State Of Washington, Res/cross-app. V. Mical Darion Roberts, App/cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 84352-4-I
Respondent and
Cross Appellant, DIVISION ONE

v. PUBLISHED OPINION

MICAL DARION ROBERTS,

Appellant and
Cross Respondent.

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

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

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

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

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

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

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

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

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

FACTS

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

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

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

charged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

basement and run down the stairs.

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

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

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

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

exchange of gunfire lasted for about 10 seconds and involved “more than [10] to

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20” gunshots. Villaseñor was shot and fell onto the bed and Bolanos “ran into the

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

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

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

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

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

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

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

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

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

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

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

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

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

pronounced dead at the scene.

KCSO Detective James Belford testified that, when he entered the

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

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

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

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

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

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

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

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casings were recovered; 7 “SIG Sauer, 9-millimeter Luger” casings were found in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

camera facing the house prior to the shooting. TPD provided the video to Wheeler,

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who described the footage of the hours surrounding the incident as “fairly dark.

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

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

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

driveway.”

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

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

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

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

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

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

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

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

Beltran from contacting her. Beltran was arrested on suspicion of violating the no-

contact order and the Prius was impounded. A search warrant was authorized for

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

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

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

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

inside passenger compartment. Crime scene analysts examined the BMW and

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

be a match to Roberts’ DNA.

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On December 7, 2018, the blood samples from the scene of the shooting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

packs is really cut.”

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

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

been shot in the hand “a couple months” prior. Detectives searched the two-

bedroom apartment where Roberts resided incident to his arrest. In the closet of

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

appeared to be rap lyrics. Roberts’ bench trial began on October 11, 2021. At

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trial, the court admitted three lines of lyrics from one page from the notebook

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

notebook.

2 This portion of the trial is detailed in Section III of the analysis, infra.

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At the conclusion of the trial, the judge found Roberts guilty as charged and

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

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

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

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

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

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

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

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

predicated on burglary in the first degree.

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

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

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

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

and 120 months of confinement for the mandatory firearm enhancement.

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

enhancement to run concurrently with the base sentence.

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

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

enhancement.

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ANALYSIS

I. Sufficiency of the Evidence

Roberts avers there was insufficient evidence to support his conviction for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“because a preponderance of evidence established the statutory affirmative defense to felony
murder.” Roberts did not raise this defense at trial.
To have this issue considered for the first time on appeal pursuant to RAP 2.5(a)(3),
Roberts must show that it is a “‘manifest error affecting a constitutional right.’” State v. O’Hara, 167
Wn.2d 91, 98, 217 P.3d 756 (2009) (quoting RAP 2.5(a)). This requires Roberts to show that both
“(1) the error is manifest, and (2) the error is truly of constitutional dimension.” Id. “The defendant
must identify a constitutional error and show how, in the context of the trial, the alleged error actually
affected the defendant’s rights; it is this showing of actual prejudice that makes the error ‘manifest.’”
State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Because Roberts does not
address, let alone satisfy, RAP 2.5 in briefing and fails to even allege that this was a manifest
constitutional error, we do not consider this assignment of error.

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

233 (2015).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

opinions/pdf/825593.pdf, review denied, 199 Wn.2d 1025 (2022). 4

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

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

4 State v. I.J.S. is unpublished and cited pursuant to GR 14.1(c) as necessary for a well-

reasoned opinion. We include I.J.S. in our analysis of this issue for its clear recitation of the
historical development of Washington jurisprudence addressing challenges to the sufficiency of the
evidence after bench trials and identification of the conflict with United States Supreme Court
precedent.

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

(2014). Specifically, the court said that,

following a bench trial, appellate review is limited to determining
whether substantial evidence supports the findings of fact and, if so,
whether the findings support the conclusions of law. State v.
Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005).
“Substantial evidence” is evidence sufficient to persuade a fair-
minded person of the truth of the asserted premise. Id. We treat
unchallenged findings of fact and findings of fact supported by
substantial evidence as verities on appeal. Schmidt v. Cornerstone
Invs., Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990). We review
challenges to a trial court’s conclusions of law de novo. State v.
Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

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

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

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

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

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

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

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

First, Jackson did not distinguish between a conviction resulting from
a trial by jury and a conviction resulting from a bench trial. There are
not different standards. The same standard applies in all cases, as
the “question whether a defendant has been convicted upon
inadequate evidence is central to the basic question of guilt or
innocence.” Jackson, 443 U.S. at 323. However, the Court in
Jackson did, in fact, review a conviction resulting from a bench trial.
443 U.S. at 309. Irrefutably, the standard set forth in Jackson is the
correct standard for determining whether a conviction resulting from
a bench trial is supported by a constitutionally sufficient quantum of
evidence.

Second, the Homan court’s standard focuses review on the
result reached by the specific trial judge in each case. 181 Wn.2d at
105-06 (“appellate review is limited to determining whether
substantial evidence supports the findings of fact”). This is wrong.

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Jackson requires that a reviewing court determine whether “any
rational trier of fact” could have found the defendant guilty beyond a
reasonable doubt. 443 U.S. at 319. The focus is not on one particular
trial judge or one particular juror. To the contrary, it is an objective
standard.

Third, the Homan standard limits review of the evidence in the
record to evidence set forth in the trial judge’s factual findings. 181
Wn.2d at 105-06 (“appellate review is limited to determining whether
substantial evidence supports the findings of fact”). Again, this is
wrong. The Jackson standard plainly requires a reviewing court to
consider all of the evidence, not just the evidence credited by the trial
judge in findings of fact. 443 U.S. at 319.

Fourth, the Homan standard views only the trial judge’s
findings of fact in the light most favorable to the prosecution. See 181
Wn.2d at 106 (“We treat unchallenged findings of fact and findings
of fact supported by substantial evidence as verities on appeal.”). In
contrast, the Jackson standard requires “that upon judicial review all
of the evidence is to be considered in the light most favorable to the
prosecution.” 443 U.S. at 319.

Fifth, the Homan standard requires only “substantial
evidence” to support a trial judge’s findings of fact supporting a
conviction. This is not the same standard as required by the United
States Supreme Court. Jackson requires a reviewing court to
determine that the record contains sufficient evidence to enable any
rational trier of fact to find “the essential elements of the crime
[proved] beyond a reasonable doubt.” 443 U.S. at 319.

In sum, Homan’s sufficiency of the evidence standard for
reviewing convictions resulting from bench trials conflicts with the
Jackson standard. It harms the prosecution by narrowing the inquiry
on review to consider only a portion—rather than all—of the evidence
adduced at trial and by relying solely on whether a specific fact
finder—as opposed to any rational fact finder—could reasonably
convict the defendant. Simultaneously, it harms defendants by
supplanting the demanding beyond a reasonable doubt standard
with the less stringent substantial evidence standard.

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

(footnote omitted).

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

is problematic as it

penalizes criminal defendants who invoke their right to a jury trial
while, at the same time, incentivizing the waiver of that right. This is
so because an appellate challenge to the sufficiency of the evidence
to support a conviction will be evaluated differently depending on
whether the conviction was the result of a decision made by a jury or
by a judge. If a jury returned a guilty verdict, all of the evidence
admitted at trial will be considered on appeal to determine if sufficient
evidence supports the conviction. However, if the conviction results
from a trial judge’s finding of guilty, only the evidence described in
the court’s findings of fact—and the “substantial evidence”
supporting those findings—can be considered. In other words, less
than all of the evidence can be considered. Obviously, the standard
of review mandating that less than all of the evidence be considered
is more favorable to a defendant than is the standard of review
mandating that all of the evidence be considered. In this way,
defendants are punished for invoking their right to a jury trial.

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

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

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

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

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

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

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

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

degree.

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

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

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

be convicted of murder. Lazcano, 188 Wn. App. at 364. In relevant part, RCW

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9A.32.030(1)(c) provides that an individual is guilty of murder in the first degree if

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

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

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

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

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

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

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

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

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

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

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

of another in the commission of a crime if,

[w]ith knowledge that it will promote or facilitate the
commission of the crime, [that person]:
(i) Solicits, commands, encourages, or requests such other
person to commit it; or
(ii) Aids or agrees to aid such other person in planning or
committing it.

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

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

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

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

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

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

or aided the crime was from Ms. Bolanos” and her testimony “was not sufficient

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evidence to prove beyond a reasonable doubt there was more than one person

involved in the crime.” We disagree.

A. Jackson Standard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

drugs and the front door was already wide open, the trial court found him not

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credible and this court defers to the finder of fact on issues of witness credibility,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court in Jackson, Roberts’ challenge to his felony murder conviction on the basis

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

the underlying burglary fails.

B. Homan Standard

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

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

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

06. Substantial evidence exists if the evidence is “sufficient to persuade a fair-

minded person of the truth of the asserted premise.”5 Id. at 106. Findings that are

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

appeal. Id.

Here, Roberts challenges the following findings of fact:

III. A short time after her arrival Ms. Bolanos heard someone break
in the front door of the upstairs apartment, and heard what
appeared from the sound to be more than one person running
from room to room. She then heard the someone kick the door
to the internal staircase, the door slammed, one or more people
ran downstairs. She heard kicking at the door to Mr. Villaseñor’s
bedroom.

IV. Mr. Villaseñor grabbed a pistol, locked the bedroom door,
another kick to the door, there was an exchange of gunfire, Mr.
Villaseñor fell on the bed shot, Ms. Bolanos hid in the bedroom
closet and called 911, remaining there until the police arrived
when she exited the apartment. Ms. Bolanos had heard at least
two people who had broken in.

...

XIV. Detective Wheeler discovered that the residence where the
shooting occurred had been the subject of an investigation by
the Tacoma Police Department, who had posted a video

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

conflict with the well-established proof beyond a reasonable doubt standard applied to criminal
convictions pursuant to RCW 9A.04.100.

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camera outside. Det[ective] Wheeler observed the video taken
that night which was of poor quality. The video itself was not
offered into evidence, but Wheeler testified that he was able to
observe two people leaving the area immediately after the
shooting.

...

XIX. Mr. Roberts testified that he came to the residence on 1st
Avenue SW in order to buy heroin from Mr. Villaseñor. He
noticed the upstairs front door open which was unusual since
he previously used the outside stairs. He walked down the stairs
noting that it was eerily quiet. He did not hear shuffling,
slamming, kicking, running nor did he see anyone upstairs. He
called out “Ricky” and descended the staircase. As he turned
into the living area he saw a Hispanic person standing by the
door holding what appeared to be a gun. He testified that he
raised his hands, heard a loud noise that he assumed was a
gunshot, he realized he had been shot, he stumbled around the
apartment for moment, then fled up the stairs and out. As he
was fleeing he heard many gunshots. He left the apartment, ran
into a trash can, recovered and left on foot. He knew he had a
warrant for his arrest on an unrelated matter and he chose to
avoid being arrested on that warrant. He ran to a location away
from the apartment, called for a ride and was picked up. At
some point he discovered that there was publicity naming him
a suspect in the murder of Mr. Villaseñor. He composed a rap
song which he posted on social media stating that door was
kicked in and stick him up. He testified that the video was
mockery, a satire of what the police and media said happened.
He testified that he does not know that “stick him up” means
armed assault. This evidence was not credible.

XX. The evidence of the defendant’s blood in the apartment and
defendant’s blood in a car associated with Beltran, and the fact
that a car associated with Beltran contained the fruits of the
burglary establish that Mr. Roberts was one of at least two
people who entered the building on 1st Avenue SW by kicking
in the upstairs front door, kicking at the door in which Mr.
Villaseñor was present. Viewing the blood on the screen and by
the light switch, ex. 49-51, the court is not persuaded that the
blood in the car was transferred by someone other than Mr.
Roberts having picked it up by inadvertently touching Mr.
Roberts’ blood on the screen or the wall by the light switch in
the deceased’s living room. While one could argue that another
person brushed against the smear on the screen and wall which

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No. 84352-4-I/19

resulted in the appearance of the blood in the photographs and
then deposited it on the rear seat area of the car, the court does
not find that to be p[e]rsuasive. Mr. Roberts entered the building
intending to steal. He or another fired through the bedroom
door, killing Mr. Villaseñor. Whether or not this was a drug
house doesn’t change these facts that I find are true beyond a
reasonable doubt. He is thus guilty of felony murder.

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

them and constitutes substantial evidence that more than one person burglarized

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

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

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

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

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

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

and XX are all verities.

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

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

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

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

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

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

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

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

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

at 516. Considering the supported and unchallenged findings, this erroneous part

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No. 84352-4-I/20

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

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

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

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

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

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

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

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

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

II. Ineffective Assistance of Counsel

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

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

request the court to consider it.”

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

section 22 of the Washington Constitution guarantee the right to effective

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

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

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

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

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

requires the following:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the

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No. 84352-4-I/21

defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

177 Wn.2d 370, 376, 300 P.3d 400 (2013). However, “an attorney’s failure to

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No. 84352-4-I/22

recognize and raise an affirmative defense can fall below the constitutional

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

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

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

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

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

336.

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

defense was neither legitimate nor reasonable strategy because the affirmative

defense was established by a preponderance of the evidence 6 and the “court

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

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

[I]n any prosecution under this subdivision (1)(c) in which the
defendant was not the only participant in the underlying crime, if
established by the defendant by a preponderance of the evidence, it
is a defense that the defendant:
(i) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause, or aid the commission thereof;
and
(ii) Was not armed with a deadly weapon, or any instrument,
article, or substance readily capable of causing death or serious
physical injury; and
(iii) Had no reasonable grounds to believe that any other
participant was armed with such a weapon, instrument, article, or
substance; and
(iv) Had no reasonable grounds to believe that any other
participant intended to engage in conduct likely to result in death or
serious physical injury.

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

asserted must be more probably true than not true.” State v. Ginn, 128 Wn. App. 872, 878, 117
P.3d 1155 (2005).

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No. 84352-4-I/23

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

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

introduce evidence sufficient to prove the four statutory elements and establish

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“ha[d] not proved beyond a reasonable doubt” that he was the one who actually

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No. 84352-4-I/24

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hendrickson, 129 Wn.2d at 78.

III. Testimony about Music Video and Rap Lyrics

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

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

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

bias.” His arguments are specious.

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

credible. Again, this is not a finding subject to our review. Martinez, 171 Wn.2d at 364.

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No. 84352-4-I/25

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

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

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

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

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

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

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

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

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

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

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

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

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

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

prejudice.” ER 403.

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

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

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

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

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

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

facts unsupported in the record or was reached by applying the wrong legal standard.” State v.
Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786,
793, 905 P.2d 922 (1995)). “A decision is ‘manifestly unreasonable’ if the court, despite applying
the correct legal standard to the supported facts, adopts a view ‘that no reasonable person would
take.’” Id. (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).

- 25 -
No. 84352-4-I/26

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

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

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

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

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

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

highly prejudicial.”

A. Roberts’ Music Video

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

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

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

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

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

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

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

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

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

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

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

[DEFENSE]: Your Honor, unless this witness is qualified as
an expert, I don’t think that he should be interpreting what rap music
means.

THE COURT: Well, it certainly doesn’t take expertise to talk
about the relevance of “kick his door” or “stick ‘em up.” Since I don’t
know what “base rock” is, I guess I need some help.

- 26 -
No. 84352-4-I/27

[DEFENSE]: That means—

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

[STATE]: What—you said those three lines. I’m going to ask you
about them separately.
“Kick his door,” “stick ‘em up,” why did that stand out to you
as you listened and watched this video?

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

[STATE]: Okay. And in your experience as a detective, did you ever
do—or have you ever investigated drug crimes?

[WHEELER]: Yes.

[STATE]: Have you, in the course of those cases or your years on
the police force, heard the term “base rock”?

[WHEELER]: Yes.

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

[WHEELER]: Crack cocaine.

[STATE]: So “kick his door,” “stick ‘em up,” “now I got base rock,”
what does that mean to you as you were listening and watching that
video?

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

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

defense counsel to address his objection:

[DEFENSE]: Well, Your Honor, I’m not sure—the only way it’s
relevant is based on the detective’s interpretation of what this means.
There’s also [ER] 403 information in here, basically, or [ER]
404(b) the way there is reference to women and other things.
I think it is more prejudicial than probative, but I think that’s up
to the trier of fact, actually. So I’ll leave that to you.

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No. 84352-4-I/28

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

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

parts of the video:

[T]he information in here that I would seek to admit ha[s] to do with
his reference to Washington’s Most Wanted, being charged with
[“]Murder 1,[”] and then the lines—sort of the last lines of it, “kick his
door,” “stick ‘em up,” “now I’ve got base rock.”
The rest of this stuff I’m not going to argue and the [c]ourt
should not consider.

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

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

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

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

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

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

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

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

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

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

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

knowledge need not be acquired through personal experience.”)

B. Roberts’ Lyrics in the Notebook

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

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

confirmed that, on that particular page, something stood out to him as it related to

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No. 84352-4-I/29

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

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

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

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

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

[WHEELER]: Three and a half years.

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

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

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

[WHEELER]: Five years.

[STATE]: And how long in narcotics?

[WHEELER]: Two years.

[STATE]: How many?

[WHEELER]: Two.

[STATE]: Okay. Now, in your experience as a detective, did you
interview people who sort of were involved in street-level crimes?

[WHEELER]: Routinely.

[STATE]: And in the course of investigating cases or speaking with
people, have you heard the term “ese”?

[WHEELER]: Countless times.

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

[WHEELER]: “ese” is Spanish slang roughly equivalent of saying
“dude” or referring to a man. It’s very heavily used in Hispanic gang
speech.

- 29 -
No. 84352-4-I/30

[STATE]: And in your experience as a detective in patrol and in the
various units and speaking with people, have you heard the phrase
“lick”?

[WHEELER]: Many times.

[STATE]: And in your experience, what does it mean when someone
says “a lick”?

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

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

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

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

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

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

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

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

Roberts now challenges Wheeler’s testimony concerning the notebook

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

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

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

and “lick” was irrelevant and inherently prejudicial.

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

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

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

I asked the detectives in all . . . interviews whether they had any
information that Hispanic criminal gangs included [B]lack African
American people, and they all said, no, absolutely not.

- 30 -
No. 84352-4-I/31

Mr. Roberts did not know Mr. Beltran, who is Hispanic. Mr.
Roberts did not know [Villaseñor] except for the fact that he was a
drug dealer.
And so there is evidence in this case that the Mexican
nationals in the case were members of the [Sureños][9] gang.

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

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

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

defense counsel leaned into this theory:

It’s been stated during this trial that Mr. Beltran, who is
Hispanic, was a known cartel gang member.
...
[T]he evidence does not show that Mr. Roberts was an accomplice
of anybody. And I think the evidence, if looked at carefully, will
indicate there was one bad guy down there.
And Detective Wheeler said, to his credit, as did I believe the
Tacoma detective, that Mr. Beltran was and is still a suspect in this.
It was either Detective Wheeler or the Tacoma detective that said,
African-American individuals—[B]lack individuals do not hang out
with Mexican gang members.

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

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

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

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

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

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

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

App. at 232. 10

9 The name of this gang is misspelled in the transcript as “Serranos.”
10 Because Roberts only objected on the basis of foundation and relevance at trial and he

does not address RAP 2.5 in order to challenge Wheeler’s testimony as to the meaning of “ese”
and “lick” under the separate basis of unfair prejudice, we do not consider his argument, raised for

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No. 84352-4-I/32

C. Race-Based Prosecutorial Misconduct

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

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

significant portion of briefing to his contention that the prosecutor committed race-

based misconduct that deprived him of a fair trial. The argument is without merit.

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

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

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

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

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

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

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

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

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

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

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

When analyzing claims of prosecutorial misconduct involving racial bias,

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

Thus, in assessing whether the prosecutor flagrantly or apparently intentionally

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

the first time on appeal, that Wheeler’s testimony was also unfairly prejudicial. State v. Henson,
11 Wn. App. 2d 97, 102, 451 P.3d 1127 (2019) (Unless an appellant establishes a claim of manifest
constitutional error pursuant to RAP 2.5(a)(3), they “may only assign error in the appellate court on
the specific ground of the evidentiary objection made at trial.”).

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No. 84352-4-I/33

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

frequently highlighted by the defense. Again, in opening statement, cross-

examination of Wheeler, and closing argument, defense counsel emphasized that

Roberts was Black and that Beltran was Hispanic and a member of a gang. Third,

- 33 -
No. 84352-4-I/34

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

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

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

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

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

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

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

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

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

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

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

misconduct.

IV. Demonstrative Exhibit and Accompanying Testimony

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

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

person who shot Villaseñor.

“The use of demonstrative evidence is encouraged when it accurately

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

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

was conducted under conditions reasonably similar to conditions existing at the

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

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

weight of the evidence.” Finch, 137 Wn.2d at 816. Demonstrative evidence “need

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No. 84352-4-I/35

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[DEFENSE]: Your Honor, I don’t know if this is the appropriate
time, but I’m going to object to any reenactment until there is a
foundation that this witness knew where a shooter was standing,
knew the size of the shooter. There is—it’s almost—

THE COURT: Well, it’s not the size—

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

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

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No. 84352-4-I/36

THE COURT: I think it’s relevant to, I guess, the size of the
hallway outside the door for which the gunfight was.

[DEFENSE]: Actually, it’s apparent that there was a shooter
in the bathroom.

THE COURT: Well, I don’t know what he’s going to say, but I
have an interesting (unintelligible), so I’m going to overrule the
objection.

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

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

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

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

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

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

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

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

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

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

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

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

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

demonstrative evidence.

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

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

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

then elected to read portions of Wheeler’s report:

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No. 84352-4-I/37

[DEFENSE]: Okay. And I’m reading from your report, [“]considering
the location of the shell casings and bullet strikes, we concluded that
the suspect shooter had fired from both the area of the bedroom
doorway and from just inside the bathroom across the hall.[”]
That’s you, right? That’s what you wrote.

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

[DEFENSE]: [“]It seemed extremely unlikely or impossible that a first
suspect in the hallway or bathroom and Villase[ñ]or could have
exchanged gunfire with a second suspect in between without the
second suspect being struck several times.[”]
Does that sound familiar?

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

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

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

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

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

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

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

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

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

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

consider it on appeal.”).

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

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

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

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

minimally relevant evidence is admissible.” Darden, 145 Wn.2d at 621. Moreover,

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No. 84352-4-I/38

demonstrative evidence need not replicate the event perfectly; it only needs to be

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

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

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

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

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

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

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

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

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

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

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

burden of proving it was abuse of discretion).

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

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

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

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

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

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

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

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

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

State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014). When challenged

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No. 84352-4-I/39

testimony is directly elicited by the defense, the invited error doctrine applies and

prohibits review of the claimed error. State v. McPherson, 111 Wn. App. 747, 764,

46 P.3d 284 (2002). Because Wheeler did not provide an opinion or conclusion

as to the demonstrative experiment until defense counsel expressly elicited

Wheeler’s opinion on the location of the shooter, Roberts “helped create” this

purported error and analysis of this challenge is barred by the invited error doctrine.

V. Miscalculation of Offender Score

Roberts posits that the trial court erred when it added a point to his offender

score due to his community custody status, which was based on two out-of-state

convictions for possession of a controlled substance. We review de novo the

calculation of an individual’s offender score. State v. Olsen, 180 Wn.2d 468, 472,

325 P.3d 187 (2014).

At sentencing, the State proved that Roberts had two prior convictions from

Texas for possession of a controlled substance. Appropriately, those convictions

were not included in Roberts’ offender score because they are not comparable to

any Washington statute. See State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

However, because Roberts was on community custody at the time of this offense

as a result of the Texas convictions, the sentencing court added one point to his

offender score pursuant to RCW 9.94A.525(19), which provides, “If the present

conviction is for an offense committed while the offender was under community

custody, add one point.”

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No. 84352-4-I/40

The State contends the trial court properly added the point because the

Texas convictions “remain valid convictions and the resulting supervision

remained in effect after the Blake decision.” We agree.

In Blake, our Supreme Court deemed Washington’s strict liability drug

possession statute, former RCW 69.50.4013(1) (2017), to be unconstitutional and

void. 197 Wn.2d at 195. “A prior conviction based on a constitutionally invalid

statute may not be considered when calculating an offender score.” State v.

Markovich, 19 Wn. App. 2d 157, 173, 492 P.3d 206 (2021). Thus, “penalties

imposed under the invalid statute are void,” including community custody. Id. at

174; State v. French, 21 Wn. App. 2d 891, 896-97, 508 P.3d 1036 (2022).

Roberts relies on French for the contention that his “community custody

status from his out-of-state possession convictions may not score.” In French, we

rejected the State’s challenge to a sentence in which the trial court declined to add

one point to the offender score though French committed the offense at issue there

while on community custody, 21 Wn. App. 2d at 894, but that case is materially

distinguishable. Because French was serving a term of community custody

pursuant to a prior conviction for possession of a controlled substance under RCW

69.50.4013(1), this court explained that the term of community custody “was a

penalty imposed pursuant to an unconstitutional law” and “was void.” Id. at 897.

Here, Roberts was not on community custody pursuant to a conviction

under a void statute and he makes no argument that his Texas convictions were

unconstitutional. While it is undisputed that Roberts’ out-of-state convictions are

not comparable to any Washington statute, they are nonetheless valid convictions

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No. 84352-4-I/41

that resulted in a term of community custody. Though the convictions at issue

occurred in Texas, our state was responsible for supervising Roberts’ resulting

community custody under those sentences pursuant to the interstate compact for

adult offender supervision (ICAOS), RCW 9.94A.745. On August 23, 2017,

Roberts was sentenced to a term of five years of community supervision in Texas,

and on August 25, he departed from Texas to Washington pursuant to ICAOS. As

of September 14, 2017, the Washington State Department of Corrections (DOC)

assumed supervision of Roberts on behalf of the State of Texas. According to

DOC Community Corrections Supervisor Andrea Holmes, Roberts frequently

violated the conditions of his supervision; he was arrested on “non-DOC criminal

charges,” and on March 4, 2019, “Texas issued a nationwide extradition warrant”

for him. Because Roberts was under active supervision by our state’s DOC under

ICAOS while serving a valid term of community custody from out-of-state

convictions at the time of the present conviction, the trial court did not err in adding

one point to his offender score for having committed the instant crime while on

community custody. RCW 9.94A.525(19).

VI. Victim Penalty Assessment and Interest on Restitution

Roberts’ final two assignments of error go to the trial court’s imposition of

the victim penalty assessment (VPA) and the interest imposed on the award of

restitution.

At sentencing on July 12, 2022, the trial court found Roberts to be indigent

and only imposed the then-mandatory legal financial obligation, the $500 VPA, and

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No. 84352-4-I/42

restitution, which was ultimately calculated at $40,000, along with additional

statutorily-required interest.

Two recent statutory amendments apply. First, in light of the amendment

to RCW 7.68.035(4), which took effect July 1, 2023, trial courts are now prohibited

from imposing the VPA on defendants who are found indigent at sentencing. LAWS

OF 2023, ch. 449, § 1. This amendment applies to Roberts because his case is on

direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). Second,

the statute that imposed interest on restitution was also amended, effective

January 1, 2023, and RCW 10.82.090(2) now provides that the trial court “may

elect not to impose interest on any restitution the court orders.” LAWS OF 2022, ch.

260, § 12. Prior to waiving interest on restitution, trial courts must consider

numerous factors, such as the defendant’s indigency, available funds, and mental

illness. RCW 10.82.090(2). This provision also applies here. See Ellis, 27 Wn.

App. 2d at 16; State v. Reed, 28 Wn. App. 2d 779, 781-82, 538 P.3d 946 (2023).

Accordingly, we reverse and remand for the trial court to strike the VPA from

Roberts’ judgment and sentence and to determine whether to impose interest on

the restitution award pursuant to the factors set out in RCW 10.82.090(2). 12

12 Roberts also contends that cumulative error deprived him of a fair trial. “Cumulative error
may warrant reversal, even if each error standing alone would otherwise be considered harmless.”
State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). However, in cases such as this, where
“there are few or no errors and the errors, if any, have little or no effect on the outcome of the trial,
reversal is not required.” State v. Wade, 186 Wn. App. 749, 775, 346 P.3d 838 (2015). As we
have concluded that the court did not err with regard to the various challenges presented here, the
cumulative error doctrine does not apply.

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No. 84352-4-I/43

VII. Mandatory Firearm Enhancement

In its cross appeal, the State assigns error to the trial court’s order that the

mandatory firearm enhancement run concurrently with the base sentence imposed

for murder in the first degree. However, in its reply brief, the State requests this

court affirm the conviction and sentence because “the total term imposed, 384

months, exceeds the total mandatory minimum term of 360 months.”

RCW 9.94A.533(3)(e) provides, in relevant part, as follows:

“Notwithstanding any other provision of law, all firearm enhancements under this

section are mandatory, shall be served in total confinement, and shall run

consecutively to all other sentencing provisions, including other firearm or deadly

weapon enhancements, for all offenses sentenced under this chapter.” (Emphasis

added.)

“[F]ixing penalties for criminal offenses is a legislative, and not a judicial,

function.” State v. Manussier, 129 Wn.2d 652, 667, 921 P.2d 473 (1996). In State

v. Brown, our Supreme Court held that “judicial discretion to impose an exceptional

sentence does not extend to a deadly weapon enhancement.” 139 Wn.2d 20, 29,

983 P.2d 608 (1999), overruled as to juvenile offenders by State v. Houston-

Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). Subsequently, in Houston-Sconiers,

the court held “that in sentencing juveniles in the adult criminal justice system, a

trial court must be vested with full discretion to depart from the sentencing

guidelines and any otherwise mandatory sentence enhancements, and to take the

particular circumstances surrounding a defendant’s youth into account.” 188

Wn.2d at 34 (emphasis added). As this court has recently explained, “Houston-

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No. 84352-4-I/44

Sconiers overruled Brown only as applied to juveniles.” State v. Wright, 19 Wn.

App. 2d 37, 51, 493 P.3d 1220 (2021). Thus, “Brown remains good law as applied

to adult offenders” and sentencing courts do “not have discretion to run the firearm

enhancements concurrently” with adult offenders. Id. at 52.

Roberts was 24 years old at the time of the murder. Based on defense

mitigation reports, the trial court found that, “while [Roberts] was not a statutory

juvenile at the time of the murder[,] his brain development included adolescent

tendencies.” The court also found that Roberts “suffers from untreated

post[]traumatic stress disorder, paranoid personality disorder, narcissistic

personality disorder, generalized anxiety disorder[,] and substance use disorder.”

Those diagnoses, the court found, “are based, in part, upon his relative youth.”

The trial court then imposed 384 months of confinement for the conviction for

felony murder in the first degree and 120 months of confinement for the mandatory

firearm enhancement, and ordered that time to run concurrently. This was

erroneous. The trial court had no discretion to order that the mandatory firearm

enhancement run concurrently because Roberts was an adult when this crime was

committed. Our Supreme Court has not extended the sentencing discretion

described in Houston-Sconiers to youthful but adult offenders such as Roberts and

we decline to do so here. On remand, the trial court must correct the sentence to

conform to the statutory bounds for the underlying crime and the mandatory

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No. 84352-4-I/45

consecutive time for the firearm enhancement as set out by our legislature for adult

offenders.

Affirmed in part, reversed in part, and remanded.

WE CONCUR:

- 45 -

State Of Washington, Res/cross-app. V. Mical Darion Roberts, App/cross-res.

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