State v. Lee: Intent Not Dispositive—Multiple Assaultive Acts in One Episode Constitute a Single Unit of Prosecution for Second-Degree Assault

1. Introduction

State v. Lee refines Washington double jeopardy doctrine for multiple convictions under the same assault statute by clarifying how courts decide whether several assaultive acts comprise one punishable “unit of prosecution” (one course of conduct) or separate punishable offenses. The case also addresses appellate preservation of a judicial-comment claim where the trial judge used the word “reliable” while admitting hearsay under the excited utterance exception.

Parties and posture. The State prosecuted Anthony Lee for, among other charges, two counts of second degree assault against Amy Groff based on a single episode: Lee struck Groff with a gun and later shot at her as she fled. The jury convicted Lee. The trial court and the Court of Appeals upheld both assault convictions. The Washington Supreme Court granted review on (1) double jeopardy and (2) alleged judicial comment on the evidence raised for the first time on appeal.

Key issues.

• Double jeopardy (multiple punishments): Do two second-degree assault convictions violate double jeopardy when the assaultive acts occur in a short, continuous episode in the same location, even if the State characterizes the acts as having different intents?
• Judicial comment / RAP 2.5(a)(3): Can a defendant raise for the first time on appeal that the trial judge impermissibly commented on the evidence by describing admitted hearsay as “reliable”?

2. Summary of the Opinion

Core doctrinal clarification. While “intent or motivation” is a relevant factor in determining whether multiple assaultive acts constitute one course of conduct, no single factor—including intent—is dispositive; courts must assess the totality of the circumstances under the factor framework articulated in State v. Villanueva-Gonzalez.

3. Analysis

A. Precedents Cited

1) Foundational double jeopardy framework

• State v. Peña Fuentes: Supplies the baseline principle that double jeopardy protects against multiple punishments for offenses that are the same in fact and law, while allowing multiple convictions where each count arises from a separate and distinct act. The Court uses it as a starting point before moving to the specialized test applicable here.
• State v. Villanueva-Gonzalez: The controlling Washington authority for assault’s “course of conduct” character and the multi-factor test to decide whether multiple assaultive acts constitute one unit of prosecution. Lee applies and clarifies Villanueva-Gonzalez, emphasizing that intent is one factor among several and that courts must avoid treating it as outcome-determinative.
• State v. Adel: Establishes that when multiple convictions arise under the same statute, Washington applies the unit of prosecution analysis (what act/course the legislature intended to punish), rather than the Blockburger “same elements” test used for different statutes.
• Blockburger v. United States, State v. Calle, State v. Gocken, State v. Adel: Cited to delineate doctrinal lanes: Blockburger applies to different statutes; unit-of-prosecution applies to multiple counts under the same statute. Gocken also supplies the principle (reiterated in the opinion’s footnote) that state and federal double jeopardy clauses are interpreted the same in Washington.
• Bell v. United States and In re Snow: Federal unit-of-prosecution touchstones used (through Adel) to frame the inquiry as legislative definition of the punishable act/course of conduct.
• State v. Hughes and State v. Villanueva-Gonzalez: Support de novo review for double jeopardy multiple-punishment claims.

2) Assault as a “course of conduct” crime

• Peasley v. Puget Sound Tug & Barge Co.: Used to justify turning to common law definitions where the statute lacks an assault definition.
• State v. Byrd: Supplies Washington’s common-law assault definitions (attempted battery and apprehension-causing assault), which undergird the court’s treatment of assault as course-of-conduct capable.
• State v. Tili: Provides the policy concern driving the course-of-conduct approach—avoiding conviction for every individual blow in a fight. Lee uses this concern to reinforce why unit-of-prosecution analysis is necessary in multi-act assaults.

3) “Same criminal conduct” vs. double jeopardy (a recurring confusion)

• State v. Chenoweth: Central to Lee’s clarification that double jeopardy and “same criminal conduct” under RCW 9.94A.589(1)(a) are “separate, albeit similar, analyses.” Lee uses Chenoweth to disentangle sentencing aggregation from constitutional multiple-punishment limits.
• State v. Westwood and State v. Aldana Graciano: Provide the methodology and standard of review for the statutory “same criminal conduct” test (objective intent, furtherance, scheme/plan; abuse of discretion/misapplication of law), which Lee

4) Application precedent for multi-act assaults

• In re Pers. Restraint of White: The key comparative case used to show that even when assaultive acts might be characterized as having distinct intents (fear vs. physical harm), the totality can still yield one course of conduct. Lee treats White as persuasive for rejecting an overly intent-driven approach.

5) Comment on the evidence and preservation doctrine

• State v. Swan and State v. Levy: Provide the governing principle that a judge may not convey personal attitudes about the merits or signal belief in testimony, because judicial influence may sway jurors.
• State v. Siers: Confirms de novo review of alleged constitutional violations, including judicial comments on the evidence.
• State v. Francisco and State v. Carpenter: Emphasize that whether statements constitute a comment depends on the facts and circumstances of each case; Lee relies on this context sensitivity to find the remark here was an evidentiary explanation, not a credibility endorsement.
• State v. Walsh and State v. Guevara Diaz: Supply the two-part manifest constitutional error test for issues raised first time on appeal under RAP 2.5(a)(3): the claim must implicate a constitutional right and show actual prejudice. Lee resolves the case at step one by holding there was no impermissible comment and therefore no manifest error warranting first-time review.
• State v. Brown (quoting Dennis v. McArthur) and State v. Lane: Provide the “reasonably inferable” and “touchstone” framing—whether the court communicated an opinion about “truth value” of testimony.
• State v. Cerny: Supports the proposition that trial courts may provide reasons for evidentiary rulings without necessarily commenting on the evidence; Lee
• State v. Lampshire: Used as the defendant’s primary comparator where a judge’s remark implicitly conveyed a negative view of testimony credibility; Lee distinguishes it largely on context and timing.
• State v. Dixon: Used to explain the theoretical basis for excited utterances—statements under stress are considered inherently trustworthy—supporting why a court might reference “reliability” when ruling under ER 803(a)(2) without vouching for truthfulness.
• State v. Bogner: Discussed and distinguished to show an example of judicial remarks that could relieve the State of proof or signal belief in an element; Lee

6) Dissent’s historical and prejudice framing

B. Legal Reasoning

1) Double jeopardy: why the two assault convictions could not both stand

The Court begins by selecting the correct doctrinal tool. Because both convictions are under the same statute, RCW 9A.36.021(1), the analysis is not Blockburger; it is the unit of prosecution inquiry from Adel: what act or course of conduct the legislature intended to punish as one offense.

Next, the Court reaffirms that assault is a course of conduct crime in Washington (Villanueva-Gonzalez), to avoid parsing each discrete strike or threat as a separate punishable assault (Tili).

The decisive move in Lee is the Court’s application—and sharpening—of the Villanueva-Gonzalez totality approach. The Court lists the nonexclusive factors:

• length of time,
• same location,
• intent or motivation,
• intervening acts or events,
• opportunity to reconsider.

On the record, the parties did not dispute that the episode was short, in the same place (the driveway), uninterrupted, and without an opportunity to reconsider. Those factors strongly favored a single course of conduct.

The State’s principal counter was intent: the beating was to cause pain, while the shooting was to scare the victim off the property. The Court rejected allowing intent alone to control. It found, as a factual matter based on Lee’s own statements and the circumstances, that the overarching motivation persisted: Lee’s anger and desire that Groff leave (“out of my vehicle; out of my life”). That overarching motivation unified the episode.

Critically, the Court adds a doctrinal clarification: even if intent is debatable, it cannot be treated as dispositive because Villanueva-Gonzalez requires totality review and expressly states no factor alone controls. Therefore, where the remaining factors “overwhelmingly” indicate one continuous episode, multiple convictions offend double jeopardy even if the State can articulate different purposes for different acts.

2) Comment on the evidence: why first-time review was denied

The Court frames the issue as a RAP 2.5(a) preservation question. A judicial comment claim is constitutional in nature (article IV, section 16), but to be raised for the first time on appeal it must be a manifest constitutional error under RAP 2.5(a)(3).

Rather than proceeding to prejudice, the Court concludes there was no impermissible comment at all. In context, the judge’s “reliable statements for purposes of hearsay exceptions” remark was made while ruling on an excited utterance objection, before the officer relayed the statements to the jury. The Court considered it “reasonably inferable” that the judge was explaining admissibility, not endorsing truthfulness (drawing on Lane, Brown, and the permissibility of explaining rulings recognized in Cerny).

The Court also addressed the defense argument that “reliability” is not a formal element of ER 803(a)(2). While conceding the word was “not legally necessary” and that it would have been “more prudent” not to use it, the Court emphasized the rationale behind excited utterances—stress reduces fabrication and is thus associated with trustworthiness (Dixon). In the Court’s view, that conceptual background makes “reliable” a shorthand for the evidentiary rationale, not a credibility determination about the declarant.

The result is a procedural holding with substantive bite: because there was no impermissible comment, there was no manifest constitutional error, and thus the defendant could not raise the claim for the first time on appeal.

C. Impact

1) Charging and trial strategy in assault prosecutions

• Limits on multiplying assault counts within a single episode. Prosecutors charging multiple counts of second degree assault (or other assault degrees) for a continuous encounter must reckon with the strengthened message in Lee: where time, location, continuity, and lack of reconsideration strongly indicate one episode, courts should treat the conduct as one unit of prosecution notwithstanding arguable differences in immediate purpose (pain vs. fear).
• Intent reframed as non-dominant. Lee discourages “intent slicing” as the decisive way to preserve multiple assault convictions from one encounter. Future litigation will likely focus more heavily on evidence of interruption, relocation, meaningful pauses, or clear opportunities to desist and recommit.

2) Trial court decision-making: a clearer roadmap

• Reinforcement of totality-of-circumstances. Trial courts are reminded that the Villanueva-Gonzalez factors are not a checklist with a single trump card; they are an integrated assessment to prevent arbitrary outcomes.
• Remedial clarity. The Court specifies the remedy: vacate one assault count and the accompanying firearm enhancement, and resentence. This underscores that the double jeopardy problem is the duplicative conviction and punishment, not merely the offender score.

3) Appellate preservation and judicial-comment claims

• Higher practical barrier to first-time review. Defendants who do not object contemporaneously to an alleged comment on the evidence may face denial under RAP 2.5(a)(3) where the record supports a benign evidentiary-explanation reading.
• Drafting caution for judges. Even while finding no constitutional comment, the majority’s “more prudent” admonition will likely be cited in training and practice: avoid “truth-adjacent” words like “reliable” in front of the jury when ruling on admissibility—especially where a witness’s credibility is central.
• Dissent-fueled future disputes. The dissent’s focus on the lay juror’s perception and Washington’s historically strict approach suggests the issue is not fully settled at the margins; future cases may turn on nuance: how long the colloquy occurred in front of the jury, whether the judge repeated or emphasized credibility-laden terms, and how central the declarant’s credibility is to the case.

4. Complex Concepts Simplified

• Double jeopardy (multiple punishments). The constitution prevents the State from punishing a person twice for the same offense. When the State charges multiple counts for what is essentially one criminal episode under the same law, the court must decide whether the legislature intended one punishment or multiple.
• Unit of prosecution. When the same statute is charged multiple times, the question is: what is the “thing” the statute punishes as one offense—each discrete act, or a whole course of conduct? For assault in Washington, the answer is often the course of conduct.
• Course of conduct vs. separate acts (for assault). Multiple blows, threats, or uses of force in one continuous encounter can be one assault for charging purposes, so long as the episode is essentially uninterrupted and part of the same encounter.
• “Same criminal conduct” (sentencing) vs. double jeopardy (constitution). “Same criminal conduct” under the SRA affects how offenses are counted in an offender score. Double jeopardy controls whether multiple convictions/punishments are constitutionally permissible. They overlap factually but are not the same test.
• Judicial comment on the evidence. Washington’s constitution forbids judges from signaling to jurors what the judge thinks about the truth of evidence or credibility of witnesses. But judges may explain evidentiary rulings; the line is crossed when the explanation communicates belief in the evidence’s truth.
• Manifest constitutional error (RAP 2.5(a)(3)). Normally you must object at trial. You can raise some constitutional issues for the first time on appeal only if the error is “manifest”—clear on the record and actually affects the defendant’s rights. If the appellate court concludes there was no constitutional error in the first place, it will not reach prejudice and will deny first-time review.

5. Conclusion

State v. Lee strengthens and clarifies Washington’s unit-of-prosecution doctrine for assault: when multiple assaultive acts occur in a brief, uninterrupted episode in the same place without an opportunity to reconsider, they presumptively comprise one punishable course of conduct; intent differences alone cannot carry the State’s burden to justify multiple punishments because the inquiry is holistic under Villanueva-Gonzalez.

On the judicial-comment issue, the Court sets a practical preservation boundary: absent a contemporaneous objection, a defendant must show a genuinely impermissible comment to obtain first-time appellate review; an admissibility explanation—though awkwardly worded—will not suffice where the context supports a non-credibility reading.