IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 57686-4-II

Respondent,

v.

ROBERT BLAIN MCBRIDE, UNPUBLISHED OPINION

Appellant.

VELJACIC, A.C.J. — Robert B. McBride appeals his arson in the second degree conviction. 

He contends that his defense counsel provided ineffective assistance of counsel by failing to 

request a voluntary intoxication jury instruction. He further contends that the victim penalty 

assessment (VPA) should be stricken from his judgment and sentence. We affirm McBride’s 

conviction. However, we remand the matter to the trial court with instructions to strike the VPA. 

FACTS

McBride’s stepfather, Loren Richards, agreed to let McBride sleep at his home for the 

night. McBride’s sister dropped him off in the early morning hours. The three visited for a bit 

before McBride’s sister left. Neither McBride’s sister nor his stepfather testified that McBride 

was intoxicated or acting strangely during this time.

Later that morning, Richards’s landlord woke him up to inform him that a truck on his 

property was on fire. McBride was gone when Richards woke up. 

Grays Harbor County Sheriff’s Deputy Edward Welter responded to investigate the fire. 

Welter found a baseball cap near the truck that was identified as something McBride had been 

Filed

Washington State

Court of Appeals

Division Two

June 11, 2024
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wearing the night before. Welter used a canine unit to do an evidence track. The dog tracked an 

odor from the scene of the fire, through the woods toward State Route (SR) 108.

Two United States Coast Guard Seamen were traveling on SR 108 when they observed a 

man “acting crazy.” Rep. of Proc. (RP) (Sept. 20, 2022) at 74. They reported that a man had 

jumped on the hood of their car and tried to light it on fire. Police arrived and found McBride 

inside the vehicle. The dog track ended approximately a quarter mile from the vehicle.

Police arrested McBride. Welter spoke to McBride at the jail the following day. McBride 

admitted to lighting the truck on fire, but claimed he did it because he saw “ghosts” and thought 

“Satan was coming.” Ex. 25, at 3:58, 4:47. McBride also stated that he was “f***ed up on the 

fentanyl.” Ex. 25, at 7:15. 

The State charged McBride with arson in the second degree and assault in the second 

degree.

At trial, one of the Coast Guard Seaman testified that when officers arrived McBride was 

“coming in and out of consciousness.” RP (Sept. 20, 2022) at 77. He said officers attempted to 

administer anti-overdose medication because McBride was claiming he had taken a large dose of 

fentanyl. The seaman testified that McBride continued to be agitated and that it ultimately took 

two deputies, a seaman, and a taser to finally subdue him.

Grays Harbor County Sheriff’s Sergeant Richard Ramirez also testified for the State. He 

testified that when he arrived at the scene, McBride appeared to be in distress. He was 

hyperventilating, screaming, and crying. Ramirez thought he also passed out but then came back. 

Ramirez testified that McBride told him that he had ingested an ounce of fentanyl.
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At trial, there was no evidence about the possible effects of fentanyl use on McBride’s 

ability to form the requisite mens rea for arson. There was also no evidence of medical 

confirmation that McBride ingested fentanyl.

The jury found McBride not guilty of the assault charge but guilty of the arson in the second 

degree charge. The trial court found McBride indigent for the purposes of sentencing ,but imposed 

a $500 VPA.

McBride appeals.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL 

McBride argues that he was denied effective assistance of counsel because defense counsel 

did not request a voluntary intoxication jury instruction. We disagree.

We review claims of ineffective assistance of counsel de novo. State v. Vazquez, 198 

Wn.2d 239, 249, 494 P.3d 424 (2021). To establish ineffective assistance of counsel, a defendant 

must show that their attorney’s performance was deficient and prejudicial. Id. at 247-48. An 

ineffective assistance of counsel claim fails if the defendant fails to establish either deficient 

performance or prejudice. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).

There is a strong presumption that counsel is effective. Vazquez, 198 Wn.2d at 247. “The 

defendant has the burden to show that defense counsel’s performance was deficient based on the 

trial court record.” Id. at 248. “Specifically, ‘the defendant must show in the record the absence 

of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.’” Id. at 

248 (quoting State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)). The relevant 

question is whether defense counsel’s strategic choices were reasonable. Id. at 255. Where the 

claim of ineffective assistance of counsel is based on defense counsel’s failure to request a 
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particular jury instruction, the defendant must first show he was entitled to the instruction. State 

v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012).

RCW 9A.16.090 provides:

No act committed by a person while in a state of voluntary intoxication shall 

be deemed less criminal by reason of his or her condition, but whenever the actual 

existence of any particular mental state is a necessary element to constitute a 

particular species or degree of crime, the fact of his or her intoxication may be taken 

into consideration in determining such mental state.

A defendant is entitled to a voluntary intoxication instruction when “(1) the charged offense has a 

particular mens rea, (2) there is substantial evidence the defendant was drinking and/or using 

drugs, and (3) there is evidence the drinking or drug use affected the defendant’s ability to acquire 

the required mental state.” State v. Webb, 162 Wn. App. 195, 209, 252 P.3d 424 (2011). To be 

guilty of arson in the second degree a person must “knowingly and maliciously causes a fire or 

explosion which damages [an] . . . automobile.” RCW 9A.48.030(1). Because arson in the second 

degree requires a particular mental state, the first element is met so only the second and third 

elements are in dispute. 

We begin with the third element because it is dispositive. The defendant must show more 

than he or she consumed alcohol or drugs; the defendant must establish the effect of the drugs or 

alcohol to establish the level of intoxication. State v. Kruger, 116 Wn. App. 685, 692, 67 P.3d 

1147 (2003). There must be substantial evidence of the level of intoxication and its effect on the 

defendant’s body and mind. Id. at 692. “‘[T]he evidence ‘must reasonably and logically connect 

the defendant’s intoxication with the asserted inability to form the required level of culpability to 

commit the crime charged.’” Id. at 691-92 (quoting State v. Gabryschak, 83 Wn. App. 249, 252-

53, 921 P.2d 549 (1996)). A person can be intoxicated yet still be able to form the requisite mens 

rea to commit certain crimes. State v. Classen, 4 Wn. App. 2d 520, 537, 422 P.3d 489 (2018).
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While there was testimony that McBride claimed to have burned the truck to stop 

imaginary beings, that he passed out, and that he was difficult to subdue, there was no evidence 

that fentanyl use causes this behavior or that fentanyl use would negate McBride’s ability to form 

the required mental state for arson in the second degree. Therefore, there was not substantial 

evidence establishing a reasonable and logical connection between McBride’s ingestion of 

fentanyl and the inability to form intent. Accordingly, he has not shown that he was entitled to a 

voluntary intoxication jury instruction, which is required to establish deficient performance. 

Thompson, 169 Wn. App. at 495.

Based on the above, McBride fails to show that his defense counsel was deficient for failing 

to request a voluntary intoxication jury instruction. Accordingly, his ineffective assistance of 

counsel claim fails. Grier, 171 Wn.2d at 33.

II. IMPOSITION OF VPA

McBride argues, and the State concedes, that the $500 VPA should be stricken under the 

recent statutory amendment. We agree.

Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on 

indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16, 

530 P.3d 1048 (2023). Although these amendments took effect after McBride’s sentencing, it 

applies to cases pending on appeal. Id.

RCW 10.01.160(3) states that a defendant is indigent if they meet the criteria in RCW 

10.101.010(3)(a) through (c). The trial court found that McBride was indigent as defined in RCW 

10.101.010(3)(a)-(c). Therefore, the $500 VPA must be stricken from McBride’s judgment and 

sentence. 
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CONCLUSION

Defense counsel did not render ineffective assistance of counsel when it did not request a 

voluntary intoxication jury instruction. Therefore, we affirm McBride’s arson in the second degree 

conviction. But we remand for the trial court to strike the $500 VPA from McBride’s judgment 

and sentence. 

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.

Veljacic, A.C.J.

We concur:

Glasgow, J.

Che, J.