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CHIEF JUSTICE

This opinion was

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Susan L. Carlson

Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V.

SHELLY MARGARET ARNDT,

Petitioner.

NO. 95396-1

EN BANC

Filed OEC fl 5

STEPHENS, J.—^After an extensive trial, a jury convicted Shelly Amdt on

charges including aggravated first degree murder and first degree arson, and she

received a sentence of life without the possibility of parole. Amdt appealed, arguing

that her Sixth Amendment right to present a defense and her right to be free from

double jeopardy were violated. U.S. Const, amends. VI, V. The Court of Appeals

affirmed Amdt's conviction and sentence in an unpublished, divided opinion.' State

' There are two Court of Appeals opinions involving this case. In September 2018,

the Court of Appeals, Division Two, affirmed Amdt's conviction on the grounds that the

trial court did not abuse its discretion by concluding that research conducted by a juror did

not contribute to the verdict. State v. Amdt, 5 Wn. App. 2d 341, 351,426 P.3d 804 (2018),

review denied, 192 Wn.2d 1013 (2019).
State V. Arndt (Shelly Margaret), 95396-1

V. Arndt, No. 48525-7-II, slip op. at 37 (Wash. Ct. App. Dec. 12, 2017)

(unpublished), http://www. courts.wa.gov/opinions/pdf/D2%2048525-7-II%20

Unpublished%20Opinion.pdf.

We affirm. After a careful review of the record, we conclude that the trial

court's rulings limiting the testimony of Arndt's expert witness did not violate

Amdt's Sixth Amendment right to present a defense and were well within the court's

discretion. We further conclude that Amdt's convictions for both first degree

aggravated murder and first degree arson do not violate double jeopardy protections,

as our precedent is clear that when two crimes have separate purposes and effects,

multiple punishments are allowed.

FACTS AND PROCEDURAL HISTORY

On Febmary 23, 2014, a fire broke out in a two-story house that belonged to

Kelly O'Neil and her husband. At the time of the fire, there were eight people inside

the home: Kelly O'Neil, Shelly Amdt, Darcy Veeder Jr., Donald Thomas, O'Neil's

adult daughter Autumn Kriefels, and three children. Everyone except Veeder was

able to escape the fire. Veeder succumbed to smoke inhalation and died inside the

residence.

The O'Neil home was heated by a wood stove on the main floor. Downstairs

in the split-entry home there was a gas insert fireplace and baseboard heating, but

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State V. Arndt (Shelly Margaret), 95396-1

the power and gas to both were turned off. A vent between the upstairs and

downstairs was located near the wood stove. On the night of the fire, Arndt, Veeder,

and Thomas were the last occupants awake, and they fell asleep on couches in the

upstairs living room. O'Neil, Kriefels, and the children were sleeping in various

bedrooms.

Arndt testified that she woke to the smell of smoke and immediately woke

Thomas up to tell him that she smelled something. She also woke O'Neil, who

described a smell like burning tires and said she saw an orange glow coming from

the living room side of the downstairs area. O'Neil collected the three minor

children and ran outside. Upon realizing that Kriefels was still inside the home,

O'Neil ran back with Arndt to get Kriefels from her room. The house was engulfed

in flames within 30-45 seconds after they reached the driveway. Eventually, the fire

department arrived to control the fire. Veeder's body was found in the living room

on the second floor of the home.

After the fire department completed its work, the scene was turned over to

Kitsap County Fire Marshal David Lynam for investigation. The details of Lynam's

testimony, as well as the testimony of an insurance cohipany investigator and two

experts retained for trial, are a major focus in this appeal and are discussed below.

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State V. Arndt (Shelly Margaret), 95396-1

During the course of the investigation, suspicion fell on Arndt, who had prior arson

charges.^

The State charged Arndt with several crimes. First, it charged her with

aggravated first degree murder under RCW 9A.32.030(l)(a) and RCW 10.95.020

with the aggravating circumstance of first degree arson under RCW 10.95.020(11).

It also made special allegations of domestic violence under RCW 10.99.020 and

alleged an aggravating circumstance allowing for departure from the sentencing

guidelines under RCW 9.94A.535(3)(b), alleging the victim was a particularly

vulnerable person. Second, it altematively charged her with first degree murder

(felony murder) under RCW 9A.32.030(l)(c), again with special allegations of

domestic violence and a particularly vulnerable person aggravating circumstance.

Third, the State charged her with first degree arson under RCW 9A.48.020 with

special allegations of domestic violence and a particularly vulnerable person

aggravating circumstance. Finally, it charged her with six counts of second degree

^ Specifically, Amdt had a criminal history involving violation of a no-contact order,

malicious mischief, assault in the fourth degree, and two prior arson charges. The first

arson allegation occurred in November 2011 and involved a fire in a home that Amdt

shared with Veeder and his father, Darcy Veeder Sr. Investigation into this 2011 fire

revealed that several pieces of clothing and blankets were placed on a TV and set on fire.

For the second arson, which also occurred in November 2011, Amdt pleaded guilty to arson

in the second degree. Amdt admitted that she intentionally set a box of towels on fire

because she was tired of living with Darcy Veeder Sr. and wanted to move into her

mother's house with Darcy Veeder Jr. For her arson m the second degree conviction, Amdt

received a sentence of nine months.

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State V. Arndt (Shelly Margaret), 95396-1

assault under RCW 9A.36.021, two of which included special allegations of

domestic violence.

Fire Investigation Testimony

The fire scene was analyzed by four investigators, including Fire Marshall

Lynam. See Am. Pet. for Review at 2-5. Because this ease is, in large part,

concerned with the defense expert's adherence to proper investigatory procedures

compared with the other investigations Conducted, a brief overview of the individual

investigators' work is necessary.

Fire Marshal David Lynam

Kitsap County Fire Marshal David Lynam is charged with investigating the

origin, cause, and circumstances of fires within Kitsap County. 14 Verbatim Report

of Proceedings (VRP) (Oct. 26, 2015) at 2594. As the prosecution's chief expert

witness, Lynam testified to his qualifications and how he conducts all of his

investigations in accordance with National Fire Protection Association 921 (NFPA

921).^ See id, at 2586-99. In addition to following the guidance in NFPA 921,

Lynam testified:

The approach I have adopted and instructed all my deputies we adopt,

is . . . [your work] typically goes from the outside in, you want to evaluate

^ Nat'l Fire Prot. Ass'n, NFPA 921: Guide for Fire and Explosion

Investigations. This document is referenced throughout the testimony of all

investigators as the "standard" for fire investigation. A copy of this document does not

appear to be provided in the record.

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State V. Arndt (Shelly Margaret), 95396-1

the whole scene and condition that you have, and you are working from areas

of least damage to most damage.

Id. at 2599. As the public official who takes charge of the fire scene immediately

after the fire department, Lynam has the authority to exclude all private investigators

until his investigation is complete. Id. at 2595.

Lynam's investigation and resulting conclusions were challenged extensively

by the defendant's expert witness. Dale Mann. Because these conclusions are

discussed in depth relating to various evidentiary rulings, they will not be detailed at

this time. In summary, Lynam concluded that the fire started when someone ignited

a beanbag chair near a couch in the house's basement. Am. Pet. for Review at 2;

15 VRP (Oct. 27, 2015) at 2922-23.

Ed Iskra

Ed Iskra was under contract with Allstate Insurance and was tasked with

determining the origin and cause of the O'Neil residential fire to preserve the right

of Allstate to proceed against any defective appliance manufacturer. 9 VRP (Oct.

15, 2015) at 1552. Based on the results of his investigation, Iskra testified for the

prosecution.

On direct examination, Iskra described the procedures that he followed:

1 follow a systematic approach to my investigation. So I go out and do the

exterior, the interior, and from the inspection, if there's specific things that

may be—^that might be a cost factor for the—^besides my initial investigation.

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State V. Arndt (Shelly Margaret), 95396-1

for the insurance company, I call my claims adjuster and tell them what I

have and [wjould you like me to do certain things; yes or no?

Id. at 1554. As a first step in his investigation, Iskra called Lynam to determine if

Lynam had released the scene. He also testified that he spoke with both of the

O'Neils to get a sense of the activities that occurred before and during the fire (e.g.,

what electrical devices were plugged in, etc.). Iskra testified how his standard

procedure is to conduct his own investigation independent of any prior conclusions.

Initially, because Lynam had not released the scene, Iskra conducted an

investigation of the exterior of the house, examined the locations where the fire

vented from the house, examined the resulting debris pile, and took photographs. He

detailed how his initial hypothesis, based on witness statements and exterior bum

pattems, led him to believe that the fire started on the outside deck. This hypothesis

was later disproved once he was able to gain access to the interior of the home a few

days later. Id. at 1560-61.

Iskra next detailed the systematic approach that he utilizes for examining the

interior of a fire scene:

I usually start from the front door, if that is accessible, sometimes it's not and

I've got to go in the back door, but I will go in—into the interior of the home

and go to what I determine the least area of damage and start my intemal

examination of the home from there and work to the most damage.

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State V. Arndt (Shelly Margaret), 95396-1

Id. at 1569. Using this approach, Iskra described his examination of the interior of

the house in detail. He discussed the possibility that the scene went to "flashover'"^

and reviewed the relevant training he had received to make a "flashover"

determination. Id. at 1569-1631.

Finally, Iskra discussed his need to rely on the reports and documentation of

other fire investigators because fire scenes are sometimes altered, e.g., from digging

or the removal of electrical components, in the process of other investigations. Here,

Iskra initially characterized the cause of the fire as "undetermined," due to

"alterations of the scene and evidence being removed." Id. at 1633. After reviewing

Fire Marshall Lynam's "documentation, data, [and] evidence," to supplement what

he examined at the scene, Iskra changed his determination to "intentionally set." Id.

at 1635. He examined Lynam's reports and documentation detailing how the fire

was "dug out," and concluded that "[i]t was more likely than not that a fire was

started with a handheld devi[c]e to combustible materials." Id. at 1636.

Ken Rice

Ken Rice is a senior fire investigator for CASE Forensics who conducted a

technical review of Lynam's investigation. CASE Forensics is a privately held

"Flashover is when a room is totally preheated from a fire burning within a room.

Your heat layer lowers down, preheats all the furnishings within the room, and they

basically auto ignite pretty much at the same time. . . . [Flashover] is when pretty much

everything in the room instantaneously ignites." 8 VRP (Oct. 14, 2015) at 1502-03.

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State V. Arndt (Shelly Margaret), 95396-1

forensic engineering firm that conducts failure analysis in multiple disciplines of

engineering. Rice testified for the prosecution concerning the requirements of NFPA

921 and the scientific method. The first portion of Rice's testimony focused on the

conduct of fire investigations generally and the definition of different concepts

related to the field.

Rice testified about the rnethodology he used to conduct his technical review,

including examination of all reports and photographs furnished to him. 10 VRP (Oct.

19, 2015) at 1894. Specifically, Rice reviewed the reports of defense expert Mann

and Fire Marshal Lynam. Rice discussed his review of the scene, via the

photographs he had received, in detail. Upon conclusion of his initial review. Rice

recommended that Lynam conduct additional testing due to his concern that an

ember may have traveled out of the upstairs fireplace, down a' floor vent, and ignited

a combustible material on the lower level. Rice and Lynam performed these

additional tests and concluded that it was not probable that an eiriber escaped the

fireplace and caused the house fire.

Additionally, as part of his technical review. Rice performed testing "to see

what smoke passage would look like in the upstairs room coming from the

downstairs through the vent." 13 VRP (Oct. 22, 2015) at 2383-84. Based on the

results of this testing. Rice was able to conclude, on a more probable than not basis.

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State V. Arndt (Shelly Margaret), 95396-1

that the fire did not occur directly below the vent. Rice also performed a furniture

ignition test and concluded that "it was very probable that something was ignited on

the left side of the sofa, caused the sofa to ignite, and caused the fire to spread from

left to right." Id. at 2386, 2402.

Based on his technical review and testing. Rice concluded that the fire was

incendiary in nature and that the area of origin was the "left side of the sofa near the

floor level." Mat 2406-27.

Dale Mann

Arndt retained Mann to review the fire investigation. Am. Pet. for Review at

4. Mann is a former state patrol crime lab supervisor and certified arson investigator.

During his review, Mann examined all available materialSj including Lynam's

reports, photos and other documents, police reports, coroner's reports, and firefighter

reports. Whether Mann adhered to acceptable investigation methods contained in

NFPA 921 became the primary issue in determining the admissibility of his

testimony.

Mann's testimony primarily challenged Lynam's determinations of the cause

and origin of the fire. Id. at 5. Due to the nature of his investigation, the trial court

limited Mann's testimony in a variety of ways, and he was unable to present his

opinion that the fire should have been classified as "undetermined" rather than

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State V. Arndt (Shelly Margaret), 95396-1

"incendiary." Id. These evidentiary rulings form the basis of one of the central

issues in this appeal. For this reason, like Lynam's conclusions, they are analyzed

in greater detail below.

Trial and Appeal

After a three month trial, a jury found Arndt guilty of all crimes as charged by

the State. Clerk's Papers (CP) at 430-32,433-41, 472-73. The trial court sentenced

Arndt to life without the possibility of parole per RCW 10.95.030(1). CP at 475.

The Court of Appeals affirmed Amdt's conviction and sentence. Arndt, slip

op. at 37. The court found no error with respect to most of the trial court's limitations

on Mann's testimony but held that the trial court wrongly excluded Mann's

testimony about his review of the police reports. Id. at 1. However, it found this

error harmless and held that Arndt was not denied her Sixth Amendment right to

present a defense. Id. Acting Chief Judge Bradley Maxa dissented on this issue. Id.

at 38. As for Amdt's challenge to her convictions for both aggravated first degree

murder with a first degree arson aggravator and first degree arson, the Court of

Appeals found no double jeopardy violation, concluding that the two crimes are not

the same in fact or law. Id. at 1. After deferring consideration of Amdt's petition

for review for almost a year, pending State v. Allen, 192 Wn.2d 526, 431 P.3d 117

(2018), this court granted review. State v. Arndt, 193 Wn.2d 1001 (2019).

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State V. Arndt (Shelly Margaret), 95396-1

ANALYSIS

A. The Trial Court Acted within Its Discretion and Did Not Violate Amdt's Sixth

Amendment Right To Present a Defense by Limiting Her Expert Witness's

Testimony

Arndt argues that the trial court violated her constitutional right to present a

defense. Whether a Sixth Amendment right has been abridged presents a legal

question that is reviewed de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d

576 (2010). However, the trial court's evidentiary rulings under ER 702 remain

subject to abuse of discretion review. State v. Yates, 161 Wn.2d 714, 762, 168 P.3d

359 (2007).

While Arndt asks this court to "unequivocally hold that violations of the right

to present a defense are reviewed de novo, with no deference to the trial court's

decision to exclude evidence," Am. Pet. for Review at 10, we recently adhered to a

two-step standard of review in State v. Clark, 187 Wn.2d 641, 648-56, 389 P.3d 462

(2017) (abuse of discretion review of evidentiary rulings and de novo review of

whether such rulings violated the defendant's right to present a defense). Here, as

in Clark, we apply this two-step review process to review the trial court's individual

evidentiary rulings for an abuse of discretion and to consider de novo the

constitutional question of whether these rulings deprived Arndt of her Sixth

Amendment right to present a defense.

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State V. Arndt (Shelly Margaret), 95396-1

Review of Evidentiary Rulings for Abuse ofDiscretion

In Washington, expert testimony must satisfy both the Frye^ test and ER 702.^

State V. Copeland, 130 Wn.2d 244,256, 922 P.2d 1304 (1996). While concerns

the use of novel scientific methodology and guards against the admission of new

techniques until a "scientific consensus decides the methodology is reliable," Lakey

V. Puget Sound Energy, Inc., 176 Wn.2d 909, 918-19, 296 P.3d 860 (2013), ER 702

concerns the use of existing scientific niethodology and excludes testimony "where

the expert fails to adhere to that reliable methodology." Id. Admissibility decisions

under ER 702 are reviewed for abuse of discretion. Yates, 161 Wn.2d at 762.

Arndt takes issue with the limitations the trial judge placed on Mann's

testimony due to the fact that he had not personally conducted a complete origin and

cause investigation of the scene. Am. Pet. for Review at 5. In placing these

limitations on Mann's testimony, the judge clearly stated that her rationale was based

on Mann's failure to follow well established scientific methodology:

THE COURT: It is not a problem that he goes to the scene, as [the]

defense argues, but it is a problem when he starts to test.. ..

5 Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (1923).

® ER 702, Testimony By Experts:

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise.

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State V. Arndt (Shelly Margaret), 95396-1

If he were to do an origin and cause, he would need to follow the

scientific method and eliminate various hypotheses.

Instead by focusing on one area, which seems to be this foosball area,

he's taking one hypothesis and testing it. And not eliminating, under the

scientific method, the entire scene.

19 VRP (Nov. 12, 2015) at 3650-51. None of the limitations plaeed on Mann's

testimony concerned the use of a novel scientific method with dubious credibility.

Instead, all objections to the exclusion of expert testimony centered on whether the

expert properly adhered to existing acceptable methodology. Such decisions fall

under ER 702 and are properly reviewed for abuse of discretion. Yates, 161 Wn.2d

at 762; Clark, 187 Wn.2d at 648.

Expert testimony is admitted under ER 702 when the trial court determines

(1) that the witness qualifies as an expert and (2) that the testimony will assist the

trier of fact. InreDet. ofMcGary, 175 Wn. App. 328,338-39,306 P.3d 1005 (2013).

Trial courts are given a large degree of freedom when making these determinations,

subject to reversal only for a clear abuse of discretion. Yates, 161 Wn.2d at 762. "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). Specifically, an abuse of discretion can be found

when the trial court "relies on unsupported facts, takes a view that no reasonable

person would take, applies the wrong legal standard, or bases its ruling on an

erroneous view of the law." Id. at 284. Because unreliable testimony does not assist

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State V. Arndt (Shelly Margaret), 95396-1

the trier of fact, it is properly excluded under ER 702. Lackey, 176 Wn.2d at 918.

In our review for abuse of discretion, we may affirm the trial court on any basis that

the record supports, including any theories "established by the pleadings and

supported by the proof," even if these theories were not originally considered by the

trial court. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).

Due to the highly fact-specific nature of the analysis required to determine if

the trial court abused its discretion, what follows is an individual discussion on each

category of exclusions/restrictions placed on Mann's testimony. After reviewing

these exclusions individually, it becomes clear that the trial judge took issue with the

method Mann used to analyze the particular issues, not the fact that he selected

particular issues to investigate. On multiple occasions, the judge and counsel had

extensive discussions about Mann's adherence to accepted procedures and resulting

admissibility concerns. Because all of the trial judge's exclusion decisions were

supported by tenable reasons and based on correct statements of the law, we hold

that the trial court did not abuse its discretion in limiting the scope of Mann's

testimony.

1. Opening the Door

Arndt argues that the trial court erred when it "excluded Mann's opinion that

the fire should be classified as undetermined (rather than incendiary)." Am. Pet. for

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State V. Arndt (Shelly Margaret), 95396-1

Review at 6. Initially, Amdt argued that the State "opened the door" to Mann's

testimony challenging Lynam's conclusions about the fire's origin and cause:

MR. LaCROSS: They had witnesses testify that—expert witnesses

that Mr. Lynam did this investigation perfectly. It was a good investigation.

They opened the door for whether or not this investigation was done

properly. And that's what Mr. Mann is here to testify, that it wasn't done

properly.

18 VRP (Nov. 10, 2015) at 3411-12. The trial court dialogue then centered around

whether Mann conducted a proper origin and cause investigation in accordance with

the scientific method or whether he simply reviewed Lynam's investigation. See id.

at 3411-13, 3524-38. The State objected to Mann's testimony regarding the origin

of the fire:

So we would object—if what he did was simply a review in this case,

we would object to any—and didn't do an origin and cause determination,

we would object to any picture that he took, any testimony about layering,

any testimony about any of the scene investigations that he did. And we'd

ask that he be allowed only to testify about his review of Fire Marshal

Lynam's work.

Id. at 3525. In response to this objection, the trial court attempted to determine the

exact nature of Mann's testimony:

THE COURT: If he's going to say where the fire started, does he not

have to present a methodology for how and where it started?

MR. LaCROSS: As he has—he used the scientific method to

determine where the origin was, yes, the area.

THE COURT: So he went through a whole analysis of hypotheses and

eliminated them one at a time, and is that written up in the report?

MR. LaCROSS: No.

THE COURT: That is the scientific method, is it not?

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State V. Arndt (Shelly Margaret), 95396-1

MR. LaCROSS: Not for what he did. He did an evaluation, a critique

of what the Fire Marshal did. ... It doesn't mean that he did an origin and

cause investigation....

THE COURT: My worry, Mr. LaCross, is that, as we've been arguing

this much of this day, you have repeatedly told me this is not an origin and

cause.

MR. LaCROSS: I still say that. It is not an origin and cause

determination.

THE COURT: But he's effectively eliminating and deciding whether

or not what the origin and cause was.

If he's saying it is in a certain area of the house, and if he's going

through and effectively double testing what's already been done by the Fire

Marshal, isn't he effectively—isn't he effectively trying to establish the

origin and cause?

MR. LaCROSS: No, he is not.

THE COURT: What is he doing then?

MR. LaCROSS: He is evaluating, again, the evaluation of the origin

and cause investigation of the fire marshal.

Id. at 3532,3536-37. In the end, based on the above discussion, the trial court issued

the following ruling:

THE COURT: So I'm going to allow the testimony from Dale Mann,

provided that there is no conclusion presented by Dale Mann as to what the

origin and cause would have been. He can go into the process. He can go

into what he observed. I'm not sure there's any authority to say he can't go

to the scene, provided he's not giving any conclusions as to the cause.

Id. at 3538.

As the Court of Appeals recognized, Arndt acknowledged that Mann did not

conduct a full origin and cause investigation similar to Lynam, Iskra and Rice.

Arndt, slip op. at 11. Further, there was no dispute at trial that fire causation must be

determined using the NFPA 921 origin and cause methodology. When the relevance

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State V. Arndt (Shelly Margaret), 95396-1

and helpfulness of expert testimony is debatable, there is no abuse of discretion in

excluding the testimony on tenable grounds. State v. Cheatam, 150 Wn,2d 626, 652,

81 P.3d 830 (2003). As the above discussions clearly evidence, the trial judge went

to some effort to determine the nature of Mann's investigation. Instead of excluding

Mann's testimony entirely, the trial judge placed specific limitations on his

testimony that were directly related to the limited nature of his investigation.

Because the judge's rulings were based on tenable grounds and relied on supported

facts, there was no abuse of discretion.

2. Melted Bucket bv the Couch

Arndt argues that the trial court erred when it excluded Mann's testimony

about the remains of a plastic bucket found near the proposed point of the fire's

origin. Pet'r's Suppl. Br. at 7. Because the bucket was made of a material that had

lower melting and boiling points than the fill material for the beanbag chair, Arndt

contends that the presence of the melted bucket disproved Lynam's hypothesized

ignition sequence and showed the overall inadequacy of Ljmam's investigation. Id.

at 3.

At trial, the State argued that Mann's manipulation of the bucket from the fire

scene constituted an investigation and was therefore problematic because Mann did

not follow established origin and cause protocols. 19 VRP (Nov. 12,2015) at 3658-

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State V. Arndt (Shelly Margaret), 95396-1

67. In response, there was another lengthy discussion between the parties and the

court regarding the bounds of an origin and cause investigation. Id. Ultimately, both

sides were given the opportunity to make arguments specific to the bucket itself:

THE COURT: But there's still an issue of the bucket.

MR. LaCROSS: The bucket—again, he is there—

THE COURT: How is he not there with the foosball table and taking

the remnants there and having it tested? How is the bucket any different from

that?

MR. LaCROSS: Well, I guess, I'm—^I'm trjnng to articulate it. ... Is

he supposed to ignore it?

Should he have tumed around and walked away, and said, you know,

I can see something [there] that's really, really important but I'd better not

look at, because then if I do, you know, my opinions and I've all of a sudden

tumed into this person that's unreliable and none of my opinions about the

entire investigation will have any validity. If I happen to look at this very

obvious evidence, should I walk away?

MS. MONTGOMERY [the State]: I have an answer to that. No.

But what he should do is also pick up the other obvious pieces of

information: ceilingfan, pedestal fan, baseboard heaters. Do his own testing

on those. You don't get to selectively . . . pick out one thing that works for

you and ignore the things that don't. You don't get to do it. And that's

exactly what Dale Mann did here because it supports his conclusions.

Id. at 3665-66. Once again, the court ruled to allow the testimony with express

limitations:

THE COURT: I tend to agree with that. He can testify that he saw a

bucket, but he doesn't get to test it. And the testing would be lifting the

bucket and detailing his observations.

Id. at 3666-67.

ER 702 expressly allows for the exclusion of expert testimony when an expert

fails to adhere to reliable methodology. McGary, 175 Wn. App. at 339. The

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State V. Arndt (Shelly Margaret), 95396-1

conclusion that Mann conducted selective testing and did not follow the procedures

specified by NFPA 921 and the scientific method is well supported by the record, as

evidenced in the excerpts above. The trial judge gave Arndt ample opportunities to

defend the procedures used in Mann's investigation and specifically heard

argumentation about the manipulation of the bucket itself. Because the limitations

placed on Mann's testimony regarding the bucket relied on supported facts and were

not "manifestly unreasonable," there was no abuse of discretion. See, e.g., Lord,

161 Wn.2d at 283-84.

3. Plastic Container

Arndt argues that the trial court erred when it excluded Mann's opinion that

the area around the basement hearth had not been properly examined and prevented

Mann from explaining the significance of a second "melted plastic remnant" that he

had discovered adhered to the floor. Pet'r's Suppl. Br. at 8. We disagree. The

record clearly supports the fact that Mann was able to testify to photographs taken

of the basement hearth and explain their significance:

[MR. MANN:] The second thing of interest here is that the fireplace

hearth here is—still has quite a bit of debris on it. And the Fire Marshal said

that that was layered down to clean, but it's obvious that it was not.

[MR. LaCROSS]: And so what's significant about it not being layered

down?

[MR. MANN:] If you don't layer that down to the ceramics, you have

no idea what was actually present on that ceramic hearth prior to the fire.

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State V. Arndt (Shelly Margaret), 95396-1

And you would never have a chance to see evidence of those if you

don't layer all the way down to that ceramic hearth. And that process was

not done by the Kitsap County Fire Marshal.

20 VRP (Nov. 16, 2015) at 3859. Additionally, Mann was able to testify that he

found remnants of a plastic container by the hearth and about the significance of the

fact that the bottom side of the plastic was in pristine condition. Arndt, slip op. at

13. For these reasons, Arndt fails to show an abuse of discretion by the trial court

on this issue.

4. Polystyrene Test Results

Arndt argues that the trial court erred by excluding Mann's "lab test results

showing the presence of polystyrene around the foosball table and the absence of

polystyrene at the hypothesized point of origin." Pet'r's Suppl. Br. at 8. The court

and the parties engaged in a lengthy discussion about the procedures for polystyrene

testing and the relationship of polystyrenes to the origin and cause of the fire. 18

VRP (Noy. 10, 2015) at 3564-79. As the record makes clear, Arndt was giyen

multiple opportunities to demonstrate the admissibility of the polystyrene test

results:

THE COURT: I'm persuaded by the State's argument on this issue.

Certainly, it may be that—^that he tested for polystyrenes there, but it

is not relevant unless it can be connected. And there's not been a sufficient

connection to a bean bag chair.

We know that the testimony has been that styrenes or polystyrenes are

abundant.

MR. LaCROSS: Can I have my fourth or fifth bite at this apple?

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State V. Arndt (Shelly Margaret), 95396-1

THE COURT: No. Well, okay. Go ahead.

MR. LaCROSS: It is absolutely critical to show that they did not

follow the scientific procedure. Did not investigate other potential causes

and origin.

And this shows—it clearly shows that they did not layer over here.

When it was layered over here, lo[] and behold there is polystyrene that is

found.

THE COURT: What does that mean?

THE COURT: What is your witness going to say that polystyrene

means?

Is he just going to say it is polystyrene, or is he going to say it was

polystyrene that came from the bean bag chair?

MR. LaCROSS: He will say it is a polystyrene. He's not going to say

that it came from a bean bag chair.

Id. at 3573-75. In addition to a lack of relevance due to Mann's inability to connect

the polystyrene to the beanbag chair, the court also excluded Mann's polystyrene

testing due to Mann's failure to comply with the scientific method.

THE COURT: And if I were to allow him to testify to the polystyrene

testing, that effectively allows this witness to go through a fire scene and pick

out areas that he believes are important for purposes of this litigation to

advance or diminish certain aspects of the scene.

19 VRP (Nov. 12, 2015) at 3650-51. Because the trial judge clearly articulated her

rationale, relied on supported facts, and took a reasonable view under the governing

standards, there was no abuse of discretion. See, e.g., Lord, 161 Wn.2d at 283-84.

The judge made clear that Mann's polystyrene testing was excluded because it was

not relevant and not reliable. Both of these exclusions are justified under ER 702.

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State V. Arndt (Shelly Margaret), 95396-1

5. Flashover

Amdt argues that the trial court erred when it excluded Mann's opinion that

the room went to "flashover" because this fact had the potential to skew the fire

marshal's investigation. Pet'r's Suppl. Br. at 8. In accordance with the court's

previous evidentiary rulings, Mann was able to testify to errors in the investigation

and the potential impacts of a "flashover":

[MR. MANN:] It was apparent that fairly early in their investigation they

zeroed in on what they call "lowest area of bum" as the origin of the fire.

And really, in my opinion, didn't recognize the fact that the room

didn't go to flashover. And the lowest area of bum, particularly in the case

of flashover, may not be the origin of the fire.

When a room gets to—goes into flashover, you need to be careful and

investigate the entire room.

20 VRP (Nov. 16, 2015) at 3814. As the Court of Appeals recognized and quoted

in its opinion, Mann was also able to testify to the fact that signs of "flashover" were

present at the scene. Arndt, slip op. at 16; 20 VRP (Nov. 16, 2015) at 3827-28.

Finally, Mann was able to offer the following testimony on direct examination:

[MR. LaCROSS:] So from your review of the Kitsap County Fire Marshal's

investigations, were there any indicators, as to whether or not flashover

occurs when you look at a fire scene, missing?

[MR. MANN:] I believe that that fire scene had practically every post-fire

indicator for flashover. And it had many indicators in the sequence, if you

look at the timeline of flashover.

So, yes, it had many—there's nothing at all inconsistent with anything

about that fire to indicate that it did not go to flashover.

20 VRP (Nov. 16, 2015) at 3894. A plain reading of the record shows that Amdt

was able to put forth testimony regarding the effect of a "flashover" on the

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State V. Arndt (Shelly Margaret), 95396-1

investigation and the potential for a "flashover" to have occurred in this case. While

this testimony was subject to some limitations, these limitations were well within

the trial court's discretion, and Mann was allowed to offer testimony supporting a

theory of "flashover."

6. Review of Reports

Arndt argues that the trial court erred by excluding Mann's conclusions drawn

from his review of police, fire department, and coroner reports. Pet'r's Suppl. Br. at

8. An examination of the record shows that the court properly considered the

expert's adherence to approved methodology under ER 702:

THE COURT: Where in the scientific literature does it say that a fire

marshal needs to go through the police reports and verify every statement

and essentially track a police investigation?

I suppose that's really what it comes down to when we get to this sort

of thing.

Is the Fire Marshal expected to follow a coroner's report or to follow

a police report to consistently cross-check facts?

Is that in the fire literature under 921 saying that that is the scientific

method?

MR. LaCROSS: There is nothing-—^there is nothing in the NFPA 921

that says you have to go and verify with—check with the investigating

sheriffs department or anything like that.

THE COURT: If that's the case, does that not then supplant this

witness's opinion, not necessarily expert, what he might think should be done

compared to somebody else? Does that qualify as an expert opinion?

MR. LaCROSS: Yes, it is still—it is—it is information that is

available, that is whether—^whether or not, you know, this person actually,

for example, smoked. It shows—the information that Fire Marshal took has

to be validated. Now it doesn't say how you have to validate it... .

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State V. Arndt (Shelly Margaret), 95396-1

MS. MONTGOMERY [the State]: He has no basis under 921 or the

peer review or anything. He has shown no authority for him to testify to any

of this as an expert.

THE COURT: And certainly that is evidence that has come in through

other witnesses. We've had testimony as to, you know, what was asked of

various people. And I don't know it requires expert testimony to get there.

THE COURT: All right. Well, I stand by my previous ruling.

MR. LaCROSS: Which was?

THE COURT: That this witness will not get into his review of the

particular police reports and the coroner's report.

19 VRP (Nov. 12, 2015) at 3758-60. As evidenced by the record, the court clearly

understood the issue and applied the correct legal standard under ER 702. Because

Mann's expert testimony regarding review of applicable police, fire department, and

coroner reports did not accord with accepted methodology, the court did not abuse

its discretion when it excluded this testimony^

7. Demonstrative Exhibit

Arndt argues that the trial court erred when it excluded photographic evidence

demonstrating how burning liquids pool and create protected areas during a fire.

^ Of note, the Court of Appeals did find an abuse of discretion in this instance and

agreed with Arndt that the tilal court erroneously "excluded Mann's opinions drawn from

his review of police reports and coroner's reports as a part of his evaluation of Lynam's

investigation." Arndt, slip op. at 25. Nonetheless, the Court of Appeals found this error to

be harmless and concluded there was no violation of Amdf s right to present a defense. Id.

at 25-27. Because trial courts are given a large degree of freedom when making these

evidentiary determinations and are subject to reversal only for a clear abuse of discretion,

Yates, 161 Wn.2d at 762, we find that no abuse of discretion occurred. Nonetheless, we

agree with the Court of Appeals that even if Mann's testimony about the reports should

have been allowed, the exclusion is harmless because "the discrepancies were apparent to

the jury" through other expert testimony. Arndt, slip op. at 25-27.

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State V. Arndt (Shelly Margaret), 95396-1

Pet'r's Suppl. Br. at 8. Despite the fact that the use of demonstrative or illustrative

evidence is favored, the trial court is given wide discretion in detefmining whether

to admit demonstrative evidence. In re Pers. Restraint of Woods, 154 Wn.2d 400,

426, 114 P.3d 607 (2005). In order to be admissible, demonstrative evidence must

utilize experimental conditions that are substantially similar to the facts of the case

at hand. State v. Hultenschmidt, 125 Wn. App. 259, 268, 102 P.3d 192 (2004).

Ultimately, the test for admissibility of an experiment as evidence is '"whether it

tends to enlighten the jury and to enable them more intelligently to consider the

issues presented.'" Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d

99, 107, 713 P.2d 79 (1986) (quoting Sewell v. MacRae, 52 Wn.2d 103, 107, 323

P.2d 236 (1958)).

In making an admissibility determination regarding Mann's photographs

demonstrating the bum pattems of pooling liquids, the court had significant concems

about the similarity:

THE COURT: So I'm not sure I'm understanding what an ignitable

liquid has to do with this case.

I understand your witness may have wanted to set a fire, but just from

yOur very words right now, you are saying this is what happens when you

put ignitable liquid from that picture and what remains. I don't see how that

has a bearing on this case.

If your witness wants to testify to the protected area, the subflooriiig

of a protected area, and what it looks like after burning, that can be testimony.

And if he's got some evidence to show what it looks like, just generally

speaking as somebody in his field, that's perfectly fine too. This is what I'm

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State V. Arndt (Shelly Margaret), 95396-1

sajdng. This is what he did. He took ignitable liquid and lit it on fire and

wants to show it. 1 don't see the relevancy.

THE COURT: Well, he can testify to protected areas and what they

looked like generally based on his training and experience.

But to present what I think can only be described as a test of taking an

accelerant and somehow pouring it in a circle to leave a certain pattern, I'm

not seeing the bearing on that.

Now, he can testify to his observations based upon his experience and

training as to what a protected area would look like; that would be fine.

That's allowed.

20 VRP (Nov. 16,2015) at 3971-73. On multiple occasions, the trial court expressed

concern with the dissimilarity of the demonstrative evidence, in addition to other

relevancy concerns. See id. at 3965-4005. Instead of excluding the evidence

wholesale, the trial court provided ample opportunities to present the same testimony

in another medium. Id. at 3971-73. Ultimately, because Maim's photographs

involved experimental conditions that were not sufficiently similar to the case at

hand, primarily due to the presence of an ignitable liquid, the trial court acted within

its discretion to exclude the exhibits.

8. Smoke Visibility

Lastly, Arndt argues that the trial court erred when it "prevented Marm from

critiquing Lynam's conclusion that smoke would have been immediately visible in

the living room had an accidental fire started in the basement directly below the

fireplace insert." Pet'r's Suppl. Br. at 8. The Court of Appeals found this argument

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State V. Arndt (Shelly Margaret), 95396-1

to be "factually meritless as Mann testified on the subject and presented the

information that he gathered." Arndt, slip op. at 29.

Mann was allowed to testify at length regarding his efforts to evaluate

Lynam's conclusion that there was no visible smoke:

[MR. MANN:] Well, to me, when I started looking at the whole discussion

about how an apparent smoke would be upstairs, we had a very quickly

building fire downstairs and an open stairway. It seems obvious to me that

there is smoke upstairs in any case.

Because shortly after that, Donny was awoken, he went down to the

foyer, and saw smoke coming up as well as flames. That would be highly

unusual not to be able to smell smoke 30 to 60 seconds prior to that.

So to me, the question of: Was there noticeable smoke upstairs? Is

kind of a non-sequitur. The whole discussion didn't make a lot of sense to

me.

But what I began to do was just look at the hypothesis that Dormy

should have noticed smoke when he walked by the vents by the fireplace in

the living room. And that's kind of what I'm evaluating at this point. Just

given the fact that maybe there wasn't smoke already coming up the staircase

and shouldn't Donny have seen smoke coming through the vents.

20 VRP (Nov. 16, 2015) at 3897-98. In addition, Mann was also able to detail his

efforts to detemiine how much light was present on the night in question and why

these facts would matter in an investigation:

[MR. MANN:] I was gathering data to evaluate the hypothesis that there

was sufficient light to see smoke. So this was just a question of how

much light could there be in that house. Even though I don't have a

specific answer at this point, I'm illustrating some of the things one would

need to consider to answer that question.

Id. at 3899. When the State objected to this testimony, the judge refused to strike it

from the record. Id. at 3902. Given the testimony allowed, Arndt fails to state any

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State V. Arndt (Shelly Margaret), 95396-1

grounds to find an abuse of discretion, and the Court of Appeals correctly concluded

that this claim was factually mcritless.

Having carefully reviewed the trial record, we conclude that the trial court

exercised appropriate discretion in making the above-described admissibility

detenninations. We are mindful that "[t]he trial court has a gatekeeping function

under the rules of evidence." State v. Ellis, 136 Wn.2d 498, 540, 963 P.2d 843

(1998). This necessarily entails making judgment calls as to what the jury may hear.

Id. at 541 (noting judges "must not abdicate our gatekeeping role by receding from

. difficult decisions and letting the jury decide how much weight to give to evidence

that is in fact irrelevant"). Because the trial court's decisions were based on tenable

grounds, and the rationale was clearly stated in the record, the evidence rulings did

not constitute an abuse of discretion.

Sixth Amendment Right To Present a Defense

Because a defendant's constitutional right to present a defense is not absolute,

see, e.g., Jones, 168 Wn.2d at 720, the State's interest in excluding evidence must

be balanced against the defendant's need for the information sought to be admitted.

Id. In some instances regarding evidence of high probative value, "it appears no

state interest can be compelling enough to preclude its introduction consistent with

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State V. Arndt (Shelly Margaret), 95396-1

the Sixth Amendment and Const, art. 1 § 22." State v. Hudlow, 99 Wn.2d 1,16, 659

P.2d 514 (1983).

As an example, in Jones, the trial court interpreted a rape shield law to

preclude the defendant from presenting any evidence that the victim had voluntarily

engaged in an "all-night, drug-induced sex party." Jones, Wn.2d at 721. This

court reversed, noting that this testimony was "evidence of extremely high probative

value; it is Jones's entire defense." Id. While we held that the rape shield statute

was inapplicable as a matter of law, we also observed that even if the statute did

apply, the fact that the "sex party evidence" was Jones's entire defense .meant that^

the statute could not be invoked to bar the admiission of such, evidence' without

violating the Sixth Amendment.^ /J. at 723-24.

Unlike in Jones, Amdt's proffered evidence was not excluded entirely and

Mann was able to testify at length for the defense, disputing Lynam's conclusions

and proposing an alternative ignition sequence. See 19 VRP (Nov. 12, 2015) at

3573-3794; 20 VRP (Nov. 16,2015) at 3797-4036; 21 VRP (Nov. 17,2015) at 4040-

^ Even though Jonej was resolved using a statutory interpretation analysis, this court

still weighed the State's interest in exclusion versus the probative value of the evidence to

the defendant. See Jones, 168 Wn. 2d at 721. Because the evidence that Jones sought to

admit was of "extremely high probative value, . . . no State interest can possibly be

compelling enough to preclude [its] introduction" and "the trial court violated the Sixth

Amendment when it barred such evidence." Id.

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State V. Arndt (Shelly Margaret), 95396-1

4162. For example, Mann was able to articulate the fact that origin and cause were

incredibly difficult to determine when a room went to "flashover":

And they found that somewhat less than six percent of the people could

correctly identify even the quadrants of the fire in these one-room bum cells.

And these bum cells would have [a] trash can, a bureau, a bed, they would

be carpeted. Very simple furnishings.

But because of the effects of these extremely high heat fluxes that

occur at flashover, it really begins to disguise fire pattems.

19 VRP (Nov. 12, 2015) at 3706. Mann followed this discussion by testifying that

"flashover" likely occurred in this case:

This is significant because it shows the main part of the floor, most of the

floor in the family room/rec room following the Kitsap County investigation.

... All this kind—these pattems here are all concrete that chipped up. It

means it got very hot. ... It said we had a tremendous amount of energy or

a broad area that was radiating down to the floor. We know that doesn't bum

as well as newspaper, so we know we had more than 20 kilowatts per square

meter of energy, and that is a classic definition of flashover.

20 VRP (Nov. 16, 2015) at 3827-28. This testimony illustrates how, despite the

limitations placed on Mann's testimony by the court's evidentiary mlings, Amdt was

able to present relevant evidence supporting her central defense theory: that the fire

marshal's investigation was fundamentally flawed and that the proposed origin and

ignition sequence was incorrect.

Unlike in Jones, where the court was concerned that application of a rape

shield statute eliminated the defendant's entire defense, Jones, 168 Wn.2d at 724,

Amdt was able to advance her defense theory, including through Mann's testimony

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State V. Arndt (Shelly Margaret), 95396-1

rebutting the State's expert's conclusions. In this regard, the case is more similar to

Clark, which also involved limitations on expert testimony (on the basis of relevancy

rather than ER 702), but the defendant remained able to offer evidence to support

his defense theories. 187 Wn.2d at 653-54. We conclude that Arndt suffered no

violation of her Sixth Amendment right to present a defense.

In sum, applying Clark's two part standard of review, we hold that the trial

court did not abuse its discretion in limiting Mann's testimony but properly exercised

its gatekeeping function and correctly applied ER 702. Despite placing significant

limitations on the expert testimony of Mann, the trial court did not deprive Arndt of

her Sixth Amendment right to present a defense. We affirm the Court of Appeals

on this issue.

B. Amdt's Right To Be Free from Double Jeopardy Was Not Violated When the

Trial Court Entered Convictions for Both Aggravated First Degree Murder

with a First Degree Arson Aggravator and First Degree Arson

When the Court of Appeals considered Amdt's double jeopardy claims, it did

so prior to our decision in Allen. Arndt, slip op. at 34-36. The Court of Appeals

drew a distinction between the elements of the crimes at issue and aggravating

circumstances, and concluded that the two crimes were not the "same in law." Arndt,

slip op. at 36. We affirm Amdt's convictions on a different rationale. Because the

two convictions at issue have independent purposes and effects, we find that the

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State V. Arndt (Shelly Margaret), 95396-1

legislature clearly intended to allow the imposition of multiple punishments in this

instance.

Claims of double jeopardy present questions of law, and our review is de

novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). Because the

legislature has the power to define criminal conduct and assign punishment, the first

step in determining whether a defendant has suffered multiple:punishments for the

same offense is to determine what punishments the legislature has authorized. State

V. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). In order to qualify as the "same

offense" for double jeopardy purposes, the two offenses must be the same both in

, lav/ and in fact.. Id. at 111. Multiple punishments may implicate double jeopardy

y.concems, regardless of whether the sentences received are served concurrently. Id.

at 773.

In this case, the dispositive question is whether the legislature intended to

impose separate punishments for first degree murder aggravated by the commission

of first degree arson and first degree arson itself. See State v. Freeman, 153 Wn.2d

765, 771, 108 P.3d 753 (2005). "If the legislature authorized cumulative

punishments for both crimes, then double jeopardy is not offended." Id. We follow

four analytical steps to determine legislative intent regarding whether cumulative

punishment is authorized: (1) consideration of any express or implicit legislative

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State V. Arndt (Shelly Margaret), 95396-1

intent, (2) application of the Blockburger,^ or "same evidence," test, (3) application

of the "merger doctrine," and (4) consideration of any independent purpose or effect

that would allow punishment as a separate offense. 7(5?. at 771-73.

"If there is clear legislative intent to impose multiple punishments for the same

act or conduct, this is the end of the inquiry and no double j eopardy violation exists."

State V. Kelley, 168 Wn.2d 72, 77, 226 P.3d 773 (2010). Legislative intent may be

express, see RCW 9A.52.050,'° or implied. Freeman, 153 Wn.2d at 771-72. Neither

RCW 10.95.020 (definition of Capital punishment—^Aggravated first degree

murder) nor RCW 9A.48.020 (Arson in the first degree) contains any express

language allowing multiple punishments. The State argues that legislative intent for

separate punishment is nonetheless clearly evidenced. It relies on legislative

inaction in the face of cases dating back to 1995 "that hold that separate punishment

of substantive offenses was proper even when they were also aggravating

circumstances under RCW 10.95.020." Suppl. Br. of Resp't at 5. Generally, the

legislature's failure to amend a statute after judicial construction of such statute

signals legislative agreement with the construction. See State v. Edwards, 84 Wn.

^ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932).

See, e.g., RCW 9A.52.050 ("Every person who, in the commission of a burglary

shall commit any other crime, may be punished therefor as well as for the burglary, and

may be prosecuted for each crime separately.").

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State V. Arndt (Shelly Margaret), 95396-1

App. 5,12-13, 924 P.2d 397 (1996). We have previously construed the use of RCW

10.95.020's aggravators as intending cumulative punishments, not constituting a

violation of double jeopardy, see State v. Brett, 126 Wn.2d 136, 181, 892 P.2d 29

(1995) (holding no violation of double jeopardy when defendant was charged with

aggravated first degree murder and first degree felony murder), and the legislature

has never amended the statute in response to our precedent.

The question is whether we must reconsider this precedent in light of our

recent decision in Allen, 192 Wn.2d 526. In Allen, this court held that "RCW

10.95.020 aggravating circumstances are elements of the offense of aggravated first

degree murder for double jeopardy purposes." Id. at 544. As noted, because the

Court of Appeals opinion in this case predated ^//en by a year, the Court of Appeals

did not consider any potential conflict with Allen in its analysis of our double

jeopardy precedent. See Arndt, slip op. at 34-36. Instead, the Court of Appeals

concluded that, because aggravating factors are not elements of first degree mtirder,

the "same evidence" test is inapplicable. Arndt, slip op. at 35.

We recognize that our decision in Allen alters the Blockburger equation and

eclipses the Court of Appeals' reasoning. It does not, however, change the central

protections afforded by the Fifth Amendment. The Fifth Amendment protection

from double jeopardy protects against multiple convictions for the same offense and

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State V. Arndt (Shelly Margaret), 95396-1

multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684,

688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). "The double jeopardy clause does

not prohibit the imposition of separate punishments for different offenses." State v.

Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991) (emphasis added).

In Allen, we explicitly addressed the difference in analysis between multiple

prosecutions and multiple punishments. 192 Wn.2d at 541. Significantly, we

distinguished Kelley, 168 Wn.2d 72, a case that considered "whether imposition-of

a firearm enhancement where use of a firearm was an element of the underlying

offense violated the double jeopardy prohibition on multiple punishments for the

same offense." Allen, 192 Wn.2d at 542. The court in Allen examined Kelley's

argument that because an "enhancement" could be considered an "element" of

greater offense, an unintended, redundant punishment was created in violation of

double jeopardy. Allen, 192 Wn.2d at 542. "We concluded that since 'none of [the

Apprendi cases]'^^'^ concern the double jeopardy clause,' their holdings did not

apply." Id. (alteration in original) (quoting Kelley, 168 Wn.2d at 82). For this

reason, the court in Allen concluded that 'Kelley did not concern the same legal

question presented here. Kelley claims he was wrongfully subjected to multiple

punishments, while Allen faces multiple prosecutions." Id.

Apprendi V. New Jersey, 530 U.S. 466,120 S. Ct. 2348,147 L. Ed. 2d 435 (2000).

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State V. Arndt (Shelly Margaret), 95396-1

Like Kelley, Amdt's case concerns multiple punishments, not multiple

prosecutions. The double jeopardy analysis in Allen does not apply to cases

involving multiple punishments. Id. Kelley continues to apply and affirms the

principle that "cumulative punishments may be imposed for the same act or conduct

in the same proceeding if that is what the legislature intended." Kelley, 168 Wn.2d

at 83. Accordingly, Allen does not prohibit the imposition of multiple punishments

if legislative intent can be found in one of the four double jeopardy analytical steps

articulated in Lreemaw. 153 Wn.2d at 771-73.

Because there is no express or implied articulation of legislative intent, we

proceed to application of the Blockburger "same evidence" test. Id. at 772.

"'[E^here the .same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or only

one, is whether each provision requires proof of a fact which the other does not.'"

In re Pers. Restraint of Orange, 152 Wn.2d 795, 817, 100 P.3d 291 (2004) (quoting

Blockburger, 284 U.S. at 304). Despite the Court of Appeals reasoning, the State

admits that the convictions at issue in this case are the same under Blockburger

because "aggravated murder as charged reqidred proof of every element of firstdegree arson." Suppl. Br. of Resp't at 7-8. However, the State correctly observes

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State V. Arndt (Shelly Margaret), 95396-1

that Blockburger is not dispositive and that our analysis must continue to determine

whether the legislature intended multiple punishments. Id.

Because Blockburger is not dispositive of legislative intent, we next look to

merger analysis. Freeman, 153 Wn.2d at 772. "Under the merger doctrine, when

the degree of one offense is raised by conduct separately criminalized by the

legislature, we presume the legislature intended to punish both offenses through a

greater sentence for the greater crime." Id. at 772-73. One exception to the merger

doctrine, however, is when overlapping offenses have independent purposes or.

effects. State V. 99 Wn.2d 413, 421, 662 P.2d 853 (1983). In such

instances, separate punishments are allowed. Id. "To establish an independent

purpose or effect of a particular crime, that crime rhust injure the person or property

of the victim or others in a separate and distinct manner from the crime for which it

also serves as an element." State v. Harris, 167 Wn. App. 340, 355, 272 P.3d 299,

revzew 175 Wn.2d 1006 (2012).

This independent purpose or effect exception applies here. Amdt was charged

with aggravated first degree murder for the death of a single victim, Darcy Veeder

Jr. In contrast, her conviction for first degree arson, in addition to resulting in the

death of Veeder, also destroyed the O'Neils' home and was "manifestly dangerous"

to the other occupants: O'Neil, Thomas, Kriefels, and the minor children. See RCW

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State V. Arndt (Shelly Margaret), 95396-1

9A.48.020(l)(a). Indeed, the arson charge included a separate aggravator for impact

on persons other than the victim, CP at 354-55. The presence of additional victims

places this case inside the "independent effect" exception to the merger doctrine that

allows for the imposition of separate punishments. For this reason, allowing both of

Amdt's convictions to stand does not constitute a violation of double jeopardy.

Additionally, in our merger analysis, we find that in the consideration of these

two crimes, an independent purpose exists on an abstract level that also prevents the

merger of the two offenses and allows for the imposition of multiple punishments.

See Freeman, 153 Wn.2d at 773. Here, the two statutes in question are located in

different chapters of the criminal code and are intended to protect different societal

interests. In Calle, this court found support for its conclusion that the legislature

intended separate punishments for the crimes of rape and incest where (1) the statutes

served different purposes and (2) the statutes were located in different chapters of

the criminal code. 125 Wn.2d at 780.

While this case is not exactly like Calle, the two crimes charged here also

have separate purposes and are set forth in different parts of the criminal code.

Because the primary purpose of the arson statute is to protect property, it is located

in chapter 9A.48 RCW (consisting of offenses primarily intended to protect

property). In contrast, because the primary purpose of the aggravated murder statute

-39-
State V. Arndt (Shelly Margaret), 95396-1

is to protect human life, aggravated first degree murder is found in two different

chapters dedicated to this end, chapter 9A.32 RCW (Homicide) and chapter 10.95

RCW (Capital punishment—^Aggravated first degree murder). This provides an

additional indication that the legislature clearly intended separate punishments for

the crimes of aggravated first degree murder with an arson aggravator and of first

degree arson. We hold that the two crimes do not merge and the imposition of

multiple punishments does not violate double jeopardy.

In sum, because this case concerns the imposition of multiple punishments

and not multiple prosecutions, there is no conflict with our recent holding in Allen.

See Allen, 192 Wn.2d at 542; see also Kelley, 168 Wn.2d at 83. The legislature

clearly intended multiple punishments for the crimes of aggravated first degree

murder and of first degree arson. Because the crimes affected different victims and

have independent purposes, the two offenses do not merge. As a result, we affirm

the Court of Appeals, albeit on different reasoning, and reject Amdt's double

jeopardy argument.

CONCLUSION

The trial court did not abuse its discretion in limiting the testimony of defense

expert Mann, and Arndt was not denied her Sixth Amendment right to present a

defense as a result of the evidentiary rulings. Arndt was able to offer relevant

-40-
State V. Arndt (Shelly Margaret), 95396-1

admissible testimony to rebut the State's theory, investigation, and cause and origin

determinations, and to support her defense theory.

Arndt's convictions for both first degree aggravated murder and first degree

arson did not violate her right to be free from double jeopardy. The legislature

clearly intended multiple punishments for these crimes, and despite the factual

overlap, the crimes do not merge because they have separate purposes and effects.

Because this case involves multiple punishments and not multiple prosecutions, it is

not affected by our holding in Allen. We affirm the Court of Appeals on both issues

and uphold Amdt's convictions.

-41-
State V. Arndt (Shelly Margaret), 95396-1

WE CONCUR:

-g-

■ rVh

-42-
State V. Arndt (Shelly M.)

No. 95396-1

MADSEN, J. (dissenting)—A defendant has a constitutional right to present a

defense. U.S. CONST, amends. VI, XIY; WASH. CONST, art. I, §§ 3, 22. Shelly Arndt was

stripped of that right based on a fundamental misunderstanding of the testimony of her

expert witness, Dale Mann. Mann was hired to review the State's arson investigation and

the conclusions of its experts; he determined both were flawed. Yet, because Mann did

not conduct a separate origin and cause inquiry into the fire, the trial court precluded him

from presenting his critique to the jury. This was error. Mann was called to testify not as

to the cause and origin of the fire that ended the life of Arndt's boyfriend, but to highlight

the weaknesses in the State's theory of the case. He was not required to conduct a

separate inquiry because his testimony was not that there was a separate cause of the fire,

but that investigators overlooked critical evidence that called their conclusions into

question.

The majority finds no problem with the trial court's reasoning. I disagree. The

partial exclusion of Mann's testimony violated Arndt's constitutional right to present a

defense, and because it was the only evidence Arndt provided to refute the State's

investigation, that constitutional error was not harmless. I respectfully dissent.
No. 95396-1

Madsen, J., dissenting

Exclusion of Portions of Mann's Testimony

Shelly Amdt engaged Dale Mann, an undisputed expert witness, to poke holes in

the State's theory of the ease. Fire Marshal David Lynam initially investigated the fire.

He concluded that it was intentionally set by someone igniting a beanbag chair near a

couch, which caught fire and spread flames through the house. Mann examined the seene

and located the remnants of a plastic bucket near the coueh, which Lynam's investigation

overlooked. Because the bucket was stuck to the floor, Mann pried it loose with a shovel

and noted that the heat from the fire melted it to that location. Mann found this

significant because the type of plastie used in the bucket (polyethylene) melted at a lower

temperature than the material in the beanbag chairs (polystyrene). Consequently, Marm

reasoned, the bueket should have been thoroughly consumed if a beanbag chair had been

ignited nearby.

Mann also tested debris from the seene, and while he found residue on a foosball

table in the basement, he did not find polystyrene residue near the eouch. This evidence

would have contradicted Lynam's point of origin theory. Based on this evidenee, Mann

eoncluded that the cause of the fire was undetermined and that the State's investigation

was incomplete.

Generally, expert testimony must satisfy both the Frye^ test and ER 702. State v.

Copeland, 130 Wn.2d 244, 256, 922 P.2d 1304 (1996). The Frye test is used to prevent

the admission of novel seientific methods, as new teehniques should be scrutinized until a

' Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (1923).

2
No. 95396-1

Madsen, J., dissenting

"scientific consensus decides the methodology is reliable." Lakey v. Puget Sound

Energy, Inc., 176 Wn.2d 909, 918-19, 296 P.3d 860 (2013). After making a

determination under Frye, we look to whether the evidence is admissible under ER 702 to

decide whether the expert's testimony is relevant. See Copeland, 130 Wn.2d at 256

(citing State v. Cauthron, 120 Wn.2d 879, 889-90, 846 P.2d 502 (1993)). Admissibility

under BR 702 is reviewed for abuse of discretion.

Admissibility under Frye is reviewed de novo and is a mixed question of law and

fact. Id. at 255. A party may request a ''Frye hearing" if there is a question regarding a

scientific method. Similarly, a party may object under Frye if there is any question

regarding the use of a scientific method. Like a Frye determination itself, a deeision to

have a Frye hearing is reviewed de novo. However, if the evidence is essentially a

defendant's entire defense, or has "extremely high" probative value, no state interest will

warrant its exclusion under the Sixth Amendment to the United States Constitution. State

V. Jones, 168 Wn.2d 713, 721, 230 P.3d 576 (2010).

In my view, ER 702 alone applies in this case because the State did not object to

Mann's testimony under Frye, the trial court did not hold a Frye hearing, and the court

did not base its exelusion ruling on Frye. Indeed, the trial court's basis for excluding

Mann's testimony was ER 702: Mann failed to perform a full origin and cause

investigation, thus failing to follow "reliable methodology." Lakey, 176 Wn.2d at 918-

19. But, as Mann repeatedly explained, he was retained solely to evaluate Fire Marshal

Lynam's work. To accomplish this, Mann reviewed Lynam's investigation and visited
No. 95396-1

Madsen, J., dissenting

the scene to collect data. He had no independent hypothesis on the origin or cause of the

fire. The Mann investigation sought to verify whether Lynam's conclusions were proper,

not to provide a competing theory of causation.

A full origin and cause investigation was not necessary, nor was it required. The

State offered a theory on the cause of the fire, as required to meet its burden of proof. A

defendant carries no burden of proof and is required to prove nothing. State v. Camara,

113 Wn.2d 631, 638, 781 P.2d483 (1989) (citing/« re Winship, 397 U.S. 358, 90 S. Ct.

1068, 25 L. Ed. 2d 368 (1970)), overruled in part on other grounds by State v. W.R., 181

Wn.2d 757, 336 P.3d 1134 (2014). Requiring Amdt's expert to undertake an

urmecessary causation inquiry shifts the burden away from the State and onto the defense

and is unquestionably improper. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653

(2012) (citing State v. Gregory, 158 Wn.2d 759, 859-60, 147 P.3d 1201 (2006)).

Instead, I would hold Mann's testimony was relevant and admissible under ER

702. Mann was an undisputed expert with extensive training and experience as a fire and

arson investigator. His testimony would have challenged the opinions and conclusions of

the State's experts and explained the significance of evidence the State's investigators

overlooked. Lakey, 176 Wn.2d at 918 (testifying witness must be an expert, and the

testimony must assist the trier of fact); State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d

1258 (2004) ("Expert testimony is helpful if it concerns matters beyond the common

knowledge of the average layperson." (citing State v. Farr-Lenzini, 93 Wn. App. 453,

461,970P.2d313 (1999))).
No. 95396-1

Madsen, J., dissenting

Moreover, Mann's investigation was essentially Amdt's only defense. The State's

experts asserted that Arndt lit the flame, igniting the beanbag chair and couch, and so

committed arson as well as the other charged crimes. Mann's testimony on the plastic

bucket and lack of expected residue near the couch would have undercut critical points of

the State's theory. Excluding it violates the Sixth Amendment right to present a defense

and was an abuse of discretion.

Harmless Error

A constitutional error is harmless if'"it appears beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.'" State v. Brown, 147

Wn.2d 330, 341, 58 P.3d 889 (2002) (internal quotation marks omitted) (quoting Aet/er v.

United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). "An error is not

harmless beyond a reasonable doubt where there is a reasonable probability that the

outcome of the trial would have been different had the error not occurred." State v.

Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995) (citing State v. Benn, 120 Wn.2d 631,

649, 845 P.2d 289 (1993)). "A reasonable probability exists when confidence in the

outcome of the trial is undermined." Id.

As discussed above, when the evidence is essentially a defendant's entire defense,

then there is no state interest that will supersede the defendant's right to present the

defense. Here, Amdt's only defense to the Lynam investigation was Mann's testimony

contradicting and questioning Lynam's conclusions. The majority holds that Mann was

still able to dispute some of Lynam's conclusions, thus Amdt was able to present a
No. 95396-1

Madsen, J., dissenting

defense. This misses the point. Mann was able to contradict the Lynam investigation

only by pointing out discrepancies in the report. He was unable to directly challenge the

investigation by providing data on the plastic bucket and lack of expected plastic residue

Mann determined by visiting the scene. This is the only direct evidentiary challenge to

Lynam's findings. Thus, it was Amdt's entire defense to the Lynam investigation, which

was critical to the State's case. Excluding it was not harmless error, and the exclusion

violated Amdt's constitutional right to present a defense.

Double Jeopardv

Another critical issue here is whether double jeopardy applies to an aggravator of

first degree arson in a first degree murder conviction. The majority holds that because

the legislature clearly intended separate punishment for the crimes of first degree murder

with an aggravator of first degree arson and first degree arson itself, double jeopardy is

not implicated. When considering whether cumulative punishment is appropriate, we

look to (1) consideration of express or implicit legislative intent, (2) application of the

"same evidence" test, (3) application of the "merger doctrine," (4) consideration of any

independent purpose or effect that would allow punishment as a separate offense. See

State V. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005).

It should be noted that the State admits the aggravator and the crime fall under the

same evidence mle. That is "where the same act or transaction constitutes a violation of

two distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other
No. 95396-1

Madsen, J., dissenting

does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932).

We must also consider that the landscape of criminal jurisprudence has changed

over the years. The Supreme Court held that any fact that increases the mandatory

minimum sentence is an element of the crime that must be submitted to the jury. See

Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). By

broadly holding so, arguably an aggravator is considered an "element" of the crime

because it increases the length of punishment for a defendant. But there are other

elements involved in first degree murder that may distinguish the aggravator and the

crime as two separate offenses. However, the State conceded in the lower appellate court

that first degree felony murder and aggravated first degree murder with first degree arson

as the aggravator are based on the same conduct. It should follow that first degree arson

and aggravated first degree murder with first degree arson as the aggravator also

constitutes the same conduct.

Blockburger and the same evidence tests control unless there is "a clear indication

of contrary legislative intent." State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995)

(emphasis added) {diimg, Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137,

67 L. Ed. 2d 275 (1981)). In other words, overcoming Blockburger is an uphill battle.
No. 95396-1

Madsen, J., dissenting

Despite the majority's stretch to find such evidence, what little it uncovers does not

overcome Blockburger as clearly contrary legislative intent. See majority at 36-37, 39.^

This court has recently examined double jeopardy in a similar context. In State v.

Muhammad, No. 96090-9 (Wash. Nov. 7, 2019), the prosecutors charged Bisir Bilal

Muhammad with felony murder predicated on first degree rape as well as first degree

rape. Muhammad challenged this as a violation of double jeopardy under Blockburger

and the same evidence tests. A majority of this court agreed that Blockburger applied. I

see no appreciable difference between felony murder predicated on rape and rape, and

that of aggravated first degree murder with an arson aggravator and first degree arson.

Amdt also argues that her convictions should have merged. The merger doctrine

applies "where the degree of one offense is elevated by conduct constituting a separate

offense." State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008). The Court of Appeals

rejected the merger argument based on a hypertechnical nuance: the aggravator did not

"elevate" the degree of the offense. But the aggravator effectively increased the

punishment expected by Arndt and, as noted above, is considered an element of the

offense under United States Supreme Court jurisprudence. The aggravator adds

additional elements to the crime and correspondingly elevates the "degree" of

^ As evidence of the independent purposes and effects exception to the merger doctrine, the

majority offers the different locations of arson and murder in the criminal code and the differing

protections they offer. Majority at 39. The majority cites Calle in support, but that case did not

concern the independent purposes and effects test. We discussed the criminal code and purposes

underlying the crimes of rape and incest as evidence that the legislature intended to punish the

offenses separately even though they were committed by a single act. Calle, 125 Wn.2d at 780-

81.

8
No. 95396-1

Madsen, J., dissenting

punishment to which a defendant expects. Even if we could apply such a nuance, the rule

of lenity counsels against it. Id. at 812-14 (applying the merger doctrine under the rule of

lenity). The merger doctrine should apply here, and the first degree arson conviction

should merge with the aggravated first degree murder conviction.

The majority also argues State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018), does

not apply because it involved multiple prosecutions, whereas here this case involves

multiple punishments. However, this is a distinction without effect. Allen also follows

contemporary jurisprudence and effectively removes the distinction between aggravating

factors and elements of a charged offense. See id. at 539 ("It is clear that the RCW

10.95.020 aggravating circumstances are elements for Sixth Amendment purposes

because they are not limited to proof of a prior conviction and, by law, they increase the

minimum penalty for first degree murder."). I would hold that double jeopardy was

implicated by the aggravator and the crime, and should have merged.

The majority further holds that even if the merger doctrine applies, the two

offenses fall under the independent purpose or effect exception. "To establish an

independent purpose or effect of a particular crime, that crime must injure the person or

property of the victim or others in a separate and distinct manner from the crime for

which it also serves as an element." State v. Harris, 167 Wn. App. 340, 355, 272 P.3d

299, review denied, 175 Wn.2d 1006 (2012). Also of note, the offense must not be

'"merely incidental to the crime of which it forms an element.'" Freeman, 153 Wn.2d at

778-79 (quoting State v. Frohs, 83 Wn. App. 803, 807, 924 P.2d 384 (1996)).
No. 95396-1

Madsen, J., dissenting

I disagree that the independent purpose or effeet exception applies here. The

majority reasons that the aggravated murder charge pertained to only one victim, whereas

the arson charge was '"manifestly dangerous' to the other occupants." Majority at 38.

But there was no independent purpose or effect here. While the arson certainly did affect

the property and others in addition to the victim here, they were merely incidental as it

appears the purpose of the arson was to target the victim and not everyone else in the

home. Moreover, without proof of the arson, Amdt would not be implicated by the

murder of the victim. That is, if the fire was accidental, then Amdt could not be

convicted of murder. Thus, the two offenses are incidental to one another and are not

separate and distinct. The two offense should merge, and double jeopardy is necessarily

violated.

Conclusion

A defendant's right to present a defense is violated when the evidence excluded

essentially amounts to a defendant's entire defense. Mann's testimony was the only

evidence that directly challenged the State's theory of the case. By excluding it, the trial

court removed Amdt's only defense against the evidence against her and violated her

constitutional right to present a defense. Moreover, the conviction of aggravated first

degree murder, with arson as the aggravator, and first degree arson violated double

jeopardy and should have merged. I would reverse the Court of Appeals' decision and

remand the ease to the trial court. Accordingly, I respectfully dissent.

10
No. 95396-1

Madsen, J., dissenting

11