’s hitting Scott in the arm with the bat. The jury found Fuller not guilty on the second (substantial bodily harm) charge, but the first (assault with a deadly weapon) charge resulted in a hung jury.

After receiving this verdict, Fuller asked the judge to throw out the remaining charge, arguing that it was essentially the same offense for which the jury had just acquitted him and that allowing the state to re-try him would violate his constitutional protection against double jeopardy. The trial court did not agree, and the prosecution decided to re-try Fuller on the assault with a deadly weapon charge. Fuller appealed that ruling, but the Court of Appeals upheld the trial court’s decision. This led Fuller to take his case to the Supreme Court, where he again advanced his double jeopardy argument and where he was again unsuccessful.

The Supreme Court did not find a double jeopardy problem because, contrary to the man’s arguments, the jury’s verdict did not amount to a judgment on whether Fuller committed any sort of second-degree assault. The verdict only would have terminated jeopardy, and a retrial only would have raised a double jeopardy issue, if the state had attempted to re-try Fuller for reckless infliction of substantial bodily harm. The jury did not acquit Fuller of having committed second-degree assault generally. The jury merely found that the evidence did not establish that Fuller committed an assault that caused substantial bodily harm to Scott.

The statutory prohibition against committing assault with a deadly weapon does not require that the accused person cause substantial bodily harm to the victim, only that an assault occurred and that the perpetrator used a potentially deadly weapon to carry out that attack. In that regard, the jury never reached a verdict, instead deadlocking on that question. This meant that, even though the jury delivered one acquittal that related to Fuller’s striking Scott, this did not raise a double jeopardy bar to the state’s pursuit of all assault charges arising from Fuller’s hitting Scott.

Regardless of whether you are facing one count or multiple charges in your assault case, you should retain a defense team that will protect your rights to the fullest extent of the law. The Pierce County/Tacoma assault attorneys at Smith & White, PLLC have many years of experience helping a wide variety of people assess their cases and plot out well-crafted strategies. Call us today at 253-363-8662 to schedule your initial consultation. The first consultation is free.