merger doctrine in Washington

2026Id. at 364 . “ ‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’ ” State v. Arndt, 194 Wn.2d 784, 819 , 453 P.3d 696 (2019) (quoting State v. Freeman, 153 Wn.2d 765, 772-73 , 108 P.3d 753 (2005)).

2026“Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.” Freeman, 153 Wn.2d at 772-73 .

2026“The judiciary has developed the merger doctrine over time as an extension of double jeopardy principles.” Id. (citing U.S. CONST. amend.

2024However, the merger doctrine “only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal - 28 - No. 83195-0-I/29 statutes (e.g., assault or kidnapping).” State v. Vladovic, 99 Wn.2d 413, 420-21 , 662 P.2d 853 (1983).

2026“Third, if applicable, the merger doctrine may help determine legislative intent, where the degree of one offense is elevated by conduct constituting a separate offense.” Kier, 164 Wn.2d at 804 .

2025In addition to the “same evidence” test, “the merger doctrine may help determine legislative intent, where the degree of one offense is elevated by conduct constituting a separate offense.” State v. Kier, 164 Wn.2d 798, 804 , 194 P.3d 212 (2008).

2025The merger doctrine is a rule of statutory construction that is applicable “where the degree of one offense is elevated by conduct that constitutes a separate offense.” Id. at 777-78; State v. Kier, 164 Wn.2d 798, 804 , 194 P.3d 212 (2008).

2025In addition to the “same evidence” test, “the merger doctrine may help determine legislative intent, where the degree of one offense is elevated by conduct constituting a separate offense.” State v. Kier, 164 Wn.2d 798, 804 , 194 P.3d 212 (2008).

2026Id. at 364 . “ ‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’ ” State v. Arndt, 194 Wn.2d 784, 819 , 453 P.3d 696 (2019) (quoting State v. Freeman, 153 Wn.2d 765, 772-73 , 108 P.3d 753 (2005)).

2025Ed. 306 (1932). 8 No. 59270-3-II “‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’” Arndt, 194 Wn.2d at 819 (quoting State v. Freeman, 153 Wn.2d 765, 772-73 , 108 P.3d 753 (2005)).

2025We “consider the elements of the crimes as charged and 10 For both crimes, the State also charged and proved the same aggravating factor, that they were committed with deliberate cruelty under RCW 9.94A.535(3)(a). 13 No. 86089-5-I/14 proved, not merely as the level of an abstract articulation of the elements.” Freeman, 153 Wn.2d at 777 . 11 Andersen further notes that the Blockburger test is “not always dispositive of the question whether two offenses are the same,” Calle, 125 Wn.2d at 780 , and contends that here, the crimes were the same under the merger doctrine.

2019Id. at 812-14 (applying the merger doctrine under the rule of lenity).

2020“Third, if applicable, the merger doctrine is 1 Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L.

2020“Third, if applicable, the merger doctrine is 1 Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L.

2013In short, Justice Rosellini was simply stating that whether an element (or a crime that constituted an element) was proved was a separate question from any question raised by a merger analysis. ¶40 The majority in Green, in citing Johnson and out-of-state kidnapping merger cases, was puzzling over the application of Johnson , in which more than one offense was charged, to the case before it, in which kidnapping was an element of the only offense charged — in other words, where kidnapping constituted a “crime within a crime.” Johnson held that, where the defendant was charged with and convicted

2012In Allen we determined that, under the facts of that case, the kidnapping was separate and distinct from the robbery and thus the case fell within an exception to the merger doctrine set forth in Johnson I [State v. Johnson, 92 Wn.2d 671 , 600 P.2d 1249 (1979)].

2026Under the merger doctrine, “‘when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’” Id. (quoting Freeman, 152 Wn.2d at 772-73 ).

2026Restraint of Francis, 170 Wn.2d 517 , 524 n.4, 242 P.3d 866 (2010). “‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’” Arndt, 194 Wn.2d at 819 (quoting Freeman, 152 Wn.2d at 772-73 ).

2022“However, the mere fact that the same conduct is used to prove each crime is not dispositive.”36 To determine whether the legislature intended to impose multiple punishments for the same conduct, we apply the merger doctrine.37 32 State v. Parmelee, 108 Wn.

2015The merger doctrine is a rule of statutory construction that applies where the legislature "has clearly indicated that in order to prove a particular degree of crime, 'the State must prove not only that the defendant committed that crime but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes. '" State v. Parmelee, 108 Wn.

2023Courts utilize the merger doctrine “‘to determine whether the Legislature intended to impose multiple punishments for a single act which violates several statutory provisions.’” Id. (quoting State v. Vladovic, 99 Wn.2d 413 , 419 n.2, 662 P.2d 853 (1983)).

2022App. 584 , 744 P.2d 628 (1987)). 23Nix, 475 U.S. at 166 ; see RPC 1.6(b)(2) (“A lawyer to the extent the lawyer reasonably believes necessary: . . . may reveal information relating to the representation of a client to prevent the client from committing a crime.”). 24 See id. at 171 (representation was not deficient when defense counsel’s adherence to ethics and refusal to aid in presenting false testimony resulted in an alleged conflict with their client); see also State v. Elwell, No. 99546-0, slip op. at 22, (Wash. Mar. 3, 2022), https://www.courts.wa.gov/opinions/ pdf/995460.pdf (“‘[A] conf

2013Brett, 126 Wn.2d at 167 .27 To be 25 This was the first mention of the incidental restraint concern in an aggravated murder "crime-within-a-crime" prosecution since Green. 26 The third case cited, Allen, was, of course, also a merger case. 27 The court's brief mention of the merger doctrine in the course of discussing evidentiary sufficiency was—as with Green—a product of its concern as to whether, when a "crime-within-a- crime" is charged, elements of that crime can merge into other elements, thus "extinguishing" the -37- No. 67524-9-1/38 sure, the court in Brett did not conclude that a defen

2006See State v. Louis, 155 Wn.2d 563, 571 , 120 P.3d 936 (2005) (the merger doctrine did not apply to convictions for simultaneous kidnapping and robbery because proof of kidnapping was not necessary in order to prove robbery).

2013"The merger doctrine is relevant only 7 No. 28932-0-III State v. Rizo when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code." Id.

2005DISCUSSION MERGER ¶ 6 "The merger doctrine is relevant only when a crime is elevated to a *128 higher degree by proof of another crime proscribed elsewhere in the criminal code." State v. Parmelee, 108 Wash.App. 702, 710 , 32 P.3d 1029 (2001).

2026Restraint of Francis, 170 Wn.2d 517 , 524 n.4, 242 P.3d 866 (2010). “‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’” Arndt, 194 Wn.2d at 819 (quoting Freeman, 152 Wn.2d at 772-73 ).

2024In his brief, McGhee relies on a case dealing with the merger doctrine, In re Personal Restraint of Francis, 170 Wn.2d 517 , 242 P.3d 866 (2010).

2024Knight, 196 Wn.2d at 337 . “ ‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’ ” Id. (quoting Freeman, 153 Wn.2d at 771 ). 2.

2024Knight, 196 Wn.2d at 337 . “ ‘Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.’ ” Id. (quoting Freeman, 153 Wn.2d at 771 ). 2.

2023App. 536 , 539 & n.3, 76 P.3d 778 (2003) (quoting Radovich v. Nuzhat, 104 Wn.

2021Radovich v. Nuzhat, 104 Wn.

2022RCW 9A.56.030(2); RCW 9A.56.350(2); RCW 9.94A.515. 46We note that Perra does not dispute that these particular convictions, rather than others, merge into first degree organized retail theft. 47 RCW 9A.56.350(1)(c), (2). 48 See Berg, 181 Wn.2d at 865 (explaining the merger doctrine “represents an ‘aversion to prosecuting a defendant . . . based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’”) (quoting State v. Green, 91 W

2022RCW 9A.56.030(2); RCW 9A.56.350(2); RCW 9.94A.515. 46We note that Perra does not dispute that these particular convictions, rather than others, merge into first degree organized retail theft. 47 RCW 9A.56.350(1)(c), (2). 48 See Berg, 181 Wn.2d at 865 (explaining the merger doctrine “represents an ‘aversion to prosecuting a defendant . . . based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’”) (quoting State v. Green, 91 W

2020However, under the merger doctrine, “even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses.” Freeman, 153 Wn.2d at 773 (citing State v. Frohs, 83 Wn.

2017The State argues the exception to the merger doctrine for acts with an "independent purpose or effect" applies.11 Under the exception,"offenses may in fact be separate when there is a separate injury to 'the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.'" Freeman, 153 Wn.2d at 778 -79 (quoting State v. Frohs, 83 Wn.

2014The Washington Supreme Court rejected adoption of the merger rule in Harris, and, as noted in Wanrow, "treated the matter as 14 No. 31138-4-III State v. Leonard settled in State v. Roberts, 88 Wn.2d 337 ,344 nA, 562 P.2d 1259 (1977)." 91 Wn.2d at 302-03 .

2014The Washington Supreme Court rejected adoption of the merger rule in Harris and, as noted in Wanrow , “treated the matter as settled in State v. Roberts, 88 Wn.2d 337 , 344 n.4, 562 P.2d 1259 (1977).” 91 Wn.2d at 302-03 .

2025App. 532, 537 , 334 P.3d 81 (2014) (noting that “‘[m]ost states which have considered the question have adopted the merger rule, resulting in a holding that only felonies independent of the homicide can support a felony murder conviction’” (alteration in original) (quoting Thompson, 88 Wn.2d at 17 )).

2014By the time of its 1977 decision, the Supreme Court acknowledged that “[m]ost states which have considered the question have adopted the merger rule, resulting in a holding that only felonies independent of the homicide can support a felony murder conviction.” Thompson , 88 Wn.2d at 17 .

2014The Harris court found “no reason” to adopt the merger rule “[i]n light of the distinctions made in our own statutes.” Id. at 932 . ¶11 A decade later, our Supreme Court was asked in Thompson to reconsider adoption of the merger rule.

2007Id. at 607, 421 P.2d 662 . ¶ 7 As we noted in Andress, this court reaffirmed its decision in Harris, rejecting the merger rule in State v. Wanrow, 91 Wash.2d 301 , 588 P.2d 1320 (1978) and State v. Thompson, 88 Wash.2d 13 , 558 P.2d 202 (1977).

2013Felony harassment does not meet that requirement, and the merger doctrine does not apply. 82 Wn.

1997The merger doctrine is a judicially created device " 'designed to prevent an unnatural elevation of the "true” crime charged.’ ” State v. Eaton, 82 Wn.