Attorney reviewed by Mark Blair, a Washington criminal defense attorney and co-founder of Blair Kim Moeller, PLLC. Last updated August 7, 2026.
Washington treats assault as a course-of-conduct crime, which means a single violent episode can be charged and punished as more than one offense depending on how it unfolded. Division One applied that principle on a domestic violence case this year, affirming two separate second-degree assault convictions arising from one encounter because a pause in the middle broke it into two.
Two assault convictions from one incident do not automatically violate double jeopardy, and they are not automatically counted as a single crime at sentencing. In State v. Fatigate, the court held that a roughly 40-minute assault, interrupted when the defendant left the room and returned, supported two convictions and two separate offender-score points. The line between one crime and two is a fact question, and it drives the sentence.
Double Jeopardy and the Course-of-Conduct Problem
Double jeopardy is the constitutional rule that a person cannot be punished twice for the same offense, under both the state and federal constitutions. The hard part with assault is deciding when two assaultive acts are the same offense and when they are two, because Washington treats assault as a course of conduct rather than a single instant.
The Washington Supreme Court held in State v. Villanueva-Gonzalez that there is no bright-line rule for this. Courts weigh several non-dispositive factors, and no single one controls:
- The length of time over which the acts took place
- Whether they happened in the same location
- The defendant's intent or motivation for each act
- Whether the acts were uninterrupted, or broken by an intervening event
- Whether the defendant had an opportunity to reconsider
The criminal defense attorneys at Blair Kim Moeller work these factors hard in King and Snohomish County assault cases, because whether an incident is one offense or several changes both the double jeopardy analysis and the sentence.
What Turned One Encounter Into Two Convictions
The defendant in Fatigate was charged with unlawful imprisonment under RCW 9A.40.040 and two counts of second-degree assault, all carrying domestic violence designations, against his former girlfriend. A jury convicted him as charged, and he argued on appeal that the two assault convictions punished a single course of conduct.
Division One disagreed and affirmed. The assault stretched over more than 40 minutes, which the court called an extended period that gave the defendant ample opportunity to reconsider. The two acts also carried different motivations, and an intervening event separated them. The defendant left the bedroom, walked to the kitchen to wash his face, then returned. On those facts, the totality of the circumstances supported two offenses rather than one.
The takeaway is not that every long argument produces multiple charges. It is that pauses, changes in what the aggressor is trying to accomplish, and moving from room to room are exactly the details a prosecutor uses to divide one incident into several, and exactly what the defense examines first.
If you are charged with more than one count out of a single incident, whether the acts are really one offense or several is worth examining early, because it drives both the exposure and the sentence.
The Same Question Returns at Sentencing
The convictions are only half of it. At sentencing, Washington asks a related question under the Sentencing Reform Act: do the offenses count as same criminal conduct, so that they score as one crime rather than several?
Under RCW 9.94A.589(1)(a), two crimes are the same criminal conduct only when they require the same criminal intent, are committed at the same time and place, and involve the same victim. Miss any one of those and the convictions count separately, which raises the offender score and lengthens the standard range. The default, the Supreme Court has said, is that convictions count separately.
In Fatigate, the sentencing judge found the two assaults were not committed at the same time, relying again on the pause when the defendant left the bedroom. Because the record supported that finding, the appellate court would not disturb it, and both convictions counted toward the sentence. The lesson is practical. The same short break in an incident can cost a defendant twice, once on the verdict and once on the score.
What the Jury Was Allowed to Hear
Fatigate also illustrates a second issue that shapes domestic violence trials, which is how much of a defendant's past a jury gets to hear. The court allowed the former girlfriend to describe earlier incidents in which the defendant restrained her the same way and for the same purpose, and it allowed that evidence to rebut his claim that he was too intoxicated to form intent.
Under ER 404(b), prior acts cannot come in to show that someone is the kind of person who commits assaults. They can come in for a permitted purpose, such as intent, when the prior act is factually similar and the judge finds its value outweighs the prejudice, and the jury is told to use it only for that narrow purpose. Contesting the purpose, the similarity, and the balance is a core part of defending a domestic violence charge, because prior-incident evidence often does more damage than the charged event.
Talk to a Seattle Criminal Defense Attorney About Assault Charges
Blair Kim Moeller, PLLC defends assault and domestic violence charges in Seattle, Bellevue, and the district and superior courts across King, Pierce, and Snohomish Counties. Mark Blair, a former deputy prosecuting attorney, examines whether an incident is really one offense or several, both at trial and at sentencing where the offender score is decided. Contact our office at (206) 622-6562 or schedule a consultation.
