No. 37416-1-II.The Court of Appeals of Washington, Division Two.
January 21, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-02253-8, Robert L. Harris, J., entered February 20, 2008.
Affirmed
by unpublished opinion per Hunt, J., concurred in by Houghton and Armstrong, JJ.
UNPUBLISHED OPINION
HUNT, J.
Dean Richard Devault appeals his jury convictions for felony violation of a domestic violence court order, felony harassment, and fourth degree assault. He argues that convicting him of both felony violation of a domestic violence court order and fourth degree assault violates double jeopardy. A commissioner of this court initially considered his appeal as a motion on the merits, under RAP 18.14, but then referred it to a panel of judges. We affirm Devault’s convictions.
FACTS
Jamie Lloyd obtained a one-year domestic violence court protection order against Dean Devault, her ex-boyfriend, on June 7, 2007. On October 28, 2007, while drunk, Devault went to Lloyd’s home. She told him to leave or she would call the police. Instead Devault grabbed Lloyd by the throat, pushed her up against the pantry, and threatened to kill her.
The State charged Devault with felony violation of a domestic violence court order violation, with assault as the element that elevated the violation from a misdemeanor to a felony. It also charged him with felony harassment and fourth degree assault. A jury found Devault guilty of all three counts. The jury also found that each crime constituted a domestic violence offense. Devault appeals.
ANALYSIS
For the first time on appeal, Devault argues that convicting him of both fourth degree assault and felony violation of a domestic violence order violates double jeopardy. He contends that because the assault raised the domestic violence court order violation from a misdemeanor to a felony, the convictions punish him twice for the same conduct. We disagree.
The double jeopardy clauses of the Fifth Amendment and the Washington State Constitution, article I, section 9, guarantee that no person shall be subject to multiple prosecutions or punishments for the same offense State v. Baldwin, 150 Wn.2d 448, 453-54, 78 P.3d 1005 (2003). But if the legislature authorizes cumulative punishments for both offenses, double jeopardy is not offended. State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005). We review de novo whether the legislature intended to punish two crimes separately. Id. at 770.
In State v. Leming, 133 Wn. App. 875, 886-87, 138 P.3d 1095
(2006), review denied, 160 Wn.2d 1006 (2007), we held that double jeopardy was not offended by convictions for both second degree assault and felony violation of a domestic violence court order, even if the two convictions were based on the same evidence, because the legislature intended to punish the crimes separately. And in State v. Moreno, 132 Wn. App. 663, 668-71, 132 P.3d 1137 (2006), Division One of this court held that double jeopardy was not offended by convictions for both third degree assault and felony violation of a domestic violence court order, even if the two convictions were based on the same evidence, because the legislature intended to punish the crimes separately.
Both Leming and Moreno note that (1) the crime of assault is located in the Criminal Code, in chapter 9A.36 RCW, while violation of a domestic violence order is located in the Domestic Relations Code, in chapter 26.50
RCW; (2) RCW 26.50.210 provides that actions under chapter 26.50 RCW are “in addition to other civil or criminal remedies,” Leming, 133 Wn. App. at 886; Moreno, 132 Wn. App. at 669; and (3) the statutes criminalizing assault and violation of a domestic violence court order serve different purposes. Leming, 133 Wn. App. at 887; Moreno, 132 Wn. App. at 670. The assault statute is designed to prevent assaultive behavior. Leming, 133 Wn. App. at 886; Moreno, 132 Wn. App. at 670 (citing State v. Frohs, 83 Wn. App. 803, 814, 924 P.2d 384 (1996)). In contrast, the felony violation of a domestic violation court order statute is intended “to prevent domestic violence and to provide maximum protection to victims of abuse.” Moreno, 132 Wn. App. at 670-71; see also Leming, 133 Wn. App. at 887.
The only difference between this case and the Leming and Moreno cases is the degree of the assault. While Leming and Moreno dealt with higher degrees of assault, their analyses apply here. Any degree of assault (except certain types of first and second degree assaults) elevates a violation of a domestic violence court order from a misdemeanor to a felony. RCW 26.50.110(4). There is no reason to treat this case differently than Leming and Moreno. Devault’s convictions for both fourth degree assault and felony violation of a domestic violence court order do not violate double jeopardy. Accordingly, we affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J. concur.