Ray’s Rule: Assault with a Deadly Weapon and Felony Harassment (Threat to Kill) Are Not the Same Offense Under Washington’s Blockburger Analysis

Introduction

In State v. Owen Gale Ray, the Washington Supreme Court (en banc), per Justice Yu, addressed whether concurrent convictions for second-degree assault with a deadly weapon and felony harassment (threat to kill) arising from a single domestic incident violate the constitutional prohibition against double jeopardy. The core issue: when the State relies on a single course of conduct to prove both charges, do the convictions punish “the same offense” under article I, section 9 of the Washington Constitution and the Fifth Amendment?

Ray threatened his wife during a late-night confrontation, while armed, in the presence of their children. The State charged multiple crimes, but for double jeopardy purposes two counts matter: second-degree assault with a deadly weapon (RCW 9A.36.021(1)(c)) and felony harassment based on a threat to kill (RCW 9A.46.020(1)(a)(i), (2)(b)(ii)). The jury convicted on both, and the court imposed concurrent standard-range sentences with consecutive firearm enhancements. On appeal, Ray argued the dual convictions constitute multiple punishments for the same offense. The Court of Appeals affirmed. The Supreme Court granted review limited to the double jeopardy question and affirmed the result.

This decision provides a structured, four-step framework for multiple-punishments double jeopardy claims involving different statutes and clarifies that, as charged and proved here, the two crimes are not the same in law even if they were proved by the same conduct. The opinion also underscores the significance of mens rea distinctions and the qualitative difference between a threat to cause bodily injury and a threat to kill.

Summary of the Opinion

• The Court applied the established four-part framework for double jeopardy claims involving multiple punishments and different statutes:
  1. Look for express or implicit legislative intent regarding cumulative punishment.
  2. Apply the Blockburger “same elements” test, considering the offenses as charged and proved.
  3. Consider the merger doctrine (only when a lesser-included offense is implicated).
  4. Examine other indicators of legislative intent to overcome the Blockburger presumption.
• The Court held the convictions were the same in fact (the State argued the same course of conduct in closing and did not elect discrete acts) but not the same in law:
  • Second-degree assault with a deadly weapon required proof of an intentional assault creating reasonable apprehension of imminent bodily injury.
  • Felony harassment (threat to kill) required proof that Ray knowingly threatened to kill, communicated by words or conduct, causing reasonable fear the threat would be carried out.
  • Thus, each offense required proof of a fact the other did not: a higher mens rea (intentional vs. knowing) for assault; and a more serious threat (to kill vs. to injure) for felony harassment.
• There was no clear legislative intent to prohibit separate punishments; legislative inaction and statutory context were mixed and did not overcome the Blockburger presumption favoring separate punishments.
• Result: No double jeopardy violation; the convictions stand.

Detailed Analysis

Precedents and Authorities Cited and Their Roles

• Blockburger v. United States, 284 U.S. 299 (1932): Anchor for the “same elements” test. The Court asks whether each offense requires proof of a fact the other does not. Here, it does.
• In re Personal Restraint of Orange, 152 Wn.2d 795 (2004): Washington articulation of Blockburger; confirms the “as charged and proved” lens.
• State v. Arndt, 194 Wn.2d 784 (2019): Provides the four-step analytical structure, distinguishes multiple prosecutions from multiple punishments, and emphasizes legislative intent as touchstone.
• Whalen v. United States, 445 U.S. 684 (1980); North Carolina v. Pearce, 395 U.S. 711 (1969): Federal double jeopardy scaffold recognizing protection against multiple punishments for the same offense.
• State v. Muhammad, 194 Wn.2d 577 (2019) (plurality): Reinforces that Blockburger’s outcome creates a strong presumption of legislative intent and that courts may consider “as charged and proved” when comparing elements.
• State v. Calle, 125 Wn.2d 769 (1995): Clarifies that double jeopardy protects against multiple convictions even with concurrent sentences; establishes defendant’s burden to show offenses are the same in law and fact.
• State v. Kelley, 168 Wn.2d 72 (2010): Example where express legislative intent authorizes cumulative punishments (firearm enhancements), showing how clear statutory directives can end the double jeopardy inquiry.
• State v. Villanueva-Gonzalez, 180 Wn.2d 975 (2014); Sanabria v. United States, 437 U.S. 54 (1978): Emphasize legislative power to define offenses and punishments.
• State v. Louis, 155 Wn.2d 563 (2005): The result of Blockburger creates a strong presumption of legislative intent.
• State v. Reiff, 14 Wash. 664 (1896): If the to-convict elements for one offense wouldn’t sustain conviction for the other, they’re not the same offense in law.
• Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993): Clarifies the federal abandonment of the “same-conduct” rule; the test focuses on elements, not evidence.
• State v. Mandanas, 163 Wn. App. 712 (2011): Division One case rejecting a similar double jeopardy challenge; its non-response by the legislature can imply acceptance of separate punishments.
• State v. Leming, 133 Wn. App. 875 (2006): Recognizes some scenarios where assault and harassment could merge into a double jeopardy problem; legislative inaction after Leming cuts the other way, making intent mixed.
• State v. C.G., 150 Wn.2d 604 (2003): Explains the qualitative difference between threats to kill and threats of bodily injury; supports the Court’s seriousness distinction.
• State v. Peña Fuentes, 179 Wn.2d 808 (2014): The State can distinguish acts during closing to avoid unanimity/election issues; relevant to “same in fact” analysis here.
• Other references: State v. Allen, 192 Wn.2d 526 (2018); State v. Noltie, 116 Wn.2d 831 (1991); State v. Johnson, 92 Wn.2d 671 (1979).

Statutory Framework and Context

• Second-degree assault with a deadly weapon: RCW 9A.36.021(1)(c).
• Felony harassment (threat to kill): RCW 9A.46.020(1)(a)(i), (2)(b)(ii); related elevation/cross-reference provisions in RCW 9A.46.060(4)-(8).
• Sentencing “same criminal conduct” rule: RCW 9.94A.589(1)(a) (distinct from double jeopardy analysis).
• Burglary anti-merger: RCW 9A.52.050 (example of express cumulative punishment).

The Court’s Legal Reasoning

1) No clear express or implicit legislative intent

Neither the assault statute nor the harassment statute contains an express authorization or prohibition of cumulative punishments for single-episode conduct overlapping both crimes. Indicators of implied intent are mixed: the legislature did nothing after Leming (which found potential double jeopardy issues) and also did nothing after Mandanas (which rejected such a claim). That ambiguity pushed the Court to Step 2.

2) Blockburger analysis (as charged and proved)

• Same in fact: Yes. The State did not elect discrete acts; it argued the entire 20-minute incident as a continuous course for both counts. Closing argument invited the jury to rely on the same conduct to convict on both charges, and no instruction required separate acts.
• Same in law: No. The to-convict instructions and statutory elements, as charged and proved, diverged in two material ways:
  • Mens rea: Assault required intentional conduct; harassment required only knowing conduct. An “intentional” mental state is higher than “knowing.” Therefore, proof of knowing harassment does not necessarily establish intentional assault.
  • Harm threatened: Harassment charged here required a threat to kill, whereas the assault-by-apprehension concerned fear of bodily injury. A threat to kill is qualitatively more serious than a threat to injure, and the harassment statute demanded proof of that “more serious threat.” Proof of assault did not necessarily establish an intent to kill; proof of harassment did not necessarily establish intent (as opposed to knowledge).
• Outcome: Because each offense required proof of a fact the other did not, Blockburger yields a strong presumption that the legislature authorized separate punishments.

3) Merger doctrine inapplicable

Neither offense was a lesser-included offense of the other. The Court therefore declined to merge the convictions at this step.

4) Other indicators of legislative intent do not overcome Blockburger

• Legislative history: Mixed signals from inaction following Leming and Mandanas; no amendments repudiating separate punishments.
• Statutory context:
  • Crimes appear in different RCW chapters, suggesting distinct societal interests: bodily integrity/apprehension (assault) versus threats and fear of execution (harassment).
  • Harassment’s later codification as a distinct offense (1985) alongside existing assault laws suggests legislative intent to address a different harm.
  • Cross-referencing assault in harassment elevation provisions shows legislative awareness of overlap, but that alone does not demonstrate an intent to bar separate punishments here.
• Bottom line: No “clear evidence” of contrary legislative intent to overcome the Blockburger presumption.

Why “As Charged and Proved” Matters

Although Blockburger is an elements test, Washington courts compare elements in the concrete posture of the case: the charging language and the to-convict instructions frame what had to be proved. The Court did not weigh the trial evidence to decide the Blockburger question; it looked to the elements as they were put to the jury. At the same time, the Court used the State’s closing and the absence of any election instruction to conclude the offenses were “the same in fact.” This bifurcation keeps the “same in fact” inquiry focused on what the State actually argued and submitted to the jury, while keeping the “same in law” inquiry trained on the legal elements the jury had to find.

Impact and Practical Implications

For Prosecutors

• Charging flexibility: Prosecutors may charge second-degree assault with a deadly weapon and felony harassment (threat to kill) arising from the same act or incident without necessarily violating double jeopardy, provided each count retains elements the other does not.
• Trial strategy: While not required to elect distinct acts to survive Blockburger in this pairing, prosecutors should consider election or clarifying instructions to mitigate unanimity and appellate risks, especially where different counts could, in other cases, collapse into the same offense in law.
• Closing arguments: As Ray shows, the State may argue a continuous course of conduct for both offenses without derailing separate convictions under Blockburger—so long as the statutory elements differ.

For Defense Counsel

• Early motion practice: Scrutinize the charging documents and to-convict instructions. Where the State’s theory aligns elements across counts, seek election, tailored instructions, or dismissal on double jeopardy grounds.
• Element-by-element analysis: Focus on the mental state and the nature of the threat/harm. If harassment is not charged as threat to kill (or is elevated by other mechanisms), or if assault is charged under a different prong, the “same in law” analysis may change.
• Record building: Preserve arguments that the State’s theory uses identical conduct for multiple counts; it can help establish the “same in fact” prong and sharpen the Blockburger inquiry.

For Trial Courts

• Instructional clarity: Use to-convict instructions that accurately capture the distinct elements. Consider defendant or State requests for election/clarifying instructions when the factual overlap is pronounced.
• Sentencing vs. double jeopardy: Continue to distinguish “same criminal conduct” findings under the SRA from constitutional double jeopardy analysis; one does not dictate the other.

For the Law of Domestic Violence

• Separate harms recognized: The decision underscores that Washington law treats the fear from an intentional armed assault and the fear from a knowing threat to kill as distinct harms, warranting distinct punishments even when the episode is unitary.
• Victim-centered nuance: The seriousness differential between threats to injure and threats to kill, highlighted in State v. C.G., continues to have doctrinal weight in double jeopardy and charging decisions.

Outlook and Unresolved Questions

• Same-statute multiplicity: The Court distinguished cases like State v. Lee (pending at the time of this opinion), which involve multiple counts under a single statute—those are more fact-intensive and require a different analysis.
• Other permutations: If harassment is elevated by factors other than a threat to kill (e.g., prior offenses), or if assault is charged under a different subsection, practitioners should revisit Blockburger; the “as charged and proved” formulation means outcomes can turn on precise charging choices and instructions.
• Legislative intervention: The Court identified mixed signals in legislative inaction. If the legislature wishes to bar or mandate cumulative punishment in specific pairings, it can do so expressly, as it has with firearm enhancements and burglary antimerger.

Complex Concepts Simplified

• Double jeopardy (multiple punishments): The Constitution prevents punishing a person twice for the same offense. Even two convictions (without extra prison time) can violate this rule because convictions themselves carry legal consequences.
• Same in fact vs. same in law:
  • Same in fact: The State used the same conduct to prove both counts.
  • Same in law: The two crimes have the same legal elements as charged and proved. If each crime needs at least one fact the other doesn’t, they’re not the same in law.
• Blockburger test: A way to check if two crimes are the same in law. Ask: does each statute require proof of a fact the other does not?
• “As charged and proved”: Courts compare the actual to-convict elements put to the jury in the case, not just the abstract statute.
• Mens rea (mental state):
  • Intentional: The defendant’s conscious objective was to cause a result.
  • Knowing: The defendant was aware that a result was practically certain, even if it wasn’t their conscious objective.
• Threat severity:
  • Threat to injure: Raises fear of bodily harm.
  • Threat to kill: More severe; raises fear of death and is treated more seriously in law.
• Merger doctrine: Even if Blockburger suggests separateness, a lesser-included offense may “merge” into a greater offense. Not applicable here because neither offense is a lesser-included of the other.
• “Same criminal conduct” (sentencing): A Washington sentencing tool to calculate offender scores. It is not the same test as constitutional double jeopardy.
• Election/Unanimity: Prosecutors can (and sometimes should) specify which act supports which count to avoid juror confusion and appellate issues; they can do this by instructions or by clarifying in closing.

Conclusion

State v. Ray confirms and refines Washington’s approach to multiple-punishments double jeopardy disputes involving different statutes. Applying a structured four-step analysis, the Court held that second-degree assault with a deadly weapon and felony harassment (threat to kill), as charged and proved in this case, are the same in fact but not the same in law. The decisive differences—assault’s higher mens rea (intentional) and harassment’s more serious threat (to kill)—mean that neither conviction necessarily proves the other under Blockburger. With no clear legislative intent to bar cumulative punishment, the strong presumption favoring separate punishments controls.

Key takeaways:

• Washington courts will continue to assess double jeopardy for multiple punishments through a four-part framework centered on legislative intent and Blockburger.
• “As charged and proved” focuses the legal-elements comparison on the actual to-convict instructions given to the jury.
• Assault with a deadly weapon and felony harassment (threat to kill) can both be punished when arising from the same conduct because their elements diverge in mens rea and threat severity.
• Legislative inaction and statutory context, absent clear direction, will not overcome the Blockburger presumption.

By clarifying how to analyze overlapping domestic-violence offenses through Blockburger, Ray provides prosecutors, defense counsel, and trial courts with roadmap guidance that is both principled and pragmatic. The decision’s emphasis on precise charging and instruction tailoring will likely shape how Washington practitioners frame and try cases involving intertwined threats and assaults going forward.