State Of Washington, V. Ronald J. Bianchi ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 83338-3
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
RONALD JAY BIANCHI,
Appellant.
APPELWICK, J. — Bianchi argues the charges on which he was convicted
were barred by the statute of limitations. He argues that he was denied his right
to present a defense, that his counsel was ineffective, and that the prosecutor
engaged in misconduct at closing argument. Bianchi claims the charges of
malicious explosion were defective, the related jury instructions were defective,
and the evidence was insufficient. He argues his multiple convictions of
possession of stolen property violate double jeopardy. And, he argues that
cumulative error requires reversal. Affirmed in part, reversed in part, and
remanded to correct the sentence.
FACTS
On October 17, 1997, Ronald Bianchi, Michael Brock, and Aaron Ahern
robbed Seafirst Bank in Vancouver, Washington. Before the bank robbery, Bianchi
stole three cars: a Mustang, a LeBaron, and a Camaro. He parked these cars at
different locations throughout the area. In preparation for the robbery, Bianchi and
No. 83338-3-I/2
Ahern made pipe bombs. He and Ahern stole firearms, ammunition, and a
grenade.
Before the robbery, the men placed a bomb behind a Kmart store, to draw
attention away from the bank. When the bomb exploded, a truck driver was behind
the Kmart store completing a delivery at Kmart’s loading dock, but he was not
injured.
When the three men entered the bank, one of them held a gun to an
employee’s head. The men stole money from the bank. Bianchi drove the getaway
car, the LeBaron. They drove the LeBaron to the Mustang, and got into that car.
In the Mustang, they noticed police following them.
Sergeant Craig Hogman, from the Clark County Sheriff’s Office, was on
traffic patrol at the time, driving in an unmarked police car. He heard radio
broadcasts about the explosion and the bank robbery. Sergeant Hogman was in
the area of the bank and noticed a Mustang with three people in it, and he started
to follow the car to see if they were the suspects. When the Mustang accelerated,
Sergeant Hogman turned his lights and siren on. Someone in the Mustang hung
out the passenger door window to fire at him with a high powered rifle. He stated
the rear window of the Mustang disintegrated, and someone fired out of the back
window of the car. He testified, “[M]y assumption was that they had shot out the
rear window so that they would have a clear line of sight for shooting at me.”
Rounds of “constant” gunfire struck his patrol car.
At one point, the Mustang was stopped in the middle of the road, and the
shooters in the Mustang “opened fire.” Sergeant Hogman says he “took on the
2
No. 83338-3-I/3
most rounds in [his] patrol car.” Sergeant Hogman ducked under his dashboard,
“trying to move around in attempt not to get hit.” He felt “bits of material that [were]
like little bits of shrapnel that [were] exploding inside the car.” His “radar unit that
[was] directly in front of [him] in the patrol car explode[d].” His “driver’s window
exploded,” and the “entire car interior [wa]s exploding at that point.” After the
shooting stopped and the Mustang drove away, Sergeant Hogman continued to
pursue the Mustang at a distance until he lost sight of it.
Officer Lawrence Zapata and Officer Adam Millard, from the Vancouver
Police Department, heard from dispatch that Sergeant Hogman needed help.
They located the suspects’ car, and heard a gunshot coming from the direction of
that vehicle. The officers followed the car, and Officer Zapata could see someone
firing a rifle out the back of the car, and another person firing a shotgun out of the
passenger side window. Officer Zapata testified that he heard both weapons firing,
and counted “five or six” shots. Officer Zapata fired a single shot. After this,
“rounds [were] still being shot at us,” and he saw muzzle flashes.
Eventually, the Mustang hit a tree. Bianchi, Ahern, and Brock ran from the
car into a nearby ravine. After the car crashed, Bianchi took off running, while
Brock and Ahern fired at the officers. Officer Zapata trained his shotgun on
Bianchi, but watched Bianchi run into the ravine out of his sight. Officer Zapata
testified that he heard gunfire coming from the ravine, and saw one of Bianchi’s
accomplices with a shotgun. The officers returned fire, and at some point, the two
suspects firing from the ravine were no longer moving. Bianchi fled the ravine and
attempted to hide, but he was eventually apprehended by a police officer.
3
No. 83338-3-I/4
On October 23, 1997, the State charged Bianchi with first degree robbery,
three counts of attempted first degree felony murder, and second degree malicious
explosion. A second amended information added two additional counts of first
degree robbery, two counts of second degree assault, attempt to elude, and three
counts of first degree possession of stolen property. Bianchi pleaded guilty to all
counts. In exchange for Bianchi’s guilty plea, the State dropped charges against
his girlfriend, who was charged with multiple felonies related to being an
accomplice in all the crimes Bianchi pleaded guilty to in 1998. Bianchi was
sentenced to 72 years in prison. .
In 2008, the Washington Supreme Court held that attempted felony murder
was no longer a crime. In re Personal Restraint of Richey, 162 Wn.2d 865, 870,
175 P.3d 585 (2008). Following that decision, Bianchi brought a personal restraint
petition challenging the validity of his convictions for that offense. In re Pers.
Restraint of Bianchi, No. 49296-2-II, slip op. at 1, 4 (Wash. Ct. App. Feb. 22, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049296-2-II%20
Unpublished%20Opinion.pdf. The Court of Appeals vacated his three counts for
attempted first degree felony murder. Id. at 1, 4. On remand, the trial court granted
Bianchi’s motion to withdraw his guilty plea for the rest of his counts.
The State filed a fourth amended information on September 1, 2017,
charging Bianchi with three counts of attempted first degree murder against the
three officers. It also charged him with three counts of robbery in the first degree,
two counts of assault in the second degree, attempting to elude a pursuing police
vehicle, three counts of possession of stolen property, and malicious explosion in
4
No. 83338-3-I/5
the second degree. A fifth amended information added three charges of attempted
murder in the second degree.1
The case first went to trial in January 2019. The jury found Bianchi guilty of
most charges, including attempted murder in the first degree of Sergeant Hogman.
The court declared a mistrial on the charges related to attempted first and second
degree murder of Officers Zapata and Millard.
The State retried Bianchi on the attempted murder charges, with trial
beginning in September 2019. The jury found Bianchi guilty of both attempted first
and second degree murder of Officers Zapata and Millard at the second trial.
Bianchi was sentenced to 1,131 months, or over 94 years, in prison.
Bianchi appeals.
DISCUSSION
I. New Charges
A. Collateral Estoppel
Bianchi argues that the 2017 charges for first degree and second degree
attempted murder were barred by the statute of limitations. The State counters
that Bianchi previously made this argument to the court, so collateral estoppel bars
reviewing the issue again. Bianchi responds that collateral estoppel does not apply
because the prior decision did not include any discussion of whether the statute of
limitations had run for particular crimes.
1 The State also filed sixth and seventh amended charges before the first
trial ended. The sixth amended information removed the charge for attempting to
elude a pursuing police vehicle. The seventh amended information removed one
charge of assault in the second degree.
5
No. 83338-3-I/6
“The doctrine of collateral estoppel applies in criminal cases and bars
relitigation of issues actually adjudicated.” State v. Collicott, 118 Wn.2d 649, 660,
827 P.2d 263 (1992). When applying collateral estoppel, the court must determine
which issues were raised and resolved by the former judgment and if those issues
are identical. Id. In response to Bianchi’s prior personal restraint petition, we held,
“[O]n remand, the State will be able to file any charges for which the statute of
limitation has not run.” Bianchi, No. 49296-2-II at 3. Bianchi did not determine
whether any specific charges could be filed. It merely warned that a new filing was
a possibility for charges not barred by the statute of limitations. Because the issue
of whether the statute of limitations on the murder charges had run was not raised
and resolved in the prior case, collateral estoppel does not apply.
B. Statute of Limitation
1. Tolling of the Statute
At the time of Bianchi’s crime in 1997, the statute of limitations for attempted
murder was three years. Former RCW 9A.04.080(1)(h) (1997). The fourth
amended information charging Bianchi with attempted murder was filed in 2017,
twenty years after Bianchi’s crime. The State argues that the charges were
properly filed, as the statute of limitations was tolled when the original information
was filed, in 1997. Bianchi argues that the tolling provision does not apply and that
the new attempted murder charges against him are barred by the statute of
limitations.
Washington state law sets guidelines for time periods in which the State can
bring criminal charges against a defendant after the commission of a crime. See
6
No. 83338-3-I/7
RCW 9A.04.080. RCW 9A.04.080(4) provides a tolling provision to extend the
statute of limitations:
if, before the end of a period of limitation prescribed in subsection (1)
of this section, an indictment has been found or a complaint or an
information has been filed, and the indictment, complaint, or
information is set aside, then the period of limitation is extended by
a period equal to the length of time from the finding or filing to the
setting aside.
Statutes of limitation in criminal cases are measures of public policy. State v.
Hodgson, 108 Wn.2d 662, 667, 740 P.2d 848 (1987). They can be changed or
repealed in any case where the right of dismissal has not been “absolutely
acquired by the completion of the running of the statutory period of limitation.” Id.Therefore, when a statute extends a period of limitation, or allows for tolling, the
prosecution can commence at any time within the newly established limitation
period, even if the original period had expired. Id. at 668.
“[S]tatutes of limitation usually do not bar recharging a defendant whose
conviction has been reversed due to a defective charging document.” City of
Auburn v. Brooke, 119 Wn.2d 623, 639, 836 P.2d 212 (1992). When recharging
someone due to a defective charging document, the prosecution is not barred from
including a new charge, as long as both charges are for the same offense. In re
Pers. Restraint of Thompson, 141 Wn.2d 712, 728-29, 10 P.3d 380 (2000). “[I]n
the statute of limitation, an ‘offense’ is an act or conduct and not the statutory
definition of an offense through the enumeration of its elements.” Id. at 728.
In considering if the charges are for the same offense, courts determine
whether the new charges broaden or substantially amend the original charges by
7
No. 83338-3-I/8
examining whether the charges rest on the same factual allegations. See id. at
729. Courts also review if the new charges require preparation of new evidence
or defenses on the part of the defendant. Id.
In Thompson,2 the accused was charged with first degree rape of a child
even though that charge did not exist at the time he committed the offense. Id. at
719. To determine whether the State could recharge Thompson with the similar
charge of first degree statutory rape, the court reviewed the factual allegations by
examining how Thompson himself described his offense. Id. at 729. The court
held that the facts at hand supported elements of both the old and new statute. Id.
Following Thompson, we review Bianchi’s new charges to determine whether the
new attempted murder charges rest on the same factual allegations, and if he
needed to present new evidence or defenses.
2. Amended Charges
The State originally charged Bianchi with attempted felony murder on
October 23, 1997. This charge included,
That he, Ronald Jay Bianchi did, together with two others, commit
the crime of Robbery in the First Degree as charged in Count I, and
in furtherance of such crime or immediate flight therefrom the
defendant or other participants did attempt to cause the death of a
person other than one of the participants.
2 Bianchi argues that his case is similar to Thompson, and that the statute
of limitation had run in that case. 141 Wn.2d at 729. However, Bianchi
misinterprets this case. Thompson holds that the statute of limitation did not run,
but had tolled. Id. at 729-30.
8
No. 83338-3-I/9
The three original charges for attempted felony murder included one charge for
each officer: Officers Zapata and Millard and Sergeant Hogman. Bianchi pleaded
guilty to these charges.
In the new charges filed in 2017, the State added three counts of attempted
first degree murder, and three counts of attempted second degree murder. The
listed elements for attempted first degree murder included: (1) a premeditated
attempt to cause the death of each of the three officers, (2) an act which was a
substantial step toward that crime, and/or (3) was an accomplice to that crime.
The elements for attempted second degree murder included that Bianchi or his
accomplices intended to cause the death of each of the three officers, and took a
substantial step to do so, and/or was an accomplice of that crime. The new
charges contained the additional elements of premeditation for attempted first
degree murder and intent to kill for attempted second degree murder.
Bianchi argues that adding these elements substantially amended the
charges, as proving these mental states required him to prepare new evidence
and defenses. According to Bianchi, he needed to present new evidence that his
accomplices had intended to shoot only the police cars and not the officers
themselves in order to rebut the claims of premeditation and intent. Bianchi cites
to Thompson, 141 Wn.2d at 729 in support of this theory. Thompson states that
the charge in question was not broadened or substantially amended “because it
rests on the same factual allegations and requires no preparation of new evidence
or defenses.” Thompson, 141 Wn.2d at 729. Bianchi speculates that he had to
9
No. 83338-3-I/10
prepare new defenses than he would have presented if his case had gone to trial
in 1997.
However, the activities Bianchi would have needed to defend against for
attempted felony murder in 1997 were the same activities he defended at his 2019
trials. The facts relied on for the attempted murder charges were the same facts
relied on for the attempted felony murder charges. In 1998, Bianchi pleaded guilty
to attempting to cause the death of Sergeant Hogman, Officer Zapata, and Officer
Millard. At his 2019 trials, a recording of Bianchi’s 1997 interview with a detective
was played at both trials. In this recording, Bianchi narrated the steps he and his
accomplices took in preparing for the robbery, starting up to two weeks before it
occurred. He admitted that he robbed the bank. He described switching cars from
the LeBaron to the Mustang, and stated that he drove the Mustang while Brock
and Ahern fired at police. He said that Ahern threw the grenade at police officers.
The new charges do not call for Bianchi to answer for any activities he would not
have been required to defend but for his guilty plea.
Because the new charges substantially related to the original charges filed
in 1997, the statute of limitation was tolled. Bianchi was properly charged in 2017
for attempted first degree and second degree attempted murder.
3. “Set Aside” Equates With “Vacated”
Bianchi argues in a statement of additional grounds (SAG) that the
legislative intent of RCW 9A.04.080(4) extends the statute of limitation only when
a case is set aside, not when a conviction is vacated. Bianchi’s three counts for
attempted felony murder were vacated. Bianchi, No. 49296-2-II at 1, 4. He argues
10
No. 83338-3-I/11
that because this court vacated his plea and did not set aside the charging
information in the case, the statute of limitation was not extended.
RCW 9A.04.080(4) states,
If, before the end of a period of limitation prescribed in subsection (1)
of this section, an indictment has been found or a complaint or an
information has been filed, and the indictment, complaint, or
information is set aside, then the period of limitation is extended by
a period equal to the length of time from the finding or filing to the
setting aside.
Bianchi argues without citation to authority that there is a substantial
difference between the language “set aside” and “vacate.” There is no merit in this
argument.
II. Right to Present a Defense
Bianchi argues that the trial court violated his constitutional right to present
a defense at the second trial. He contends that the court did not allow testimony
that the plan was to shoot at the police vehicles to disable them, rather than kill the
officers. The State responds that the statements were properly excluded under
the rules of hearsay, and that even with the exclusion, Bianchi was still able to
argue his theory of the case.
“We review an alleged denial of the constitutional right to present a defense
de novo.” State v. Lizarraga, 191 Wn. App. 530, 551, 364 P.3d 810 (2015). The
accused has a “right to a fair opportunity to defend against the State’s accusations”
under due process. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973). However, the defendant’s right to present testimony is
not absolute. Lizarraga, 191 Wn. App at 553. “The defendant’s right to present a
11
No. 83338-3-I/12
defense is subject to ‘established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and innocence.’”
Id. (quoting Chambers, 410 U.S. at 302). Generally, a constitutional right to
present a defense is not violated if a state or federal rule operates to exclude
evidence. See State v. Strizheus, 163 Wn. App. 820, 833, 262 P.3d 100 (2011).
But, an evidentiary rule violates the right to present a defense if the rule is arbitrary
or disproportionate and infringes on a weighty interest of the accused. State v.
Rafay, 168 Wn. App. 734, 796, 285 P.3d 83 (2012). “The Supreme Court has
generally found such an abridgment only when the evidentiary ruling effectively
prohibited the substantive testimony of the defendant on matters relevant to the
defense or the testimony of a percipient witness.” Id.During the first trial, Shilley Walker, Brock’s girlfriend, testified that she and
Brock had discussed what he would do if he was followed after a bank robbery.
She stated that he told her that “he would shoot at the engine to try to make the
car stop following them.”
Before the second trial, Walker did not respond to her subpoena to testify.
Bianchi sought to play the recording of Walker’s previous testimony. The State
argued that the contents of Walker’s testimony were inadmissible as hearsay
because of the statement by Brock. The trial court ruled that the statement was
problematic and excluded the evidence. With this evidence excluded at the
second trial, Bianchi could argue during closing argument that Bianchi’s
accomplices had an intent to disable the police vehicles and not murder the
officers.
12
No. 83338-3-I/13
Bianchi alleges that Walker’s testimony is admissible as a statement against
interest, a hearsay exception under ER 804(b)(3).3 The State argues that the
evidence does not qualify as a statement against interest because it is self-serving.
We review whether hearsay is a statement against interest under ER
804(b)(3) for abuse of discretion. State v. J.K.T., 11 Wn. App. 2d 544, 566, 455
P.3d 173 (2019). “Hearsay” is statement made out of court offered as evidence to
prove the truth of the matter asserted. ER 801(c); State v. Bass, 18 Wn. App. 2d
760, 794, 491 P.3d 988 (2021), review denied, 198 Wn.2d 1034, 501 P.3d 148(2022). Hearsay is not admissible unless an exception applies. ER 802. One
exception allows admission of a statement against interest if the declarant is
unavailable to testify. ER 804(b)(3). A statement against interest is a statement
that a reasonable person in the declarant’s position would have made only if the
person believed it to be true, would expose the declarant to criminal liability, and
is supported by corroborating circumstances that indicate its trustworthiness. ER
804(b)(3).
To determine both the reliability of Brock’s statement, and if it was a
statement against interest, the trial court considered the “Ryan factors.”4 See State
v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). Those factors include,
3 Bianchi also argues that there is a presumption for admissibility, allowing
evidence in under ER 804(b)(3) because of the constitutional right to present a
defense. To bolster this argument, Bianchi cites to State v. Roberts, 142 Wn.2d
471, 497, 14 P.3d 713 (2000). However, Roberts states, “Because the offered
portions were against Cronin’s interest and offered by the defense, the
presumption is admissibility and not exclusion.” Id. Bianchi misrepresents this
rule.
4 This refers to State v. Ryan, 103 Wn.2d 165, 175, 691 P.2d 197 (1984).
13
No. 83338-3-I/14
‘(1) whether there is an apparent motive to lie; (2) the general
character of the declarant; (3) whether more than one person
heard the statements; (4) whether the statements were made
spontaneously; and (5) the timing of the declaration and the
relationship between the declarant and the witness’[; (6)] the
statement contains no express assertion about past fact, [(7)]
cross-examination could not show the declarant’s lack of
knowledge, [(8)] the possibility of the declarant’s faulty
recollection is remote, and [(9)] the circumstances surrounding
the statement (in that case spontaneous and against interest)
are such that there is no reason to suppose the declarant
misrepresented defendant’s involvement.
Id. (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982)). These factors
are used to determine trustworthiness and reliability of the speaker and
statements. Id. at 175; Parris, 98 Wn.2d at 146. In Ryan, a statement made
spontaneously to one person helped weigh the statement as not trustworthy. See
103 Wn.2d at 176.
The trial court here analyzed each Ryan factor. First, whether Brock had a
motive to lie did not apply here. Second, on Brock’s general character, the judge
stated, “[W]hat we heard about that was that Mr. Brock said a lot of stuff that wasn’t
true -- that’s a negative indicator.” Third, only one person heard the statements,
which, following Ryan, weighs against trustworthiness. Fourth, the statements
were not spontaneous, they were part of a conversation; the trial court stated this
factor did not apply here. Fifth, the timing of the statement was unknown, and
Brock was saying it to a trusted person, which weighs towards trustworthiness.
The trial court noted the difficulty of analyzing the sixth factor. The statement was
not an express assertion of past fact at the time it was made, and appeared to be
problematic due to its prospective hypothetical nature. Seventh, cross-
examination would not help, as Brock was deceased. Eighth, the possibility of
14
No. 83338-3-I/15
whether Brock’s recollection was faulty does not apply, as he was not stating
something that happened in the past. Ninth, and finally, the factor looking to the
circumstances surrounding the statement to see if the declarant misrepresented
their involvement did not apply. Overall, the trial court stated, “As I review these
Ryan factors, it really underscores what appears to be a problematic statement.
I’m going to disallow the evidence because I don’t think there are indications of
trustworthiness.” We agree that under the Ryan factors, the statement was not a
statement against interest.
The trial court did not abuse its discretion in excluding Walker’s previous
testimony about the statement by Ahern. Bianchi was not deprived of his
constitutional right to present his theory of the case nor his defense.
III. Ineffective Assistance of Counsel
Bianchi argues that defense counsel failed to raise the proper objection to
inadmissible evidence at the second trial, amounting to ineffective assistance of
counsel. We review an ineffective assistance of counsel claim de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). The Sixth Amendment to
the United States Constitution and article I, section 22 of the Washington
Constitution both assure the right to effective assistance of counsel. State v. Grier,
171 Wn.2d 17, 32, 246 P.3d 1260 (2011). The constitutional right to effective
assistance of counsel is analyzed by the Strickland test, which determines whether
or not errors rise to a level of ineffective assistance, and is two-pronged. In re
Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012); Strickland
v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
15
No. 83338-3-I/16
The defendant must show that (1) deficient performance caused (2) prejudice.
Strickland, 466 U.S. at 687.
To prove deficiency, the appellant must show that counsel fell below a
minimum objective standard of reasonable attorney conduct. State v. Jones, 183
Wn.2d 327, 339, 352 P.3d 776 (2015). To prove prejudice, the defendant must
demonstrate that the trial outcome would have been different if not for defense
counsel’s mistake. Id.The State called Donna Nightingale to testify about Ahern, her significant
other. She testified that Ahern expressed an interest in killing police officers when
they watched their favorite movie Natural Born Killers together.5 Nightingale said
Ahern thought it was “cool” when the movie characters killed police officers. She
stated it was the first movie they watched together. They had been together two
years. She implied they had watched it multiple times but did not testify that they
had watched it shortly before the robbery.
Before Nightingale testified, the trial court reviewed the admissibility of the
statement. The State argued it was admissible under a state of mind exception to
hearsay.6 The judge stated,
5 The trial court also stated that the State was proffering evidence from
Nightingale about watching the movie Heat the night before the robbery. However,
the State did not question Nightingale at trial about watching this movie.
6 ER 803(a)(3) allows a hearsay exception for “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition.”
We disagree that this statement was admissible under the state of mind hearsay
exception. Nightingale testified that the movie was the first she and Ahern watched
together, and they had been together two years. We infer that the couple watched
this long before the robbery, placing Ahern’s statements at some point before the
robbery as well. This does not show Ahern’s existing state of mind for the crime.
16
No. 83338-3-I/17
In particular, I think -- what the State has notified me that they’re
going to elicit as a statement regarding -- that he made regarding
when the characters in Natural Born Killers killed police and that that
was cool. I would think that’s relevant as to the declarant’s intent,
which is at issue in this case because of the intent of Mr. Bianchi as
an accomplice.
So I think it’s relevant and I do find it’s relevant. Is there
another reason why you would think that should not be admitted?
(Emphasis added). Responding to this, defense counsel objected to the testimony
on the grounds of relevance.7 The court overruled this objection, stating that the
movie testimony was relevant and “probative of what Mr. Ahern’s intent was in this
timeframe, which is, in turn, at issue in the case.” Bianchi has not assigned error
to this ruling.
Bianchi argues that defense counsel should have objected to the evidence
as inadmissible character evidence under ER 404(a). ER 404(a) states, “Evidence
of a person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion.”
Bianchi did not assign error to the admission of the movie evidence for the
purpose of showing Ahern’s mental state. Therefore, the evidence was properly
before the jury for that purpose. An objection stating that the evidence was
character evidence, even if sustained, would not have resulted in the exclusion of
the evidence. At best, the jury would have been instructed not to use the evidence
for purposes of establishing his character. Since the evidence was properly before
7Relevance is governed by ER 403, which states, “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
17
No. 83338-3-I/18
the court, counsel’s failure to object on character grounds cannot establish the
prejudice necessary to establish an ineffective assistance claim.
IV. Prosecutorial Misconduct
Bianchi argues that prosecutorial misconduct deprived him a fair trial.
Specifically, he argues that the prosecutor misstated the law to the jury,
misrepresented the defense’s argument, and told the jury that it needed to hold
Bianchi accountable for his actions.
Prosecutorial misconduct affects the defendant’s right to a fair trial. In re
Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To prevail on a
prosecutorial misconduct claim, the defendant must show that the prosecutor’s
conduct was both improper and prejudicial. Id. at 704. “[I]mproper arguments
should be reviewed in the context of the total argument, the issues in the case, the
evidence addressed in the argument, and the instructions given.” State v. Russell,
125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). To show prejudice, the defendant
must demonstrate that there was a substantial likelihood that the misconduct
affected the jury’s verdict. Glasmann, 175 Wn.2d at 704.
If a defendant fails to object to an improper comment, the error is waived
unless the comment is “so flagrant and ill intentioned” that it causes prejudice that
would not be cured by a jury instruction. Id. If proven, prosecutorial misconduct
is grounds for reversal where there is a substantial likelihood the improper conduct
affected the jury verdict. Id. at 711.
18
No. 83338-3-I/19
A. Misstatement of the Law
Bianchi argues that the prosecutor misstated the law during the closing
argument at his second trial, amounting to prosecutorial misconduct. He claims
that the prosecutor erroneously stated that the jury did not need to find that Bianchi
was aware of the presence of two officers in the car for him to be convicted of
attempted first degree murder of Officers Zapata and Millard. Because Bianchi did
not object to this statement at trial, he has the burden to prove that the statement
was so flagrant and ill-intentioned that a jury instruction could not have cured it.
Id.
Bianchi was charged with attempted murder in the first degree, under
statutes RCW 9A.32.030(1)(a), RCW 9A.28.020(3)(a), and RCW 9A.08.020(3).
RCW 9A.32.030(1) states, “A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person, he or she
causes the death of such person or of a third person.” Under RCW 9A.28.020, “A
person is guilty of an attempt to commit a crime if, with intent to commit a specific
crime, he or she does any act which is a substantial step toward the commission
of that crime.” RCW 9A.28.020(3)(a) states that an attempt is a “[c]lass A felony
when the crime attempted is murder in the first degree [or] murder in the second
degree.” Under RCW 9A.08.020(3),
[a] person is an accomplice of another person in the commission of
a crime if:
(a) With knowledge that it will promote or facilitate the
commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other
person to commit it; or
19
No. 83338-3-I/20
(ii) Aids or agrees to aid such other person in planning or
committing it.
A person is guilty of murder in the first degree when “a substantial step was
taken to criminally end someone’s life.” State v. Smith, 115 Wn.2d 775, 782, 801
P.2d 975 (1990) (emphasis omitted). “First degree murder is the killing of one
person by another person with premeditation.” State v. Mannering, 112 Wn. App.
268, 273, 48 P.3d 367 (2002), aff’d, 150 Wn.2d 277, 75 P.3d 961 (2003). The two
jury instructions about attempted murder in the first degree state that the jury must
find beyond a reasonable doubt that, “the act was done with the intent to commit
Murder in the First Degree” of Officers Zapata and Millard.
“A prosecuting attorney commits misconduct by misstating the law.” State
v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). In the closing argument, the
prosecutor stated:
Now, we also don’t have to prove that they knew Officers
Zapata and Millard personally. For [m]urder, it doesn’t have to be
some vendetta that’s been closely held for years and years. You
don’t have to know the person at all. We don’t even have to prove
that they knew both of them were in that vehicle. We have to prove
that when they fired the guns at the police officers in the car, what
their intent was. And again, that’s clear from their actions. And it’s
clear, again, from what they brought.
(Emphasis added.) Because first degree murder requires premeditation, and
because the jury instructions included an “intent to commit Murder,” Bianchi and
his associates needed to know that the individual police officers were in the car
when they were shooting. The prosecutor misstated the law.
The burden is on Bianchi to show that this statement is flagrant, ill-
intentioned, and so prejudicial that an instruction to the jury could not cure it.
20
No. 83338-3-I/21
Glasmann, 175 Wn.2d at 704. To show prejudice requires that the defendant show
a substantial likelihood that the misconduct affected the jury verdict. Id. Bianchi
does not argue that the court could not have instructed the jury adequately to cure
this mistake, or that the jury verdict was affected by the misstatement. And, as a
practical matter it would have been easy for the court to correct the State’s error
had Bianchi objected. Bianchi has not shown prejudice.
B. Straw Man Argument
Bianchi alleges the prosecutor mischaracterized the defense theory during
rebuttal. A prosecutor has “wide latitude to argue reasonable inferences from the
evidence,” but must seek convictions based on probative evidence and sound
reason. Id. For Bianchi to prevail on this claim, he needs to prove that these
statements were improper and prejudicial. Id.
Bianchi argues:
The prosecutor’s rebuttal theme that Mr. Bianchi was trying to
suggest that Officers Zapata and Millard had been lying was
improper. The argument went “beyond the bounds of acceptable
behavior by disparaging defense counsel.” [State v. ]Thorgerson,
172 Wn.2d[ 438,] 451-52[, 258 P.3d 43 (2011)]. It also created a
“straw man,” mischaracterizing Mr. Bianchi’s theory of the defense in
order to invalidate it. [State v. ]Thierry, 190 Wn. App.[ 680,] 694[,
360 P.3d 940 (2015)]. The argument is also improper because it
mischaracterized the state’s burden of proof by presenting the jury
with a false choice between finding that the officers were lying and
finding Mr. Bianchi guilty. [State v. ]Miles, 139 Wn. App.[ 879,] 889-
90[, 162 P.3d 1169 (2007)]; [State v. ]Fleming, 83 Wn. App.[ 209,]
213[, 921 P.2d 1076 (1996)].
We do not agree with Bianchi’s characterization of the State’s closing argument.
Bianchi’s closing argument raised questions about the officers’ statement
about the shootings:
21
No. 83338-3-I/22
So in this case, the State has to prove to you beyond a reasonable
doubt that the intent of Brock and Ahern was to kill -- that was their
intent. Now, when it comes to these officers testimonies, they are
wildly inconsistent with the physical evidence. But I can’t say -- I’m
not going to argue because I don’t have proof of it. I can’t prove that
they’re intentionally lying because I don’t have evidence of it.
During rebuttal, the State made the two statements in question:
. . . . [T]here was a lot of talk about that ravine and, frankly,
suggestion that the law enforcement officers in this case were lying.
That is what was said -- that was a suggestion. The only inference
was that Officer Zapata and Officer Millard sat up there and they lied
to you about being shot at. . . .
....
. . . . So all this suggestion about the ravine going to these
officers’ credibility -- what’s the implication there that Defense was
trying to make? That they’re lying and therefore they weren’t shot
at? I mean, that’s the only implication they can be making because
all that matters is whether or not these officers have been shot at.
The State was responding to Bianchi’s closing argument that the officers’
testimony was not credible in light of the physical evidence. The defense said it
could not prove that the officers were intentionally lying, which implied that they
were lying. The State did not misrepresent defense counsel’s arguments or the
record. The State drew reasonable inferences. These statements made during
rebuttal do not amount to misconduct by the prosecutor. In portions of the closing
not addressed by Bianchi, the prosecutor responded directly to the strength of the
evidence. And, the prosecutor properly referenced the burden of proof in the
closing argument: “[I]f you are convinced beyond a reasonable doubt that I have
proven these elements, it is your duty to convict the [d]efendant.” These
statements were not improper.
22
No. 83338-3-I/23
C. Accountability of Defendant
Bianchi argues that the prosecutor committed misconduct by asking the jury
to hold Bianchi accountable for his actions. He argues that this statement made
by the prosecutor at the first trial is improper: “[A]fter these twenty-one years, I am
asking you to hold [Bianchi] accountable for what he did. I’m asking you to hold
him accountable for the actions of him and his accomplices on October 17, 1997.”
“Prosecutors have a duty to seek verdicts free from appeals to passion or
prejudice.” State v. Perez-Mejia, 134 Wn. App. 907, 915, 143 P.3d 838 (2006).
Prosecutors engage in misconduct “when making an argument that appeals to
jurors’ fear and repudiation of criminal groups or invokes racial, ethnic, or religious
prejudice as a reason to convict.” Id. Additionally, “inflammatory remarks,
incitements to vengeance, exhortations to join a war against crime or drugs, or
appeals to prejudice or patriotism are forbidden.” Id.Bianchi cites to Perez-Mejia.8 In that case, the prosecutor asked the jury to
“send a message.” Id. at 917. The prosecutor stated, “Send a message to
Scorpion, to other members of his gang . . . and to all the other people who choose
to dwell in the underworld of gangs. That message is we [have] had enough. We
will not tolerate it any longer.” Id. Elsewhere in closing argument, the prosecutor
8 To further argue prosecutorial misconduct, Bianchi cites a case from New
Jersey to argue that the prosecutor’s statement about holding Bianchi accountable
misstates the jury’s role, which should be only to weigh the evidence and hold the
state to its burden of proof, instead of considering accountability. State v. Neal,
361 N.J. Super. 522, 537, 836 A.2d 723 (App. Div. 2003). This case is not
controlling in Washington. He also argues that this statement had an
“inflammatory effect on the jury,” is not curable by instruction, and is flagrant and
ill intentioned. However, Bianchi just states these allegations without other legal
argument.
23
No. 83338-3-I/24
made statements about the defendant’s ethnicity. Id. at 918. In Perez-Mejia, the
“send a message” language improperly injected issues about nationality and
ethnicity, bringing up issues of racial prejudice. Id. at 917-18.
However, Perez-Mejia is inapposite. First, the prosecutor stating, “I’m
asking you to hold him accountable” does not raise any issues of the racial
prejudice that was found improper in Perez-Mejia. Nor did the prosecutor appeal
to the passion and prejudice of the jury generally. Second, the prosecutor in Perez-
Mejia asking the jury to “send a message” to gang members differs from asking
the jury to “hold the defendant accountable” based on the evidence. Conviction
and sentencing are by nature holding one accountable for criminal acts.
We hold there was no prosecutorial misconduct.
V. Malicious Explosion
A. Insufficient Evidence
Bianchi argues that the State presented insufficient evidence for a rational
jury to find him guilty of second degree malicious explosion beyond a reasonable
doubt. “[E]vidence is sufficient if a rational trier of fact could find each element of
the crime beyond a reasonable doubt.” State v. Jussila, 197 Wn. App. 908, 932,
392 P.3d 1108 (2017). Both direct and indirect evidence can support the jury’s
verdict. Id. We draw all reasonable inferences in favor of the State. Id.Bianchi was charged with malicious explosion in the second degree under
RCW 70.74.280(2),9 which states,
9Bianchi was also charged under RCW 9A.08.020(3), for being an
accomplice to the crime.
24
No. 83338-3-I/25
A person who maliciously, by the explosion of gunpowder or
any other explosive substance or material, destroy or damage any
building, car, airplane, vessel, common carrier, railroad track, or
public utility transmission system or structure is guilty of:
....
(2) Malicious explosion of a substance in the second degree
if the offense is committed under circumstances not amounting to
malicious explosion of a substance in the first degree and if thereby
the life or safety of a human being is endangered. Malicious
explosion of a substance in the second degree is a class A felony.
Bianchi argues that because McGregor’s life or safety was not endangered, a
rational jury could not find that Bianchi was guilty of malicious explosion.
The question before us concerns what qualifies as “endangered” for the
purposes of the statute, and whether the evidence before the jury demonstrates
endangerment. “Construction of a statute is a question of law.” State v. Engel,
166 Wn.2d 572, 578, 210 P.3d 1007 (2009). To determine the legislative intent,
we look to the plain language of the statute, the context of the statute, and the
statutory scheme. State v. Feely, 192 Wn. App. 751, 761, 368 P.3d 514 (2016).
“Where the language of a statute is clear, legislative intent is derived from the
language of the statute alone.” Engel, 166 Wn.2d at 578.
The plain language of the statute reads that malicious explosion in the
second degree occurs “if thereby the life or safety of a human being is
endangered.” RCW 70.74.280. The statute does not require injury. “Endangered”
is not defined, so we may consider its ordinary meaning. Feely, 192 Wn. App at
761. “Endangered” is defined as, “[t]he act or an instance of putting someone or
something in danger; exposure to danger or harm.” BLACK’S LAW DICTIONARY 667
25
No. 83338-3-I/26
(11th ed. 2019). The evidence must show that a person was exposed to danger
by the explosion.
We look to the evidence to see if the jury could have found beyond a
reasonable doubt that the safety of any person may have been exposed to danger
by the bomb Bianchi placed. See Jussila, 197 Wn. App. at 932. Bianchi, Brock,
and Ahern placed the bomb behind a Kmart store. Bianchi stated that he “[j]ust
wanted to make a loud boom, draw some attention, and get people there.” At trial,
the State called McGregor to testify about the explosion. McGregor was a truck
driver who was parked in the Kmart alley when the explosion occurred. He had
just pulled into the loading dock area to make a delivery when he heard something
“quite loud,” like a bomb exploding, which startled him. McGregor was not injured,
and his truck was not damaged.
The State also called Vancouver Fire Department Division Chief Richard
Atkins to testify. He was dispatched to investigate the explosion after it occurred.
Atkins corroborated that the explosion occurred in an alleyway behind the Kmart,
near a trailer. He testified that there was evidence of shrapnel damage, and that
the force of the explosion bent sheet metal near the detonation site.
Truckers like McGregor used the area to unload product being delivered to
the Kmart. The explosion was strong enough to bend sheet metal on the trailer
that was nearby. The explosion sent shrapnel flying. The jury could readily find
from this evidence that the explosion exposed McGregor or any other truck driver
in the vicinity at the time to danger or harm. The State presented sufficient
26
No. 83338-3-I/27
evidence from which a reasonable jury could find Bianchi guilty of malicious
explosion.
B. Charging Language
Bianchi argues that the charging language for malicious explosion failed to
allege critical facts, violating his Sixth Amendment rights. He alleges that the
charging language is too vague, as it omitted critical facts about the building or
structure he damaged, and the person he endangered.
The Sixth Amendment gives the accused the right “to be informed of the
nature and cause of the accusation.” U.S. CONST. AMEND. VI. We review a
challenge to the sufficiency of the charging document de novo. See State v.
Campbell, 125 Wn.2d 797, 800, 888 P.2d 1185 (1995). If the defendant challenges
the sufficiency of an information for the first time on appeal, the court construes
the document liberally in favor of validity. 10 State v. Brown, 169 Wn.2d 195, 197,
234 P.3d 212 (2010). When looking to whether the information is sufficient, we
conduct a two prong test. State v. Rivas, 168 Wn. App. 882, 887, 278 P.3d 686(2012). The test includes “(1) do the necessary elements appear in any form, or
by fair construction can they be found in the information and, if so, (2) can the
10The State argues that, because this is the first time Bianchi is raising this
argument, the Court should decline to review this issue. A vague charging
document can be corrected by requesting a bill of particulars at trial. State v.
Leach, 113 Wn.2d 679, 687, 782 P.2d 552 (1989), abrogated on other grounds by
State v. Pry, 194 Wn.2d 745, 761-62, 452 P.3d 536 (2019). However, if a
defendant fails to request a bill of particulars at trial, they cannot challenge the
charging document on vagueness grounds on appeal. Id. Bianchi did not state
that he requested a bill of particulars at trial. The bill of particulars issue was not
raised in State v. Brown, 169 Wn.2d 195, 197, 234 P.3d 212 (2010). So, in an
abundance of caution, we consider the merits.
27
No. 83338-3-I/28
defendant show he or she was actually prejudiced by the vague or inartful
language.” Id. “[I]f the necessary facts appear in any form, or by a fair construction
can be found within the terms of the charge, then the charging document will be
upheld on appeal." State v. Kjorsvik, 117 Wn.2d 93, 104, 812 P.2d 86 (1991).
Failing to allege specific facts may make the charging document vague, but that
does not make it constitutionally deficient. State v. Laramie, 141 Wn. App. 332,
340, 169 P.3d 859 (2007).
The charging language in question states,
COUNT 12 – MALICIOUS EXPLOSION OF A SUBSTANCE IN THE
SECOND DEGREE – 9A.080.020(3)/70.74.280(2)
That he, RONALD JAY BIANCHI, together and with others, in
the County of Clark, State of Washington, on or about October 17,
1997, did maliciously destroy or damage any building or structure by
the explosion of gunpowder or any other explosive substance or
material and thereby did endanger the life or safety of any human
being, contrary to Revised Code of Washington 70.74.280(2) and/or
was an accomplice to said crime pursuant to RCW 9A.08.020.
This language follows the language of RCW 70.74.280 closely to identify the
elements of the crime. Bianchi is correct that the charging language does not
identify the structure damaged or the people endangered.11 But, Bianchi does not
identify how any missing facts prejudiced his ability to defend against the charge.
11 In State v. Woodhouse, 151 Wash. 512, 513, 276 P. 539 (1929), the
Supreme Court of Washington analyzed a different, lesser crime, but in a similar
factual scenario. In that case, the sufficiency of the information was challenged
because the charging information did not specifically state who was injured or
endangered by a bomb. Id. at 513-14. The court held the information was
sufficient stating, “Explosions are very likely to injure individuals. They may cause
extensive and dangerous fires, they may result in panics among crowds in places
of public resort, or in congested streets, and they constitute grave menaces to the
public safety and security.” Id. at 515, 517.
28
No. 83338-3-I/29
In fact, he does not actually argue that he was prejudiced. Therefore, Bianchi fails
to show that the charging document was constitutionally insufficient.
C. Jury Instructions
In his SAG, Bianchi argues that the jury instruction for malicious explosion
misstated the law. He argues that the words “if” and “is” are included in the statute,
but left out in the jury instructions and this omission changes the meaning of the
law. “Jury instructions are sufficient if they are supported by substantial evidence,
allow the parties to argue their theories of the case, and when read as a whole
properly inform the jury of the applicable law.” State v. Clausing, 147 Wn.2d 620,
626, 56 P.3d 550 (2002).
With the language of concern emphasized, RCW 70.74.280 reads,
A person who maliciously, by the explosion of gunpowder or
any other explosive substance or material, destroy or damage any
building, car, airplane, vessel, common carrier, railroad track, or
public utility transmission system or structure is guilty of:
....
(2) Malicious explosion of a substance in the second degree
if the offense is committed under circumstances not amounting to
malicious explosion of a substance in the first degree and if thereby
the life or safety of a human being is endangered.
The jury instruction reads,
A person commits the crime of Malicious Explosion of a
Substance in the Second Degree when the person maliciously
destroys or damages any building or structure by the explosion of
gunpowder or any other explosive substance or material and thereby
endangered the life or safety of a human being.
Bianchi is correct that the jury instruction does not perfectly match the statute.
29
No. 83338-3-I/30
However, the instruction allowed both parties to argue the theory of their
case. Bianchi argued that no human was actually endangered by the explosion,
while the State argued that no one actually needed to be hurt, but that someone
was endangered. Additionally, Bianchi does not establish that the omission of the
two words changed the meaning of the instruction. This does not show any error
or prejudice. The jury was properly informed of the applicable law, and the
instruction is sufficient.
VI. Double Jeopardy
Bianchi was found guilty of possession of stolen property in the second
degree. Bianchi was charged under RCW 9A.56.160 for both counts,12 which
states,
(1) A person is guilty of possessing stolen property in the
second degree if:
(a) He or she possesses stolen property, other than a firearm
as defined in RCW 9.41.010 or a motor vehicle, which exceeds
seven hundred fifty dollars in value but does not exceed five
thousand dollars in value.
The stolen property included a Chevy Camaro, belonging to Sandra Ouellette, and
a Ford Mustang, belonging to David Sooder. In his SAG, Bianchi argues that
simultaneous possession of various items of property stolen from multiple owners
constitutes the same offense for double jeopardy purposes. The State did not
respond to this pleading.
12
Bianchi was also charged with RCW 9A.08.020(3), for being an
accomplice to the crime, and RCW 9A.56.140, which defines the crime.
30
No. 83338-3-I/31
Bianchi, in his SAG, relies on State v. McReynolds, 117 Wn. App. 309, 340,
71 P.3d 663 (2003) to argue that simultaneous possession of various items of
property stolen from multiple owners constitutes one unit of prosecution of the
crime. McReynolds held that a single possession of various items of stolen
property was one unit of prosecution, and therefore multiple convictions for
possessing that property violated the prohibition against double jeopardy. Id.McReynolds further states, “when a statute defines a crime as a course of conduct
over a period of time, ‘then it is a continuous offense and any conviction or acquittal
based on a portion of that course of action will bar prosecution on the remainder.’”
Id. at 339 (quoting Harrell v. Israel, 478 F. Supp. 752, 754-55 (E.D. Wis.1979)).
The evidence shows that Bianchi admitted to taking the two vehicles.
Bianchi admitted to parking the cars at different locations the night before the
robbery. It is clear from the record that all three men rode in the vehicles during
the course of the robbery. The three men drove the Camaro to set the bomb. They
fled the scene of the robbery in the LeBaron, and drove that car to the Mustang.
After the men got into the Mustang to leave the vicinity, a police car started to
follow them. Bianchi drove the Mustang while Brock and Ahern fired upon
Sergeant Hogman. These facts demonstrate that Bianchi and his accomplices had
control over the vehicles from the act of stealing them through the time the cars
were used in the robbery and attempted escape.
We conclude that the possession of these two vehicles constitutes a single
unit of prosecution. Charging them separately violates double jeopardy. Bianchi
is entitled to be resentenced on a single count.
31
No. 83338-3-I/32
VII. Cumulative Error
Bianchi argues that his case should be reversed due to cumulative error.
Cumulative error warrants reversal when the combined effect of several errors
denies the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390(2000). “The doctrine does not apply where the errors are few and have little or
no effect on the outcome of the trial.” State v. Weber, 159 Wn.2d 252, 279, 149
P.3d 646 (2006). Bianchi does not illustrate how cumulative error would have
affected the outcome of the trial. He also does not show that any prejudice against
him occurred at trial. Cumulative error does not apply.
Affirmed in part, reversed in part, and remanded to correct the sentence.
WE CONCUR:
32