State v. Arndt
| Decision Date | 12 December 2017 |
| Docket Number | No. 48525-7-II,48525-7-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SHELLY MARGARET ARNDT, Appellant. |
LEE, J. — Shelly Arndt appeals her convictions for aggravated first degree murder, with aggravating circumstances and special allegations of first degree arson, domestic violence, and a particularly vulnerable victim; first degree felony murder predicated on first degree arson, with aggravating circumstances and special allegations of domestic violence and a particularly vulnerable victim; first degree arson, with aggravating circumstances and special allegations of domestic violence and an impact on persons other than the victim; and six counts of second degree assault.
We hold that the trial court did not err when it excluded (1) Dale Mann's testimony about the melted bucket, the plastic container, demonstrative evidence, the polystyrene test results, flashover, and smoke visibility; and (2) Craig Hanson's testimony. However, we hold that the trial court erred when it excluded Mann's testimony about his review of police reports, but the error was harmless. We further hold that the trial court did not violate Arndt's right to be free from double jeopardy by entering convictions for aggravated first degree murder with a first degree arson aggravating circumstance and first degree arson. But the trial court violated Arndt's right to be free from double jeopardy by entering convictions for aggravated first degree murder with a first degree arson aggravating circumstance and first degree felony murder because the legislature intended for the conduct underlying Arndt's murder convictions to be punished as a single offense. Accordingly, we remand this case back to the trial court to vacate Arndt's first degree felony murder conviction, but we affirm the remaining convictions.
Sean and Kelly O'Neil1 lived in a two-story split-level home with three of their children. The home was heated by a wood stove, primarily fueled by burning presto logs and wood kindling, located in the living room upstairs. There also was a gas insert and baseboard heaters to heat the downstairs, but both were turned off. There was a vent between the upstairs and downstairs directly underneath the hearth of the wood stove.
Downstairs, there were some cardboard boxes, a trunk, a foosball table, a weight rack and bench, a bookcase with books, a coffee can, the gas insert and hearth, a television, the baseboard heaters, a floor fan, and a leather couch. There also were three beanbag chairs that were by the foosball table.
On February 23, 2014, Arndt and her boyfriend, Darcy Veeder Jr., spent the night at the O'Neils' house. The two were drinking with Kelly and a friend, Donny Thomas. Arndt, Veeder, and Thomas were the last to go to bed. A fire was lit in the wood stove, but it was going out, and Thomas and Veeder could not get it going again. Later that night, the house caught on fire. Arndtwoke Kelly and Thomas, who got out with the kids, but Veeder did not make it out and died in the fire.
After an investigation, the State charged Arndt by amended information with aggravated first degree murder, with aggravating circumstances and special allegations of first degree arson, domestic violence, and a particularly vulnerable victim; first degree felony murder predicated on first degree arson, with aggravating circumstances and special allegations of domestic violence and a particularly vulnerable victim; first degree arson, with aggravating circumstances and special allegations of domestic violence and an impact on persons other than the victim; and six counts of second degree assault.
The State filed a motion to exclude the testimony of Craig Hanson. The parties agreed that Hanson had worked for the Kitsap County Fire Marshal's Office sometime in 2013 under David Lynam, the fire marshal, but that Hanson was not working there at the time of the fire. Arndt represented that Hanson would testify about what Lynam instructed him to document during the course of a fire investigation and how to gather evidence. Arndt agreed that Hanson did not have facts specific to this case. The State argued that Hanson's testimony should be excluded based on relevancy, hearsay, foundation, and prejudice.
The trial court ruled that Hanson's testimony was not relevant because he was not a part of the investigation in this case nor was he a part of the fire marshal's office at the time of the fire. The trial court also found that Hanson had not been identified as an expert who could testify aboutthe proper procedures the fire marshal's office is required to follow in an origin and cause investigation.
Kelly O'Neil testified that in the middle of the night, Arndt woke her up and told her that the house was full of smoke. Kelly realized that the house was on fire. It smelled like burning rubber tires. Once Kelly and Arndt got out of the house, they realized that others were still in the house. They both went back into the house. While going downstairs, Kelly saw an orange glow towards the downstairs family room side.
Donny Thomas testified that Arndt woke him up and told him that there was possibly a fire. Thomas looked to the fireplace, saw nothing, and then went to look downstairs and saw fire coming from the downstairs living room.
Edward Iskra, a fire investigator hired by an insurance company to investigate the fire, conducted an origin and cause investigation of the fire. His purpose in this case was to conduct a fire investigation, not to produce a report. He was able to enter the house after Lynam, the fire marshal, released the scene.
Iskra testified that National Fire Protection Association (NFPA) 921 is a guide for fire investigations and it is appropriate to follow the NFPA 921 in origin and cause investigations.2Within that guide is the scientific method, which is a procedure to standardize fire investigations and determine where a fire started.3 Fire investigators who arrive on the scene later frequently rely on the information gathered by other investigators who arrived first.
After investigating the upstairs area and analyzing the burn patterns, Iskra determined that the fire originated from the recreation room downstairs.4 Once downstairs, Iskra investigated and ruled out the light switch, outlets, pedestal fan, ceiling fan, television, baseboard heaters, and gas stove as possible origin points. He ultimately concluded that the fire was intentionally set, the exact origin of the fire was on the north side of the stairway in the northeast portion of the couch on the floor, and the ignition source was more likely than not an open flame.
Iskra also concluded that it was possible the room "flashed over,"5 but that the room did not flash over because of the open stairwell. 9 VRP at 1652. Whether flashover occurred or not did not affect his conclusions because flashover would just tell him where his general area of origin and cause was, and he would still be able to analyze fire patterns to find the point of origin.
Kenneth Rice, a senior fire investigator consultant, was asked to perform a technical review6 of Lynam's origin and cause determination, which is allowed under NFPA 921.7 Rice was also retained to determine origin of the fire. He reviewed the reports generated by the fire marshal's office, including Lynam's report and the supplemental reports of his deputies, Dale Mann's report, the fire department report, the crime lab report, the coroner's report, and photographs. Rice also spoke with Lynam after conducting his technical review. From the photographs of the downstairs, Rice could tell that the fire did not start in the area by the sliding glass door, nor in the area by the fireplace and right of the fireplace.
After reading Lynam's report and talking to him, Rice still had some concerns about whether an ember could have escaped the fireplace upstairs and traveled through the vent to start a fire downstairs. Rice and Lynam performed a test together to address Rice's concern. The two recreated the hearth and vent assembly, burned two presto logs in the hearth, shoveled a large amount of embers out, and dropped them directly through the vent, onto a basket of newspaper and tissue paper. Out of the handful of embers that came down through the vent, only two burned small holes in the newspaper but did not start a fire. Because the embers did not carry enough energy by the time they reached the paper, a fire was unable to start. Based on the test, Rice testified that "it didn't appear probable that an ember could have escaped the fireplace that was inthe upstairs of the home" and start a fire downstairs. 13 Verbatim Report of Proceedings (VRP) at 2379.
Rice and Lynam also conducted a smoke test to see when someone in the upstairs living room would be able to see smoke if the fire was right under the vent. Based on the test, Rice concluded that the fire "on a more probable than not basis did not occur directly under that vent or in [that] area" because the witness statements said that there was not any smoke upstairs when they were notified about the odor of smoke. 13 VRP at 2384.
Rice and Lynam also conducted a furniture ignition test. They lit a beanbag chair on fire with a barbeque lighter next to a leather couch. Once on fire, the beanbag filling started to spill out, pool, and ignite. The pooling spread under the couch and the couch then started to catch on fire.
Rice concluded that the area of origin was the left side of the couch and that the fire was incendiary because of the lack of an accidental ignition source in the area. He also concluded that Lynam's investigation was thorough and followed the scientific method.
David Lynam, the Kitsap County Fire Marshal, investigated the fire. Lynam confirmed that NFPA 921 is the guide he uses for...
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