“[W]hen a defendant has given counsel reason to believe that pursuing certain [strategies] would be fruitless or even harmful, counsel’s failure to pursue those [strategies] may not later be challenged as unreasonable.”
How later courts described this case
- “[W]hen a defendant has given counsel reason to believe that pursuing certain [strategies] would be fruitless or even harmful, counsel’s failure to pursue those [strategies] may not later be challenged as unreasonable.”
- we will not review issues inadequately argued or mentioned only in passing
- unit of prosecution for rape is each instance of sexual intercourse
- where pet owner was “directly harmed as a result of [the defendant]’s violent killing of her beloved pet and companion,” she was “plainly a victim” of animal cruelty even though the subject of the cruelty was the animal itself
Written by the judges who cited it.
The opinion
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83280-8-I
Respondent, DIVISION ONE
v.
PUBLISHED OPINION
MITCHELL HENG,
Appellant.
SMITH, A.C.J. — In January 2017, Mitchell Heng set fire to the Sifton
Market, a convenience store located in a commercial building in Vancouver. The
fire spread throughout the building and destroyed not only the Sifton Market but
also neighboring businesses. The body of Amy Hooser, a Sifton Market
employee, was discovered in the rubble.
A jury later convicted Heng of murder in the first degree and arson in the
first degree. Heng appeals, arguing that (1) under the rule of lenity, we must
assume that the murder conviction was for felony murder predicated on the same
arson that was the basis for the arson conviction and (2) the trial court placed
Heng in double jeopardy by punishing him for both felony murder predicated on
arson and the underlying arson. Because Heng’s arson had an effect
independent of the murder, we hold that punishing Heng for both crimes did not
place him in double jeopardy.
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No. 83280-8-I/2
We also hold that Heng’s rule-based and constitutional excessive bail
challenges are moot, defense counsel’s absence from Heng’s bail setting does
not require reversal, Heng fails to show that counsel was ineffective for not
asking the court to revisit bail, and the trial court did not abuse its discretion by
admitting a fire marshal’s opinion testimony as to the origins of the fire.
Therefore, we affirm.
FACTS
On January 15, 2017, at about 5:35 a.m., firefighters responded to a fire at
a commercial building in Vancouver, Washington. The fire started in the Sifton
Market, a convenience store in the building, and eventually “burned pretty much
the whole building down,” destroying not only the Sifton Market but also a barber
shop, a pet grooming business, and a pet supply store. Fire crews discovered a
person’s body in the market’s deli area, which was situated in the part of the
market farthest away from the main entrance. The body was later identified as
Amy Hooser, a Sifton Market employee who had been working the morning of
the fire. The Clark County medical examiner concluded that Hooser’s cause of
death was smoke inhalation and blunt force injuries to the head.
Surveillance videos recovered from the scene showed Hooser in the
Sifton Market beginning at about 5:09 a.m.1 on the morning of the fire, getting the
store ready to open. At about 5:11 a.m., Hooser unlocked the front door. About
a minute later, a newspaper delivery person entered through the front door,
1 References herein are to “camera time,” i.e., the time as shown in the
surveillance footage. There was testimony at trial that camera time was
“probably fast by about four minutes and thirty seconds.”
2
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No. 83280-8-I/3
unloaded a stack of newspapers onto a stand inside the store, and then exited
the store. At 5:18 a.m., Hooser walked from the cash register area of the store,
near the front door, across the sales floor toward the deli area, which itself was
not visible on any surveillance footage. Sifton Market’s general manager later
testified that although there was a camera in the deli area, it was not functioning.
At 5:20 a.m., a man, later identified as Heng, entered the store through the
front door. Heng was wearing a baseball cap, dark pants and shoes, and an
unbuttoned flannel shirt with a white T-shirt visible underneath. Heng passed
Hooser on the sales floor as she walked from the deli area back toward the front
of the store.
At about 5:21 a.m., Heng approached Hooser at the front of the store, and
Hooser retrieved an item, which Heng later identified as a key to the bathroom,
and handed it to Heng. Hooser then walked across the sales floor into the deli
area. This was the last time she was visible on any surveillance footage. A short
time later, Heng also walked toward the deli area.
After Heng disappeared from the surveillance footage into the deli area,
no one was seen on the video for about four minutes. At about 5:26 a.m., Heng
emerged from the deli area onto the sales floor, opened and closed two cooler
doors, and continued toward the front register area with a soft drink bottle in
hand. He walked into the front office, where the footage showed that his white
T-shirt now had a visible stain on the front—a stain that Heng later admitted was
blood. Heng took a drink from the soft drink bottle and paced around the front
office for a moment before taking a carton of cigarettes from the shelf. He then
3
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No. 83280-8-I/4
picked up what appeared to be a lighter from the cash register area before
walking back across the sales floor into the deli area.
At about 5:30 a.m., Heng reentered the front office holding what appeared
to be coffee filters. He opened a cabinet that contained the store’s safe, and
according to a detective’s later testimony, “look[ed] like he[ ] touched the safe
and . . . use[d] kind of the coffee filters to touch the safe some more, whether
he’s trying to access it or wipe it down, I’m not certain.” The detective also
testified that at this point in the footage from the front office, flickering light could
be seen in the bottom right corner, and the video “bec[a]me cloudier until you
can’t see anything eventually. But, it appears to be smoke filling the room.”
Heng then picked up a small bin with timecards in it, exited the front office area,
and crossed the store again to the deli area. The video cut out a short time later,
at around 5:34 a.m. Heng, Hooser, and the newspaper delivery person were the
only people visible on the surveillance footage from the morning of the fire.
The State later charged Heng with murder in the first degree, robbery in
the first degree, and arson in the first degree. On January 20, 2017, Heng made
his preliminary appearance before the trial court. There, Heng confirmed his
name and date of birth and requested that counsel be appointed for him. The
court then stated,
All right. We’re going to appoint [defense counsel]. We put
word out to [defense counsel] trying to get him here this morning,
but just not enough time. So, he’s not here right now. But he’ll
be – he’s already been notified. So he’ll be getting in touch with
you very shortly.
I’m gonna now hear recommendations about bail and
release. I will allow you to address those, but you do not want to
4
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No. 83280-8-I/5
talk at all about the alleged incidents that bring you – brings you
here today. And then the next time you’re in front of the court with
[defense counsel] being present, we’ll allow, if you’re still in
custody, bail to be reviewed with the aid of your attorney. Do you
understand?
Heng confirmed his understanding, and the prosecutor asked the trial court to set
bail at $2 million, arguing, “Based on the nature of the charges obviously, this
was a violent and premeditated crime, very heinous in nature.” The prosecutor
also represented that Heng had prior convictions for assault in the second
degree and disorderly conduct, and that Heng’s current address could not be
verified. The trial court set bail at $2 million, indicating to Heng, “It can definitely
be reviewed. Your attorney will have a chance to work things up and have an
informed discussion with the court at the next court hearing.”
Heng, who remained in custody, appeared for his initial arraignment on
February 1, 2017. When the court inquired about the “present bail situation,”
Heng’s counsel responded, “[J]ust to address that. Counsel was not present
when I was appointed to represent Mr. Heng and so bail was set outside the
presence of counsel. At some point in the future I may address it, but I’m not
gonna address it now.” The trial court responded, “[I]f you wish to then make
sure we do it with some written notice to the State and . . . I’ll be willing to hear
it.” Counsel did not subsequently ask the court to revisit bail, and Heng remained
in custody pending trial.
A jury trial was held over approximately two weeks in September 2019.
Heng testified on his own behalf. Heng’s defense theory was that someone else
had killed Hooser, and that Heng had set fire to the Sifton Market under duress.
5
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No. 83280-8-I/6
According to Heng, he went to the Sifton Market the morning of the fire to
collect money from Hooser, who he claimed sold cocaine for him. Heng testified
that when he went into the deli area after using the bathroom, Hooser was there
with “Zip,” another dealer for whom Hooser sold methamphetamine. Heng
testified that when Hooser paid Heng, Zip “got mad that she was giving [Heng]
money” because “she obviously was not paying him and she’d owed him a pretty
good debt.” Heng claimed that Zip then demanded payment from Hooser,
grabbed her and hit her several times, and eventually “grabbed [Hooser] by her
clothing and hit her against the rack that she was right next to.”
According to Heng, Zip threatened Heng that if he “tried to be a hero,” Zip
would “do the same to [Heng] and [Zip] knew where [Heng] lived.” Heng testified
that Zip then “just pretty much told [Heng] what to do and [Heng] was scared
and . . . didn’t want to tell [Zip] no.” Heng testified that Zip told him to get him
cigarettes, which Heng did after getting himself a drink “to kind of calm [him]self
down.” Heng testified that after he returned to the deli area and gave Zip the
cigarettes and a lighter, Zip then told Heng “to go into the safe and grab whatever
and to catch the front on fire.” Heng testified that he complied because Zip had
threatened him, and Heng was scared that Zip would “do something worse” to
Heng and his family. He testified that when he returned to the deli area after
starting the fire in the front office, he took the time cards with him to show Zip that
nobody else was there. Heng testified that as the fire began to spread, he exited
the store through the front door and went back to his apartment a couple of
blocks away. He testified that on his way home, he discarded his flannel shirt
6
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No. 83280-8-I/7
and T-shirt in a neighborhood dumpster and changed into extra clothes he had in
his truck. Heng testified that he did not know Zip’s real name or where he lived
and could not remember what Zip was wearing the morning of the fire. But he
described Zip as follows: “He’s Caucasian. I think he was mixed with Mexican
just because of his color of hair and all his tattoos and stuff[;] probably like 6 feet
tall.”
While cross examining Heng, the prosecutor played an excerpt from an
interrogation detectives conducted with Heng. During the interview, Heng stated
that he was told to rob the Sifton Market by a man wearing a black hoodie and
standing “[o]n the corner right behind the spa” on the back side of the Sifton
Market building. Heng described the man as “black [and] probably 5’10” [and]
pretty stocky.” Heng said he “looked like a tweaker,” so Heng pulled over to ask
him if he wanted to buy anything. Heng claimed during the interrogation that the
man then threatened to shoot Heng unless Heng robbed the Sifton Market.
Heng admitted at trial that this earlier account was not true.
The prosecutor also played excerpts of calls Heng made from jail. In
some of those calls, Heng said that the person who “did it” was “a white boy” who
Heng thought might have been another Sifton Market employee, who “came in
through the roof and . . . came out the roof,” had a “wooden paddle,” and forced
Heng to burn down the store by pointing a gun at his head. In other calls, Heng
claimed not to know who killed Hooser. Heng testified at trial that he was lying
on those calls. He also admitted to lying during another interrogation when he
claimed that the person who was in the deli area with Heng and Hooser was
7
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No. 83280-8-I/8
Hooser’s boyfriend, Stephen Gephart. Heng further acknowledged lying to
detectives in earlier interrogations about what he did with his clothes and shoes
and why he went to the Sifton Market in the first place. On redirect, Heng
testified that he lied because he was afraid of Zip and because detectives told
him they could not protect him and his family.
The surveillance videos were played for the jury during trial. Additionally,
the State presented testimony from a number of witnesses, including a detective
who testified that although law enforcement did not find the clothes or black
shoes they believed Heng was wearing the morning of the fire, they found a pair
of Nike brand Air Force One Premium 2007 shoes at Heng’s apartment, as well
as two boxes in his truck containing Air Force One Premium 2007 shoes in colors
other than black. The State presented evidence that the tread marks on this
model of shoe matched shoe prints found in the deli area that tested
presumptively positive for blood. The State also presented evidence that two
stains from the driver’s side floor mat of Heng’s truck contained DNA2 mixtures
for which “a major component” matched Hooser’s DNA profile.3 And, the State
presented evidence that the roof hatch to the Sifton Market was padlocked and
wired to the security system, that although the store had an employee entrance
and an emergency exit, a person walking from those doors into the deli area
would have appeared on the surveillance footage, and while there was also a
2 Deoxyribonucleic acid.
3 The State’s forensic scientist testified that “[t]he estimated probability of
selecting an unrelated individual at random from the US population with a
matching profile is . . . one in seventy-seven decillion.”
8
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No. 83280-8-I/9
window in a back office connected to the deli area, there was a motion sensor
that would have triggered an alarm if someone were to enter the store through
that window. The State also presented evidence that although detectives
recovered a methamphetamine pipe in Hooser’s purse, a search of Hooser’s
bedroom and car revealed no items of evidentiary value.
Additionally, the State presented testimony from Susan Anderson, a
senior deputy fire marshal who investigated the fire. The prosecutor asked
Anderson about, among other things, her “opinion based on [her] training and
experience as to how many fires were set and the origin of where they were set.”
Anderson began by responding that there were multiple areas of the building that
experienced the “greatest loss of material,” including a shelf in the Sifton
Market’s front office and “on the victim herself,” at which point Heng objected.
Heng argued outside the presence of the jury that, if Anderson planned to opine
that there was a fire origin on Hooser’s body based on the flame damage to and
burn patterns near her body, “there has to be some foundation under Frye[4] or
Daubert[5] to establish that that conclusion is . . . admissible as evidence.”
Additionally, after confirming through voir dire that Anderson did not follow the
method set forth in National Fire Protection Agency (NFPA) 9216 when
4 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
5 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993).
6 According to Heng’s expert, “NFPA 921 is a guide put out by the
National Fire Protection Agency . . . to help investigators perform fire origin and
cause investigations,” and is “considered kind of the state of the art for fire
investigation today.”
9
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No. 83280-8-I/10
formulating her opinion as to the origins of the fire, defense counsel argued,
“[T]here’s nothing, there was no testing that was done, there’s no sources cited.
This is an eyeball analysis without any testing and . . . if she’s gonna make that
sort of conclusive statement, then . . . I would object.”
The prosecutor responded that Heng’s objection went to weight and not
admissibility, arguing that Anderson could testify based on her training and
experience and no Frye hearing was necessary because “she’s not gonna say
with any scientific certainty that any person set a fire on Ms. Hooser.”
The trial court overruled Heng’s objection. Anderson then testified “based
on the damage to [Hooser’s] body and the relative lack of damage in other
combustible materials around her body that a fire was probably ignited on her
body, clothing or near the body.”
During the State’s closing, the prosecutor argued, with regard to the
charge of murder in the first degree, “There are three ways of committing Murder
in the 1st Degree” and “[e]ach of those three ways is charged in this case.” First,
the prosecutor argued, the evidence supported a finding that Heng caused
Hooser’s death with the premeditated intent to do so. Second, the prosecutor
argued, the evidence supported a finding that Heng committed felony murder by
causing Hooser’s death in the course of or in furtherance of committed or
attempted robbery or arson. And third, the prosecutor argued, the evidence
supported a finding that Heng committed murder in the first degree by causing
Hooser’s death by engaging in conduct that created a grave risk of death under
circumstances manifesting extreme indifference to human life.
10
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No. 83280-8-I/11
The jury found Heng guilty of murder in the first degree but did not specify
the basis for its finding. The jury also found Heng guilty of arson in the first
degree. It acquitted Heng of robbery in the first degree.
Multiple individuals, including Hooser’s friends and family members, spoke
at Heng’s sentencing hearing. Sue Picchioni, who owned the pet grooming
business that was destroyed in the fire and who had submitted a victim impact
statement, also spoke at sentencing. Picchioni expressed that she hoped Heng
would “think about . . . all the hurt [his] selfishness has caused,” including the
loss of the grooming business that she and her family “have been building for
over thirty years,” the death of family pets that were inside Picchioni’s shop at the
time of the fire, and the destruction of the businesses on either side of Picchioni’s
business.
The trial court sentenced Heng to a total term of confinement of 374
months, the high end of the standard range. Heng appeals.
ANALYSIS
Double Jeopardy
Heng argues that, by sentencing him for both arson in the first degree and
murder in the first degree, the trial court placed him in double jeopardy by
punishing him twice for the same offense. Thus, Heng contends, his conviction
for arson in the first degree must be vacated. We disagree.
“The double jeopardy clause of the United States Constitution provides
that no person shall ‘be subject for the same offence to be twice put in jeopardy
of life or limb.’ ” State v. Muhammad, 194 Wn.2d 577, 615, 451 P.3d 1060
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No. 83280-8-I/12
(2019) (Gordon McCloud, J., concurring and dissenting) (quoting U.S. CONST.
amend. V). “The Washington Constitution similarly provides that ‘[n]o person
shall . . . be twice put in jeopardy for the same offense.’ ” Id. (alterations in
original) (quoting W ASH. CONST. art. 1, § 9). “[T]hese two provisions ‘provide the
same protections.’ ” Id. at 616 (quoting In re Pers. Restraint of Francis, 170
Wn.2d 517, 522 n.1, 242 P.3d 866 (2010)). Double jeopardy claims may be
raised for first time on appeal, and we review them de novo. State v. Mutch, 171
Wn.2d 646, 661-62, 254 P.3d 803 (2011).
The prohibition on double jeopardy protects not only against a second trial
for the same offense, but also, as relevant here, “ ‘against multiple punishments
for the same offense.’ ” Muhammad, 194 Wn.2d at 616 (internal quotation marks
omitted) (quoting Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432,
63 L. Ed. 2d 715 (1980)). In this latter context, “ ‘the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.’ ” Id. (quoting Missouri v. Hunter, 459
U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983)). Thus, “ ‘[w]here a
defendant’s act supports charges under two criminal statutes, a court weighing a
double jeopardy challenge must determine whether, in light of legislative intent,
the charged crimes constitute the same offense.’ ” State v. Freeman, 153 Wn.2d
765, 771, 108 P.3d 753 (2005) (quoting In re Pers. Restraint of Orange, 152
Wn.2d 795, 815, 100 P.3d 291 (2004)).
To do so here, we must first determine, given that the jury did not specify
the basis for its verdict on the first degree murder charge, what type of murder
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No. 83280-8-I/13
Heng was convicted of committing. Heng contends that, applying the rule of
lenity, we must assume that he was convicted of felony murder predicated on the
same arson that was the basis for the arson conviction. The State concedes this
point, and we accept the State’s concession. See State v. Deryke, 110 Wn. App.
815, 824, 41 P.3d 1225 (2002) (“Principles of lenity require us to interpret [an]
ambiguous verdict in favor of [the defendant].”). Accordingly, our task is to
determine whether the legislature intended to allow the trial court to punish Heng
for both felony murder predicated on arson and the underlying arson.
Courts follow four analytical steps to determine whether the legislature
intended to authorize cumulative punishment. First, we consider “any express or
implicit legislative intent.” State v. Arndt, 194 Wn.2d 784, 816, 453 P.3d 696
(2019). “ ‘If there is clear legislative intent to impose multiple punishments for the
same act or conduct, this is the end of the inquiry and no double jeopardy
violation exists.’ ” Id. (quoting State v. Kelley, 168 Wn.2d 72, 77, 226 P.3d 773
(2010)). If legislative intent is unclear, we proceed to the second step of the test
and apply the Blockburger,7 or “same evidence,” test. Id. Under Blockburger,
“ ‘[w]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.’ ” Id. at 818 (internal quotation marks and emphasis omitted)
(quoting Orange, 152 Wn.2d at 817).
7 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
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No. 83280-8-I/14
If Blockburger is not dispositive, the third step of the analysis calls for
application of the “merger doctrine.” Id. at 816. “ ‘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,’ ” and not separately. Id. at 819
(quoting Freeman, 153 Wn.2d at 772-73). Thus, “a lesser included offense
merges ‘into a more serious offense when a person is charged with both crimes,
so that the person is not subject to double jeopardy.’ ” Muhammad, 194 Wn.2d
at 618 (quoting BLACK’S LAW DICTIONARY at 1184 (11th ed. 2019)).
Finally, in the fourth step of the analysis, we consider “any independent
purpose or effect that would allow punishment as a separate offense.” Arndt,
194 Wn.2d at 816. “[W]hen overlapping offenses have independent purposes or
effects,” the offenses do not merge, and “separate punishments are allowed.” Id.
at 819.
If legislative intent to allow separate punishments can be found in any of
the four steps of the analysis, then there is no double jeopardy violation. Id.
at 818.
Here, the parties agree with regard to the first three steps of the analysis
that (1) there is no express or implied articulation of legislative intent, (2) felony
murder predicated on arson is the same offense as the underlying arson under
Blockburger, and (3) arson is a lesser included offense of felony murder
predicated on arson. Heng contends, as to the fourth step of the analysis, that
felony murder and its predicate felony can never be independent so as to satisfy
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No. 83280-8-I/15
the exception to the merger doctrine. The State counters that because the arson
in this case had an effect independent of the murder, the two offenses do not
merge. We agree with the State.
Arndt is instructive. There, Shelly Arndt set fire to a house that had eight
people in it, including the O’Neils, who owned the home, and Arndt’s boyfriend,
Darcy Veeder Jr. Id. at 790. Everyone escaped except Veeder, whose body
was found in the living room. Id. at 791. Arndt was later convicted of aggravated
first degree murder with the aggravating circumstance of first degree arson, as
well as first degree arson. Id. at 791-92, 796.
On appeal, our Supreme Court rejected Arndt’s contention that the trial
court placed her in double jeopardy by punishing her twice for the same arson:
once as an aggravator to first degree murder and again for the arson itself. See
Id. at 821. It held that the independent purpose or effect exception applied,
explaining, “Arndt was charged with aggravated first degree murder for the death
of a single victim, Darcy Veeder Jr. In contrast, her conviction for first degree
arson, in addition to resulting in the death of Veeder, also destroyed the O’Neils’
home and was ‘manifestly dangerous’ to the other occupants.” Id. at 819
(quoting RCW 9A.48.020(1)(a)). The court concluded, “The presence of
additional victims places this case inside the ‘independent effect’ exception to the
merger doctrine that allows for the imposition of separate punishments.” Id.
In addition to considering the fact that Arndt’s arson had victims other than
Veeder, the Supreme Court observed that “an independent purpose exists on an
abstract level that also prevents the merger of the two offenses and allows for the
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No. 83280-8-I/16
imposition of multiple punishments.” Id. at 819-20. Specifically, “the two statutes
in question are located in different chapters of the criminal code and are intended
to protect different societal interests.” Id. at 820. “Because the primary purpose
of the arson statute is to protect property, it is located in chapter 9A.48 RCW
(consisting of offenses primarily intended to protect property).” Id. “In contrast,
because the primary purpose of the aggravated murder statute is to protect
human life, aggravated first degree murder is found in two different chapters
dedicated to this end, chapter 9A.32 RCW (Homicide) and chapter 10.95 RCW
(Capital punishment—Aggravated first degree murder).” Id. “This provides an
additional indication that the legislature clearly intended separate punishments
for the crimes of aggravated first degree murder with an arson aggravator and of
first degree arson.” Id. Thus, the court held, “the two crimes do not merge and
the imposition of multiple punishments does not violate double jeopardy.” Id.
Here, as in Arndt, while Heng was charged with felony murder for the
death of a single victim, Hooser, his arson had victims in addition to Hooser—
namely, the owners of the Sifton Market, who also owned the building, and the
owners of the other businesses that were destroyed by the fire. Under Arndt, the
impact of Heng’s arson on these additional victims places this case within the
“independent effect” exception to the merger doctrine that allows for separate
punishments.
Additionally, felony murder is found in chapter 9A.32 RCW, which the
Supreme Court observed in Arndt is a chapter dedicated to protecting human life.
Id.; see also RCW 9A.32.030(1)(c) (defining first degree felony murder). The fact
16
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No. 83280-8-I/17
that arson is, by contrast, found in a chapter consisting of offenses primarily
intended to protect property “provides an additional indication that the legislature
clearly intended separate punishments” for first degree arson and for felony
murder predicated on first degree arson. Arndt, 194 Wn.2d at 820.
In short, Arndt controls. Applying Arndt, we hold that because Heng’s
arson had an effect independent of the murder and because the purpose of
criminalizing arson is to protect property whereas the purpose of criminalizing
murder is to protect human life, this case falls within the “independent purpose or
effect” exception to the merger doctrine. Therefore, allowing both of Heng’s
convictions to stand does not place him in double jeopardy.
Heng does not meaningfully address Arndt in his briefing. At oral
argument, Heng argued that Arndt is distinguishable because it involved an
aggravator to murder rather than felony murder.8 But it would be illogical to
conclude that although the legislature “clearly intended” to punish arson
separately as a property crime even when it elevates a resulting homicide via an
aggravator, the legislature did not intend to do so when it elevates a resulting
homicide via the felony murder statute.
Heng also argued that Arndt is distinguishable because there, “the fact
that there were other victims was pled and proved to the jury.”9 He asserted that
8 Wash. Court of Appeals oral argument, State v. Heng, No. 83280-8-I
(Jan. 20, 2022), at 2 min., 16 sec. through 3 min., 30 sec., video recording by
TVW, Washington State’s Public Affairs Network, https://www.tvw.org/watch/
?clientID=9375922947&eventID=2022011103.
9 Wash. Court of Appeals oral argument, supra, at 4 min., 35 sec. through
4 min. 42 sec.
17
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No. 83280-8-I/18
here, by contrast, the prosecutor “never said anything [in closing] about the fire
potentially damaging anybody else’s property or harming anyone else” other than
Hooser.10
Heng is incorrect. That Heng set fire to the building—which undisputedly
was owned by someone other than Hooser—was part and parcel of the State’s
arson case as presented to the jury. Consistent with that theory, the prosecutor
argued at closing, “Of course, lighting a building on fire with a person in it is
manifestly dangerous to human life. And we know that in the building at the time,
there was a human being and Ms. Hooser was not a participant in the crime.”
(Emphasis added.) The State did not present any theory to the jury on which it
could have convicted Heng of arson in the first degree based on facts that did not
involve a separate and distinct injury to something or someone other than
Hooser.11 See In re Pers. Restraint of Knight, 196 Wn.2d 330, 338, 473 P.3d
663 (2020) (independent purpose or effect exception is satisfied when the crime
“ ‘injure[s] the person or property of the victim or others in a separate and distinct
manner from the crime for which it also serves as an element’ ” (internal
quotation marks omitted) (quoting Arndt, 194 Wn.2d at 819)); cf. State v. Kier,
164 Wn.2d 798, 812-13, 194 P.3d 212 (2008) (where assault elevated robbery to
10 Wash. Court of Appeals oral argument, supra, at 7 min., 30 sec. through
7 min. 39 sec.
11 Consider, in contrast, a theory under which no building was involved
and Heng instead killed Hooser by setting fire to Hooser’s own vehicle with
Hooser in it. As the State acknowledged at oral argument, under such a theory,
the arson would not have had an effect independent of the murder, and the
exception to the merger doctrine likely would not apply. See Wash. Court of
Appeals oral argument, supra, at 11 min., 35 sec. through 12 min, 47 sec.
18
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No. 83280-8-I/19
first degree, the two offenses merged because the jury instructions specified
Ellison as the victim of the assault but the jury could have found that the victim of
the robbery “was Hudson or Ellison, or both,” i.e., the jury could have found that
both the assault and the robbery affected only a single victim). Heng’s attempts
to distinguish Arndt fail.
Heng also contends that Muhammad is the controlling case here, not
Arndt.12 But whether two offenses merge depends in large part “on the facts of
the individual case,” Freeman, 153 Wn.2d at 779, and Muhammad is readily
distinguishable on its facts.
In Muhammad, Bisir Muhammad was convicted of felony murder
predicated on rape for sexually assaulting Ina Richardson and strangling her to
death. See 194 Wn.2d at 614. On appeal, Muhammad, who was also convicted
of the underlying rape, argued that the trial court placed him in double jeopardy
by punishing him twice for a single rape. Muhammad, 194 Wn.2d at 616. Our
Supreme Court agreed, explaining that no exception to the merger doctrine
applied because “[t]he exception to the merger rule and felony murder are
irreconcilable and cannot coexist.” Id. at 626. The court reasoned,
When a person negligently or accidentally kills somebody in the
course of, in furtherance of, or in flight from a robbery, rape,
burglary, arson, or kidnapping, that person by definition did not
commit the underlying crime to facilitate murder. It was an
accident, albeit a criminal one. When it comes to felony murder,
the lesser offense does not—and cannot—have a purpose
12 See Wash. Court of Appeals oral argument, supra, at 3 min., 30 sec.
through 3 min., 40 sec.
19
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No. 83280-8-I/20
independent from the greater; the purpose of the entire criminal
endeavor is to commit the underlying felony.
Id.
To be sure, the language from Muhammad is broad, and it is unsurprising
that Heng relies on it. But again, merger involves a fact-specific inquiry. See
State v. Saunders, 120 Wn. App. 800, 821, 86 P.3d 232 (2004) (“Courts apply an
exception to th[e] merger doctrine on a case-by-case basis; it turns on whether
the predicate and charged crimes are sufficiently ‘intertwined’ for merger to
apply.” (quoting State v. Johnson, 92 Wn.2d 671, 681, 600 P.2d 1249 (1979)).
In Muhammad, the rape that served as the predicate for felony murder could
have had only one victim—the same victim as the murder. See 194 Wn.2d at
628 (“The underlying rape was intertwined with the killing—the jury necessarily
found that the killing occurred in the course of, in furtherance of, or in immediate
flight from th[e] rape and all its horrible effects.”); cf. State v. Tili, 139 Wn.2d 107,
119, 985 P.2d 365 (1999) (unit of prosecution for rape is each instance of sexual
intercourse). By contrast, arson by its nature can have an independent effect on
multiple victims, and it plainly did here. Cf. State v. Westling, 145 Wn.2d 607,
612, 40 P.3d 669 (2002) (unit of prosecution for arson is each fire, regardless the
number of victims whose property is damaged); State v. Abdi-Issa, 199 Wn.2d
163, 171, 504 P.3d 223 (2022) (where pet owner was “directly harmed as a result
of [the defendant]’s violent killing of her beloved pet and companion,” she was
“plainly a victim” of animal cruelty even though the subject of the cruelty was the
animal itself). So, even though Muhammad was a felony murder case like this
20
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No. 83280-8-I/21
one, we are not persuaded that it controls where, as here, the predicate offense
could and did independently affect victims other than the victim of the murder.
Heng’s double jeopardy claim fails.
Bail Amount
Heng next contends that, by setting bail at $2 million and doing so without
applying the factors set forth in CrR 3.2,13 the trial court violated CrR 3.2 and
denied Heng his constitutional right to be free from excessive bail. The State
counters that Heng’s contention is moot. We agree with the State.
13 Under CrR 3.2(c), “the court shall, on the available information, consider
the relevant facts” in determining “which conditions of release will reasonably
assure the accused’s appearance,” including but not limited to:
(1) The accused's history of response to legal process,
particularly court orders to personally appear;
(2) The accused's employment status and history, enrollment
in an educational institution or training program, participation in a
counseling or treatment program, performance of volunteer work in
the community, participation in school or cultural activities or receipt
of financial assistance from the government;
(3) The accused's family ties and relationships;
(4) The accused's reputation, character and mental
condition;
(5) The length of the accused's residence in the community;
(6) The accused's criminal record;
(7) The willingness of responsible members of the
community to vouch for the accused's reliability and assist the
accused in complying with conditions of release;
(8) The nature of the charge, if relevant to the risk of
nonappearance;
(9) Any other factors indicating the accused's ties to the
community.
The rule also imposes a rebuttable presumption of release in noncapital cases,
CrR 3.2(a), and states that, “[i]f the court determines that the accused is not likely
to appear if released on personal recognizance, the court shall impose the least
restrictive of [the conditions provided in the rule] that will reasonably assure that
the accused will be present for later hearings.” CrR 3.2(b).
21
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No. 83280-8-I/22
“An issue is moot if we can no longer provide effective relief.” State v.
Ingram, 9 Wn. App. 2d 482, 490, 447 P.3d 192 (2019). As we explained in
Ingram, we cannot provide effective relief with regard to a pretrial bail issue to an
appellant who has been convicted because “pretrial bail is no longer available to
him.” Id.; see also Murphy v. Hunt, 455 U.S. 478, 483-84, 102 S. Ct. 1181, 71 L.
Ed. 2d 353 (1982) (conviction moots claim that pretrial bail was excessive).
While we recognize that bail setting issues are of public interest and likely to
recur, Heng does not argue that any exception to the mootness doctrine applies.
Cf. Ingram, 9 Wn. App. 2d at 490 (reviewing a moot bail setting issue because it
involved a matter of continuing and substantial public interest, including because
the issue was public in nature and likely to recur). In any case, recent published
case law has provided guidance on the issues that Heng raises in this appeal.
See Ingram, 9 Wn. App. 2d at 489 n.12, 493-97 (evaluating trial court’s
application of CrR 3.2); State v. Huckins, 5 Wn. App. 2d 457, 465-69, 426 P.3d
797 (2018) (same). We need not address them again.14
Right to Counsel
Heng next contends that his preliminary appearance was a critical stage of
trial. Thus, he asserts, the trial court deprived him of his constitutional right to
14 Because we conclude that Heng’s challenges to the bail amount are
moot, we also need not address the State’s argument that Heng failed to
preserve those challenges for review.
22
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No. 83280-8-I/23
counsel by proceeding in counsel’s absence, and this was a structural error
requiring automatic reversal. We disagree.
“Under both the Washington and United States Constitutions, a criminal
defendant is entitled to the assistance of counsel at critical stages in the
litigation.” State v. Heddrick, 166 Wn.2d 898, 909, 215 P.3d 201 (2009); U.S.
CONST. amend. VI; WASH. CONST. art. 1, § 22. “A critical stage is one ‘in which a
defendant’s rights may be lost, defenses waived, privileges claimed or waived, or
in which the outcome of the case is otherwise substantially affected.’ ” Id. at 910
(quoting State v. Agtuca, 12 Wn. App. 402, 404, 529 P.2d 1159 (1974)). It
includes “those pretrial procedures that would impair defense on the merits if the
accused is required to proceed without counsel.” Gerstein v. Pugh, 420 U.S.
103, 122, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); see also Satterwhite v. Texas,
486 U.S. 249, 257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (critical stage is
one where counsel’s absence “affect[s]—and contaminate[s]—the entire criminal
proceeding”). “A complete denial of counsel at a critical stage of the proceedings
is presumptively prejudicial and calls for automatic reversal.” Heddrick, 166
Wn.2d at 910.
Here, Heng’s preliminary appearance was limited in scope: Heng
confirmed his name and date of birth, and the court appointed counsel and set
bail, indicating that it would be willing to revisit the issue later. Heng did not
forfeit any rights or defenses that would substantially affect the outcome of his
trial. Although the trial court did set bail, it also indicated it would be willing to
revisit the issue later, and Heng could have asked the court to do so at any time.
23
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No. 83280-8-I/24
See CrR 3.2(j)(1) (“At any time after the preliminary appearance, an accused
who is being detained due to failure to post bail may move for reconsideration of
bail.”). Thus, Heng’s counsel’s absence did not cause Heng to waive any right
related to bail, nor did counsel’s absence “by [its] very nature cast so much doubt
on the fairness of the trial process that, as a matter of law, [it] can[not] be
considered harmless.” See Satterwhite, 486 U.S. at 256. For the foregoing
reasons, we conclude that Heng’s preliminary appearance was not a critical
stage of trial such that counsel’s absence therefrom requires automatic reversal.
Cf. In re Pers. Restraint of Sanchez, 197 Wn. App. 686, 702, 391 P.3d 517
(2017) (arraignment not a critical stage of trial where petitioner made no showing
“that any right or defense he possessed prearraignment was forfeited or went
unpreserved by his attorney’s absence at arraignment”).
Heng disagrees and relies on three United States Supreme Court cases
for the proposition that his preliminary appearance was a critical stage because
the trial court set bail during the proceeding.15 First, Heng cites Coleman v.
Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), for the proposition
that “[a] ‘critical stage’ includes preliminary hearings at which bail decisions are
made.” But the preliminary hearing in Coleman was a hearing the primary
purpose of which was to “determine whether there is sufficient evidence against
the accused to warrant presenting his case to the grand jury.” Id. at 8. In
concluding that the hearing was a critical stage, the Court did observe that
15 We need not address the nonbinding state and lower federal court
cases on which Heng also relies.
24
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No. 83280-8-I/25
counsel could be influential at such a hearing in making arguments about bail.
Id. at 9. However, the Court’s focus was on the ways counsel’s presence at the
hearing would affect the ultimate outcome of the trial. Specifically, the Court also
observed that
the lawyer’s skilled examination and cross-examination of
witnesses may expose fatal weaknesses in the State’s case that
may lead the magistrate to refuse to bind the accused over. . . . [I]n
any event, the skilled interrogation of witnesses by an experienced
lawyer can fashion a vital impeachment tool for use in cross-
examination of the State’s witnesses at the trial, or preserve
testimony favorable to the accused of a witness who does not
appear at the trial. . . . [T]rained counsel can more effectively
discover the case the State has against his client and make
possible the preparation of a proper defense to meet that case at
the trial.
Id.; see also id. at 12 (Black, J., concurring) (“[T]he preliminary hearing is a
‘critical stage’ of the proceedings during which the accused must be afforded the
assistance of counsel if he is to have a meaningful defense at trial as guaranteed
in the Bill of Rights.” (emphasis added)). Coleman did not hold that counsel’s
absence at a bail setting alone requires automatic reversal. Indeed, despite
concluding that the preliminary hearing at issue therein was a critical stage of
trial, the Coleman court remanded to the state court to determine whether the
absence of counsel at the hearing was prejudicial. See id. at 10-11. Heng’s
reliance on Coleman is misplaced.
Heng’s reliance on Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L.
Ed. 2d 114 (1961), is similarly misplaced. Heng cites Hamilton for the
proposition that his bail setting was “the kind of adversarial proceeding[ ] where
counsel’s guiding hand is constitutionally required.” In Hamilton, the Court held
25
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No. 83280-8-I/26
that “[a]rraignment under Alabama law is a critical stage in a criminal
proceeding.” Id. at 53 (emphasis added). This was because, at an Alabama
arraignment, “[a]vailable defenses may be as irretrievably lost, if not then and
there asserted, as they are when an accused represented by counsel waives a
right for strategic purposes.” Id. at 54. Hamilton does not control here because,
as discussed, Heng does not show that he irretrievably lost any privilege or
defense at his preliminary appearance.
Finally, Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578, 171
L. Ed. 2d 366 (2008), also does not control. There, the sole question was when
the Sixth Amendment right to counsel attaches such that the State has a
“consequent . . . obligation to appoint counsel within a reasonable time once a
request for assistance is made.” Id. at 198. The Court expressly recognized that
the question of whether a particular proceeding signals attachment of the right to
counsel “ ‘is distinct from the question whether the [proceeding] itself is a critical
stage requiring the presence of counsel.’ ” Id. at 212 (quoting Michigan v.
Jackson, 475 U.S. 625, 629 n.3, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986),
overruled on other grounds by Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct.
2079, 173 L. Ed. 2d 955 (2009)). Rothgery has no bearing on our inquiry here.
In short, Heng fails to persuade us that his preliminary appearance was a
critical stage of trial requiring automatic reversal due to counsel’s absence.
Thus, assuming it was nonetheless an error of constitutional magnitude for the
trial court to set bail in counsel’s absence, we must still determine whether that
error requires reversal.
26
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No. 83280-8-I/27
It does not. A constitutional error does not require reversal where it is
harmless beyond a reasonable doubt. State v. Vazquez, 200 Wn. App. 220, 225,
402 P.3d 276 (2017). Here, as discussed, Heng could have asked the trial court
to revisit bail at any time. Indeed, even Heng concedes that the trial court
“repeatedly said [it] would completely reconsider bail once counsel was involved.”
Under these circumstances, counsel’s absence when bail was initially set was
harmless beyond a reasonable doubt.16 Heng suggests that he was prejudiced
to the extent that counsel did not in fact ask the trial court to revisit bail and, as a
result, he remained in custody. But any prejudice resulting from the fact that
counsel did not ask the trial court to revisit bail does not go to Heng’s right-to-
counsel claim. It goes to his ineffective assistance claim, which we address next.
Ineffective Assistance of Counsel
Heng argues that his defense counsel was ineffective for not asking the
trial court to revisit bail. We disagree.
The Sixth Amendment to the United States Constitution and article 1,
section 22 of the Washington State Constitution guarantee the right to effective
assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16
P.3d 601 (2001). “A claim of ineffective assistance of counsel is an issue of
constitutional magnitude that may be considered for the first time on appeal.”
16 Heng asserts that the absence of counsel at his initial appearance
violated not only his constitutional right to counsel but also his right to counsel
under CrR 3.1(b)(1). Because Heng does not separately analyze this rule-based
claim, neither do we. See State v. C.B., 195 Wn. App. 528, 535, 380 P.3d 626
(2016) (we will not review issues inadequately argued or mentioned only in
passing). Nevertheless, any error under CrR 3.1(b)(1) would also be harmless.
27
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No. 83280-8-I/28
State v. Salas, 1 Wn. App. 2d 931, 949, 408 P.3d 383 (2018). To prevail on a
claim of ineffective assistance, a defendant must establish that (1) his attorney’s
performance was deficient and (2) the deficiency prejudiced him. State v. Kyllo,
166 Wn.2d 856, 862, 215 P.3d 177 (2009). Heng establishes neither.
Heng Does Not Establish Deficient Performance
“To prevail on an ineffective assistance claim, a defendant alleging
ineffective assistance must overcome ‘a strong presumption that counsel’s
performance was reasonable.’ ” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260
(2011) (quoting Kyllo, 166 Wn.2d at 862). “[A] criminal defendant can rebut the
presumption of reasonable performance by demonstrating that ‘there is no
conceivable legitimate tactic explaining counsel’s performance.’ ” Id. (quoting
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
Here, Heng asserts that given the trial court’s failure to consider the
factors set forth in CrR 3.2, there was no conceivable reason counsel would not
“at least try” to ask the court to revisit bail and try to secure Heng’s pretrial
release. But as the State points out, it is at least conceivable that counsel
reasonably believed the court would not have lowered bail or released Heng
even upon consideration of the CrR 3.2 factors. Cf. Strickland v. Washington,
466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[W]hen a
defendant has given counsel reason to believe that pursuing certain [strategies]
would be fruitless or even harmful, counsel’s failure to pursue those [strategies]
may not later be challenged as unreasonable.”). Heng points to nothing in this
record to show otherwise, and we will not presume deficient performance from a
28
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No. 83280-8-I/29
silent record. See State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251
(1995) (“Because the presumption runs in favor of effective representation, the
defendant must show in the record the absence of legitimate strategic or tactical
reasons supporting the challenged conduct by counsel.”).
Heng Does Not Show Prejudice
Independently fatal to his ineffective assistance claim, Heng does not
show that he was prejudiced by counsel’s decision not to ask the court to revisit
bail.
To establish prejudice resulting from counsel’s allegedly deficient
performance, Heng must “prove that there is a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceedings would have
been different.” Kyllo, 166 Wn.2d at 862. Heng correctly points out that the
reasonable probability standard does not require proof on a “more likely than not”
basis. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). Nevertheless,
the probability must be “ ‘sufficient to undermine confidence in the outcome.’ ”
Grier, 171 Wn.2d at 34 (quoting Strickland, 466 U.S. at 694). Heng “must
affirmatively prove prejudice and show more than a ‘conceivable effect on the
outcome’ to prevail.” State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017)
(internal quotation marks omitted) (quoting State v. Crawford, 159 Wn.2d 86, 99,
147 P.3d 1288 (2006)).
Heng does not satisfy this standard. He asserts that “[h]ad counsel raised
the issue [of bail] and argued the requirements of CrR 3.2, there is more than a
reasonable probability that the court would have eliminated or significantly
29
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No. 83280-8-I/30
reduced the ‘bail’ ” such that he would have been released pretrial. But Heng’s
assertion that there was a reasonable probability of a different bail outcome is
entirely conclusory. While he points out that the trial court repeatedly indicated it
would reconsider bail, this shows, at most, that it is conceivable that counsel
might have affected the outcome. It does not establish a reasonable probability
that Heng—who does not dispute he is indigent—could have posted even a
reduced bail, much less that the trial court would have released him after
considering all of the factors set forth in CrR 3.2.
Heng also asserts that “[t]he prejudice is especially acute here, because
the State used calls Mr. Heng made while in jail as evidence against him at trial.”
But any prejudice from the statements Heng made on those calls was the
product of Heng’s decision to make those statements despite warnings he was
being recorded. That prejudice cannot be laid at counsel’s feet.
Heng’s ineffective assistance claim fails.
Anderson’s Testimony
Finally, Heng argues that the trial court erred under ER 702 by admitting
Anderson’s testimony that a fire originated on or near Hooser’s body. We
disagree.
ER 702 provides, “If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise.” “Expert
testimony is usually admitted under ER 702 if it will be helpful to the jury in
30
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No. 83280-8-I/31
understanding matters outside the competence of ordinary lay persons.”
Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857
(2011). “Unreliable testimony does not assist the trier of fact and is properly
excluded under ER 702.” In re Det. of McGary, 175 Wn. App. 328, 339, 306 P.3d
1005 (2013). We review a trial court’s evidentiary rulings under ER 702 for
abuse of discretion. Arndt, 194 Wn.2d at 797. “ ‘A trial court abuses its
discretion when its decision is manifestly unreasonable or exercised on
untenable grounds or for untenable reasons.’ ” Id. at 799 (quoting State v. Lord,
161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007)).
Here, Heng contends that Anderson’s testimony should have been
excluded as unreliable because Anderson did not follow NFPA 921 in reaching
her conclusion that a fire originated on or near Hooser’s body. The State
counters, as an initial matter, that because Heng invoked only Frye below and
did not mention ER 702, we should consider his ER 702 argument waived. The
State is correct that Heng’s counsel did not refer specifically to ER 702 when
objecting to Anderson’s testimony. Instead, counsel appears to have conflated
the Frye analysis with the ER 702 analysis, arguing that Anderson’s investigation
was a novel scientific theory subject to a Frye analysis because it was a
“conclusive statement” based on nothing more than “an eyeball analysis without
any testing.” But despite this conflation, the clear thrust of counsel’s argument
was that Anderson’s testimony was inadmissible because it was unreliable.17
17 Heng does not renew the Frye aspect of his argument on appeal.
31
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No. 83280-8-I/32
Thus, we do not consider that argument waived. We do, however, conclude that
the argument is without merit.
Heng relies on Arndt and Lakey v. Puget Sound Energy, Inc., 176 Wn.2d
909, 296 P.3d 860 (2013), for the proposition that Anderson’s testimony was
inadmissible because she did not follow NFPA 921. But in Arndt, “there was no
dispute at trial that fire causation must be determined using the NFPA 921 origin
and cause methodology.” 194 Wn.2d at 802 (emphasis added). Given the lack
of any dispute in this regard and the “large degree of freedom” a trial court is
given in determining whether testimony will assist the trier of fact, our Supreme
Court held that it was not an abuse of discretion to exclude certain testimony that
did not comport with NFPA 921 as unreliable. Id. at 799, 802. In Lakey, our
Supreme Court held that it was not manifestly unreasonable for the trial court to
exclude an expert’s testimony linking electromagnetic fields to disease given that
the expert’s “admission that he selectively used data created the appearance that
he attempted to reach a desired result, rather than allowing the evidence to
dictate his conclusions.” 176 Wn.2d at 921.
Although both Arndt and Lakey held that it was not an abuse of discretion
to exclude the challenged testimony, neither held, as Heng suggests, that it also
would have been an abuse of discretion to admit the testimony and subject it to
cross examination. Cf. State v. Gentry, 125 Wn.2d 570, 586, 888 P.2d 1105
(1995) (whether a generally accepted methodology was followed on a given
occasion goes to weight, not admissibility). And neither holds that testimony
regarding the origin of a fire is per se unreliable if it does not comport with
32
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No. 83280-8-I/33
NFPA 921. Heng fails to show that the trial court abused its discretion by
admitting Anderson’s testimony merely because Anderson did not follow
NFPA 921.
To the contrary, Anderson was undisputedly qualified as an expert by her
training and experience as a fire marshal. The trial court was within its discretion
to conclude that Anderson’s testimony based on her training, experience, and
observations of the scene would be helpful to the jury. Furthermore, any error in
admitting Anderson’s testimony that a fire originated on or near Hooser’s body
was harmless. Another fire marshal, Curtis Eavenson, also testified that on a
more probable than not basis, “another ignition was at least attempted” near
Hooser’s body. Heng did not object to Eavenson’s testimony, and Heng himself
admitted to setting a fire in another part of the Sifton Market. Reversal is not
required. Cf. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188,
196, 668 P.2d 571 (1983) (erroneous admission of merely cumulative evidence
was harmless).
We affirm.
WE CONCUR:
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