by David M. Reutter

In an en banc decision, the Supreme Court of Washington held that Anthony Lee’s two second-degree assault convictions based on his beating Amy Groff in the head with a gun and then shooting at her as she fled were part of a single unit of prosecution and therefore violated the state and federal prohibitions on double jeopardy. Applying the course-of-conduct framework articulated in State v. Villanueva-Gonzalez, 329 P.3d 78 (Wash. 2014), the Court stated that courts must assess the totality of the circumstances and that “no one factor is dispositive.”

Background

Lee and the victim, Amy Groff, spent an evening together at a casino. Throughout the night, Lee became increasingly angry with Groff, believing she had stolen his wallet, exposed him to drug use, and verbally mistreated him. When Lee drove Groff back to his rural property near Sequim, Washington, Groff testified that Lee began driving recklessly and swerving. Upon arriving home, Lee demanded that Groff exit his truck. According to Groff’s testimony, when she did not move quickly enough, Lee discharged his firearm into the air, then struck her repeatedly in the head with the weapon. He subsequently pushed her from the vehicle, kicked her, and fired additional shots in her direction as she fled down the driveway.

A neighbor who heard the gunshots and a woman screaming contacted police. Officers located Groff walking along Highway 101 with visible injuries including a swollen black eye, facial abrasions, and debris on her clothing. She described the assault to the responding officer.

The State charged Lee with two counts of second-degree assault with a deadly weapon. The first count alleged that Lee recklessly inflicted substantial bodily harm through intentional assault, while the second alleged assault with a firearm.

The jury convicted Lee on both assault counts. At sentencing, the trial court rejected Lee’s double jeopardy challenge, concluding that the beating and the shooting were distinct acts separated by a change in Lee’s intent. The court imposed a 120-month sentence.

On appeal, Lee argued that his dual assault convictions violated double jeopardy. The Court of Appeals affirmed, concluding that Lee’s differing intents – inflicting pain during the beating versus scaring Groff away during the shooting – supported separate convictions. The Washington Supreme Court granted review.

Analysis

Double Jeopardy Framework

The Court began by acknowledging that its precedents on double jeopardy and the related but distinct concept of “same criminal conduct” under the Sentencing Reform Act (“SRA”) have generated confusion among trial courts. The Court explained that these represent “separate, albeit similar, analyses,” and a determination under one framework does not compel an identical conclusion under the other. State v. Chenoweth, 370 P.3d 6 (Wash. 2016).

The SRA’s “same criminal conduct” inquiry, codified at RCW 9.94A.589(1)(a), governs offender score calculations at sentencing and requires that crimes “encompass the same criminal conduct” before they may be counted as one offense. That statutory test demands that offenses share the same criminal intent, occur at the same time and place, and involve the same victim, the Court explained.

In contrast, the constitutional double jeopardy analysis applies different standards depending on whether the challenged convictions arise under different statutes or the same statute, according to the Court. When convictions stem from different statutory provisions, courts apply the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), to determine whether the offenses are “the same in law and in fact.” State v. Adel, 965 P.2d 1072 (Wash. 1998). When, as here, multiple convictions arise under the same statute, courts employ the “unit of prosecution” analysis, asking “what act or course of conduct has the Legislature defined as the punishable act.” Adel (citing Bell v. United States, 349 U.S. 81 (1955)).

Turning to the unit of prosecution inquiry for assault, the Court reiterated that Washington common law recognizes assault as a course-of-conduct offense rather than a discrete-act offense. This classification prevents absurd results such as “an individual being convicted for every punch thrown in a fistfight.” Villanueva-Gonzalez (quoting State v. Tili, 985 P.2d 365 (Wash. 1999)).

The Court noted that it has declined to adopt any bright-line test for determining when multiple assaultive acts merge into a single course of conduct. Instead, it applies the multi-factor framework from Villanueva-Gonzalez: (1) the duration of the assaultive conduct, (2) whether the acts occurred in the same location, (3) the defendant’s intent or motivation, (4) whether intervening acts or events interrupted the conduct, and (5) whether the defendant had an opportunity to reconsider. The Court stated that “no one factor is dispositive” and that the “ultimate determination depends on the totality of the circumstances.”

Application to Lee’s Convictions

The parties did not dispute that most factors favored finding a single course of conduct. Lee’s actions occurred over a brief period, took place entirely in his driveway, proceeded without intervening events, and afforded him no meaningful opportunity for reflection. The sole contested factor was Lee’s intent.

The State argued that Lee harbored distinct purposes for each assault. He beat Groff to inflict pain but fired at her to frighten her into leaving. Lee countered that a “singular impulse” drove both acts, i.e., his anger at Groff and his desire for her to depart.

The Court rejected the State’s attempt to parse Lee’s motivations, concluding that his “intent and motivation did not change.” Evidence at trial established that Lee’s anger had built throughout the evening based on his belief that Groff gave him a headache through her drug use, stole his wallet, and verbally abused him. Groff testified that Lee appeared angry during the drive home, and upon arriving, he immediately demanded she leave his truck. Lee himself told investigators: “I wanted her out of my vehicle; I wanted her out of my life.” The Court concluded that this anger and corresponding desire for Groff to leave “motivated the entire assaultive episode.”

The Court cited In re Personal Restraint of White, 407 P.3d 1173 (Wash. Ct. App. 2017), where the defendant’s convictions for threatening his partner with a gun and then strangling her were held to violate double jeopardy despite arguably different immediate purposes. The White Court determined that the defendant’s overarching intent to assault his partner in response to a custody dispute remained constant throughout. Similarly, Lee’s sustained anger at Groff unified his conduct, according to the Court.

The Court rejected the State’s attempt to distinguish White based on a concession the State made in that case regarding same criminal conduct at sentencing. Because the double jeopardy and same-criminal-conduct analyses are distinct, any concession under the latter framework held no bearing on the former, the Court explained.

Importantly, the Court cautioned that treating intent as the determinative factor would contradict Villanueva-Gonzalez’s instruction that no single factor controls. Even assuming Lee’s intent presented a close question, the remaining factors “overwhelmingly favor a finding of a singular course of conduct.” Thus, the Court held that Lee’s two assault convictions violated double jeopardy and reversed on that issue.

Conclusion

The Court reversed Lee’s dual assault convictions as violative of double jeopardy, holding that under the totality of the circumstances – particularly the brief duration, single location, absence of intervening events, and consistent motivation – the assaults constituted one course of conduct.

Accordingly, the Court remanded with instructions to vacate one assault conviction and the accompanying firearm enhancement and to resentence Lee on the remaining conviction. See: State v. Lee, 2026 Wash. LEXIS 60 (2026) (en banc).  

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