                                                                                     FILED
                                                                           COURT OF APPEALS
                                                                               DIVISION II
                                                                          701U1
                                                                                  AUG 18 AM 9: 02

                                                                          STATE Or WASFIINSTON .
                                                                          8Y
                                                                                       UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                               DIVISION II


 STATE OF WASHINGTON,                                     I`             No. 43878 -0 -II


                                      Respondent,         I          UNPUBLISHED OPINION


          V.




 FRED HENRY CARPENTER, IV,


                                      Appellant.



         MORGEN, A. C. J. —        After we issued our opinion affirming Fred Henry Carpenter' s

convictions of two counts of second degree assault, two counts of felony harassment, one count

of fourth degree assault, and one count of obstruction of a law enforcement officer, our Supreme


Court accepted review in part on Carpenter' s double jeopardy challenge to his second degree

assault convictions and remanded for us to reconsider our opinion on that issue in light of its


recent   decision in State   v.   Villanueva -Gonzalez, 180 Wn.2d 975, 329 P. 3d 78 ( 2014).   Following

Villanueva -Gonzalez, we hold that Carpenter' s two convictions of second degree assault violate


the constitutional prohibition against double jeopardy. We thus remand to the trial court to

vacate one of   Carpenter'    s second   degree   assault convictions.
No. 43878 -0 -II



                                                          FACTS


             The pertinent background facts have been set forth in our prior unpublished opinion,


State   v.   Carpenter,   noted at   179 Wn.      App.   1029, 2014 WL 548085 ( Wash.   App.),   review




granted,      337 P. 3d 326 ( 2014),      and need not be repeated here. After a jury returned verdicts

finding Carpenter guilty of two counts of second degree assault, two counts of felony

harassment, one count of fourth degree assault, and one count of obstruction of a law


enforcement officer,'the sentencing court found that the two assault convictions encompassed the

same criminal conduct for purposes of calculating Carpenter' s offender score. RCW

9. 94A. 589( 1)(   a).   Among other issues, Carpenter argued on appeal that his two convictions for

second degree assault violated the constitutional prohibition against double jeopardy, which

argument we rejected.'         After issuing our opinion, our Supreme Court accepted review in part

and remanded for us to reconsider that portion of our opinion in light of Villanueva -Gonzalez.

                                                         ANALYSIS


             Upon reconsideration, we agree that Carpenter' s convictions of two counts of second


degree assault violate the constitutional prohibition against double jeopardy.

             We review de novo whether multiple convictions transgress the constitutional prohibition


against      double   jeopardy.   State   v.   Womac, 160 Wn.2d 643, 649, 160 P. 3d 40 ( 2007). Both our




I Carpenter originally framed his double jeopardy claim as challenging the prosecutor' s decision
to charge him with two counts -of second degree assault, which claim we rejected noting that " the
constitutional prohibition against double jeopardy ...  neither bars the State from bringing, nor
bars the jury from considering, ` multiple charges arising from the same criminal conduct in a
     proceeding."' Carpenter, noted at 179 Wn. App. 1029, at * 6- 9 ( quoting State v. Freeman,
single

153 Wn.2d 765, 770, 108 P. 3d 753 ( 2005)). In light of our Supreme Court' s order on remand
and in the absence of any objection from the State, we liberally construe Carpenter' s double
jeopardy claim to encompass the issue we now address here, whether his two convictions for
second degree assault violate the constitutional prohibition against double jeopardy.
                                                             2
No. 43878 -0 -II



federal   and state constitutions prohibit "`           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. Turner, 169 Wn.2d 448, 454; 23 8 P. 3d


461 ( 2010) ( quoting      State    v.   Linton, 156 Wn. 2d 777, 783, 132 P. 3d 127 ( 2006)); U. S. CONST.


amend.    V; WASH. CONST.           art.   I, § 9. Carpenter' s claim implicates the third prohibition, in that


he contends the trial court punished him multiple times for the. same offense.


          In Villanueva -Gonzalez, our Supreme Court held that the crime of assault is a course of


conduct offense rather        than       a separate act offense.      180 Wn.2d        at   984- 85. The Villanueva -


Gonzalez court stated that the test for determining whether multiple assault convictions violate

the prohibition against double jeopardy is a highly fact -specific inquiry and takes into account:

            1)]     The length    of   time   over which     the   assaultive acts      took   place, [(    2)] Whether
          the     assaultive acts   took    place   in the   same    location, [( 3)] The defendant' s intent or
          motivation       for    the     different     assaultive    acts, [(   4)]    Whether       the     acts   were
          uninterrupted      or   whether       thereintervening
                                                        were    any                       5)]
                                                                                        acts   or   events,      and [(

          Whether there was anopportunity for the defendant to reconsider his or her actions.

180 Wn.2d at 985.


          In its supplemental response brief, the State concedes that Carpenter' s assaults occurred


against the same victim, at the same location, and within a short period of time. The State


argues, however, that the assaults were not uninterrupted and that Carpenter had an opportunity

to reconsider his actions during the interruptions to his assaults on the victim. Although the State

cites to testimony at trial indicating that Carpenter briefly relented in his choking of the victim

when witnesses intervened, this is only one relevant factor in determining whether his assaultive

acts constituted one course of conduct.                 Villanueva -Gonzales, 180 Wn. 2d             at   895.    Evaluating the

totality of circumstances present here, and in consideration of the State' s concession that

Carpenter'        s assaults occurred against       the same victim, at the        same      location,    and within a short
No. 43878- 0- 11



period of time, we conclude that Carpenter' s assaultive acts constituted one course of conduct for


double jeopardy purposes. Accordingly, we remand for the trial court to vacate one of

Carpenter' s second degree assault convictions.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




    HAZSON, C. J.




 MAXA,




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