an extensive trial, a jury convicted Shelly Arndt on charges
including aggravated first degree murder and first degree
arson, and she received a sentence of life without the
possibility of parole. Arndt appealed, arguing that her Sixth
Amendment right to present a defense and her right to be free
from double jeopardy were violated. U.S. Const, amends. VI,
V. The Court of Appeals affirmed Arndt's conviction and
sentence in an unpublished, divided opinion. State v.
Arndt, No. 48525-7-II, slip op. at 37 (Wash.Ct.App. Dec.
12, 2017) (unpublished), http://www.
affirm. After a careful review of the record, we conclude
that the trial court's rulings limiting the testimony of
Arndt's expert witness did not violate Arndt's Sixth
Amendment right to present a defense and were well within the
court's discretion. We further conclude that Arndt's
convictions for both first degree aggravated murder and first
degree arson do not violate double jeopardy protections, as
our precedent is clear that when two crimes have separate
purposes and effects, multiple punishments are allowed.
AND PROCEDURAL HISTORY
February 23, 2014, a fire broke out in a two-story house that
belonged to Kelly O'Neil and her husband. At the time of
the fire, there were eight people inside the home: Kelly
O'Neil, Shelly Arndt, Darcy Veeder Jr., Donald Thomas,
O'Neil's adult daughter Autumn Kriefels, and three
children. Everyone except Veeder was able to escape the fire.
Veeder succumbed to smoke inhalation and died inside the
O'Neil home was heated by a wood stove on the main floor.
Downstairs in the split-entry home there was a gas insert
fireplace and baseboard heating, but the power and gas to
both were turned off. A vent between the upstairs and
downstairs was located near the wood stove. On the night of
the fire, Arndt, Veeder, and Thomas were the last occupants
awake, and they fell asleep on couches in the upstairs living
room. O'Neil, Kriefels, and the children were sleeping in
testified that she woke to the smell of smoke and immediately
woke Thomas up to tell him that she smelled something. She
also woke O'Neil, who described a smell like burning
tires and said she saw an orange glow coming from the living
room side of the downstairs area. O'Neil collected the
three minor children and ran outside. Upon realizing that
Kriefels was still inside the home, O'Neil ran back with
Arndt to get Kriefels from her room. The house was engulfed
in flames within 30-45 seconds after they reached the
driveway. Eventually, the fire department arrived to control
the fire. Veeder's body was found in the living room on
the second floor of the home.
the fire department completed its work, the scene was turned
over to Kitsap County Fire Marshal David Lynam for
investigation. The details of Lynam's testimony, as well
as the testimony of an insurance company investigator and two
experts retained for trial, are a major focus in this appeal
and are discussed below. During the course of the
investigation, suspicion fell on Arndt, who had prior arson
State charged Arndt with several crimes. First, it charged
her with aggravated first degree murder under RCW
9A.32.030(1)(a) and RCW 10.95.020 with the aggravating
circumstance of first degree arson under RCW 10.95.020(11).
It also made special allegations of domestic violence under
RCW 10.99.020 and alleged an aggravating circumstance
allowing for departure from the sentencing guidelines under
RCW 9.94A.535(3)(b), alleging the victim was a particularly
vulnerable person. Second, it alternatively charged her with
first degree murder (felony murder) under RCW
9A.32.030(1)(c), again with special allegations of domestic
violence and a particularly vulnerable person aggravating
circumstance. Third, the State charged her with first degree
arson under RCW 9A.48.020 with special allegations of
domestic violence and a particularly vulnerable person
aggravating circumstance. Finally, it charged her with six
counts of second degree assault under RCW 9A.36.021, two of
which included special allegations of domestic violence.
fire scene was analyzed by four investigators, including Fire
Marshall Lynam. See Am. Pet. for Review at 2-5.
Because this case is, in large part, concerned with the
defense expert's adherence to proper investigatory
procedures compared with the other investigations Conducted,
a brief overview of the individual investigators' work is
Marshal David Lynam
County Fire Marshal David Lynam is charged with investigating
the origin, cause, and circumstances of fires within Kitsap
County. 14 Verbatim Report of Proceedings (VRP) (Oct. 26,
2015) at 2594. As the prosecution's chief expert witness,
Lynam testified to his qualifications and how he conducts all
of his investigations in accordance with National Fire
Protection Association 921 (NFPA 92l). See id.
at 2586-99. In addition to following the guidance in NFPA
921, Lynam testified:
The approach I have adopted and instructed all my deputies we
adopt, is . . . [your work] typically goes from the outside
in, you want to evaluate the whole scene and condition that
you have, and you are working from areas of least damage to
Id. at 2599. As the public official who takes charge
of the fire scene immediately after the fire department,
Lynam has the authority to exclude all private investigators
until his investigation is complete. Id. at 2595.
investigation and resulting conclusions were challenged
extensively by the defendant's expert witness, Dale Mann.
Because these conclusions are discussed in depth relating to
various evidentiary rulings, they will not be detailed at
this time. In summary, Lynam concluded that the fire started
when someone ignited a beanbag chair near a couch in the
house's basement. Am. Pet. for Review at 2; 15 VRP (Oct.
27, 2015) at 2922-23.
Iskra was under contract with Allstate Insurance and was
tasked with determining the origin and cause of the
O'Neil residential fire to preserve the right of Allstate
to proceed against any defective appliance manufacturer. 9
VRP (Oct. 15, 2015) at 1552. Based on the results of his
investigation, Iskra testified for the prosecution.
direct examination, Iskra described the procedures that he
I follow a systematic approach to my investigation. So I go
out and do the exterior, the interior, and from the
inspection, if there's specific things that may be-that
might be a cost factor for the-besides my initial
investigation, for the insurance company, I call my claims
adjuster and tell them what I have and [w]ould you like me to
do certain things; yes or no?
Id. at 1554. As a first step in his investigation,
Iskra called Lynam to determine if Lynam had released the
scene. He also testified that he spoke with both of the
O'Neils to get a sense of the activities that occurred
before and during the fire (e.g., what electrical devices
were plugged in, etc.). Iskra testified how his standard
procedure is to conduct his own investigation independent of
any prior conclusions.
because Lynam had not released the scene, Iskra conducted an
investigation of the exterior of the house, examined the
locations where the fire vented from the house, examined the
resulting debris pile, and took photographs. He detailed how
his initial hypothesis, based on witness statements and
exterior burn patterns, led him to believe that the fire
started on the outside deck. This hypothesis was later
disproved once he was able to gain access to the interior of
the home a few days later. Id. at 1560-61.
next detailed the systematic approach that he utilizes for
examining the interior of a fire scene:
I usually start from the front door, if that is accessible,
sometimes it's not and I've got to go in the back
door, but I will go in-into the interior of the home and go
to what I determine the least area of damage and start my
internal examination of the home from there and work to the
Id. at 1569. Using this approach, Iskra described
his examination of the interior of the house in detail. He
discussed the possibility that the scene went to
"flashover"and reviewed the relevant training he had
received to make a "flashover" determination.
Id. at 1569-1631.
Iskra discussed his need to rely on the reports and
documentation of other fire investigators because fire scenes
are sometimes altered, e.g., from digging or the removal of
electrical components, in the process of other
investigations. Here, Iskra initially characterized the cause
of the fire as "undetermined," due to
"alterations of the scene and evidence being
removed." Id. at 1633. After reviewing Fire
Marshall Lynam's "documentation, data, [and]
evidence," to supplement what he examined at the scene,
Iskra changed his determination to "intentionally
set." Id. at 1635. He examined Lynam's
reports and documentation detailing how the fire was
"dug out," and concluded that "[i]t was more
likely than not that a fire was started with a handheld
devi[c]e to combustible materials." Id. at
Rice is a senior fire investigator for CASE Forensics who
conducted a technical review of Lynam's investigation.
CASE Forensics is a privately held forensic engineering firm
that conducts failure analysis in multiple disciplines of
engineering. Rice testified for the prosecution concerning
the requirements of NFPA 921 and the scientific method. The
first portion of Rice's testimony focused on the conduct
of fire investigations generally and the definition of
different concepts related to the field.
testified about the methodology he used to conduct his
technical review, including examination of all reports and
photographs furnished to him. 10 VRP (Oct. 19, 2015) at 1894.
Specifically, Rice reviewed the reports of defense expert
Mann and Fire Marshal Lynam. Rice discussed his review of the
scene, via the photographs he had received, in detail. Upon
conclusion of his initial review, Rice recommended that Lynam
conduct additional testing due to his concern that an ember
may have traveled out of the upstairs fireplace, down
a'floor vent, and ignited a combustible material on the
lower level. Rice and Lynam performed these additional tests
and concluded that it was not probable that an ember escaped
the fireplace and caused the house fire.
as part of his technical review, Rice performed testing
"to see what smoke passage would look like in the
upstairs room coming from the downstairs through the
vent." 13 VRP (Oct. 22, 2015) at 2383-84. Based on the
results of this testing, Rice was able to conclude, on a more
probable than not basis, that the fire did not occur directly
below the vent. Rice also performed a furniture ignition test
and concluded that "it was very probable that something
was ignited on the left side of the sofa, caused the sofa to
ignite, and caused the fire to spread from left to
right." Id. at 2386, 2402.
on his technical review and testing, Rice concluded that the
fire was incendiary in nature and that the area of origin was
the "left side of the sofa near the floor level."
Id. at 2406-27.
retained Mann to review the fire investigation. Am. Pet. for
Review at 4. Mann is a former state patrol crime lab
supervisor and certified arson investigator. During his
review, Mann examined all available materials, including
Lynam's reports, photos and other documents, police
reports, coroner's reports, and firefighter reports.
Whether Mann adhered to acceptable investigation methods
contained in NFPA 921 became the primary issue in determining
the admissibility of his testimony.
testimony primarily challenged Lynam's determinations of
the cause and origin of the fire. Id. at 5. Due to
the nature of his investigation, the trial court limited
Mann's testimony in a variety of ways, and he was unable
to present his opinion that the fire should have been
classified as "undetermined" rather than
"incendiary." Id. These evidentiary
rulings form the basis of one of the central issues in this
appeal. For this reason, like Lynam's conclusions, they
are analyzed in greater detail below.
three month trial, a jury found Arndt guilty of all crimes as
charged by the State. Clerk's Papers (CP) at 430-32,
433-41, 472-73. The trial court sentenced Arndt to life
without the possibility of parole per RCW 10.95.030(1). CP at
Court of Appeals affirmed Arndt's conviction and
sentence. Arndt, slip op. at 37. The court found no
error with respect to most of the trial court's
limitations on Mann's testimony but held that the trial
court wrongly excluded Mann's testimony about his review
of the police reports. Id. at 1. However, it found
this error harmless and held that Arndt was not denied her
Sixth Amendment right to present a defense. Id.
Acting Chief Judge Bradley Maxa dissented on this issue.
Id. at 38. As for Arndt's challenge to her
convictions for both aggravated first degree murder with a
first degree arson aggravator and first degree arson, the
Court of Appeals found no double jeopardy violation,
concluding that the two crimes are not the same in fact or
law. Id. at 1. After deferring consideration of
Arndt's petition for review for almost a year, pending
State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018),
this court granted review. State v. Arndt, 193 Wn.2d
Trial Court Acted within Its Discretion and Did Not Violate
Arndt's Sixth Amendment Right To Present a Defense by
Limiting Her Expert Witness's Testimony
argues that the trial court violated her constitutional right
to present a defense. Whether a Sixth Amendment right has
been abridged presents a legal question that is reviewed de
novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d
576 (2010). However, the trial court's evidentiary
rulings under ER 702 remain subject to abuse of discretion
review. State v. Yates, 161 Wn.2d 714, 762, 168 P.3d
Arndt asks this court to "unequivocally hold that
violations of the right to present a defense are reviewed
de novo, with no deference to the trial court's
decision to exclude evidence," Am. Pet. for Review at
10, we recently adhered to a two-step standard of review in
State v. Clark, 187 Wn.2d 641, 648-56, 389 P.3d 462
(2017) (abuse of discretion review of evidentiary rulings and
de novo review of whether such rulings violated the
defendant's right to present a defense). Here, as in
Clark, we apply this two-step review process to
review the trial court's individual evidentiary rulings
for an abuse of discretion and to consider de novo the
constitutional question of whether these rulings deprived
Arndt of her Sixth Amendment right to present a defense.
of Evidentiary Rulings for Abuse of Discretion
Washington, expert testimony must satisfy both the
Frye test and ER 702. State v. Copeland,
130 Wn.2d 244, 256, 922 P.2d 1304 (1996). While Frye concerns
the use of novel scientific methodology and guards
against the admission of new techniques until a
"scientific consensus decides the methodology is
reliable," Lakey v. Puget Sound Energy, Inc.,
176 Wn.2d 909, 918-19, 296 P.3d 860 (2013), ER 702 concerns
the use of existing scientific rriethodology and
excludes testimony "where the expert fails to adhere to
that reliable methodology." Id. Admissibility
decisions under ER 702 are reviewed for abuse of discretion.
Yates, 161 Wn.2d at 762.
takes issue with the limitations the trial judge placed on
Mann's testimony due to the fact that he had not
personally conducted a complete origin and cause
investigation of the scene. Am. Pet. for Review at 5. In
placing these limitations on Mann's testimony, the judge
clearly stated that her rationale was based on Mann's
failure to follow well established scientific
THE COURT: It is not a problem that he goes to the scene, as
[the] defense argues, but it is a problem when he starts to
If he were to do an origin and cause, he would need to follow
the scientific method and eliminate various hypotheses.
Instead by focusing on one area, which seems to be this
foosball area, he's taking one hypothesis and testing it.
And not eliminating, under the scientific method, the entire
19 VRP (Nov. 12, 2015) at 3650-51. None of the limitations
placed on Mann's testimony concerned the use of a novel
scientific method with dubious credibility. Instead, all
objections to the exclusion of expert testimony centered on
whether the expert properly adhered to existing acceptable
methodology. Such decisions fall under ER 702 and are
properly reviewed for abuse of discretion. Yates,
161 Wn.2d at 762; Clark, 187 Wn.2d at 648.
testimony is admitted under ER 702 when the trial court
determines (1) that the witness qualifies as an expert and
(2) that the testimony will assist the trier of fact. In
re Det. of McGary, 175 Wn.App. 328, 338-39, 306P.3d 1005
(2013). Trial courts are given a large degree of freedom when
making these determinations, subject to reversal only for a
clear abuse of discretion. Yates, 161 Wn.2d at 762.
"A trial court abuses its discretion when its decision
is manifestly unreasonable or exercised on untenable grounds
or for untenable reasons." State v. Lord, 161
Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Specifically, an
abuse of discretion can be found when the trial court
"relies on unsupported facts, takes a view that no
reasonable person would take, applies the wrong legal
standard, or bases its ruling on an erroneous view of the
law." Id. at 284. Because unreliable testimony
does not assist the trier of fact, it is properly excluded
under ER 702. Lackey, 176 Wn.2d at 918. In our
review for abuse of discretion, we may affirm the trial court
on any basis that the record supports, including any theories
"established by the pleadings and supported by the
proof," even if these theories were not originally
considered by the trial court. LaMon v. Butler, 112
Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
the highly fact-specific nature of the analysis required to
determine if the trial court abused its discretion, what
follows is an individual discussion on each category of
exclusions/restrictions placed on Mann's testimony. After
reviewing these exclusions individually, it becomes clear
that the trial judge took issue with the method Mann
used to analyze the particular issues, not the fact that he
selected particular issues to investigate. On multiple
occasions, the judge and counsel had extensive discussions
about Mann's adherence to accepted procedures and
resulting admissibility concerns. Because all of the trial
judge's exclusion decisions were supported by tenable
reasons and based on correct statements of the law, we hold
that the trial court did not abuse its discretion in limiting
the scope of Mann's testimony.
Opening the Door
argues that the trial court erred when it "excluded
Mann's opinion that the fire should be classified as
undetermined (rather than incendiary)." Am. Pet. for
Review at 6. Initially, Arndt argued that the State
"opened the door" to Mann's testimony
challenging Lynam's conclusions about the fire's
origin and cause:
MR. LaCROSS: They had witnesses testify that-expert witnesses
that Mr. Lynam did this investigation perfectly. It was a
good investigation. They opened the door for whether or not
this investigation was done properly. And that's what Mr.
Mann is here to testify, that it wasn't done properly.
18 VRP (Nov. 10, 2015) at 3411-12. The trial court dialogue
then centered around whether Mann conducted a proper origin
and cause investigation in accordance with the scientific
method or whether he simply reviewed Lynam's
investigation. See id. at 3411-13, 3524-38. The
State objected to Mann's testimony regarding the origin
of the fire:
So we would object-if what he did was simply a review in this
case, we would object to any-and didn't do an origin and
cause determination, we would object to any picture that he
took, any testimony about layering, any testimony about any
of the scene investigations that he did. And we'd ask
that he be allowed only to testify about his review of Fire
Marshal Lynam's work.
Id. at 3525. In response to this objection, the
trial court attempted to determine the exact nature of
THE COURT: If he's going to say where the fire started,
does he not have to present a methodology for how and where
MR. LaCROSS: As he has-he used the scientific method to
determine where the origin was, yes, the area.
THE COURT: So he went through a whole analysis of hypotheses
and eliminated them one at a time, and is that written up in
MR. LaCROSS: No.
THE COURT: That is the scientific method, is it not?
MR. LaCROSS: Not for what he did. He did an evaluation, a
critique of what the Fire Marshal did. ... It doesn't
mean that he did an origin and cause investigation....
THE COURT: My worry, Mr. LaCross, is that, as we've been
arguing this much of this day, you have repeatedly told me
this is not an origin and cause.
MR. LaCROSS: I still say that. It is not an origin and cause
THE COURT: But he's effectively eliminating and deciding
whether or not what the origin and cause was.
If he's saying it is in a certain area of the house, and
if he's going through and effectively double testing
what's already been done by the Fire Marshal, isn't
he effectively-isn't he ...