IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

 Respondent and

 Cross Appellant,

v.

MICAL DARION ROBERTS,

 Appellant and

 Cross Respondent.

No. 84352-4-I

DIVISION ONE

PUBLISHED OPINION

HAZELRIGG, A.C.J. — Mical Roberts appeals his conviction on one count of 

murder in the first degree—felony murder—predicated on the underlying offense 

of burglary in the first degree as an accomplice. He raises numerous challenges 

to his conviction including claims of insufficient evidence, ineffective assistance of 

counsel, prosecutorial misconduct, and evidentiary error. The State cross appeals

only the sentence. Because Roberts fails to show any error or constitutional 

violation, we affirm. However, the court exceeded its statutory authority as to the 

term of incarceration it imposed and we remand for correction of Roberts’ judgment 

and sentence. Affirmed in part, reversed in part, and remanded.

FACTS

The State alleged that, on November 19, 2018, Mical Roberts committed or 

attempted to commit burglary in the first degree and, in the course of that crime, 

caused the death of Ricardo Villaseñor. Roberts waived his right to a jury and his 
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case proceeded to a bench trial at the conclusion of which he was convicted as 

charged.

Jennifer Bolanos was dating Villaseñor at the time of the incident and later

testified to her recollection of that night. After Bolanos got off work on November 

19, 2018, she picked up food around 7:00 p.m. and drove to Villaseñor’s house in 

White Center. Villaseñor and his roommate, Javier Zamora, lived in the downstairs 

portion of the house and Abraham Madrigal, his wife Ana Lugo Rivera, and their 

three children lived upstairs. Bolanos entered through the exterior basement door 

and Villaseñor was the only person in the house when she arrived. The two went 

into Villaseñor’s room, laid down on his bed, and talked about plans for 

Thanksgiving. Approximately 15 minutes later they heard a noise that sounded 

like “someone kicked in the front door” on the main floor, followed by “shuffling 

upstairs.” Bolanos explained that she “could hear someone going into the rooms 

and running into room to room” and that it sounded like they were looking for 

something. Bolanos thought there were at least two people upstairs because there 

was “a lot of shuffling and a lot of movement.” Less than a minute later, Bolanos 

heard someone kick the interior door at the top of the stairway that led to the 

basement and run down the stairs. 

Both Villaseñor and Bolanos, who were still in Villaseñor’s bedroom with the 

door closed, stood up and Villaseñor locked the door and “grabbed his gun” from 

a drawer in his nightstand. Then, someone kicked the outside of the bedroom door 

and began shooting into the room, at which point Villaseñor returned fire. The

exchange of gunfire lasted for about 10 seconds and involved “more than [10] to 
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20” gunshots. Villaseñor was shot and fell onto the bed and Bolanos “ran into the 

closet” and “started dialing 9-1-1.” Bolanos never heard anyone outside of the 

bedroom say anything and she did not see who was on the other side of the door. 

After the gunshots ended, Bolanos “heard them run upstairs,” briefly shuffle 

around, and “leave through the front door.” According to Bolanos, the entire 

sequence of events, from hearing the front door being kicked in upstairs to the 

intruders leaving the house, occurred within a span of two minutes.

Multiple deputies and detectives from the King County Sheriff’s Office 

(KCSO) who had responded to the shooting later testified to the circumstances 

they observed at the scene. The front door was open when law enforcement 

arrived and the door frames of both the front door and Villaseñor’s bedroom door 

were broken. The responding officers found Villaseñor laying on his bed; he had 

been shot five times and was unresponsive. Deputies and paramedics attempted 

to resuscitate him but were unsuccessful, and ultimately, Villaseñor was 

pronounced dead at the scene.

KCSO Detective James Belford testified that, when he entered the 

basement, he noted “there were [shell] casings[1] scattered throughout the 

common area outside the bedroom,” inside the bathroom across the hallway from 

the bedroom door, and also inside of the bedroom. There were bullet holes 

through the bedroom door and in the bedroom wall, and there were also bullet 

holes through the bathroom door and in the bathroom wall. A total of 23 shell 

 1 Belford explained that a “shell casing is the brass or metallic part of a bullet that is ejected 

after the bullet slug is fired through the weapon. The casing houses it, and that is usually what is 

ejected from the firearm.”
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casings were recovered; 7 “SIG Sauer, 9-millimeter Luger” casings were found in 

the bedroom and 16 casings from “different manufacturers” fired from what a 

forensic firearms analyst later described as a “9-millimeter Luger caliber firearm” 

were discovered in the area just outside the bedroom. Belford also found drops of 

blood on the concrete steps at the front door of the house and in the street, blood 

on the wall by the stairwell that connects the basement apartment with the upstairs

portion of the home, and blood on a “movie screen” in the common area 

downstairs. The blood on the wall looked like “transfer and smear” stains which,

Belford explained, indicated that someone had transferred the blood to the wall by 

touching or sliding against it. Belford collected samples of the different blood 

deposits and submitted them to the state crime laboratory for DNA testing.

Madrigal, Lugo Rivera, and their children arrived at the house and spoke 

with police shortly after 8:00 p.m. that night. Madrigal testified that the upstairs 

portion of the house was “trashed” and “turned upside down,” but at least initially, 

he did not notice that anything was missing. He told deputies that there was about 

$60,000 in cash in his kitchen and officers ultimately found $83,530 in the pantry. 

Madrigal later realized and reported that the gun case for his handgun was 

missing, as well as some extended magazines that he had for it.

KCSO Detective Benjamin Wheeler, the lead on this case, testified to his 

role in the investigation. Shortly after the homicide, a unit within the Tacoma Police 

Department (TPD) contacted Wheeler and explained that they had an open, 

ongoing investigation involving Villaseñor’s residence such that TPD had placed a 

camera facing the house prior to the shooting. TPD provided the video to Wheeler,
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who described the footage of the hours surrounding the incident as “fairly dark. 

You could make out some shapes. You could see the lights of vehicles moving 

around, but details were—difficult.” Wheeler was unable to see anything during 

the time of the homicide besides “some movement in a car that was in the 

driveway.”

On November 25, 2018, Wheeler received an anonymous tip that someone 

named Sebastian Beltran may have been involved in the shooting. Wheeler 

discovered that Beltran had been arrested days earlier on an unrelated offense 

and that his car, a blue 2002 BMW, had been impounded. Wheeler called the 

towing company, Lange’s Towing, and a staff member confirmed the BMW was on 

the premises. Wheeler was at Lange’s on November 27 when Beltran arrived at 

the tow yard in a Toyota Prius, along with his mother and a woman who was later 

determined to be the protected party in an active no-contact order prohibiting 

Beltran from contacting her. Beltran was arrested on suspicion of violating the nocontact order and the Prius was impounded. A search warrant was authorized for 

the Prius and law enforcement found a gun box and an extended magazine in the 

vehicle that matched those that Madrigal had reported stolen. On December 6, 

the BMW was searched subject to a separate warrant and detectives found shell 

casings and live rounds in the trunk, along with what appeared to be blood on the 

inside passenger compartment. Crime scene analysts examined the BMW and 

took samples of the blood found in the back seat, which was later determined to 

be a match to Roberts’ DNA. 
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On December 7, 2018, the blood samples from the scene of the shooting 

came back as a match to Roberts’ DNA profile as well. On December 28, 2018, 

the State charged Mical Roberts with one count of murder in the first degree—

felony murder—based on the predicate offense of burglary in the first degree, with 

a firearm enhancement. Wheeler contacted Roberts’ family members and known 

associates and monitored social media accounts in an effort to locate him. 

Additionally, the KCSO released information to the media and the case was 

profiled on Washington’s Most Wanted (WMW) with a picture of Roberts. 

In January 2019, Wheeler discovered a social media account with a picture 

of Roberts that contained a direct link to a different page containing the picture of 

Roberts that had been released by the KCSO. The linked page also contained a 

reference to the WMW report that stated Roberts was wanted for “home invasion 

murder.” The profile name on the social media account was “The Freshest” and 

included access to a music video in which Roberts raps about being seen on 

WMW, mentions the charge of “Murder 1,” which was the charge he faced at the 

time, and says, “Kick his door, stick em’ up. Now I got base rock, but two powder 

packs is really cut.” 

On March 1, 2019, Roberts was arrested outside of an apartment complex 

in Tacoma. Roberts’ left hand was visibly injured and he told Wheeler that he had 

been shot in the hand “a couple months” prior. Detectives searched the twobedroom apartment where Roberts resided incident to his arrest. In the closet of 

the room Roberts shared with his girlfriend, officers found a notebook with what 

appeared to be rap lyrics. Roberts’ bench trial began on October 11, 2021. At 
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trial, the court admitted three lines of lyrics from one page from the notebook 

retrieved from the bedroom closet as exhibit 168. The lyrics read: “Need to get in 

touch wit my Ese, I’ve been needin a lick.” Over defense objection, the trial court 

also allowed Wheeler to describe the meanings of certain words therein.2 During

cross-examination, defense counsel asked Wheeler if Beltran was “Hispanic” and 

if he was associated with a gang. Wheeler answered both questions in the 

affirmative. Defense counsel also asked whether Beltran “was known in the past 

for committing house robberies” and Wheeler said, “Yes.”

Roberts testified in his own defense and stated that, prior to the shooting, 

he had been to the house in White Center a “handful of times” to purchase heroin 

from Villaseñor. Roberts asserted that, on November 19, 2018, while under the 

influence of heroin, he returned to the house to buy heroin from Villaseñor and 

entered through the front door upstairs, which was “wide open.” Roberts “went 

straight downstairs” and saw a person who appeared to be “Hispanic” holding “a 

gun in his hand.” At that point, according to Roberts, the armed individual made 

eye contact with Roberts and “[i]mmediately” shot him in the left hand; Roberts 

“started stumbling around” and “ran out of the house.” As he was leaving, Roberts 

heard “a lot of gunshots [that] went off right in succession.” Roberts asserted that 

he became aware of the WMW story in December 2018 and made a rap about 

being featured in it, which he described as “mockery of an image that the media 

was portraying [him] to be.” He also confirmed that he wrote the rap lyrics in the 

notebook.

 2 This portion of the trial is detailed in Section III of the analysis, infra.
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At the conclusion of the trial, the judge found Roberts guilty as charged and 

entered written findings of fact and conclusions of law in support of the conviction. 

The judge specifically found Roberts’ testimony “not credible” and that Roberts 

entered the house intending to steal. The court concluded that Roberts committed 

burglary in the first degree with another individual and caused the death of 

Villaseñor in the course of that crime. While the court found that the State did not 

prove Roberts was the shooter or that he knew the other person was armed prior 

to the shooting, the court concluded that Roberts was guilty of murder in the first 

degree—felony murder—as an accomplice, and that the charged crime was 

predicated on burglary in the first degree.

On July 22, 2022, Roberts was sentenced. Based on defense mitigation 

reports, the trial court concluded that Roberts’ “relative youthfulness and 

developmental immaturity warrant[ed] an exceptional sentence.” The trial court 

imposed 384 months of confinement for the conviction of murder in the first degree

and 120 months of confinement for the mandatory firearm enhancement. 

Exercising its “discretion,” the trial court ordered the sentence on the firearm 

enhancement to run concurrently with the base sentence. 

Roberts timely appealed. The State timely cross appealed only as to the 

portion of the judgment and sentence that ordered concurrent time on the firearm 

enhancement.
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ANALYSIS

I. Sufficiency of the Evidence

Roberts avers there was insufficient evidence to support his conviction for 

felony murder in the first degree based on accomplice liability because there was 

insufficient evidence showing that another person was involved in the crime.3 He 

also assigns error to five findings of fact on that same basis.

When we consider a challenge to the sufficiency of the evidence, “we view 

the evidence in the light most favorable to the prosecution and ask whether any 

rational fact finder could have found the essential elements of the crime beyond a 

reasonable doubt.” State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003). “In 

claiming insufficient evidence, the defendant necessarily admits the truth of the 

State’s evidence and all reasonable inferences that can be drawn from it.” State 

v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010); see also State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992) (the evidence is “interpreted most strongly 

against the defendant”). This court defers to the finder of fact on issues of witness 

credibility, persuasiveness, and conflicting testimony. In re Pers. Restraint of 

Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). Circumstantial and direct 

 3 Roberts also contends the court erred when it found him guilty of murder in the first degree 

“because a preponderance of evidence established the statutory affirmative defense to felony 

murder.” Roberts did not raise this defense at trial.

To have this issue considered for the first time on appeal pursuant to RAP 2.5(a)(3), 

Roberts must show that it is a “‘manifest error affecting a constitutional right.’” State v. O’Hara, 167 

Wn.2d 91, 98, 217 P.3d 756 (2009) (quoting RAP 2.5(a)). This requires Roberts to show that both 

“(1) the error is manifest, and (2) the error is truly of constitutional dimension.” Id. “The defendant 

must identify a constitutional error and show how, in the context of the trial, the alleged error actually 

affected the defendant’s rights; it is this showing of actual prejudice that makes the error ‘manifest.’” 

State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Because Roberts does not 

address, let alone satisfy, RAP 2.5 in briefing and fails to even allege that this was a manifest 

constitutional error, we do not consider this assignment of error.
No. 84352-4-I/10

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evidence are equally reliable. State v. Lazcano, 188 Wn. App. 338, 363, 354 P.3d 

233 (2015).

The case law that addresses the scope of appellate review on a sufficiency 

challenge to a conviction after a bench trial is not a model of clarity. In Jackson v. 

Virginia, the petitioner raised a sufficiency challenge after being convicted of 

murder in the first degree following a bench trial. 443 U.S. 307, 99 S. Ct. 2781, 61 

L. Ed. 2d 560 (1979). The United States Supreme Court explained that “[o]nce a 

defendant has been found guilty of the crime charged, the factfinder’s role as 

weigher of the evidence is preserved through a legal conclusion that upon judicial 

review all of the evidence is to be considered in the light most favorable to the 

prosecution.” Id. at 319. In State v. Green, our state Supreme Court adopted the 

Jackson test, which “required it to determine whether, on the whole record, a 

rational trier of fact could have found guilt beyond a reasonable doubt.” Green, 94 

Wn.2d 216, 220-21 n.2, 616 P.2d 628 (1980) (emphasis added). The court “later 

applied that standard, unaltered, to the result of a bench trial in State v. Salinas, 

119 Wn.2d 192, 201-02, 829 P.2d 1068 (1992).” State v. I.J.S., No. 82559-3-I, slip 

op. at 5 (Wash. Ct. App. Mar 14, 2022) (unpublished), https://www.courts.wa.gov/

opinions/pdf/825593.pdf, review denied, 199 Wn.2d 1025 (2022).

4 

Roughly 34 years after Green, our Supreme Court issued its opinion in 

Homan and applied a different standard to review a sufficiency challenge to a 

 4 State v. I.J.S. is unpublished and cited pursuant to GR 14.1(c) as necessary for a wellreasoned opinion. We include I.J.S. in our analysis of this issue for its clear recitation of the 

historical development of Washington jurisprudence addressing challenges to the sufficiency of the 

evidence after bench trials and identification of the conflict with United States Supreme Court 

precedent.
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conviction by a judge after a bench trial. 181 Wn.2d 102, 105-06, 330 P.3d 182 

(2014). Specifically, the court said that,

following a bench trial, appellate review is limited to determining 

whether substantial evidence supports the findings of fact and, if so, 

whether the findings support the conclusions of law. State v. 

Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). 

“Substantial evidence” is evidence sufficient to persuade a fairminded person of the truth of the asserted premise. Id. We treat 

unchallenged findings of fact and findings of fact supported by 

substantial evidence as verities on appeal. Schmidt v. Cornerstone 

Invs., Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990). We review 

challenges to a trial court’s conclusions of law de novo. State v. 

Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

Id. However, the Homan court did not explain that it was overruling the precedent 

set out in Green or Salinas and “[i]t is a longstanding principle that when our 

Supreme Court has expressed a clear rule of law, it ‘will not overrule such binding 

precedent sub silentio.’” I.J.S., slip op. at 6 (quoting State v. Studd, 137 Wn.2d 

533, 548, 973 P.2d 1049 (1999)). Nonetheless, the Homan standard is 

“inconsistent with the standard set forth in Jackson in five ways.” State v. Stewart, 

12 Wn. App. 2d 236, 246, 457 P.3d 1213 (2020) (Dwyer, J., concurring).

First, Jackson did not distinguish between a conviction resulting from 

a trial by jury and a conviction resulting from a bench trial. There are 

not different standards. The same standard applies in all cases, as 

the “question whether a defendant has been convicted upon 

inadequate evidence is central to the basic question of guilt or 

innocence.” Jackson, 443 U.S. at 323. However, the Court in 

Jackson did, in fact, review a conviction resulting from a bench trial. 

443 U.S. at 309. Irrefutably, the standard set forth in Jackson is the 

correct standard for determining whether a conviction resulting from 

a bench trial is supported by a constitutionally sufficient quantum of 

evidence.

Second, the Homan court’s standard focuses review on the 

result reached by the specific trial judge in each case. 181 Wn.2d at 

105-06 (“appellate review is limited to determining whether 

substantial evidence supports the findings of fact”). This is wrong. 
No. 84352-4-I/12

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Jackson requires that a reviewing court determine whether “any

rational trier of fact” could have found the defendant guilty beyond a 

reasonable doubt. 443 U.S. at 319. The focus is not on one particular 

trial judge or one particular juror. To the contrary, it is an objective 

standard.

Third, the Homan standard limits review of the evidence in the 

record to evidence set forth in the trial judge’s factual findings. 181 

Wn.2d at 105-06 (“appellate review is limited to determining whether 

substantial evidence supports the findings of fact”). Again, this is 

wrong. The Jackson standard plainly requires a reviewing court to 

consider all of the evidence, not just the evidence credited by the trial 

judge in findings of fact. 443 U.S. at 319.

Fourth, the Homan standard views only the trial judge’s 

findings of fact in the light most favorable to the prosecution. See 181 

Wn.2d at 106 (“We treat unchallenged findings of fact and findings 

of fact supported by substantial evidence as verities on appeal.”). In 

contrast, the Jackson standard requires “that upon judicial review all 

of the evidence is to be considered in the light most favorable to the 

prosecution.” 443 U.S. at 319.

Fifth, the Homan standard requires only “substantial 

evidence” to support a trial judge’s findings of fact supporting a 

conviction. This is not the same standard as required by the United 

States Supreme Court. Jackson requires a reviewing court to 

determine that the record contains sufficient evidence to enable any 

rational trier of fact to find “the essential elements of the crime 

[proved] beyond a reasonable doubt.” 443 U.S. at 319.

In sum, Homan’s sufficiency of the evidence standard for 

reviewing convictions resulting from bench trials conflicts with the 

Jackson standard. It harms the prosecution by narrowing the inquiry 

on review to consider only a portion—rather than all—of the evidence 

adduced at trial and by relying solely on whether a specific fact 

finder—as opposed to any rational fact finder—could reasonably 

convict the defendant. Simultaneously, it harms defendants by 

supplanting the demanding beyond a reasonable doubt standard 

with the less stringent substantial evidence standard.

Stewart, 12 Wn. App. 2d at 246-48 (Dwyer, J. concurring) (alteration in original) 

(footnote omitted).
No. 84352-4-I/13

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Moreover, as this court recently explained, the Homan standard of review 

is problematic as it

penalizes criminal defendants who invoke their right to a jury trial 

while, at the same time, incentivizing the waiver of that right. This is 

so because an appellate challenge to the sufficiency of the evidence 

to support a conviction will be evaluated differently depending on 

whether the conviction was the result of a decision made by a jury or 

by a judge. If a jury returned a guilty verdict, all of the evidence 

admitted at trial will be considered on appeal to determine if sufficient 

evidence supports the conviction. However, if the conviction results 

from a trial judge’s finding of guilty, only the evidence described in 

the court’s findings of fact—and the “substantial evidence”

supporting those findings—can be considered. In other words, less 

than all of the evidence can be considered. Obviously, the standard 

of review mandating that less than all of the evidence be considered 

is more favorable to a defendant than is the standard of review 

mandating that all of the evidence be considered. In this way, 

defendants are punished for invoking their right to a jury trial.

I.J.S., slip op at 8. While the outcome in Roberts’ case is the same under either 

test, because our state Supreme Court has yet to clarify these conflicting 

standards, we apply both in the hopes of highlighting the need for resolution.

The trial court found Roberts guilty of murder in the first degree—felony 

murder—predicated on burglary in the first degree, as an accomplice. Roberts’

sufficiency challenge goes to the evidence showing that he was an accomplice; 

more specifically, he asserts that the evidence is insufficient to show that more 

than one person was involved in the predicate offense of burglary in the first 

degree.

In cases such as this, where the defendant is not found to be the principal

actor, the felony murder statute, RCW 9A.32.030, and the accomplice liability 

statute, RCW 9A.08.020, provide alternative bases on which a defendant may still 

be convicted of murder. Lazcano, 188 Wn. App. at 364. In relevant part, RCW 
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9A.32.030(1)(c) provides that an individual is guilty of murder in the first degree if 

they commit or attempt to commit burglary in the first degree “and in the course of 

or in furtherance of such crime or in immediate flight therefrom, [they], or another 

participant, causes the death of a person other than one of the participants.”

(Emphasis added.) Therefore, “though one participant in a predicate felony, alone, 

commits a homicide during the commission of, or flight from, such felony, the other 

participant in the predicate felony has, by definition, committed felony murder.” 

State v. Carter, 154 Wn.2d 71, 79, 109 P.3d 823 (2005). 

For purposes of the felony murder provision, “a ‘participant’ must either be 

a principal (i.e., one who actually participates directly in the commission of the 

crime) or an accomplice (i.e., one who meets the statutory definition of 

accomplice).” Id. Pursuant to RCW 9A.08.020(3)(a), a person is an accomplice 

of another in the commission of a crime if,

[w]ith knowledge that it will promote or facilitate the 

commission of the crime, [that person]:

(i) Solicits, commands, encourages, or requests such other 

person to commit it; or

(ii) Aids or agrees to aid such other person in planning or 

committing it.

An accomplice may be held liable for the criminal conduct of another person so 

long as the State proves the “substantive crime was committed and the accused 

acted with knowledge that [they were] aiding in the commission of the offense.” 

Carter, 154 Wn.2d at 77-78; Lazcano, 188 Wn. App. at 363.

Roberts argues there is insufficient evidence to prove that he was an 

accomplice because “the only evidence that more than one person participated in 

or aided the crime was from Ms. Bolanos” and her testimony “was not sufficient 
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evidence to prove beyond a reasonable doubt there was more than one person 

involved in the crime.” We disagree.

A. Jackson Standard

Under this test from the United States Supreme Court, we “review all of the 

evidence” in the light most favorable to the State to determine whether “any rational 

trier of fact could have found guilt beyond a reasonable doubt.” Jackson, 443 U.S. 

at 319; Salinas, 119 Wn.2d at 201. The standard is objective. Stewart, 12 Wn. 

App. 2d at 247 (Dwyer, J., concurring). Here, the record contains sufficient 

evidence to support Roberts’ conviction based on his participation in the burglary. 

First, Bolanos testified that she heard at least two people upstairs during 

the incident. Bolanos explained that it sounded like they were looking for 

something upstairs as there was “a lot of shuffling and a lot of movement.” Wheeler 

confirmed that Bolanos had reported “multiple people were entering the house and 

moving around upstairs,” and in her 911 call, she reported that “two men shot her 

boyfriend.” Moreover, Wheeler confirmed that Bolanos stated in her recorded 

police interview that she “was certain it was more than one based on what she 

heard.” Though Bolanos did not see the intruders and was unable to identify them, 

her testimony in this regard was not “unsupported.” See State v. Heutink, 12 Wn. 

App. 2d 336, 359, 458 P.3d 796 (2020) (circumstantial evidence as reliable as

direct evidence). Moreover, Bolanos testified that the entire incident, from the front 

door being kicked in to the downstairs shootout, occurred within roughly two 

minutes. While Roberts’ testified that he entered the house alone to purchase 

drugs and the front door was already wide open, the trial court found him not 
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credible and this court defers to the finder of fact on issues of witness credibility, 

persuasiveness, and conflicting testimony. Martinez, 171 Wn.2d at 364. 

Second, the DNA evidence also supports the finding that more than one 

person—one of whom was Roberts—was involved in the burglary. Not only did 

the blood samples taken from the scene of the shooting match his DNA, but 

Roberts’ blood was also discovered in the BMW that Beltran attempted to retrieve

from Lange’s Towing, and officers found Madrigal’s stolen gun case and extended 

magazine inside the Prius that Beltran was contacted in when he arrived at the tow 

lot. While Roberts testified that he did not “hang out . . . with Hispanic individuals,”

had never been inside of Beltran’s car, and did not know who Beltran was, the trial 

court did not find his testimony credible and we do not review such credibility 

determinations on appeal. Martinez, 171 Wn.2d at 364.

Viewing the evidence in the light most favorable to the State and drawing 

all reasonable inferences in its favor, a rational fact finder could have found that 

Roberts and another individual participated in the burglary. See Wentz, 149 Wn.2d 

at 347. Bolanos’ testimony that there were multiple individuals inside the house

and that the entire incident occurred in two minutes, along with the DNA evidence 

implicating Roberts and his concession that he was in the basement along with 

another person, leads to a reasonable inference that Roberts was involved in the 

burglary. See Salinas, 119 Wn.2d at 201 (“A claim of insufficiency admits the truth 

of the State’s evidence and all inferences that reasonably can be drawn 

therefrom.”). As such, applying the test established by the United States Supreme 

Court in Jackson, Roberts’ challenge to his felony murder conviction on the basis 
No. 84352-4-I/17

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that there was insufficient evidence supporting the finding that he participated in 

the underlying burglary fails.

B. Homan Standard

According to our state Supreme Court in Homan, the scope of our review is 

“limited to determining whether substantial evidence supports the findings of fact 

and, if so, whether the findings support the conclusions of law.” 181 Wn.2d at 105-

06. Substantial evidence exists if the evidence is “sufficient to persuade a fairminded person of the truth of the asserted premise.”5 Id. at 106. Findings that are 

supported by substantial evidence and those that are unchallenged are verities on 

appeal. Id.

Here, Roberts challenges the following findings of fact:

III. A short time after her arrival Ms. Bolanos heard someone break 

in the front door of the upstairs apartment, and heard what 

appeared from the sound to be more than one person running 

from room to room. She then heard the someone kick the door 

to the internal staircase, the door slammed, one or more people 

ran downstairs. She heard kicking at the door to Mr. Villaseñor’s 

bedroom.

IV. Mr. Villaseñor grabbed a pistol, locked the bedroom door, 

another kick to the door, there was an exchange of gunfire, Mr. 

Villaseñor fell on the bed shot, Ms. Bolanos hid in the bedroom 

closet and called 911, remaining there until the police arrived 

when she exited the apartment. Ms. Bolanos had heard at least 

two people who had broken in.

. . . 

XIV. Detective Wheeler discovered that the residence where the 

shooting occurred had been the subject of an investigation by 

the Tacoma Police Department, who had posted a video 

 5 The plain language of this standard alone, as articulated in Homan, highlights the inherent 

conflict with the well-established proof beyond a reasonable doubt standard applied to criminal 

convictions pursuant to RCW 9A.04.100.
No. 84352-4-I/18

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camera outside. Det[ective] Wheeler observed the video taken 

that night which was of poor quality. The video itself was not 

offered into evidence, but Wheeler testified that he was able to 

observe two people leaving the area immediately after the 

shooting.

. . . 

XIX. Mr. Roberts testified that he came to the residence on 1st 

Avenue SW in order to buy heroin from Mr. Villaseñor. He 

noticed the upstairs front door open which was unusual since 

he previously used the outside stairs. He walked down the stairs 

noting that it was eerily quiet. He did not hear shuffling, 

slamming, kicking, running nor did he see anyone upstairs. He 

called out “Ricky” and descended the staircase. As he turned 

into the living area he saw a Hispanic person standing by the 

door holding what appeared to be a gun. He testified that he 

raised his hands, heard a loud noise that he assumed was a 

gunshot, he realized he had been shot, he stumbled around the

apartment for moment, then fled up the stairs and out. As he 

was fleeing he heard many gunshots. He left the apartment, ran 

into a trash can, recovered and left on foot. He knew he had a 

warrant for his arrest on an unrelated matter and he chose to 

avoid being arrested on that warrant. He ran to a location away 

from the apartment, called for a ride and was picked up. At 

some point he discovered that there was publicity naming him 

a suspect in the murder of Mr. Villaseñor. He composed a rap 

song which he posted on social media stating that door was 

kicked in and stick him up. He testified that the video was 

mockery, a satire of what the police and media said happened. 

He testified that he does not know that “stick him up” means 

armed assault. This evidence was not credible.

XX. The evidence of the defendant’s blood in the apartment and 

defendant’s blood in a car associated with Beltran, and the fact 

that a car associated with Beltran contained the fruits of the 

burglary establish that Mr. Roberts was one of at least two 

people who entered the building on 1st Avenue SW by kicking 

in the upstairs front door, kicking at the door in which Mr. 

Villaseñor was present. Viewing the blood on the screen and by 

the light switch, ex. 49-51, the court is not persuaded that the 

blood in the car was transferred by someone other than Mr. 

Roberts having picked it up by inadvertently touching Mr. 

Roberts’ blood on the screen or the wall by the light switch in 

the deceased’s living room. While one could argue that another 

person brushed against the smear on the screen and wall which 
No. 84352-4-I/19

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resulted in the appearance of the blood in the photographs and 

then deposited it on the rear seat area of the car, the court does 

not find that to be p[e]rsuasive. Mr. Roberts entered the building 

intending to steal. He or another fired through the bedroom 

door, killing Mr. Villaseñor. Whether or not this was a drug 

house doesn’t change these facts that I find are true beyond a 

reasonable doubt. He is thus guilty of felony murder.

Regarding findings of fact III and IV, Bolanos’ testimony directly supports 

them and constitutes substantial evidence that more than one person burglarized 

the home. Finding XIX accurately describes Roberts’ testimony and we do not 

review credibility determinations on appeal. Martinez, 171 Wn.2d at 364. Further, 

the court’s finding XX, that “Roberts entered the building intending to steal” and 

“[h]e or another fired through the bedroom door, killing Mr. Villaseñor,” is also 

supported by substantial evidence and is a reasonable inference based on the 

evidence the trial court referenced in that finding. Thus, findings of fact III, IV, XIX, 

and XX are all verities.

Roberts is correct that finding XIV is partially unsupported by the record. 

Specifically, the portion of the finding that indicates Wheeler watched the video 

footage and “was able to observe two people leaving the area immediately after 

the shooting.” This is expressly contradicted by Wheeler’s testimony at trial 

wherein he stated that he could not see any people in the video footage during the 

relevant time. Accordingly, this last clause of the final sentence in the finding is 

not supported by substantial evidence. When a “trial court relies on erroneous or 

unsupported findings of fact, immaterial findings that do not affect its conclusions 

of law are not prejudicial and do not warrant reversal.” Coleman, 6 Wn. App. 2d 

at 516. Considering the supported and unchallenged findings, this erroneous part 
No. 84352-4-I/20

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of the court’s finding is immaterial. Excluding the erroneous characterization of 

Wheeler’s testimony, substantial evidence still supports the finding that Roberts 

and another person participated in the burglary, and thus, the unsupported finding 

does not affect the conclusion of law that Roberts is guilty of murder in the first 

degree based on the predicate offense of burglary as an accomplice. As the 

findings of fact support the trial court’s conclusion that Roberts committed murder 

in the first degree based on the predicate offense of burglary in the first degree, 

the evidence is sufficient to support his conviction under the Homan standard. See 

Stewart, 12 Wn. App. 2d at 243. 

II. Ineffective Assistance of Counsel 

Roberts contends he was denied his right to effective assistance of counsel 

because “his attorney did not argue [a particular statutory] affirmative defense or 

request the court to consider it.”

“The Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution guarantee the right to effective 

assistance of counsel.” State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). 

“To establish ineffective assistance of counsel the defendant must establish that 

his attorney’s performance was deficient and the deficiency prejudiced the 

defendant.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Specifically, 

the defendant must satisfy the two-step test from Strickland v. Washington, which 

requires the following:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious 

that counsel was not functioning as the “counsel” guaranteed the 
No. 84352-4-I/21

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defendant by the Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced the defense. This 

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. 

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If either step is not 

met, we need not continue. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 

563 (1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. 

Ct. 649, 166 L. Ed. 2d 482 (2006).

It is the defendant’s burden to establish deficient performance. Grier, 171 

Wn.2d at 33. To do so, “the defendant must show that counsel’s representation 

fell below an objective standard of reasonableness” in light of “all the 

circumstances.” Strickland, 466 U.S. at 688. “Judicial scrutiny of counsel’s 

performance must be highly deferential” and “[t]here is a strong presumption that 

counsel’s performance was reasonable.” Id. at 689; Kyllo, 166 Wn.2d at 862. 

Counsel is not deficient when their challenged conduct can be characterized as 

legitimate trial strategy. Kyllo, 166 Wn.2d at 863. To establish the prejudice prong, 

the defendant must “prove that there is a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the proceedings would have been 

different.” Id. at 862. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

As to the first step of the inquiry, Roberts argues that defense counsel 

performed deficiently by failing to argue or otherwise raise an affirmative statutory 

defense to felony murder. “The Sixth Amendment right to control one’s defense 

encompasses the decision to present an affirmative defense.” State v. Coristine, 

177 Wn.2d 370, 376, 300 P.3d 400 (2013). However, “an attorney’s failure to 
No. 84352-4-I/22

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recognize and raise an affirmative defense can fall below the constitutional 

minimum for effective representation.” Id. at 379. Because “legitimate trial 

strategy cannot serve as the basis for a claim of ineffective assistance of counsel,”

Roberts “must show in the record the absence of legitimate strategic or tactical 

reasons supporting the challenged conduct by counsel.” In re Pers. Restraint 

Hubert, 138 Wn. App. 924, 928, 158 P.3d 1282 (2007); McFarland, 127 Wn.2d at 

336. 

According to Roberts, his trial counsel’s failure to raise the affirmative 

defense was neither legitimate nor reasonable strategy because the affirmative 

defense was established by a preponderance of the evidence6 and the “court 

would have been required to apply it if counsel requested it.” RCW 

9A.32.030(1)(c), in relevant part, provides as follows:

[I]n any prosecution under this subdivision (1)(c) in which the 

defendant was not the only participant in the underlying crime, if 

established by the defendant by a preponderance of the evidence, it 

is a defense that the defendant:

(i) Did not commit the homicidal act or in any way solicit, 

request, command, importune, cause, or aid the commission thereof; 

and

(ii) Was not armed with a deadly weapon, or any instrument, 

article, or substance readily capable of causing death or serious 

physical injury; and

(iii) Had no reasonable grounds to believe that any other 

participant was armed with such a weapon, instrument, article, or 

substance; and

(iv) Had no reasonable grounds to believe that any other 

participant intended to engage in conduct likely to result in death or 

serious physical injury.

 6 “Preponderance of the evidence means that considering all the evidence, the proposition 

asserted must be more probably true than not true.” State v. Ginn, 128 Wn. App. 872, 878, 117 

P.3d 1155 (2005).
No. 84352-4-I/23

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Roberts’ argument fails for multiple reasons. First, had Roberts’ attorney 

raised this affirmative defense, Roberts would have assumed the burden to 

introduce evidence sufficient to prove the four statutory elements and establish 

that he “was not the only participant in the underlying crime.” RCW 

9A.32.030(1)(c); see also Coristine, 177 Wn.2d at 378 (“This process may 

influence a wide range of strategic trial decisions, such as who is called to testify, 

the questions asked on direct and cross-examination, and what arguments are 

made in summation.”). At trial, in the absence of the affirmative defense, the State 

alone carried the burden of proof. The defense theory was that Roberts was not 

involved in the underlying burglary and he testified accordingly. He asserted that 

he entered the house by himself to purchase heroin from Villaseñor and was shot 

by a man he did not recognize when he walked downstairs. In this procedural 

posture, Roberts only needed to demonstrate that the State’s evidence was not 

sufficient to prove the elements of the charged crime beyond a reasonable doubt.

Second, and more critically, the evidence presented at trial did not establish 

the elements of this affirmative defense by a preponderance. This court views the 

evidence in the light most favorable to the State and asks whether a rational trier 

of fact could have found that Roberts failed to prove the affirmative defense by a 

preponderance of the evidence. State v. Lively, 130 Wn.2d 1, 17, 921 P.2d 1035

(1996). Roberts insists that the evidence proved, and the court found, that he was 

“not the shooter.” He mischaracterizes the judge’s findings. The trial court did not

affirmatively find that Roberts was not the shooter, rather, it found that the State 

“ha[d] not proved beyond a reasonable doubt” that he was the one who actually 
No. 84352-4-I/24

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shot Villaseñor. Specifically, the court found that either “[Roberts] or another fired 

through the bedroom door, killing Mr. Villaseñor.” Contrary to Roberts’ contention, 

the evidence does not establish that it was more likely than not that Roberts “[d]id 

not commit the homicidal act or in any way solicit, request, command, importune, 

cause, or aid the commission thereof.” RCW 9A.32.030(1)(c)(i). While Roberts 

offered testimony that supported this element of the defense, the trial court found 

that his testimonial evidence was not credible, and thus, it carries no weight on 

review.7 See Martinez, 171 Wn.2d at 364. Because a rational trier of fact could 

have found that Roberts failed to prove that it was more likely than not that he was 

not the one who shot Villaseñor and did not “solicit, request, command, importune, 

cause, or aid the commission” of the shooting, his claim fails. As the evidence 

does not support this element of the affirmative defense, Roberts’ counsel did not 

perform deficiently by choosing not to raise it on this trial record, and thus, Roberts 

has failed to establish deficient performance. Accordingly, we need not reach the 

prejudice prong under Strickland. See Coristine, 177 Wn.2d at 379-80; 

Hendrickson, 129 Wn.2d at 78.

III. Testimony about Music Video and Rap Lyrics

Roberts contends the trial court erred when it admitted Wheeler’s testimony 

concerning the meaning of Roberts’ rap lyrics and he specifically challenges 

Wheeler’s testimony on the grounds that it was an “intentional appeal to racial 

bias.” His arguments are specious. 

 7 Roberts also appears to assign error to the trial court’s finding that his testimony was not 

credible. Again, this is not a finding subject to our review. Martinez, 171 Wn.2d at 364. 
No. 84352-4-I/25

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“Trial courts determine whether evidence is relevant and admissible, and 

appellate courts review the trial court’s rulings for abuse of discretion.” State v. 

Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022). “Discretion is abused when 

the trial court’s decision is manifestly unreasonable, or is exercised on untenable 

grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 

P.2d 1017 (1993).8 “The party challenging an evidentiary ruling bears the burden 

of proving the trial court abused its discretion.” State v. Briejer, 172 Wn. App. 209, 

223, 289 P.3d 698 (2012).

“Relevant evidence” is defined as “evidence having any tendency to make 

the existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence.” ER 401. 

“Even minimally relevant evidence is admissible.” State v. Darden, 145 Wn.2d 

612, 621, 41 P.3d 1189 (2002); ER 402. However, relevant “evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice.” ER 403. 

Under ER 702, the trial court may allow an expert witness to testify in the 

form of an opinion concerning “scientific, technical, or other specialized 

knowledge” if it “will assist the trier of fact to understand the evidence.” Expert 

testimony is admissible if the witness is qualified as an expert and the testimony is 

helpful to the finder of fact. State v. Morales, 196 Wn. App. 106, 122, 383 P.3d 

 8 “A decision is based ‘on untenable grounds’ or made ‘for untenable reasons’ if it rests on 

facts unsupported in the record or was reached by applying the wrong legal standard.” State v. 

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 

793, 905 P.2d 922 (1995)). “A decision is ‘manifestly unreasonable’ if the court, despite applying 

the correct legal standard to the supported facts, adopts a view ‘that no reasonable person would 

take.’” Id. (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).
No. 84352-4-I/26

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539 (2016). Such testimony is helpful to the fact finder “‘if it concerns matters 

beyond the common knowledge of the average layperson and is not misleading.’” 

Id. at 122-23 (quoting State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011)). 

According to Roberts, Wheeler’s testimony interpreting certain words from 

Roberts’ written rap lyrics and music video, which described his participation in a

crime similar to the one charged, “lacked a foundation and was irrelevant and 

highly prejudicial.”

A. Roberts’ Music Video

After KCSO released information to the media, Roberts was profiled on 

WMW with his picture and a brief description of the case. Shortly after the details 

were released to the public, Wheeler discovered a social media account with a 

page containing the picture of Roberts from WMW and a reference to the report 

that stated Roberts was wanted for “home invasion murder.” The social media 

page included access to a music video in which Roberts raps about the WMW 

story, the charge of “Murder 1” and says, “Kick his door, stick em’ up. Now I got 

base rock, but two powder packs is really cut.”

On direct examination, the State asked Wheeler what stood out to him in 

those lyrics from the music video and the court separately inquired into the 

meaning of “base rock.” The following exchanges occurred:

[DEFENSE]: Your Honor, unless this witness is qualified as 

an expert, I don’t think that he should be interpreting what rap music 

means.

THE COURT: Well, it certainly doesn’t take expertise to talk 

about the relevance of “kick his door” or “stick ‘em up.” Since I don’t 

know what “base rock” is, I guess I need some help.
No. 84352-4-I/27

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[DEFENSE]: That means—

[STATE]: I can—I can break this down a little bit more.

[STATE]: What—you said those three lines. I’m going to ask you 

about them separately. 

“Kick his door,” “stick ‘em up,” why did that stand out to you 

as you listened and watched this video?

[WHEELER]: It seemed obvious to me that it sounds like a robbery.

[STATE]: Okay. And in your experience as a detective, did you ever 

do—or have you ever investigated drug crimes?

[WHEELER]: Yes.

[STATE]: Have you, in the course of those cases or your years on 

the police force, heard the term “base rock”?

[WHEELER]: Yes.

[STATE]: What, in your experience, does “base rock” mean?

[WHEELER]: Crack cocaine.

[STATE]: So “kick his door,” “stick ‘em up,” “now I got base rock,”

what does that mean to you as you were listening and watching that 

video?

[WHEELER]: It meant to me that he is describing robbing a drug 

dealer.

The music video, exhibit 162, was published and the trial court turned to 

defense counsel to address his objection:

[DEFENSE]: Well, Your Honor, I’m not sure—the only way it’s 

relevant is based on the detective’s interpretation of what this means.

There’s also [ER] 403 information in here, basically, or [ER]

404(b) the way there is reference to women and other things.

I think it is more prejudicial than probative, but I think that’s up 

to the trier of fact, actually. So I’ll leave that to you.
No. 84352-4-I/28

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The trial court sustained the objection “with respect to the misogyny” in the music 

video. The prosecutor then clarified that she was only seeking to admit limited 

parts of the video:

[T]he information in here that I would seek to admit ha[s] to do with 

his reference to Washington’s Most Wanted, being charged with 

[“]Murder 1,[”] and then the lines—sort of the last lines of it, “kick his 

door,” “stick ‘em up,” “now I’ve got base rock.”

The rest of this stuff I’m not going to argue and the [c]ourt 

should not consider.

Here, Wheeler’s testimony as to the meaning of “kick his door,” “stick ‘em 

up,” and “base rock” was relevant under ER 401 as Roberts’ lyrics seemed to 

describe the alleged crime and appeared to be an admission of his participation. 

Darden, 145 Wn.2d at 621 (the bar for relevance is low). As the testimony shows, 

the court was only unfamiliar with the term “base rock,” which was a matter beyond 

the common knowledge of a layperson. Because Wheeler understood the term 

based on his experience investigating drug crimes and his testimony was both 

helpful to the finder of fact and not misleading, the trial court did not abuse its 

discretion when it admitted the testimony. See Morales, 196 Wn. App. at 122; 

State v. Rodriguez, 163 Wn. App. 215, 232, 259 P.3d 1145 (2011) (“Practical 

experience is sufficient to qualify a witness as an expert and the practical 

knowledge need not be acquired through personal experience.”)

B. Roberts’ Lyrics in the Notebook

One of the pages in the notebook found in the apartment search subsequent 

to Roberts’ arrest included his mother’s name, Brenda Roberts, and Wheeler 

confirmed that, on that particular page, something stood out to him as it related to 
No. 84352-4-I/29

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the crime. The State offered three lines of that page, exhibit 168, and asked the 

court “not to consider the rest of 168.” Defense counsel did not object and the trial 

court admitted the three lines. The first line of the lyrics read, “Need to get in touch 

wit my Ese, I’ve been needin a lick.” The following exchange occurred:

[STATE]: Now, in—how long have you been in major crimes?

[WHEELER]: Three and a half years.

[STATE]: And what other units did you go through before major 

crimes?

[WHEELER]: Narcotics, property crimes, domestic violence, and the 

gang unit.

[STATE]: And how long were you in the gang unit?

[WHEELER]: Five years.

[STATE]: And how long in narcotics?

[WHEELER]: Two years.

[STATE]: How many?

[WHEELER]: Two.

[STATE]: Okay. Now, in your experience as a detective, did you 

interview people who sort of were involved in street-level crimes?

[WHEELER]: Routinely.

[STATE]: And in the course of investigating cases or speaking with 

people, have you heard the term “ese”?

[WHEELER]: Countless times.

[STATE]: And in your experience, what does “ese” mean?

[WHEELER]: “ese” is Spanish slang roughly equivalent of saying 

“dude” or referring to a man. It’s very heavily used in Hispanic gang 

speech.
No. 84352-4-I/30

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[STATE]: And in your experience as a detective in patrol and in the 

various units and speaking with people, have you heard the phrase 

“lick”?

[WHEELER]: Many times.

[STATE]: And in your experience, what does it mean when someone 

says “a lick”?

Before Wheeler responded, defense counsel objected and stated “there has to be 

foundation for all of this.” Defense counsel contended that “this witness’s 

interpretation of what a word means, there has to be some basis for that other than 

just it’s interacting with street people.” The trial court overruled the objection and 

stated that “there is enough that he can testify to what he understands ‘ese’ and 

‘lick’ means on the street.” The prosecutor then asked Wheeler, “So in your 

experience, what does ‘needing a lick’ mean[]?” Wheeler responded, “Sometimes 

it means theft in general, but it typically means robbery.”

Roberts now challenges Wheeler’s testimony concerning the notebook 

lyrics on the basis that it “interjected irrelevant and inflammatory gang connotations 

into the trial.” According to Roberts, “Wheeler’s gang expertise was not tethered 

to any evidence in the case” and his opinion as to the meaning of the words “ese”

and “lick” was irrelevant and inherently prejudicial. 

As a preliminary matter, the State points out in briefing that it was Roberts 

who interjected the issue of gangs into this trial during his opening statement. As 

he laid out Roberts’ theory of the case, defense counsel said: 

I asked the detectives in all . . . interviews whether they had any 

information that Hispanic criminal gangs included [B]lack African 

American people, and they all said, no, absolutely not.
No. 84352-4-I/31

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Mr. Roberts did not know Mr. Beltran, who is Hispanic. Mr. 

Roberts did not know [Villaseñor] except for the fact that he was a 

drug dealer.

And so there is evidence in this case that the Mexican 

nationals in the case were members of the [Sureños][9] gang.

During cross-examination of Wheeler, defense counsel asked specifically whether 

Beltran was initially a suspect in this case, Hispanic, and associated with a gang; 

Wheeler responded in the affirmative to all three questions. In closing argument, 

defense counsel leaned into this theory:

It’s been stated during this trial that Mr. Beltran, who is 

Hispanic, was a known cartel gang member.

. . .

[T]he evidence does not show that Mr. Roberts was an accomplice 

of anybody. And I think the evidence, if looked at carefully, will 

indicate there was one bad guy down there. 

And Detective Wheeler said, to his credit, as did I believe the 

Tacoma detective, that Mr. Beltran was and is still a suspect in this. 

It was either Detective Wheeler or the Tacoma detective that said, 

African-American individuals—[B]lack individuals do not hang out 

with Mexican gang members.

More critically, the trial court did not abuse its discretion when it found the 

meanings of the terms “ese” and “lick” were relevant to this case; Roberts used 

those words in writing about what appeared to be a description of the offense at 

issue. Moreover, Wheeler established a sufficient foundation in order to offer 

testimony about his understanding of the meaning of those words based on 

multiple years of experience in narcotics and gang units in which he has heard the 

term “ese” countless times and the term “lick” many times. Rodriguez, 163 Wn. 

App. at 232.10

 9 The name of this gang is misspelled in the transcript as “Serranos.”

10 Because Roberts only objected on the basis of foundation and relevance at trial and he 

does not address RAP 2.5 in order to challenge Wheeler’s testimony as to the meaning of “ese”

and “lick” under the separate basis of unfair prejudice, we do not consider his argument, raised for 
No. 84352-4-I/32

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C. Race-Based Prosecutorial Misconduct

Roberts also challenges Wheeler’s testimony on the ground that the 

prosecution presented it as an “intentional appeal to racial bias.” He dedicates a 

significant portion of briefing to his contention that the prosecutor committed racebased misconduct that deprived him of a fair trial. The argument is without merit.

“A prosecutor gravely violates a defendant’s Washington State Constitution 

article I, section 22 right to an impartial jury when the prosecutor resorts to racist 

argument and appeals to racial stereotypes or racial bias to achieve convictions.” 

State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011). “[T]o prevail on a 

claim of race-based prosecutorial misconduct, the defendant must demonstrate 

that the prosecutor’s conduct was both improper and prejudicial by showing that 

they flagrantly or apparently intentionally appealed to racial bias in a manner that 

undermined the defendant’s credibility or the presumption of innocence.” State v. 

Bagby, 200 Wn.2d 777, 790, 522 P.3d 982 (2023). “If the prosecutor’s conduct 

flagrantly or apparently intentionally appealed to racial or ethnic bias, then reversal 

is required.” State v. Zamora, 199 Wn.2d 698, 715, 512 P.3d 512 (2022). 

When analyzing claims of prosecutorial misconduct involving racial bias, 

this court applies the objective observer standard. Bagby, 200 Wn.2d at 792. 

Thus, in assessing whether the prosecutor flagrantly or apparently intentionally 

appealed to racial bias, this court asks “whether an objective observer could view 

 the first time on appeal, that Wheeler’s testimony was also unfairly prejudicial. State v. Henson, 

11 Wn. App. 2d 97, 102, 451 P.3d 1127 (2019) (Unless an appellant establishes a claim of manifest 

constitutional error pursuant to RAP 2.5(a)(3), they “may only assign error in the appellate court on 

the specific ground of the evidentiary objection made at trial.”).
No. 84352-4-I/33

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the prosecutor’s questions and comments as an appeal to jurors’ potential 

prejudice, bias, or stereotypes in a manner that undermined the defendant’s 

credibility or the presumption of innocence.” Id. at 793 (footnote omitted). An 

“objective observer” is defined as an “individual who is aware of the history of race 

and ethnic discrimination in the United States and that implicit, institutional, and 

unconscious biases, in addition to purposeful discrimination, have influenced jury 

verdicts in Washington State.” Id. at 793 n.7. 

“We assess the conduct within the context of trial.” Zamora, 199 Wn.2d at 

718. When examining the prosecutor’s conduct, “we consider (1) the content and 

subject of the questions and comments, (2) the frequency of the remarks, (3) the 

apparent purpose of the statements, and (4) whether the comments were based 

on evidence or reasonable inferences in the record.” Bagby, 200 Wn.2d at 794. 

Regarding the first factor, the prosecutor asked Wheeler what the meaning 

of the words “ese” and “lick” meant based on his experience. Wheeler responded 

that “‘ese’ is Spanish slang roughly equivalent of saying ‘dude’ or referring to a 

man. It’s very heavily used in Hispanic gang speech.” The prosecutor then asked 

Wheeler, “So in your experience, what does ‘needing a lick’ mean[]?” Wheeler 

responded, “Sometimes it means theft in general, but it typically means robbery.” 

Second, Wheeler’s reference to “Hispanic gang speech” was used once and the 

prosecutor did not repeat it. However, the issue of race and racial stereotypes was 

frequently highlighted by the defense. Again, in opening statement, crossexamination of Wheeler, and closing argument, defense counsel emphasized that 

Roberts was Black and that Beltran was Hispanic and a member of a gang. Third, 
No. 84352-4-I/34

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the prosecutor’s apparent purpose for eliciting the testimony was to show that 

Roberts was describing the circumstances of the burglary in his music video and 

rap lyrics. The lyrics seemed to contradict the defense theory and they described 

the alleged crime in a way that fit the State’s presentation of the case. Fourth, the 

prosecutor’s questions and Wheeler’s responses were based entirely on the 

evidence presented at trial. The trial court admitted the music video and written 

lyrics, and as discussed, did not abuse its discretion in doing so. Overall, these 

factors all weigh against Roberts’ claim of race-based prosecutorial misconduct. 

As no objective observer could view the prosecutor’s questions and comments, 

within the context of the trial as a whole, as an appeal to the judge’s potential 

prejudice, bias, or stereotypes, the prosecutor did not commit race-based 

misconduct.

IV. Demonstrative Exhibit and Accompanying Testimony 

Roberts assigns error to the admission of Wheeler’s testimony regarding 

demonstrative evidence of the shooting and his opinion on the location of the 

person who shot Villaseñor.

“The use of demonstrative evidence is encouraged when it accurately 

illustrates facts sought to be proved.” State v. Finch, 137 Wn.2d 792, 816, 975 

P.2d 967 (1999). “Demonstrative evidence may be admissible if the experiment 

was conducted under conditions reasonably similar to conditions existing at the 

actual event.” State v. Stockmyer, 83 Wn. App. 77, 83, 920 P.2d 1201 (1996). “If 

the similarity is sufficient to justify admission, any lack of similarity goes to the 

weight of the evidence.” Finch, 137 Wn.2d at 816. Demonstrative evidence “need 
No. 84352-4-I/35

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not exactly portray the event in question,” rather, the test is “‘whether it tends to 

enlighten the [trier of fact] and to enable them more intelligently to consider the 

issues presented.’” Id. (internal quotation marks omitted) (quoting Jenkins v. 

Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 107, 713 P.2d 79 (1986)). 

The trial court’s ruling is reviewed for an abuse of discretion. Id. “A trial court 

abuses its discretion when its decision is manifestly unreasonable or exercised on 

untenable grounds or for untenable reasons.” State v. Lord, 161 Wn.2d 276, 283-

84, 165 P.3d 1251 (2007).

On direct examination by the State, Wheeler explained that, in February 

2020, he returned to the location of the shooting “to have another look at the 

basement of the house” and test the theory that “a third person could be between 

two people having this gunfight.” Wheeler stated that he went with KCSO Deputy 

Scott Tompkins who is “six[ foot ]five” and roughly the same size as Roberts. 

Wheeler was aware of Roberts’ physical size through information from the state 

Department of Licensing and other sources, which varied somewhat but ultimately 

established that Roberts was “consistently six[ foot ]four, high 200s, 280 to 300 

pounds.” Defense counsel objected and the following exchange occurred:

[DEFENSE]: Your Honor, I don’t know if this is the appropriate 

time, but I’m going to object to any reenactment until there is a 

foundation that this witness knew where a shooter was standing,

knew the size of the shooter. There is—it’s almost—

THE COURT: Well, it’s not the size—

[DEFENSE]: It’s almost worth a Frye[11] test. I don’t know that 

this experiment is relevant. 

 11 Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (1923).
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THE COURT: I think it’s relevant to, I guess, the size of the 

hallway outside the door for which the gunfight was. 

[DEFENSE]: Actually, it’s apparent that there was a shooter 

in the bathroom. 

THE COURT: Well, I don’t know what he’s going to say, but I 

have an interesting (unintelligible), so I’m going to overrule the 

objection.

Wheeler went on to explain that they brought a KCSO photographer, a 

“rubber dummy gun,” and “[w]ith a black Sharpie, [Wheeler] drew on Deputy 

Tompkins’ hand the entry and exit wound” based on Roberts’ injury, which Wheeler 

had photographed. Wheeler asserted that he had Tompkins stand in a variety of 

places, “starting in the threshold of the victim’s bedroom doorway” and “mov[ing] 

backwards step by step until he was in the bathroom.” The State offered the 

photographs as exhibits 169 through 182, defense objected “for the same reasons 

that [he] articulated previously,” but the trial court overruled the objection and 

admitted the exhibits. Wheeler then described the exhibits and the different angles 

and positions depicted in the photographs. He noted, “A variety of positions were 

attempted, and I think we were doing just about anything that seemed reasonable.” 

At no point during his direct examination by the State did Wheeler either offer an 

opinion as to the location of the shooter or draw a conclusion based on the 

demonstrative evidence.

On cross-examination, defense counsel asked, “[D]o you know if the 

shooter was standing in the bathroom at one point and the shell casings hit the 

wall or the bathtub?” Wheeler answered, “It suggests that, yes.” Defense counsel 

then elected to read portions of Wheeler’s report: 
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[DEFENSE]: Okay. And I’m reading from your report, [“]considering 

the location of the shell casings and bullet strikes, we concluded that 

the suspect shooter had fired from both the area of the bedroom 

doorway and from just inside the bathroom across the hall.[”] 

That’s you, right? That’s what you wrote.

[WHEELER]: I don’t know if I wrote that or not. I don’t have my report.

[DEFENSE]: [“]It seemed extremely unlikely or impossible that a first

suspect in the hallway or bathroom and Villase[ñ]or could have 

exchanged gunfire with a second suspect in between without the 

second suspect being struck several times.[”]

Does that sound familiar?

[WHEELER]: I would agree with that, yes.

In briefing, Roberts cites multiple cases addressing the Frye standard for 

admissibility of expert testimony. “The Frye test is implicated only where the 

opinion offered is based upon novel science.” Anderson v. Akzo Nobel Coatings, 

Inc., 172 Wn.2d 593, 611, 260 P.3d 857 (2011). Because none of Wheeler’s 

challenged testimony was based on novel science, Frye is wholly inapposite here. 

Further, while Frye was briefly mentioned in the context of the defense objection, 

Roberts did not seek a hearing under Frye and the issue is not preserved for 

appeal. See In re Det. of Taylor, 132 Wn. App. 827, 836, 134 P.3d 254 (2006)

(“When a party fails to raise a Frye argument below, a reviewing court need not 

consider it on appeal.”). 

The trial court ruled that Wheeler’s testimony was relevant to “the size of 

the hallway outside the door for which the gunfight was.” Evidence is relevant if it 

has “any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable.” ER 401. “Even 

minimally relevant evidence is admissible.” Darden, 145 Wn.2d at 621. Moreover, 
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demonstrative evidence need not replicate the event perfectly; it only needs to be 

similar enough to “‘enlighten the [trier of fact] and enable them more intelligently to 

consider the issues presented.’” Finch, 137 Wn.2d at 816 (internal quotation 

marks omitted) (quoting Jenkins, 105 Wn.2d at 107). Here, it provided evidence 

to the finder of fact that showed the size of the area outside the decedent’s door, 

exhibiting potential scenarios of the shooting with a detective who was roughly the 

same size as Roberts, and portrayed a theory that there may have been a third 

person behind the door during the shooting. Because Roberts makes no argument 

that the size of the hallway outside the door was irrelevant to the shooting, which 

it was not, and he does not satisfy his burden to show that the trial court’s ruling 

was an abuse of discretion, his challenge to the demonstrative evidence fails. 

Briejer, 172 Wn. App. at 223 (party challenging trial court’s evidentiary ruling has 

burden of proving it was abuse of discretion).

Roberts then asserts that “[o]pinions about how a crime occurred based on 

a reconstruction or reenactment of events may be offered only by qualified 

experts.” He contends that Wheeler’s opinion on the location of the shooter was 

improper, as either lay or expert testimony, and the court erred in admitting it. 

However, the “invited error doctrine ‘precludes a criminal defendant from seeking 

appellate review of an error [they] helped create.’” State v. Tatum, 23 Wn. App. 

2d 123, 128, 514 P.3d 763 (alteration in original) (quoting State v. Carson, 179 

Wn. App. 961, 973, 320 P.3d 185 (2014)), review denied, 200 Wn.2d 1021 (2022). 

An error is invited if it results from an “affirmative, knowing, and voluntary act.” 

State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014). When challenged 
No. 84352-4-I/39

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testimony is directly elicited by the defense, the invited error doctrine applies and 

prohibits review of the claimed error. State v. McPherson, 111 Wn. App. 747, 764, 

46 P.3d 284 (2002). Because Wheeler did not provide an opinion or conclusion 

as to the demonstrative experiment until defense counsel expressly elicited 

Wheeler’s opinion on the location of the shooter, Roberts “helped create” this 

purported error and analysis of this challenge is barred by the invited error doctrine.

V. Miscalculation of Offender Score

Roberts posits that the trial court erred when it added a point to his offender 

score due to his community custody status, which was based on two out-of-state 

convictions for possession of a controlled substance. We review de novo the 

calculation of an individual’s offender score. State v. Olsen, 180 Wn.2d 468, 472, 

325 P.3d 187 (2014).

At sentencing, the State proved that Roberts had two prior convictions from 

Texas for possession of a controlled substance. Appropriately, those convictions 

were not included in Roberts’ offender score because they are not comparable to 

any Washington statute. See State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). 

However, because Roberts was on community custody at the time of this offense 

as a result of the Texas convictions, the sentencing court added one point to his 

offender score pursuant to RCW 9.94A.525(19), which provides, “If the present 

conviction is for an offense committed while the offender was under community 

custody, add one point.”
No. 84352-4-I/40

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The State contends the trial court properly added the point because the 

Texas convictions “remain valid convictions and the resulting supervision 

remained in effect after the Blake decision.” We agree.

In Blake, our Supreme Court deemed Washington’s strict liability drug 

possession statute, former RCW 69.50.4013(1) (2017), to be unconstitutional and 

void. 197 Wn.2d at 195. “A prior conviction based on a constitutionally invalid 

statute may not be considered when calculating an offender score.” State v. 

Markovich, 19 Wn. App. 2d 157, 173, 492 P.3d 206 (2021). Thus, “penalties 

imposed under the invalid statute are void,” including community custody. Id. at 

174; State v. French, 21 Wn. App. 2d 891, 896-97, 508 P.3d 1036 (2022). 

Roberts relies on French for the contention that his “community custody 

status from his out-of-state possession convictions may not score.” In French, we 

rejected the State’s challenge to a sentence in which the trial court declined to add 

one point to the offender score though French committed the offense at issue there 

while on community custody, 21 Wn. App. 2d at 894, but that case is materially 

distinguishable. Because French was serving a term of community custody 

pursuant to a prior conviction for possession of a controlled substance under RCW 

69.50.4013(1), this court explained that the term of community custody “was a 

penalty imposed pursuant to an unconstitutional law” and “was void.” Id. at 897. 

Here, Roberts was not on community custody pursuant to a conviction 

under a void statute and he makes no argument that his Texas convictions were 

unconstitutional. While it is undisputed that Roberts’ out-of-state convictions are 

not comparable to any Washington statute, they are nonetheless valid convictions 
No. 84352-4-I/41

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that resulted in a term of community custody. Though the convictions at issue 

occurred in Texas, our state was responsible for supervising Roberts’ resulting 

community custody under those sentences pursuant to the interstate compact for 

adult offender supervision (ICAOS), RCW 9.94A.745. On August 23, 2017,

Roberts was sentenced to a term of five years of community supervision in Texas, 

and on August 25, he departed from Texas to Washington pursuant to ICAOS. As 

of September 14, 2017, the Washington State Department of Corrections (DOC) 

assumed supervision of Roberts on behalf of the State of Texas. According to 

DOC Community Corrections Supervisor Andrea Holmes, Roberts frequently 

violated the conditions of his supervision; he was arrested on “non-DOC criminal 

charges,” and on March 4, 2019, “Texas issued a nationwide extradition warrant”

for him. Because Roberts was under active supervision by our state’s DOC under 

ICAOS while serving a valid term of community custody from out-of-state 

convictions at the time of the present conviction, the trial court did not err in adding 

one point to his offender score for having committed the instant crime while on 

community custody. RCW 9.94A.525(19).

VI. Victim Penalty Assessment and Interest on Restitution

Roberts’ final two assignments of error go to the trial court’s imposition of 

the victim penalty assessment (VPA) and the interest imposed on the award of 

restitution. 

At sentencing on July 12, 2022, the trial court found Roberts to be indigent 

and only imposed the then-mandatory legal financial obligation, the $500 VPA, and 
No. 84352-4-I/42

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restitution, which was ultimately calculated at $40,000, along with additional 

statutorily-required interest. 

Two recent statutory amendments apply. First, in light of the amendment 

to RCW 7.68.035(4), which took effect July 1, 2023, trial courts are now prohibited 

from imposing the VPA on defendants who are found indigent at sentencing. LAWS 

OF 2023, ch. 449, § 1. This amendment applies to Roberts because his case is on 

direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). Second, 

the statute that imposed interest on restitution was also amended, effective 

January 1, 2023, and RCW 10.82.090(2) now provides that the trial court “may 

elect not to impose interest on any restitution the court orders.” LAWS OF 2022, ch.

260, § 12. Prior to waiving interest on restitution, trial courts must consider 

numerous factors, such as the defendant’s indigency, available funds, and mental 

illness. RCW 10.82.090(2). This provision also applies here. See Ellis, 27 Wn. 

App. 2d at 16; State v. Reed, 28 Wn. App. 2d 779, 781-82, 538 P.3d 946 (2023). 

Accordingly, we reverse and remand for the trial court to strike the VPA from 

Roberts’ judgment and sentence and to determine whether to impose interest on 

the restitution award pursuant to the factors set out in RCW 10.82.090(2).12

 12 Roberts also contends that cumulative error deprived him of a fair trial. “Cumulative error 

may warrant reversal, even if each error standing alone would otherwise be considered harmless.” 

State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). However, in cases such as this, where 

“there are few or no errors and the errors, if any, have little or no effect on the outcome of the trial, 

reversal is not required.” State v. Wade, 186 Wn. App. 749, 775, 346 P.3d 838 (2015). As we 

have concluded that the court did not err with regard to the various challenges presented here, the 

cumulative error doctrine does not apply.
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VII. Mandatory Firearm Enhancement 

In its cross appeal, the State assigns error to the trial court’s order that the 

mandatory firearm enhancement run concurrently with the base sentence imposed 

for murder in the first degree. However, in its reply brief, the State requests this 

court affirm the conviction and sentence because “the total term imposed, 384 

months, exceeds the total mandatory minimum term of 360 months.”

RCW 9.94A.533(3)(e) provides, in relevant part, as follows: 

“Notwithstanding any other provision of law, all firearm enhancements under this 

section are mandatory, shall be served in total confinement, and shall run 

consecutively to all other sentencing provisions, including other firearm or deadly 

weapon enhancements, for all offenses sentenced under this chapter.” (Emphasis 

added.) 

“[F]ixing penalties for criminal offenses is a legislative, and not a judicial, 

function.” State v. Manussier, 129 Wn.2d 652, 667, 921 P.2d 473 (1996). In State 

v. Brown, our Supreme Court held that “judicial discretion to impose an exceptional 

sentence does not extend to a deadly weapon enhancement.” 139 Wn.2d 20, 29, 

983 P.2d 608 (1999), overruled as to juvenile offenders by State v. HoustonSconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). Subsequently, in Houston-Sconiers, 

the court held “that in sentencing juveniles in the adult criminal justice system, a 

trial court must be vested with full discretion to depart from the sentencing 

guidelines and any otherwise mandatory sentence enhancements, and to take the 

particular circumstances surrounding a defendant’s youth into account.” 188 

Wn.2d at 34 (emphasis added). As this court has recently explained, “Houston-
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Sconiers overruled Brown only as applied to juveniles.” State v. Wright, 19 Wn. 

App. 2d 37, 51, 493 P.3d 1220 (2021). Thus, “Brown remains good law as applied 

to adult offenders” and sentencing courts do “not have discretion to run the firearm 

enhancements concurrently” with adult offenders. Id. at 52. 

Roberts was 24 years old at the time of the murder. Based on defense 

mitigation reports, the trial court found that, “while [Roberts] was not a statutory 

juvenile at the time of the murder[,] his brain development included adolescent 

tendencies.” The court also found that Roberts “suffers from untreated 

post[]traumatic stress disorder, paranoid personality disorder, narcissistic 

personality disorder, generalized anxiety disorder[,] and substance use disorder.” 

Those diagnoses, the court found, “are based, in part, upon his relative youth.” 

The trial court then imposed 384 months of confinement for the conviction for 

felony murder in the first degree and 120 months of confinement for the mandatory 

firearm enhancement, and ordered that time to run concurrently. This was 

erroneous. The trial court had no discretion to order that the mandatory firearm 

enhancement run concurrently because Roberts was an adult when this crime was 

committed. Our Supreme Court has not extended the sentencing discretion 

described in Houston-Sconiers to youthful but adult offenders such as Roberts and 

we decline to do so here. On remand, the trial court must correct the sentence to 

conform to the statutory bounds for the underlying crime and the mandatory 
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consecutive time for the firearm enhancement as set out by our legislature for adult 

offenders.

Affirmed in part, reversed in part, and remanded. 

WE CONCUR: