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                                                                 8~~S.pi~lna Co~ut                             Clerk



  IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                       NO. 91193-2
                            Respondent,

              v.                                       ENBANC

JOHNNY DALE FULLER,
                                                       Filed - - - - - - - -
                            Petitioner.



      STEPHENS, I.-Petitioner JohnnyDaleFullerwas charged with two counts of

assault in the second degree, each count presenting an alternative means of committing

the offense. The jury acquitted Fuller of one count and deadlocked on the other. The

trial court declared a mistrial on that count, and the State sought to retry Fuller. Fuller

moved to dismiss, arguing that retrial would subject him to reprosecution for the same

offense after an acquittal, in violation of double jeopardy. The superior court denied

Fuller's motion, and the Court of Appeals affirmed. We hold that jeopardy never

terminated as to the count the State seeks to retry, and that the jury's acquittal on the

other count is of no consequence. Because retrial does not implicate double jeopardy,

we affirm the Court of Appeals.
State v. Fuller (Johnny Dale), 91193-2




                      FACTS AND PROCEDURAL HISTORY

      Fuller was charged with two counts of assault in the second degree, one count of

trafficking in stolen property in the first degree, and one count of possession of stolen

property in the third degree. 1 The charges arose from an incident in which Fuller

allegedly hit Robert Scott with an aluminum baseball bat after Scott and another person

confronted Fuller about allegedly stealing neighborhood children's bicycles. Count I

charged assault in the second degree based on use of a deadly weapon, in violation of

RCW 9A.36.02l(l)(c).       Count II charged assault in the second degree based on

"recldessly inflict[ing] substantial bodily harm" in violation ofRCW 9A.36.02l(l)(a).

Clerk's Papers (CP) at 52. Both assault charges arose from the same act, in which Fuller

allegedly struck Scott on the outer left arm with a baseball bat. The parties agree the

two counts represent alternative means of committing second degree assault.

       The trial court instructed the jury that a separate crime was charged in each count,

and that its verdict on one count did not control the verdict on any other count. Although

the jury was given an alternative means instruction for assault in the second degree, 2 it

was also given separate instructions for counts I and II, which specifically listed the

elements the State had to prove to convict on each of those counts. The instructions for

counts I and II clearly explained that to convict, the jury must find the evidence proved

each element beyond a reasonable doubt.


       1
        The jury acquitted Fuller of both property charges, and they are not at issue here.
       2
        Jury instruction 5 provided, "A person commits the crime of Assault in the Second
Degree when he: 1) intentionally assaults another and thereby recldessly inflicts substantial
bodily harm, or 2) assaults another with a deadly weapon." CP at 80.

                                             -2-
State v. Fuller (Johnny Dale), 91193-2




      The jury found Fuller not guilty of count II (substantial bodily harm) but was

unable to reach a verdict as to count I (deadly weapon). With counsels' agreement, the

court declared a mistrial as to count I due to a hung jury.

      The State sought to retry Fuller on count I. Fuller moved to dismiss, arguing that

reprosecution of assault on any theory violated his right to be free from double jeopardy

under the Fifth Amendment to the United States Constitution and article I, section 9 of

the Washington State Constitution. The trial court denied the motion. Fuller appealed,

and Division One of the Court of Appeals affirmed. State v. Fuller, noted at 184 Wn.

App. 1045 (2014). Fuller petitioned this court for review, which we granted. State v.

Fuller, 183 Wn.2d 1007, 352 P.3d 187 (2015).

                                         ANALYSIS

       The United States Constitution and the Washington State Constitution protect

individuals from being twice put in jeopardy for the same offense. U.S. CONST. amend.

V ("nor shall any person be subject for the same offence to be twice put in jeopardy of

life or limb"); WASH. CONST. art. I,§ 9 (''No person shall ... be twice put in jeopardy

for the same offense."). "The double jeopardy doctrine protects a criminal defendant

from being (1) prosecuted a second time for the same offense after acquittal, (2)

prosecuted a second time for the same offense after conviction, and (3) punished

multiple times for the same offense." State v. Linton, 156 Wn.2d 777, 783, 132 P.3d

 127 (2006).   "The prohibition against double jeopardy applies when (1) jeopardy

previously attached, (2) jeopardy was terminated, and (3) the defendant is again

prosecuted for the same offense." State v. George, 160 Wn.2d 727,741, 158 P.3d 1169


                                            -3-
State v. Fuller (Johnny Dale), 91193-2




(2007). This court reviews double jeopardy claims de novo. See State v. Jackman, 156

Wn.2d 736, 746, 132 P.3d 136 (2006).

      Fuller argues that prosecuting him again for assault in the second degree violates

the constitutional bar on reprosecuting the same offense after acquittal. Suppl. Br. of

Pet'r at 4. He reasons that counts I and II were alternative means of committing a single

assault, and that he was acquitted of committing that assault. Although Fuller is correct

that the State may not reprosecute count li-the count on which he was acquitted-he

is incorrect regarding reprosecution of the other charged means. Jeopardy did not

terminate on count I specifically or on the overall offense of second degree assault. The

State may therefore retry Fuller on count I without implicating double jeopardy.

 Retrial on Count I Does Not Implicate Double Jeopardy Because Jeopardy Did Not
                Terminate on That Count or on the Assault Offense

       The second degree assault statute, RCW 9A.36.021, articulates a single criminal

offense and currently provides seven3 separate subsections defining how the offense

may be committed. State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 (2007); see also

RCW 9A.36.02l(l)(a)-(g). Although Fuller was charged with two separate counts,

whether a case involves separate counts based on alternative means or a single count

with two alternative means does not change the double jeopardy analysis. 4 In Sanabria

v. United States, the United States Supreme Court stated, "The precise manner in


       3
         Since Smith, the legislature added subsection (g), which includes strangulation and
suffocation. LAws OF 2007, ch. 79, § 2; LAws OF 2011, ch. 166, § 1.
       4
         Because Fuller did not object to the State charging the alternative means in separate
counts, we do not consider whether this unusual method of charging a single assault
implicates issues other than double jeopardy.

                                             -4-
State v. Fuller (Johnny Dale), 91193-2




which an indictment is drawn cannot be ignored, because an important function of

the indictment is to ensure that, 'in case any other proceedings are taken against [the

defendant] for a similar offence, ... the record [will] sho[w] with accuracy to what

extent he may plead a former acquittal or conviction."' 437 U.S. 54, 65-66, 98 S. Ct.

2170, 57 L. Ed. 2d 43 (1978) (alterations in original) (quoting Cochran v. United

States, 157 U.S. 286, 290, 15 S. Ct. 628, 39 L. Ed. 704 (1895)). However, as this

court explained in State v. Wright, "[a] defendant charged and tried under multiple

statutory alternatives experiences the same jeopardy as one charged and tried on a

single theory. The defendant is in jeopardy of a single conviction and subject to a

single punishment, whether the State charges a single alternative or several." 165

Wn.2d 783, 801, 203 P.3d 1027 (2009). 5 For purposes of this double jeopardy

analysis, it does not matter that the State charged Fuller with alternative means of

committing the same crime in separate counts because ultimately he was charged

with one offense. See Smith, 159 Wn.2d at 784.

       The situation here is analogous to one in which a reviewing court reverses a

conviction due to insufficient evidence of one alternative means of committing an

offense, but remands for retrial on the remaining, valid, means. In State v. Ramos, we

explained the alternative means principle:

              The alternative means principle dictates that when a jury renders a guilty
       verdict as to a single crime, but one of the alternative means for committing that
       crime is later held to be invalid on appeal and the record does not establish that

       5
         Fuller relies on this language to support his argument that an acquittal on one
means of committing an offense is an acquittal of the entire offense, barring retrial. See
Suppl. Br. ofPet'r at 8. As explained in this section, Fuller's reliance is misplaced because
in his case jeopardy did not terminate as to the offense overall.

                                              -5-
State v. Fuller (Johnny Dale), 91193-2



      the jury was unanimous as to the valid alternative in rendering its verdict, double
      jeopardy does not bar retrial on the remaining, valid alternative mean.

163 Wn.2d 654, 660, 184 P.3d 1256 (2008).
       This principle holds true "even when one alternative mean has been reversed on
appeal due to a finding of insufficient evidence, a finding that has the same double
jeopardy implications as an outright acquittal in other circumstances." Id. at 661. For
double jeopardy purposes, a reversal for insufficient evidence is equivalent to an
acquittal "because it means 'no rational factfinder could have voted to convict' on the
evidence presented." Wright, 165 Wn.2d at 792 (quoting Tibbs v. Florida, 457 U.S. 31,
40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982)). Generally, an acquittal is a final
adjudication that terminates jeopardy, thereby triggering double jeopardy protections
and barring retrial for the same offense. See id. at 791-92; State v. Ahluwalia, 143
Wn.2d 527, 538, 22 P.3d 1254 (2001) (explaining mistrial due to a hung jury does not
tenninate double jeopardy because double jeopardy "require[s] a final adjudication to
bar retrial of a charge"). However, in alternative means cases where a conviction is
reversed because one means lacks sufficient evidence (the functional equivalent of an
acquittal), this court has remanded for a new trial based on the remaining valid means
for which jeopardy never terminated. See State v. Garcia, 179 Wn.2d 828, 318 P.3d
266 (2014); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
       Our decision in Garcia guides our reasoning here. In Garcia, the defendant was
convicted of first degree kidnapping, second degree burglary, and first degree criminal
trespass.   179 Wn.2d at 832.         Relevant here, Garcia challenged his kidnapping
conviction, arguing there was "insufficient evidence to support each of the alternative


                                              -6-
State v. Fuller (Johnny Dale), 91193-2




means of kidnapping presented to the jury." Id. This court agreed, finding there was

insufficient evidence to support two of the three alternative means. I d. at 843. The

court reversed Garcia's conviction, but remanded for a new trial on the remaining third

valid alternative means. Id. at 844 (noting that where '"it is impossible to rule out the

possibility the jury relied on a charge unsupported by sufficient evidence ... [;] a

defendant ... is entitled only to a new trial, not an outright acquittal, unless the

record shows the evidence was insufficient to convict on any charged alternative"'

(quoting Wright, 165 Wn.2d at 803 n.12)). Although the State was not allowed to

retry Garcia on the two means the court found unsupported by sufficient evidence, the

State was permitted to retry Garcia on the third means for which sufficient evidence

existed. See id.

       The same principle applies here. Clearly, jeopardy never terminated as to the

count on which the jury deadlocked, even though it terminated with respect to the count

on which the jury acquitted. Cf, e.g., State v. Russell, 101 Wn.2d 349,351,678 P.2d

332 (1984) (double jeopardy does not prevent retrial after a hung jury). As this court

recognized in Ramos, reversal on an alternative means unsupported by sufficient

evidence "has the same double jeopardy implications as an outright acquittal." 163

Wn.2d at 661. Because jeopardy did not terminate on count I, the State may retry Fuller

on the deadly weapon means of committing assault in the second degree without

violating double jeopardy. The Hawaii Supreme Court recognized this outcome under

 similar circumstances. See State v. Dow, 72 Haw. 56, 806 P.2d 402, 406 (1991)




                                           -7-
State v. Fuller (Johnny Dale), 91193-2




(holding no double jeopardy violation when the State retried the defendant on one

means of committing driving under the influence after the jury hung on that means).

      The double jeopardy principles that apply in the context of lesser included

offenses also apply to alternative means crimes. For double jeopardy purposes, a lesser

included offense is the "same offense" as the greater offense. See Brown v. Ohio, 432

U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Where an individual is

acquitted of the greater offense but the jury is declared hung on the lesser included

offense, retrial of that lesser included offense is permitted and does not violate double

jeopardy. See, e.g., Russell, 101 Wn.2d at 351-52 (holding retrial of lesser included

offense of intentional second degree murder not barred by double jeopardy where

petitioner was acquitted of premeditated first degree murder but the jury deadlocked on

the lesser included offense); Ahluwalia, 143 Wn.2d at 540 (holding double jeopardy

does not prohibit retrial of petitioner for second degree murder "following a mistrial in

the first trial after the jury acquitted him of murder in the first degree and was unable to

reach a verdict on the lesser charge of murder in the second degree").

       In this case, the jury acquitted Fuller of one means of committing assault and

deadlocked on the other. As in cases in which the jury acquits the defendant of the

greater crime but is hung on the lesser included offense-the "same crime" for double

jeopardy purposes-Fuller may be retried on the means on which the jury could not

agree. Jeopardy as to that means, and for the crime as a whole, has not terminated.

       It is important to recognize that Fuller could not have reasonably relied on the

jury's acquittal as terminating jeopardy for second degree assault because it took place


                                            -8-
State v. Fuller (Johnny Dale), 91193-2




at the same time the jury deadlocked on the same offense. All of the charges were

brought in one trial, before one jury. In one proceeding, the jury simultaneously

acquitted Fuller on one means of committing an offense and was hung on the other

means. Fuller stands in the same position as a defendant who is simultaneously

acquitted and convicted of the same offense under two subsections of a statute. He

cannot reasonably rely on an acquittal on one means as being sufficient to terminate

jeopardy for the overall offense when the jury simultaneously deadlocked on the other

means. See Williams v. Warden, 422 F.3d 1006 (9th Cir. 2005) (holding double

jeopardy is not violated when an individual is simultaneously acquitted and convicted

of driving under the influence of a controlled substance and proximately causing death).

                Fuller's Reliance on Sanabria and Wright Is Misplaced

       Fuller relies heavily on Sanabria and Wright for the proposition that an acquittal

on one means of committing assault in the second degree is "'an absolute bar to any

further prosecution."' Suppl. Br. of Pet'r at 8 (quoting Sanabria, 437 U.S. at 73).

Fuller's reliance on both cases is misplaced. Fuller's case is distinguishable from

Sanabria because Fuller's acquittal and mistrial occurred in a single proceeding, and

because Fuller was never acquitted of the crime of assault in the second degree.

Regarding Wright, the language Fuller relies on is overbroad dicta.

       In Sanabria, a single-count indictment charged the defendant with involvement

in an illegal gambling business that concerned numbers betting and horse betting. 437

U.S. at 57. The trial court stn1ck all evidence of the numbers betting because the

indictment laid out the wrong section of state law. Id. at 58-59. With evidence of the


                                           -9-
State v. Fuller (Johnny Dale), 91193-2




numbers betting excluded, the defendant moved for a judgment of acquittal, "arguing

that there was no evidence of his connection with horse-betting activities." Id. at 59.

The trial court granted the motion, finding that the government had not presented

sufficient evidence to connect Sanabria with the horse-betting operation. Id. The trial

court then entered a judgment of acquittal on the single count of being engaged in an

illegal gambling business. Id. at 59, 66-67. The government sought to retry the

defendant on that portion of the indictment related to numbers betting. Id. at 61.

Because the acquittal was on the count as a whole, however, the United States Supreme

Court held that the defendant could not be retried on a different basis of liability for

engaging in the gambling business. I d. at 72-73. As Fuller highlights, the Court held

that an acquittal on one means of committing the crime charged barred future

prosecution on a different means of committing the same offense. Suppl. Br. ofPet'r

at 8 (quoting Sanabria, 437 U.S. at 72-73).

       Fuller's case is distinguishable from Sanabria in two key ways.          First, in

Sanabria, the Court was contemplating a new prosecution after a full acquittal. It

prohibited ''fitrther prosecution for participation in that [gambling] business," because

there was an acquittal on an element of the crime which the current and future crimes

would share. 437 U.S. at 73 (emphasis added). Sanabria thus concerned the collateral

estoppel element of double jeopardy preventing future prosecution of new charges.

However, in Fuller's case there is no new prosecution. The State brought its charges in

one prosecution, for which there was a simultaneous acquittal and mistrial. The retrial

the State seeks is not "further" prosecution; it is continued prosecution of the same


                                          -10-
State v. Fuller (Johnny Dale), 91193-2




charge on which the jury was declared hung. Cf Williams, 422 F.3d at 1011 (noting,

"Sanabria ... protects Williams from further prosecution on the same offense under a

different theory, but it does not apply in this case, where the two theories of culpability

were presented to the same jury simultaneously" and the jury convicted on one theory

and acquitted on the other).

       Second, in Sanabria, the trial court acquitted "on the entire count and found

petitioner not guilty of the crime of violating 18 U.S.C. § 1955 (1976 ed.), without

specifying that it did so only with respect to one theory ofliability." 437 U.S. at 66-67.

The judgment of acquittal was for the crime as a whole. In contrast, the jury acquitted

Fuller of only one means of committing assault in the second degree. Two means of

committing the same offense were presented to the jury: assault causing substantial

bodily harm and assault with a deadly weapon. Although it is clear that the jury

acquitted Fuller of committing assault by substantial bodily harm, it is equally clear the

jury did not acquit him of assault with a deadly weapon. Thus, Fuller was not acquitted

of the offense as a whole.

       Fuller's reliance on Wright is likewise ineffectual. Fuller depends specifically

on this statement in Wright: "When a proceeding ends in an undisturbed verdict or

verdict equivalent on any alternative, the State may not prosecute the defendant on any

other means of committing the same offense."          165 Wn.2d at 802.       Wright cites

Sanabria for this proposition, id., but it is clearly an overstatement of Sanabria's




                                            -11-
State v. Fuller (Johnny Dale), 91193-2




holding. 6 As explained, Sanabria is distinguishable because it contemplated further

prosecution after a full acquittal on the offense as a whole.

       Furthermore, recent case law undermines the dicta in Wright. In Garcia, the

court found insufficient evidence to support two of the three presented alternative

means of committing kidnapping.           179 Wn.2d at 843.        Although that finding is

functionally equivalent to an acquittal for double jeopardy purposes, see Ramos, 163

Wn.2d at 661, the court allowed retrial on the remaining alternative means. Garcia,

179 Wn.2d at 843-44. The court held that retrying the defendant on a different

alternative means, even after a functional acquittal on other means of committing that

same offense, did not violate the prohibition against double jeopardy.

       Fuller was charged with alternative means of committing assault in the second

degree, each means presented in a different count. The jury acquitted him of one means

and was declared hung on the other. Jeopardy thus terminated as to only one means of

committing the offense; it did not terminate as to the offense overall or as to the means

on which the jury could not agree. Because jeopardy never terminated as to the offense

as a whole, retrying Fuller on the means on which the jury deadlocked does not

implicate double jeopardy.




       6
         This statement is also dicta. It was not necessary to the court's decision in Wright,
permitting retrial despite the jury having returned a general guilty verdict after the conviction
was overturned due to the jury being instructed on a legally invalid means. 165 Wn.2d at 788-
89; see generally Ruse v. Dep 't of Labor & Indus., 138 Wn.2d 1, 8-9, 977 P.2d 570 (1999)
(explaining dicta as legal statement not necessary to holding).

                                              -12-
State v. Fuller (Johnny Dale), 91193-2




                                    CONCLUSION

      We hold that when the State charges alternative means of committing an offense

in separate counts and the jury acquits on one count but deadlocks on the other, the State

may retry the defendant on the count on which the jury was declared hung. Retrial on

that count does not violate the prohibition against double jeopardy because jeopardy

never terminated as to that count or as to the overall offense. We affirm.




                                           -13-
State v. Fuller (Johnny Dale), 91193-2




                                                7
    WE CONCUR:




-)~,                 C.9.
/
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                                         -14-
