IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

GUSTAVO TAPIA RODRIGUEZ,

Appellant.

)

)

)

)

)

)

)

)

)

No. 37522-6-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Gustavo Tapia Rodriguez appeals after a jury found 

him guilty of the aggravated first degree murder of Arturo Sosa and the first degree 

kidnapping and the first degree assault of Jose Cano Barrientos. We affirm Tapia 

Rodriguez’s convictions, but remand for the trial court to apply the correct same criminal 

conduct test to the kidnapping and assault convictions and to correct a scrivener’s error. 

FACTS

Eustolia Campuzano had been in a relationship with Arturo Sosa for almost three 

years before breaking up with him in November 2016. Campuzano moved out of the

home they shared together and into Paula Rodriguez’s home. 

FILED

FEBRUARY 8, 2022

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

2

Ms. Rodriguez informed Campuzano that she knew some people who could scare 

Sosa. Ms. Rodriguez took Campuzano to see these people: Fernando Marcos Gutierrez 

and Gustavo Tapia Rodriguez. Campuzano told these men about Sosa and how she 

wanted to scare him. 

Gutierrez and others developed a plan. Gutierrez told Julio Albarran Varona that 

he, Albarran Varona, Tapia Rodriguez, and Ambrosio Villanueva were going to beat up 

Sosa for hitting Campuzano and causing two screws to be placed into her jaw. On the 

evening of December 8, 2016, these four men and Salvador Gomez armed themselves 

with guns and went to Ms. Rodriguez’s home. Gutierrez had a .40 caliber handgun. 

Tapia Rodriguez had a .45 caliber handgun. 

Tapia Rodriguez told Campuzano they were going to scare Sosa. Most of them 

drank alcohol and consumed crystal methamphetamine throughout the night. 

In the early morning hours of December 9, 2016, Tapia Rodriguez, Gutierrez, 

Villanueva, Albarran Varona, and Campuzano got into Tapia Rodriguez’s GMC Yukon 

and drove to Sosa’s house. They parked on the side of the road near the house until Sosa 

and a second person, Jose Cano Barrientos, left the house in the Cano Barrientos’s Ford 

Explorer. Tapia Rodriguez and his crew followed in the Yukon.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

3

After they reached the highway, Tapia Rodriguez began flashing his lights on and 

off until Cano Barrientos pulled over to see if something was wrong. Tapia Rodriguez 

parked his Yukon behind Cano Barrientos’s Explorer. 

Three or four men exited the Yukon, all armed with firearms equipped with 

silencers. Tapia Rodriguez and Gutierrez approached Cano Barrientos’s vehicle with 

guns drawn; Tapia Rodriguez went to the driver’s side and Gutierrez went to the front 

passenger side. They ordered Cano Barrientos and Sosa out of the Explorer at gunpoint. 

Deoxyribonucleic acid (DNA) taken from the outside front passenger door handle of 

Cano Barrientos’s vehicle matched Gutierrez’s DNA.

Tapia Rodriguez and Gutierrez ordered Cano Barrientos and Sosa to kneel 

between the two vehicles. They told Cano Barrientos and Sosa, “Te voy matar,” which 

means, “I’m going to kill you.” Report of Proceedings (RP)

1

at 1198. They cocked their 

guns and pointed them at the heads of Cano Barrientos and Sosa. 

By this time, the plan to beat up Sosa had changed to killing both men. Tapia 

Rodriguez later remarked to Albarran Varona, “[S]ometimes when things don’t work out 

the right way, people have to die.” RP at 926. 

 

1

“RP” references are to the verbatim report of proceedings of the trial unless 

otherwise indicated.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

4

Realizing that both men were about to be killed, Albarran Varona warned Tapia 

Rodriguez that there was traffic on the highway. The armed men then loaded Cano 

Barrientos and Sosa into the back seat of Cano Barrientos’s Explorer. 

Cano Barrientos sat in the back driver’s-side seat, Sosa sat in the back center seat,

and Tapia Rodriguez sat in the back passenger-side seat next to Sosa, pointing a gun at 

him and Cano Barrientos. Albarran Varona was in the driver’s seat, holding a pistol with 

a chambered round. Gutierrez, Villanueva, and Campuzano were in Tapia Rodriguez’s 

Yukon, the lead vehicle, while Albarran Varona followed in Cano Barrientos’s Explorer. 

About one mile down the road, Sosa and Cano Barrientos tried to wrestle the gun 

from Tapia Rodriguez. While driving, Albarran Varona pointed his pistol at Sosa. Cano 

Barrientos then began choking Albarran Varona so he would not shoot Sosa. Albarran 

Varona fired his gun and the bullet hit Cano Barrientos in his upper chest, near his 

collarbone, causing him to collapse between the two front seats. Once Albarran Varona 

regained control of the car, he looked back, and saw Tapia Rodriguez put his gun to 

Sosa’s head and shoot three times. 

With Gutierrez’s help, the men got their guns, some shell casings, and a magazine

and left in Tapia Rodriguez’s Yukon. Before leaving, Gutierrez made Campuzano look at 

Sosa’s body and threatened to kill her if she said anything. 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

5

Cano Barrientos survived. Sosa died. 

Charges

The State charged Tapia Rodriguez and Gutierrez with first degree murder (by all 

alternative means), second degree murder (with intentional murder and felony murder 

alternatives), first degree assault, and first degree kidnapping. In addition, the State 

alleged multiple aggravators and enhancements, and provided notice to Tapia Rodriguez 

that it would seek an aggravated murder sentence.

Albarran Varona was not charged but agreed to testify against Tapia Rodriguez 

and Gutierrez in exchange for a plea deal in a different murder case. 

Jury Voir Dire

During voir dire, venire juror 16 expressed his opinion, that, as an immigrant from 

Russia, he experienced prejudice and hostility from others. He admitted he had racist 

thoughts when he was younger but his feelings changed because he kept an open mind 

and became more educated and aware. When jurors were asked whether anyone was 

going to hold Tapia Rodriguez’s Mexican name or heritage against him, no one, including 

juror 16, answered affirmatively. However, when asked if everyone felt comfortable not 

delving into immigration issues because they lacked relevance to the case, juror 16 said, 

“Given that I came to this country legally, I think it will bother me.” RP at 507. “It 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

6

would influence my decision, I would think.” Id. Following up on juror 16’s comments, 

defense counsel clarified that Tapia Rodriguez’s immigration status is irrelevant to both 

the facts and the charges the State would be trying to prove. Juror 16 responded, “Sure, I 

think that thought would still linger in the back of my mind.” Id. at 508. Defense counsel 

then asked, “Would you hold that against him?” And juror 16 answered, “Yes.” Id. 

Juror 16 then said it might be problematic for him to ignore the immigration issue even if 

the judge instructed him to ignore it. He explained why it would be difficult for him to 

set aside his opinion on illegal immigration:

JUROR [16]: Sure. Because this large part, myself and my family 

came here legally, and it was very hard to do so. We followed the proper 

channels to get to this country legally. And so when you see somebody do 

it illegally, it doesn’t matter what skin color they are, they’re coming from 

Canada, it doesn’t matter. If they’re doing something illegally, they’re 

breaking the law, they’re breaking the law in this country.

Id. at 508-09. He acknowledged that there are justifications—such as genocide or gang 

infestation—for fleeing a dangerous country and such justifications would possibly 

change his mind. Yet, even knowing there is a possibility that the defendant might have 

fled a dangerous country, juror 16 would hold it against Tapia Rodriguez. Finally, when 

defense counsel asked, “[I]s there anything we could convince you or say to you, even 

with the judge’s instruction, say, you shouldn’t hold that, that shouldn’t be a factor,” juror 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

7

16 said, “I’m ready to listen.” Id. at 510. He admitted he had already judged Tapia 

Rodriguez “[t]o some degree,” but repeated, “Like I said, I’m willing to listen.” Id.

Counsel for the State and the codefendants challenged several jurors for cause, but 

none challenged juror 16 for cause. Counsel also exercised their peremptory challenges, 

but none exercised a peremptory challenge to remove juror 16. Each attorney confirmed 

that the jury ultimately empaneled, which included juror 16, was the jury he selected.

Pretrial Motions in Limine 

In pretrial proceedings, Tapia Rodriguez moved to prohibit Albarran Varona’s 

former defense attorney, Smitty Hagopian, from testifying. The State intended, through 

Hagopian, to show that Albarran Varona’s testimony was credible because the story he 

told during his free talk was consistent with the State’s investigation, even though the 

State had not made its investigatory records available to Hagopian or Albarran Varona. 

The court identified Albarran Varona’s credibility as the central issue and found the 

expected testimony was factual and not improper bolstering or vouching. Based on its 

findings, the court denied the defense’s motion in limine. 

During trial, defense counsel elicited testimony from Albarran Varona that 

Hagopian had prepared him for a free talk with law enforcement and went through the 

facts of this case. 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

8

Hagopian testified he had previously represented Albarran Varona in a murder 

case and worked out a plea agreement with the State. Part of the agreement required 

Albarran Varona to tell the State everything he knew about any crimes of which he was 

aware. Hagopian had no discovery from the State related to the present case, so he had no

evidence to share with his client before the free talk with law enforcement. Hagopian sat 

in on the free talk and heard Albarran Varona reiterate what he had previously heard from 

his client. As explained in the State’s closing argument, the information provided by 

Albarran Varona in the free talk was consistent with its evidence. 

State’s Closing Argument

During closing arguments, the State argued that the jury could evaluate Albarran 

Varona’s credibility by comparing it to other evidence:

Let’s talk about what incentives he had, whether we can evaluate 

whether he’s telling the truth. Look at the other evidence. Does his 

testimony match the evidence? He told us where Zapato went up to the car. 

Oh, guess what, his DNA is there. He told us where Tapia—actually I 

made a mistake, you recall in the jury instructions, listen to what the 

evidence is, not what we said. I made a mistake in opening when I said 

Tapia’s fingerprint was on the driver’s side, when it was on the passenger 

side. But it’s right where it would be if he was getting into the back seat of 

the car, like everybody testified to, and quote, reaching up to close that 

door. It was his right middle finger, right where it would be. 

You know, if [Albarran Varona] really wanted to, could he have 

made up a better lie for us? Absolutely. You know what’s better for our 

case? [Had Gutierrez been] the driver. That would have been so easy for 

him to make up. He could have just said [the defendants] told me what 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

9

happened in the car and told us the exact same story. He didn’t. It would 

have been better for him, it would have been better for us. He didn’t.

He said, I was the driver in the car, I shot [Cano Barrientos]. Why 

would he say that if it wasn’t true?

We also held back details. We held back about the fight in the car. 

We held back about biting and choking. That was on purpose. To test his 

credibility, to test whether he was going to tell us the truth.

RP at 2703-04. During rebuttal, the State argued that Albarran Varona was afraid that he 

would be killed if he testified for the State:

You know, and we put [Albarran Varona]—we put a lot of people, 

the state does, we put them between a rock and a hard place. We say, 

cooperate with us or get this, or don’t cooperate with us and you get 

another—and you get a longer sentence. So he has a hard choice to make. 

He can cooperate with us and get 18 years, but he takes a risk when he does 

that, he’s going to get a shiv in the back. And that’s what he’s really scared 

of.

The difference between 18 years and life doesn’t mean a whole hell 

of a lot if you’re dead, if you’ve been stabbed in the back in prison. That’s 

a decision he’s got to make. And that’s not an easy decision at all. It takes 

a long time to sort that out. It’s probably a harder decision that any of us 

will have to make in our lives. He put himself there. You shouldn’t feel 

sympathy for him. But it’s a tough decision.

RP at 2844-45.

Jury Verdict

The jury found Tapia Rodriguez and Gutierrez guilty on all counts. With respect 

to Tapia Rodriguez’s first degree murder verdict, the jury also found all aggravating 

factors present, it found unanimously that he acted with premeditated intent, that he 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

10

caused Sosa’s death in the course or furtherance of first degree kidnapping, and that he 

engaged in conduct manifesting extreme indifference to human life, resulting in Sosa’s 

death. Further, it returned special verdict findings that Tapia Rodriguez was armed with a 

firearm when he committed murder, assault, and kidnapping and that he committed 

murder in the course of, in furtherance of, or in immediate flight from first degree 

kidnapping. All aggravating factors and special verdict findings were found unanimously 

with regard to Gutierrez as well.

Answering special verdict form 5, the jury found Tapia Rodriguez abducted Cano 

Barrientos with intent to facilitate a second degree assault, inflict bodily injury, and inflict 

extreme mental distress. The jury found the same for Gutierrez. Answering special 

verdict form 11, it found Tapia Rodriguez committed kidnapping with intent to facilitate 

second degree assault, inflict bodily injury, and inflict extreme mental distress on the 

person. It found the same with respect to Gutierrez. 

Sentencing

Tapia Rodriguez argued that his crimes of first degree assault and first degree 

kidnapping against Cano Barrientos should be considered the same criminal conduct for 

purposes of calculating his offender score and running the convictions concurrently. The 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

11

trial court, however, applied the statutory intent analysis in State v. Chenoweth2to 

conclude that the crimes were not the same criminal conduct, consistent with the most 

recently published Court of Appeals opinion in State v. Johnson.

3

 Concluding that “the 

most recent published caselaw appears to apply this statutory element analysis versus the 

objective factual analysis that was done previously,” the trial court found that the assault 

and kidnapping offenses did not “match statutorily.” RP (Apr. 20, 2020) at 245-46. The 

trial court reasoned:

So, the—the element that is different here is the intent to inflict great bodily 

harm, which is an element that is separate and apart from the other charge. 

And when you do that objective statutory element review then, because 

there is a difference, it does not appear that they can be considered the same 

conduct, same criminal conduct.

So, at this point I am going to make a decision in favor of the State 

on this issue and we’ll count those separately.

Id. at 246. 

The trial court sentenced Tapia Rodriguez to life without the possibility of parole 

on the aggravated first degree murder conviction, 183 months on the first degree assault 

conviction, 128 months on the first degree kidnapping conviction, and 15 years for the 

 

2 State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6 (2016).

3 State v. Johnson, 12 Wn. App. 2d 201, 460 P.3d 1091 (2020), aff’d, 197 Wn.2d 

740, 487 P.3d 893 (2021).
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

12

firearm enhancements, all to run consecutively. The trial court dismissed the second 

degree murder conviction.

ANALYSIS

A. SUFFICIENT EVIDENCE SUPPORTS THE AGGRAVATED MURDER CONVICTION

Tapia Rodriguez contends the State failed to produce sufficient evidence of 

premeditation to support his aggravated first degree murder conviction. Only a 

premediated murder can qualify for an aggravated sentence. State v. Irizarry, 111 Wn.2d 

591, 593-94, 793 P.2d 432 (1988).

When a defendant challenges the sufficiency of the evidence, the proper inquiry is 

whether, after viewing the evidence in the light most favorable to the State, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “[A]ll reasonable 

inferences from the evidence must be drawn in favor of the State and interpreted most 

strongly against the defendant.” Id. This court’s role is not to reweigh the evidence and 

substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 

628 (1980) (plurality opinion). Instead, because the jurors observed testimony firsthand, 

this court defers to the jury’s decision regarding the persuasiveness and the appropriate 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

13

weight to be given the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 

(2004).

Here, the court instructed the jury on the definition of “premeditated:”

Premeditated means thought over beforehand. When a person, after 

any deliberation, forms an intent to take human life, the killing may follow 

immediately after the formation of the settled purpose and it will still be 

premeditated. 

Premeditation must involve more than a moment in point of time. 

The law requires some time, however long or short, in which a design to kill 

is deliberately formed.

Clerk’s Papers (CP) at 418. 

At trial, Albarron Varona testified that the initial plan was to beat up Sosa. He 

also testified that the plan changed by the time Tapia Rodriguez and Gutierrez brought 

Sosa and Cano Barrientos out of the Explorer and made them kneel on the ground. When 

asked if he knew why the plan had changed, he testified he did not know then, but Tapia 

Rodriguez later told him, “[S]ometimes when things don’t work out the right way, people 

have to die.” RP at 926. 

The State maintains that Tapia Rodriguez formed the premeditated intent to kill the 

two men at or before the time he had them kneel between the parked vehicles, but 

declined to do it there because of traffic. The facts and reasonable inferences construed 

in the State’s favor support this. The men were then forced at gunpoint inside the back of 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

14

Cano Barrientos’s Explorer. One mile down the road, Tapia Rodriguez shot and killed 

Sosa when Sosa tried to disarm him. 

The State argues that simply because the premeditated killing occurred differently

than planned does not negate the fact it was premeditated. We agree. There is no 

requirement that the plan for premeditated killing unfold seamlessly. Most do not. Many, 

such as the one here, involve a struggle. 

We conclude that there is sufficient evidence that Tapia Rodriguez killed Sosa 

with premeditated intent. 

Tapia Rodriguez alternatively argues, if sufficient evidence of premeditated intent 

exists, then the Grant County Prosecutor’s Office abused its discretion in filing the 

aggravated murder charge because the charged crime was not sufficiently outrageous. 

The State makes a threshold argument that this court should decline to review this issue 

because Tapia Rodriguez did not raise this claim of error in the trial court. Substantively, 

it argues Tapia Rodriguez identifies no authority by which a court could overrule a 

prosecutor’s charging decision when there is probable cause for the offense and to do so 

would violate separation of powers. We can resolve his claim of error on the threshold 

basis that it was not preserved.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

15

Subject to exceptions not argued here, an appellate court may refuse to review any 

claim of error not raised in the trial court. State v. O’Hara, 167 Wn.2d 91, 97-98, 217 

P.3d 756 (2009). Had the claim of error been raised below, the State could have argued 

the charging decision was within its discretion; if the court was unpersuaded, the State 

could have made a sufficient record to justify its discretionary decision to bring the 

aggravated murder charge and to the extent the trial court might have been required to 

enter factual findings, those findings could have been made. For these reasons, we 

decline to review this claim of error.

B. TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CHALLENGE OR 

REMOVE VENIRE JUROR 16

Tapia Rodriguez next argues that defense counsel was ineffective for failing to 

challenge or remove venire juror 16, who admitted he was biased against a person not 

legally in the United States.

To prevail on a claim of ineffective assistance of counsel, a defendant must 

demonstrate that defense counsel’s representation was deficient, i.e., it fell below an 

objective standard of reasonableness, and counsel’s deficient representation prejudiced 

the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a 

defendant fails to establish one prong of this test, the court need not consider the other 

prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

16

To establish ineffective assistance of counsel based on trial counsel’s performance 

during voir dire, a defendant generally must demonstrate the absence of a legitimate 

strategic or tactical reason for counsel’s performance. In re Pers. Restraint of Davis, 152 

Wn.2d 647, 709, 101 P.3d 1 (2004). The failure of trial counsel to challenge a juror is not 

deficient performance if there is a legitimate tactical or strategic decision not to do so. 

State v. Alires, 92 Wn. App. 931, 939, 966 P.2d 935 (1998). We strongly presume 

defense counsel’s performance was reasonable. State v. Grier, 171 Wn.2d 17, 33-34, 246 

P.3d 1260 (2011).

The State maintains that defense counsel decided to not challenge juror 16 for 

cause or remove him with a peremptory challenge because counsel sought to persuade the 

jury that a State’s witness—the surviving victim—was not legally in the United States 

and that Tapia Rodriguez was born in Texas and thus was a United States citizen.

During motions in limine, Mr. Gutierrez’s trial counsel indicated he would be 

asking about the surviving victim’s immigration status and U Visa request. During crossexamination, defense counsel in fact asked Cano Barrientos if he was an illegal immigrant

and asked about his U Visa request. All of the State’s civilian witnesses were Spanish 

speaking. 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

17

Late in the trial, the State sought to admit Tapia Rodriguez’s fingerprint card. 

Tapia Rodriguez sought to redact an alias listed on the card, and the State sought to redact 

the listed place of birth, Texas. It was only after the State presented evidence that Tapia 

Rodriguez was not born in Texas that the court excluded the place of birth listed on the 

card. 

The record supports the State’s position that defense counsel’s decision not to 

challenge or remove venire juror 16 was a strategic decision. We conclude that defense 

counsel was not ineffective.

Relatedly, Tapia Rodriguez argues the trial court should have sua sponte removed 

venire juror 16. He quotes one aspect of State v. Lawler, 194 Wn. App. 275, 374 P.3d 

278 (2016). We quote both aspects: 

Both RCW 2.36.110 and CrR 6.4(c)(1) create a mandatory duty to 

dismiss an unfit juror even in the absence of a challenge. . . .

. . . .

On the other hand, a trial court should exercise caution before 

injecting itself into the jury selection process . . . 

lest it interfere with a defendant’s right to control his defense.

. . . Whether to keep a prospective juror on the jury panel or whether 

to dismiss a juror often is based on . . . trial counsel’s experience, intuition, 

strategy, and discretion. Trial counsel may have legitimate, tactical reasons 

not to challenge a juror who may have given responses that suggest some 

bias. A trial court that sua sponte excuses a juror runs the risk of disrupting 

trial counsel’s jury selection strategy.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

18

Id. at 284-85 (citation omitted). At trial, as is true in all aggravated first degree murder 

trials, both defendants were represented by highly experienced defense counsel. We 

conclude that the trial court acted prudently by not injecting itself into the jury selection 

process. 

C. SENTENCING ISSUES

Tapia Rodriguez next argues the trial court abused its discretion at sentencing by 

concluding that his convictions for first degree kidnapping and first degree assault of 

Cano Barrientos were not the same criminal conduct. He also contends the trial court 

erroneously failed to apply the merger doctrine to the various alternative means of first 

degree murder found by the jury.

Same Criminal Conduct: Whenever a person is convicted of two or more serious 

violent offenses4arising out of separate and distinct criminal conduct, the sentences must

be served consecutively to each other. RCW 9.94A.589(1)(b). Conversely, it stands to 

reason, whenever a person is convicted of two or more serious violent offenses arising out 

of the same criminal conduct, the sentences must be served concurrently. A trial court 

 

4 First degree assault and first degree kidnapping are serious violent offenses. 

See RCW 9.94A.030(46)(a)(v), (vi).
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

19

abuses its discretion if it applies the wrong legal standard. State v. Sisouvanh, 175 Wn.2d 

607, 623, 290 P.3d 942 (2012).

The State accurately notes that courts have applied different tests in analyzing

same criminal conduct. The inconsistency arises because of two arguably irreconcilable 

Supreme Court cases. Both cases apply different same criminal conduct tests.

In State v. Dunaway, 109 Wn.2d 207, 214-15, 743 P.2d 1237 (1987), the court 

held that the same criminal conduct test turns on whether the defendant’s objective 

criminal intent changed from one crime to the next. Later, in State v. Chenoweth, 185 

Wn.2d 218, 221, 370 P.3d 6 (2016), the court held that rape and incest charges arising 

from the same incident are not the same criminal conduct because the legislature had 

adopted distinct mens rea for each of the two offenses. More succinctly, Dunaway views 

the same criminal conduct test as an inquiry into the defendant’s intent, while Chenoweth

views the same criminal conduct test as an inquiry into the statutory mens rea.

We recently reconciled both cases in State v. Westwood, No. 37750-4-III, (Wash. 

Ct. App. Dec. 16, 2021), http://www.courts.wa.gov/opinions/pdf/377504_pub.pdf. There, 

we noted that the Supreme Court has continued to follow Dunaway and that Chenoweth

did not explicitly overrule Dunaway and its progeny. Westwood, slip op. at 10. We 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

20

therefore limited Chenoweth to cases involving rape and incest. Id. at 10-11. The trial 

court did not have the benefit of Westwood prior to sentencing. 

At sentencing, the trial court understandably applied the Chenoweth test, reasoning 

that the most recent Court of Appeals authority controlled. We remand for the trial court 

to determine same criminal conduct by applying the Dunaway test as more fully explained 

in Westwood. If the trial court determines that Tapia Rodriguez’s first degree kidnapping 

conviction and his first degree assault conviction arise out of the same criminal conduct, 

these two offenses must be scored as one conviction and sentenced concurrently, not 

consecutively. 

Merger: Tapia Rodriguez argues that the merger doctrine prohibited him from 

being sentenced for aggravated first degree murder because the aggravating element—

first degree kidnapping—was also an element of the alternative means of first degree 

murder, i.e., felony murder. He argues, “The first degree felony murder, as an alternative, 

merged with the finding of premeditated first degree murder.” Br. of Appellant at 44. 

We disagree. 

The Fifth Amendment [to the United States Constitution] protection from 

double jeopardy protects against multiple convictions for the same offense 

and 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
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

21

for different offenses.” State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 

(1991) (emphasis added).

State v. Arndt, 194 Wn.2d 784, 817, 453 P.3d 696 (2019).

Tapia Rodriguez’s briefing focuses on his aggravated first degree murder 

conviction and the alternative means charged and special allegations alleged to elevate 

first degree murder to aggravated first degree murder, primarily the kidnapping special 

allegation. Tapia Rodriguez, however, fails to identify multiple punishments imposed for 

the aggravated first degree murder conviction. He was sentenced to life without parole 

under count 1 and was not separately charged with, convicted of, or punished for 

kidnapping Sosa or for any of the alternative means of committing first degree murder. 

“‘Under the merger doctrine, when the degree of one offense [(e.g., first degree murder)]

is raised by conduct separately criminalized by the legislature [(e.g., first degree 

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

greater sentence for the greater crime.’” Id. at 819 (quoting State v. Freeman, 153 Wn.2d 

765, 772-73, 108 P.3d 753 (2005)). That is what occurred here. There is no merger 

doctrine or double jeopardy error. 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

22

Scrivener’s Error:

The parties agree the judgment and sentence should be remanded to correct 

paragraph 4.1(a) by removing and replacing an erroneous reference to count 2, which was

dismissed, with a proper reference to count 4.

D. PROSECUTORIAL MISCONDUCT CLAIM

With very little analysis, Tapia Rodriguez contends the prosecutor engaged in 

misconduct by making statements during closing argument that (1) argued facts not in 

evidence in violation of an order in limine, (2) vouched for a State’s witness, and 

(3) misled the jury about the facts and special verdict forms. 

To establish prosecutorial misconduct, Tapia Rodriguez must demonstrate that the 

prosecutor’s conduct was improper and prejudiced his right to a fair trial. State v. 

Jackson, 150 Wn. App. 877, 882, 209 P.3d 553 (2009). Prejudice is established only 

where a substantial likelihood exists that the misconduct affected the jury’s verdict. Id. at 

883. Where defense counsel fails to object to the prosecutor’s statement, reversal is 

required only where the misconduct is so flagrant and ill intentioned that no instruction 

could have cured the resulting prejudice. Id. The court reviews a prosecutor’s allegedly 

improper statements made during closing argument in the context of the entire argument, 

the issues in the case, the evidence addressed, and the jury instructions. Id.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

23

An appellant must provide “argument in support of the issues presented for review, 

together with citations to legal authority and references to relevant parts of the record.” 

RAP 10.3(a)(6). Here, Tapia Rodriguez cites legal authority and relevant parts of the 

record but makes only conclusory statements that the prosecutor committed misconduct 

based on the law and the record cited. He offers no argument on how the prosecutor’s 

allegedly improper conduct prejudiced his right to a fair trial. Issues presented without 

meaningful analysis need not be considered. State v. Rafay, 168 Wn. App. 734, 843, 285 

P.3d 83 (2012); Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 

254 P.3d 835 (2011). Nevertheless, because Tapia Rodriguez received a sentence of life 

without the possibility of parole, we use our discretion to consider the inadequately 

argued issues. 

Facts Not in Evidence: First, Tapia Rodriguez argues that an order in limine 

barred the prosecutor from eliciting testimony about Albarran Varona’s fear of reprisal 

for testifying against Tapia Rodriguez and Gutierrez, that the prosecutor was prohibited 

from asking a question during trial that elicited such testimony, and that the prosecutor, 

nevertheless, argued Albarran Varona’s fear during closing argument. This is not an 

accurate representation of the record. 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

24

The record shows the trial court denied Tapia Rodriguez’s motion in limine to bar 

Albarran Varona’s former defense attorney, Smitty Hagopian, from testifying that he 

contacted the Washington Department of Corrections on his client’s behalf to allay his 

client’s concerns about testifying. Moreover, the record shows defense counsel, not the 

prosecutor, elicited testimony from Hagopian that formed the basis for the State’s closing 

argument. During cross-examination, Tapia Rodriguez’s counsel asked Hagopian how he 

prepared Albarran Varona for his free talk and, in relevant part, elicited the following 

response:

Secondly, with respect to these—your specific question, how do you 

prep your client for a free talk, in [Albarron Varona’s] case, we had to get 

over the hurdle of him knowing that he was going to be killed if he talked, 

and get him to the point where he would understand that it is better for him, 

legally better for him, to take the risk of telling on his co-defendants, than it 

was for him to just do down with the ship, as it were.

RP at 1042 (emphasis added). Based on this testimony, the prosecutor argued in closing 

that Albarran Varona was risking “a shiv in the back” by becoming a State’s witness and 

was scared to testify:

So he has a hard choice to make. He can cooperate with us and get 18 

years, but he takes a risk when he does that, he’s going to get a shiv in the 

back. And that’s what he’s really scared of.

The difference between 18 years and life doesn’t mean a whole hell 

of a lot if you’re dead, if you’ve been stabbed in the back in prison. That’s 

a decision he’s got to make. And that’s not an easy decision at all. It takes 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

25

a long time to sort that out. It’s probably a harder decision than any of us 

will have to make in our lives. He put himself there.

RP at 2844. A prosecutor should not comment on matters outside the evidence. State v. 

Schlichtmann, 114 Wn. App. 162, 58 P.3d 901 (2002). However, the State argued the 

facts in evidence—facts the prosecutor did not elicit in violation of an order in limine. 

Tapia Rodriguez cannot establish misconduct.

Vouching: Tapia Rodriguez insists the prosecutor vouched for Albarran Varona’s 

veracity during closing argument:

He said, I was the driver in the car, I shot Rafa. Why would he say 

that if it wasn’t true?

We also held back details. We held back about the fight in the car. 

We held back about biting and choking. That was on purpose. To test his 

credibility, to test whether he was going to tell us the truth.

RP at 2704. He argues that it is improper for the State to vouch for a government 

witness’s credibility, such as when it places the prestige of the government behind the 

witness or suggests that information not presented to the jury supports the witness’s 

testimony. See State v. Smith, 162 Wn. App. 833, 849, 262 P.3d 72 (2011). 

Tapia Rodriguez does not explain how this closing argument shows the State 

vouched for Albarran Varona or identify what information mentioned in the challenged 

closing argument was not presented to the jury. Albarran Varona testified that he shot 

Cano Barrientos. And extensive questioning of Hagopian elicited detailed testimony 
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

26

about what State information Albarran Varona did and did not have at the time of his free 

talk with law enforcement. While it is misconduct for a prosecutor to state a personal 

belief as to a witness’s credibility, the prosecutor has wide latitude to argue inferences 

from the facts concerning witness credibility. State v. Allen, 176 Wn.2d 611, 631, 294 

P.3d 679 (2013).

When viewed in context, the prosecutor did not express a personal opinion about 

Albarran Varona’s credibility. The prosecutor’s closing argument was made in the 

context of the State’s encouragement that the jury should “[c]ross-check your 

evidence”—that is, compare the evidence and testimonies of various witnesses when 

determining credibility. RP at 2698. This was appropriate argument, not misconduct.

Misleading Argument: Finally, Tapia Rodriguez argues that the prosecutor 

misstated the evidence by claiming that .45-caliber casings recovered by law enforcement 

were from Tapia Rodriguez’s gun. The prosecutor misstated what constitutes 

premeditation versus extreme indifference. And the prosecutor conflated Cano 

Barrientos’s kidnapping with Sosa’s kidnapping when discussing special verdict forms 5 

and 11. He contends in conclusory fashion that conflating these matters prejudiced the 

jury’s understanding of which form applied to which offense and which victim.
No. 37522-6-III

State v. Gustavo Tapia Rodriguez

27

Again, the State has wide latitude to argue reasonable inferences from the 

evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). Here, the State 

produced evidence at trial that Tapia Rodriguez was armed with a .45-caliber handgun 

during the crimes against Sosa and Cano Barrientos, Sosa was shot with .45-caliber 

bullets, Tapia Rodriguez picked up shell casings from Cano Barrientos’s vehicle, and a 

.45-caliber shell casing was recovered from Tapia Rodriguez’s vehicle. The State’s 

argument that the .45-caliber shell casings were from Tapia Rodriguez’s gun was a 

reasonable inference based on the evidence.

A prosecutor should not misstate the law. Schlichtmann, 114 Wn. App. 162; State 

v. Huckins, 66 Wn. App. 213, 836 P.2d 230 (1992); State v. Browning, 38 Wn. App. 772, 

689 P.2d 1108 (1984). However, Tapia Rodriguez does not argue how the State 

misstated the differences between premeditation and extreme indifference. The court’s 

instructions to the jury defined these legal terms and instructed the jury to disregard any 

statement by the lawyers that was not consistent with its instructions. Tapia Rodriguez 

fails to establish misconduct or resulting prejudice. 

Likewise, the court’s instructions to the jury were clear about the crimes to which 

they applied, ameliorating any confusion that may have been caused by the prosecutor’s 

closing argument. Special verdict form 5 concerned the first degree kidnapping charge. 
No. 37522-6-111 

State v. Gustavo Tapia Rodriguez 

The court instructed the jury about how to use it. The to-convict instruction for first 

degree kidnapping expressly mentioned Cano Barrientos, alleviating any confusion that 

special verdict form 5 also applied to the kidnapping charge concerning Cano Barrientos. 

Similarly, special verdict form 11 concerned the aggravated first degree murder charge. 

The evidence identified only one murder victim-Sosa. Tapia Rodriguez fails to show 

the prosecutor committed misconduct and specifically fails to establish flagrant and illintentioned misconduct. 

Affirm, but remand for resentencing and correction of scrivener's error. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J. 

WE CONCUR: 

OJdkw~. A-cJ= 

Siddoway, A.CJ. Staab, J. 

28