Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60880-4-II Respondent, v. HERBERT DWAYNE TILEY, UNPUBLISHED OPINION Appellant. CRUSER, J.—Herbert Dwayne Tiley was convicted of attempted first degree assault and possession of an explosive device. Tiley argues that because his convictions for attempted first degree assault and possession of an explosive device relied on the same evidence, they are the same in law and fact and therefore constitute multiple punishments for the same offense in violation of double jeopardy. The State argues that because Tiley’s convictions involved different victims, required proof of different statutory elements, were supported by different evidence, involved conduct that occurred at different times, and were supported by statutes that served different purposes, they do not violate double jeopardy. We conclude that Tiley’s convictions do not constitute multiple punishments for the same offense and therefore do not violate double jeopardy. Accordingly, we affirm. No. 60880-4-II FACTS I. BACKGROUND In September 2020, Joseph Harrington joined his wife and several friends at a pub in Puyallup, Washington. Herbert Tiley, who was not part of Harrington’s party, was also at the bar. Although Tiley and Harrington were not friends, Tiley repeatedly interrupted the Harrington party’s conversation. Tiley’s interruptions continued over the course of several hours. Eventually, Harrington told Tiley to “ ‘shut the [f***] up and leave [them] alone.’ ” Clerk’s Papers (CP) at 155. Upset by the exchange, Tiley left the pub and returned about 30 minutes later with what would later be identified as a sparkler bomb. Tiley placed the device under Harrington’s truck and fled the scene. Harrington learned what Tiley had done and discovered the device hidden under his truck. Harrington then called the police. A bomb squad extracted the device and transported it to a secure vault where it was later rendered safe. Officials determined that the device contained at least 130 sparklers, tightly bound with red tape. II. PROCEDURAL HISTORY The State charged Tiley with attempted first degree murder, first degree assault, attempted first degree assault, second degree malicious placement of an explosive, possession of an explosive device, and felony harassment. The State also charged Tiley with four deadly weapon enhancements. Following a bench trial, Tiley was convicted of attempted assault in the first degree with a deadly weapon enhancement, malicious placement of an explosive device in the second degree with a deadly weapon enhancement, possession of an explosive device, and harassment. Tiley 2 No. 60880-4-II appealed. State v. Tiley, No. 85668-5-I, slip op. (Wash. Ct. App. Feb. 20, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/856685.pdf, review denied, 3 Wn.3d 1013, 554 P.3d 1232 (2024). He argued that his convictions for both malicious placement of an explosive device in the second degree and possession of an explosive device violated double jeopardy. Id. at 6. Tiley did not raise the same argument for his possession of an explosive device and attempted assault in the first degree convictions. Id. at 22 n.9. Division One of this court agreed with Tiley, vacating his conviction for malicious placement of an explosive device and remanding the matter for resentencing. Id. at 22. At resentencing, Tiley argued for the first time that his attempted assault in the first degree and possession of an explosive device convictions were the same offense for purposes of double jeopardy and that his possession of an explosive device conviction must be dismissed. The trial court disagreed. Although the trial court acknowledged that “the substantial step that Mr. Tiley took towards assault one was the placement of the sparkler bomb . . . , an act that also triggered a violation of the law against possessing an explosive device,” it nevertheless concluded that Tiley’s convictions for attempted first degree assault and possession of an explosive device were not for the same offense and therefore did not violate double jeopardy. Verbatim Rep. of Proc. (Feb. 7, 2025) at 27-28. Specifically, the trial court indicated that because the victims of each crime were distinct and because the supporting statutes were located in different chapters of the criminal code and served different purposes, the convictions did not violate double jeopardy. The trial court sentenced Tiley to 120 months in prison. Tiley appeals his judgment and sentence. 3 No. 60880-4-II DISCUSSION In his sole assignment of error, Tiley argues that his convictions for attempted first degree assault and possession of an explosive device violate double jeopardy. Tiley contends that because the convictions were supported by the same evidence, they are the same in law and fact and therefore presumptively constitute two punishments for the same offense. Further, he argues that because the State has not presented clear evidence of legislative intent that would overcome this presumption, his convictions violate double jeopardy. The State argues that because Tiley’s convictions involved different victims, required proof of different statutory elements, were supported by different evidence, involved conduct that occurred at different times, and were supported by statutes that served different purposes, they do not violate double jeopardy. We agree with the State. A. Legal Principles When a double jeopardy claim is lodged against convictions that are asserted to be the same offense, we begin by determining whether they arise from the same or from separate statutory provisions. State v. Ray, 5 Wn.3d 350, 363, 575 P.3d 321 (2025); State v. Arndt, 194 Wn.2d 784, 815, 453 P.3d 696 (2019). In the case of convictions arising from separate statutory provisions, we apply a four-part test to determine whether the legislature authorized cumulative punishment for the same offense. Ray, 5 Wn.3d at 363. Step 1: Is there clear legislative intent authorizing multiple punishments for the convictions that are purported to constitute the same offense? If so, double jeopardy is not violated and our inquiry ends. Id. at 363-64. An example of such clear legislative intent is the burglary anti-merger statute, in which the legislature stated, “[e]very person who, in the commission of a burglary shall 4 No. 60880-4-II commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.” RCW 9A.52.050; see State v. Muhammad, 194 Wn.2d 577, 617, 451 P.3d 1060 (2019) (separate opinion of Gordon McCloud, J.). If there is not a clear legislative intent, we proceed to step 2 to determine whether we should presume that the legislature nevertheless intended to prohibit multiple punishments for two separate convictions. Step 2: We employ the Blockburger1 test to determine whether the offenses are the same in both fact and law. Ray, 5 Wn.3d at 364. To frame this discussion, we briefly explain the Blockburger presumption, which has been the subject of much discussion in the case law, most of it unclear. The Blockburger presumption works in two ways: If the offenses are the same in law and in fact, there is a presumption that they are the same offense and the legislature intended to permit only a single punishment. Id. at 367 (citing Muhammad, 194 Wn.2d at 618 (separate opinion of Gordon McCloud, J.)). However, if the offenses are not the same in law or fact (because only one need fail given the conjunctive nature of the test), there is a presumption that the legislature intended to permit multiple punishments. Id. (citing Muhammad, 194 Wn.2d at 620 (separate opinion of Gordon McCloud, J.)). a. Same in law: To determine whether the two offenses are the same in law, we look at whether each offense requires proof of a fact that the other does not. Id. This requires a comparison of the elements of each crime. Id. In conducting this comparison of elements, we do not merely “ ‘compare the statutory elements at their most abstract level.’ ” Id. (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291 (2004)). Rather, we look at how the offenses were charged, and how they were proved at trial. Id. at 368 (citing Muhammad, 194 Wn.2d at 620 1 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). 5 No. 60880-4-II (separate opinion of Gordon McCloud, J.)). If, after applying this test, we conclude that the offenses are not the same in law, it creates a strong presumption that the legislature intended to allow separate punishments for the offenses. Id. at 367. b. Same in fact: To show that the two offenses are the same in fact, a defendant must demonstrate that they are “identical in fact.” State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995). An example of two offenses that are identical in fact are incest and second degree rape when a defendant is charged with having sexual intercourse by forcible compulsion with a person known to be a relative. See, e.g., id. In that circumstance, both crimes are predicated on a single act of sexual intercourse and are identical in fact, but they are not the same in law. Again, if offenses are not the same in both law and fact, the presumption is that the legislature intended to allow multiple punishments and the offenses do not violate double jeopardy. Step 3: In some cases, namely those involving lesser included offenses, we employ the merger analysis as step 3 of the four-part double jeopardy test. Ray, 5 Wn.3d at 364. Merger is not relevant in this case. Step 4: Where the offenses are not the same in law and fact, the presumption is that the legislature intended them to be separate offenses subject to dual punishment. This presumption can be overcome only if there is “ ‘a clear indication of contrary legislative intent’ ” indicating that the legislature intended a single punishment. Id. at 365 (quoting Calle, 125 Wn.2d at 778). This is the inverse of step 1. If, after employing this four-step inquiry, we are satisfied that the legislature intended that the offenses be punished separately, there is no double jeopardy violation. Id. 6 No. 60880-4-II B. Application Here, there is no express statutory language indicating the legislature intended to punish attempted first degree assault and possession of an explosive device as separate offenses. As such, we utilize the Blockburger test. Attempted first degree assault and possession of an explosive device each require proof of a fact that the other does not. Therefore, under Blockburger, they are not the same in law and presumptively not separate punishments for the same offense. Attempted first degree assault, as charged in the amended information, required the State to prove that Tiley 1) intended to commit an assault in the first degree against Mr. Harrington and inflict “great bodily harm” with a “deadly weapon or by any force or means likely to produce great bodily harm;” 2) took “a substantial step toward the commission” of assault in the first degree; and 3) took this substantial step in Washington. CP at 6, 175; RCW 9A.28.020; RCW 9A.36.011(1)(a). Possession of an explosive device, as charged in the amended information, required the State to prove that Tiley 1) had in his “possession or control any shell, bomb, or similar device, charged or filled with one or more explosives;” 2) intended to use the shell, bomb, or similar device or cause the shell, bomb, or similar device to be used “for an unlawful purpose;” and 3) possessed the device and intended to use it for an unlawful purpose in Washington. CP at 7, 176; RCW 70.74.180. Attempted first degree assault required the State to prove that Tiley acted with intent to inflict great bodily harm. Possession of an explosive device, on the other hand, did not require proof of such intent. Rather, it merely required proof that Tiley intended to use the explosive device for an unlawful purpose. Additionally, possession of an explosive device, required the State to 7 No. 60880-4-II show that Tiley “ha[d] in his possession or control any shell, bomb, or similar device, charged or filled with one or more explosives.” CP at 7. In contrast, Tiley’s conviction for attempted first degree assault did not require the State to prove Tiley possessed such a device. Accordingly, Tiley’s convictions are not the same in law and are presumptively not the same offense. Because the offenses are not the same in law, step 2 is not satisfied, and we need not examine whether they are the same in fact. Further, with respect to step 4, we do not find, nor does Tiley point us to, a clear legislative intent that the legislature intended for these crimes to be subjected to a single punishment. The statutes proscribing assault in the first degree and possession of an explosive device, in addition to being located in different titles of the Revised Code of Washington (respectively, Title 9A RCW, the Criminal Code of Washington, and Title 70 RCW, the Public Health and Safety Code of Washington), are plainly intended to address distinct harms. The victim in an assault conviction is the person or persons assaulted, whereas possession of an explosive device victimizes the public at large.2 Tiley, relying on Orange, 152 Wn.2d 816, argues that because the State relied on the same evidence to support both convictions, they are necessarily the same in law and fact and therefore multiple punishments are prohibited. But Tiley’s reliance on Orange is misplaced. As our supreme court made clear in Ray, “ ‘[t]he Blockburger test has nothing to do with the evidence presented at trial’ ” and is instead focused on the statutory elements of each conviction as charged and proved. 2 RCW 9A.36.011(1) requires “intent to inflict great bodily harm.” (Emphasis added.) RCW 9A.04.020(1) of the criminal code of Washington also provides that “[t]he general purposes of the provisions governing the definition of offenses are . . . [t]o forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests.” (Emphasis added.) RCW 70.74.180 is broader in that it applies to intended uses “for an unlawful purpose” generally. 8 No. 60880-4-II 5 Wn.3d at 368 (alteration in original) (quoting Grady v. Corbin, 495 U.S. 508, 521 n.12, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), overruled on other grounds by United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993)). Because the relevant indicators of legislative intent support the conclusion that the legislature intended for attempted first degree assault and possession of an explosive device to be separate offenses subject to multiple punishments, we find no violation of the prohibition against double jeopardy. CONCLUSION Finding no double jeopardy violation, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. CRUSER, J. We concur: VELJACIC, C.J. PRICE, J. 9