                                                                        FILED
                                                                    OCTOBER 31, 2017.
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

 STATE OF WASHINGTON,                          )
                                               )         No. 34458-4-111
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 ALEX SAMUEL NOVIKOFF,                         )         PUBLISHED OPINION
                                               )
                      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
No. 34458-4-III
State v. Novikoff


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. Novikoffs 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.




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State v. Novikoff


       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. Goeken, 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.




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State v. Novikoff


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 or 9A.36.021 is a class C felony.

This statute was authoritatively considered by the Washington Supreme Court in State v.

Ward, 148 Wn.2d 803, 64 P.3d 640 (2003). The issue there involved what elements

needed to be included in the charging document. Id. at 810-14. 2 Two subsequent Court

of Appeals decisions, released only ten weeks apart, have considered the legislative intent

behind this statute in the context of felony assault. State v. Leming, 133 Wn. App. 875,

138 P.3d 1095 (2006); State v. Moreno, 132 Wn. App. 663, 132 P.3d 1137 (2006).

       In Moreno, Division One of this Court addressed the situation of a defendant

convicted of both third degree assault and felony violation of a no contact order. 132

Wn. App. at 668. Looking at the "same evidence" test required by Calle, the Moreno

court found that the two offenses were the same in fact, and the court assumed, without



       1
         The charge was predicated on a violation of a no contact order entered against
Mr. Novikoff in a different pending criminal case. Clerk's Papers at 71-72.
      2
        The statute previously had been before the court in State v. Azpitarte, 140 Wn.2d
138, 142, 995 P.2d 31 (2000). There the court noted that "all assault convictions
connected to violation of a no-contact order will result in a felony."

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No. 34458-4-III
State v. Novikoff


deciding, that the two offenses were the same in law. Id. After noting that this result

raised a presumption that separate punishments were not intended, the court still had to

consider evidence of legislative intent. Id. at 669. Particularly important was the fact

that the order violation statute was located in the domestic violence chapter, RCW 26.50,

while the assault statute was found in the criminal code, Title 9A RCW. Id. That

placement was significant because RCW 26.50.210 expressly provided that remedies

under chapter 26.50 RCW were "in addition to other civil or criminal remedies." Id.

(emphasis omitted). The court found that the statutory placement evinced legislative

intent to punish the no contact violation separately from the assault. Id. at 669-70.

       Looking further into the statutory scheme, the Moreno court found additional

support for its conclusion about legislative intent in the different purposes between the

assault and court order statutes. 3 In particular, the primary purpose of the assault statutes

is to prevent assaultive behavior, but chapter 26.50 RCW serves additional purposes

beyond prevention of assault-it addresses the serious societal problem of domestic

violence, it assigns more serious penalties than the assault statutes, and it punishes

contempt of court. Id. at 670-71. Given the wide variety of different purposes served by




       3
         Moreno found support for this approach in Calle, noting that there the court had
found intent to punish both rape and incest separately due to differences in purpose
between the rape (prevent unlawful sexual intercourse) and incest (family harmony)
statutes. Moreno, 132 Wn. App. at 670 (discussing Calle, 125 Wn.2d at 780-81).

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No. 34458-4-111
State v. Novikoff


the two crimes, Moreno concluded that the legislature intended to give effect to the

additional purposes by punishing the crimes separately. Id. at 671.

       Leming involved convictions for second degree assault and violation of a no

contact order arising from the same behavior. 133 Wn. App. at 880-81. 4 The court began

its analysis of the double jeopardy problem by noting that the statutes did not expressly

authorize separate punishment. Id. at 885. Applying the Blockburger analysis, Leming

concluded that the two offenses were not the same in law or in fact and were intended to

be treated separately. Id. at 886. It then turned to the question of legislative intent and

also found that the varying purposes between chapter 26.50 RCW and the criminal code

"implicitly expressed" intent to punish the offenses separately. Id. at 886-87.

       The legislative session immediately following release of the opinions in Moreno

and Leming resulted in additional amendments to chapter 26.50 RCW. The resulting

amendment to the intent section expressly stated: "The legislature finds this act necessary

to restore and make clear its intent that a willful violation of a no-contact provision of a

court order is a criminal offense and shall be enforced accordingly to preserve the

integrity and intent of the domestic violence act." LA ws OF 2007, ch. 173, § 1. 5 This


       4
         A conviction for fourth degree assault arising from the same incident was
dismissed because the prosecution had charged that crime as an alternative offense to the
no contact order violation. Leming, 133 Wn. App. at 881.
       5
         The problem addressed by the legislature was the failure of some courts to treat
as criminal offenses behavior that violated no contact order provisions but was not
otherwise a crime. See State v. Bunker, 169 Wn.2d 571,238 P.3d 487 (2010).

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State v. Novikoff


intent statement, unavailable to the Moreno and Leming courts, lends further support to

the idea that the legislature wanted chapter 26.50 RCW enforced on its own merits

without regard to the criminal code.

        The trial court relied on the Moreno and Leming decisions in reaching its

conclusion that the legislature intended separate punishment for the two crimes. In light

of this history, we agree with the trial court's interpretation. Fourth degree assault, under

the charging theory of this case, appears to be the same in law and in fact under the

Blockburger and Calle tests, putting this case analytically closer to Moreno than to

Leming. Nonetheless, while that presumptive test suggests separate punishment was not

intended, the clear legislative intent found by both Moreno and Leming, and reaffirmed

when the legislature amended the statute the following year, compels us to conclude that

the assault and no contact order statutes must both be enforced in this circumstance.

       We hold that the legislature intended to separately punish Mr. Novikoff for both

violation of a no contact order and fourth degree assault. His double jeopardy argument

fails in light of legislative intent.

       Merger

       Mr. Novikoff also argues that the merger doctrine provides an independent basis

for treating the two offenses as one. In light of the noted evidence of legislative intent,

this argument also is unavailing.




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No. 34458-4-111
State v. Novikoff


       The merger doctrine, independent of double jeopardy concerns, evaluates whether

the legislature intended multiple crimes to merge into a single crime for punishment

purposes. State v. Vladovic, 99 Wn.2d 413,419 n.2, 662 P.2d 853 (1983) (citing

Blockburger, 284 U.S. 299). The merger doctrine applies only when, in order to prove a

more serious crime, the State must prove an act that a statute defines as a separate crime.

Vladovic, 99 Wn.2d at 420-21. 6 In this instance, the assault that provided the factual

basis for the fourth degree assault is also an element of the no contact order violation,

suggesting that merger might apply.

       But, as with double jeopardy analysis, the ultimate question is whether the

legislature intended separate punishment. Id. at 419 n.2; State v. Berg, 181 Wn.2d 857,

864, 337 P.3d 310 (2014). Here, as noted in the previous section, the answer to that

question has already been provided by the legislature. Both while enacting the domestic

violence protection act, chapter 26.50 RCW, as well as when amending it, the legislature

has seen separate enforcement of that chapter's provisions as important to addressing the

public policy of this state.

       Accordingly, we conclude that the two offenses do not merge because the

legislature intended them to be punished separately.



       6
        In essence, the merger doctrine provides double jeopardy-like protection in
instances where the double jeopardy would not apply due to failure to meet the
Blockburger standards.

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No. 34458-4-111
State v. Novikoff


      The convictions are affirmed.




WE CONCUR:



      Fearing,C~



       Lawrence-Berrey, J.
                                      j




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