Jury Instructions and Prosecutor’s Argument Put Defendant in Double Jeopardy

State of Washington v. Reeves (2017)

by David S. Marshall

Joshua Reeves challenged his convictions for attempted first degree rape of a child and attempted first degree child molestation. The appeals court found that because both Mr. Reeves’s convictions for attempted first degree child rape and attempted first degree child molestation arose from the same acts, the trial court had subjected him to double jeopardy. As a result, the court vacated his conviction for attempted first degree child molestation.

What is Double Jeopardy?

Double jeopardy occurs when a defendant is prosecuted twice for what substantially amounts to the same crime, handing down multiple punishments for the same offense. To do so violates the Fifth Amendment to the Constitution. In Mr. Reeve’s case, the jury instructions exposed him to double jeopardy because they failed to inform the jury that they must find separate and distinct acts for each charge, rather than a separate act within the context of each particular charge.

The facts of Mr. Reeve’s case arise out of contact he had with a young girl in the home of her friend, partially pulling down her pants, then asking her to give him oral sex. The “to convict” jury instructions at his trial read as follows:

To convict the defendant on any count of [charge name], one separate and distinct act of [the charge] as to that particular count must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved.

How Does the Appeals Court Evaluate Whether Double Jeopardy Has Occurred?

Mr. Reeves’s argued these jury instructions at trial put him at risk of double jeopardy because they did not instruct the jury that each count must be based on a separate and distinct act. The court must determine whether it was entirely apparent to the jury that the State was seeking to impose multiple punishments for the same offense. To evaluate a double jeopardy claim, the court examines:

  • the information (that is, the charging document)
  • the evidence
  • the arguments made at trial

The State alleged that Reeves had committed two criminal acts with respect to the young girl, providing the jury with separate “to convict” instructions for each count. However, the State’s closing argument blended the two alleged acts together, to the point where it was not entirely apparent to the jury that they were required to base each conviction on a separate and different act.

In its argument on double jeopardy, the State explained that either act by itself could stand as a count of either attempted child rape or attempted child molestation. The prosecutor commented “if you think both of those incidents occurred and taken together they’re evidence that he was attempting to rape her or that he was attempting to molest her, you’re good to go.” The court found that this remark joined the acts and offenses together in a way that could easily mislead the jury.

Ultimately, the appeals court concluded that it was not sufficiently apparent to the jury at trial that the State was not seeking to impose multiple punishments on Mr. Reeves for the same offense. That placed him in double jeopardy. Accordingly, the court vacated the conviction for the offense carrying the lighter sentence, which in Mr. Reeves’s case was the conviction for attempted first degree child molestation.