FILED JULY 28, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 37665-6-III Respondent, ) ) v. ) ) JAMES EDWARD BERNHARD, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. — James Bernhard appeals from his convictions for second degree
rape and second degree assault. He challenges the superior court’s admission of expert
testimony that BLUESTAR testing found the presence of blood on sample areas of his
residence where he allegedly raped his wife. Assuming we affirm his convictions,
Bernhard asks that we conclude that his sentencing counsel performed ineffectively when
failing to argue that his two convictions constituted the same criminal conduct. We rule
that the superior court did not abuse its discretion when admitting the contested evidence
and thereby affirm Bernhard’s convictions. We, however, hold that sentencing counsel
performed ineffectively and remand for resentencing.
FACTS
The State of Washington accused James Bernhard of raping his wife, Ashley
Bernhard, during the night of April 10-11, 2016 at the couple’s residence. Bernhard No. 37665-6-III State v. Bernhard
vociferously denies the charge. At trial, his wife also stridently disputed the charge.
James and Ashley Bernhard married one another in 2003. We generally refer to Ashley
Bernhard, the alleged victim, as Ashley and James Bernhard as Bernhard.
Ashley Bernhard’s diabetes occupies a major role in this prosecution. At the age
of nineteen, Ashley was diagnosed with Type I diabetes, a condition treated by
maintaining normal blood sugar levels. Insulin, produced by the pancreas, lowers levels
of glucose in the blood. The hormone promotes the absorption of glucose from the blood
into liver, fat and skeletal muscle cells. When the pancreas fails to produce the needed
insulin, the sufferer must inject synthetic insulin into her body. Ashley requires regular
doses of fabricated insulin.
Ashley Bernhard sometimes suffers seizures when she became hypoglycemic.
Hypoglycemia occurs when blood sugar levels dip below normal. The seizures result in
injuries, such as bruises, rug burns, or a concussion. Since 2005, Ashley has been
hospitalized for diabetes-related issues ten times per year.
Other medical ailments suffered by Ashley Bernhard also influence the
contentions of the parties. Ashley also suffers from endometriosis, a disorder whereby
uterine tissue grows outside of the uterus and causes menstrual irregularities. Ashley
accumulates uterine fibroids, a condition that causes heavy menstrual bleeding. Ashley
bleeds “uncontrollably” during her menstrual cycles.
2 No. 37665-6-III State v. Bernhard
After marriage, Ashley Bernhard began abusing alcohol. Alcohol intake decreases
blood sugar levels. According to James Bernhard, Ashely drank approximately one-half
gallon of vodka per day. In 2014, Ashley was diagnosed with cirrhosis of the liver, or
chronic liver damage.
The alleged rape by James Bernhard of his wife occurred on the night of April 10
and 11, 2016. On April 10, James and Ashley Bernhard attended a barbecue hosted by
Bernhard’s work supervisor, Jill Thomson. The Bernhards arrived at 5:30 p.m. and left at
9:00 p.m. At the barbecue, Ashley consumed ten alcoholic beverages. Throughout the
entire day, Ashley had approximately twenty alcohol drinks.
When James and Ashley Bernhard returned home from the barbecue, Ashley
continued drinking. Eventually, Ashley retired to bed while Bernhard watched television
in the living room. The State and James Bernhard dispute the events that transpired
between the time when Ashley retired and 3:31 a.m. on April 11.
At 3:31 a.m. on April 11, 2016, James Bernhard called 911 requesting medical
assistance for his wife. Bernhard told the 911 operator that he had checked Ashley’s
blood sugar level two hours earlier and that, when adjusting her blood sugar, they may
have “overdone it.” Exhibit (EX) 10 at 1. Bernhard told the operator that the previous
test indicated a blood sugar level of 200 mg/dL, milligrams per deciliter. Ex. 10 at 1.
One should aim for 70 to 130 mg/dL when fasting and less than 180 mg/dL after meals.
3 No. 37665-6-III State v. Bernhard
James Bernhard told the 911 operator that Ashley Bernhard’s breathing was
abnormal. He also stated that Ashley bled from her nose and mouth. The nosebleed
concerned Bernhard, because Ashley’s nose did not ordinarily bleed during a seizure.
When paramedics arrived at the Bernhard home, they discovered Ashley Bernhard
naked and unconscious in the master bathroom. The shower measured thirteen feet by
six feet, enclosed by granite on two sides and glass on the other two sides. Ashley’s head
lay on the shower drain, and she was wet from her thighs up. Paramedic Jason McGary
noted no water on her feet. McGary observed blood diluted with water in the shower.
McGary noted swelling on both sides of Ashley’s face.
James Bernhard informed paramedics that his wife was on her menstrual cycle and
would want to be covered with a robe, as she was modest. Shelley Ransier, a neighbor
and friend of the Bernhards, testified at trial that Ashley was not modest.
During trial, Paramedic Jack Piper averred that James Bernhard’s description of
events continuously changed when answering questions from emergency responders
during the early morning of April 11. Piper first asked Bernhard where he found Ashley.
Bernhard answered that her abnormal breathing awoke him, after which time he dragged
her from the bed to the shower and called 911. When Piper asked about Ashley’s blood
sugar level, Bernhard denied checking it. Piper then inquired how James knew her blood
sugar was low if he had not checked it, to which Bernhard responded that he gave her an
4 No. 37665-6-III State v. Bernhard
extra eight units of insulin. Initially, Bernhard told Piper that he gave Ashley the insulin,
but later corrected himself, stating that Ashley gave it to herself.
While attending to Ashley Bernhard at her home during early morning April 11,
paramedics, using a glucometer, measured Ashley’s blood sugar level to be low. A
glucometer reads “low,” as opposed to reading a specific level, if an individual’s blood
sugar level falls below 20 mg/dL, but experts deem a level below 80 mg/dL as low.
Paramedics administered an intravenous glucose drip of Dextrose 50 (D50) and saline to
raise Ashley’s blood sugar. Ashley then began to revive.
EMT Josue Gonzalez entered the home’s master bedroom and observed blood on
the left side of the bed in the location where a person’s midsection would lay. According
to neighbor Shelley Ransier, Ashley typically slept on the left side of the bed.
Paramedics observed no evidence that Ashley suffered a seizure. Her condition also
contrasted with having suffered a diabetic seizure.
Between 4:02 and 4:14 a.m., paramedics transported Ashley Bernhard to Kadlec
Medical Center in Richland. During the transport, emergency personnel continued to
administer D50. After Ashley’s arrival at the hospital, emergency room technicians
gauged her blood glucose level at 40 mg/dL, which confirmed ongoing severe
hypoglycemia. Ashley’s blood alcohol content (BAC) measured 0.22.
At the emergency room, Debbierey Bongar, M.D. examined and evaluated Ashley
Bernhard. Dr. Bongar detected bruising on both eyes, facial swelling, a bruise on her
5 No. 37665-6-III State v. Bernhard
right ear, and pain in her lower left rib on palpation. Ashley had lost a copious amount of
blood and thus was anemic. During her time in the emergency room, Ashley required
four blood transfusions.
During trial, Dr. Debbierey Bongar testified that one of the most common injuries
occurring during a seizure is tongue lacerations. Ashley’s tongue sustained no injury.
Dr. Bongar testified that a seizure victim might bruise both sides of her face while
seizing, but she had never before seen a seizure sufferer sustain two black eyes. Bongar
also stated that she had not previously seen vaginal lacerations result from a diabetic
seizure.
Kadlec Medical Center attending nurse Sheena Downey testified that Ashley
Bernhard’s injuries were inconsistent with someone who had a seizure. Downey
elucidated that she had seen more than two dozen seizures in her career, and none had
resulted in the trauma suffered by Ashley.
Nurse Whitney Dack spoke with James Bernhard at Kadlec Medical Center. At
trial, Dack averred that Bernhard constantly changed his account of what happened to
Ashley:
He first said he never gave her any insulin. Then he said he did. Then his increments changed.
Report of Proceedings (RP) at 681.
6 No. 37665-6-III State v. Bernhard
Mark Mulholland, M.D., also examined Ashley Bernhard at Kadlec Medical
Center. Dr. Mulholland observed four tears in and near Ashley’s vagina. One laceration
extended from the vaginal opening to the anus. Another laceration, located on the right
labia minora, was superficial. Both of these external tears required stitches. Dr.
Mulholland also found two internal vaginal lacerations. The smaller tear measured three
centimeters. The larger tear measured ten to twelve centimeters and stretched from the
inside of the vagina to the cervix. Dr. Mulholland surgically repaired the larger internal
tear in the operating room. Mulholland attributed Ashley’s initial blood loss to
lacerations in her vaginal area.
During trial, Dr. Mark Mulholland testified that he had never seen traumatic
vaginal injuries resulting from a diabetic seizure. Dr. Mulholland conceded that the
external vaginal tears could have resulted from a fall. He further opined, however, that
Ashley’s internal vaginal lacerations could not have been caused by a fall. Mulholland
explained that, for an object to cause injury far into the vaginal canal, the object needed
to be placed purposefully into the vagina. He declared that, if a woman sustained
lacerations both outside and inside the vagina from one fall, the laceration externally
would be continuous with the laceration going into the vagina. Ashley did not sustain
any external laceration continuous with an internal injury.
We return to the chronological narrative of events. On April 11, 2016 after Ashley
Bernhard’s surgery, Ashley’s sister, Shelby Cooper, and mutual friend, Melissa Moore,
7 No. 37665-6-III State v. Bernhard
visited her at the hospital. Cooper asked Dr. Mark Mulholland whether Ashley’s injuries
were consistent with a fall. Dr. Mulholland did not respond due to patient privacy.
At 11:23 a.m. on April 11, 2016, Shelby Cooper sent James Bernhard a text
message that claimed she intended to return to her home. Instead, Cooper and Melissa
Moore visited the Bernhard residence. According to Cooper, Ashley asked her to retrieve
clothes. Cooper and Moore accessed the house through an unlocked, side garage door.
The duo entered the Bernhards’ bedroom and noticed what they believed to be blood on
the bed, a pillow, a small yellow rag on the floor near the bed, a spot on the carpet near
the rag, and on a long maxi dress. The bed lacked sheets and a set of sheets rested in the
washing machine. Cooper photographed the supposedly bloody areas and objects.
On April 12, 2016, Shelby Cooper asked Kadlec nurse Whitney Dack to contact
law enforcement. Dack obliged. At 8:55 p.m. that evening, medical staff administered
Oxycodone to Ashley Bernhard.
At 9:15 p.m. on April 12, Pasco Police Department Officer Jed Abastillas
interviewed Ashley Bernhard at Kadlec Medical Center. Officer Abastillas testified both
that Ashley was forthcoming but that “things weren’t coming clearly to her at the time.”
RP at 747-48. Ashley completed and signed a domestic violence victim statement. The
statement read:
I recall James coming in the bedroom to check my blood sugar. Told me it was 274, I believe. I then went back to going to sleep and he comes in to give me insulin. This is not a normal occurrence for him to
8 No. 37665-6-III State v. Bernhard
administer insulin. I asked him how much he gave me, and I believe he said eight or 12 units. I told him that was way too much and I needed cereal. He brought in Rice Krispies, which I said would not help. I asked for pineapple. I do not recall getting that, and the next thing I recall was waking up in the shower with about five to seven EMTs and firefighters, with blood all over. I was told by James I had a seizure and got in the shower and he said he didn’t notice for awhile [sic]. I was still pretty out of it. I was transported by ambulance to Kadlec. I had lost, I believe, six units of blood from the vaginal area due to trauma—to the trauma in the area.
RP at 1667-68.
The State, in an attempt to impeach Ashley Bernhard’s testimony, played nine
audio clips from an interview of Ashley by Pasco Detective Tony Aceves. On the
recordings, Ashley told Detective Aceves: (1) on rare occasions, she and James Bernhard
argued about sex, (2) Bernhard injected her with excessive insulin, without permission,
on April 10, 2016, (3) Bernhard had previously administered her insulin only once, and
(4) Ashley felt afraid of Bernhard “at this point.” Ex. 170.
During trial, Ashley Bernhard testified that she did not recall her conversations
with law enforcement at the hospital since she was on pain medication. Since she lacked
access to alcohol in the hospital, Ashley took advantage of every medication she could.
Bernhard denied telling Detective Tony Aceves that she awoke to James Bernhard
injecting her with insulin without her permission.
9 No. 37665-6-III State v. Bernhard
On the stand, after reviewing her signed statement provided to law enforcement,
Ashley Bernhard stated that she had asked James Bernhard to administer her insulin. She
testified that she may have told detectives that her husband gave her too much insulin “so
he could take advantage of me and then took it too far.” RP at 1374. Ashley clarified
that, if she had said that at the hospital, her comment resulted from being surrounded “by
bystanders that are not his [Bernhard’s] fan.” RP at 1374.
During trial, Ashley Bernhard blamed her injuries on a diabetic seizure. On direct
examination, Ashley Bernhard stated that she had sustained facial bruising during a
seizure in the past. Ashley described an incident in a grocery store, when a seizure
resulted in a concussion and bruising on one side of her face, two black eyes, and
bruising to her ear. She testified that she did not visit the hospital on that occasion.
Ashley averred that, contrary to Dr. Debbierey Bongar’s testimony, she had bitten her
tongue during her seizure on April 11, 2016.
During trial, Ashley Bernhard averred that she suffered random bleeding due to
endometriosis and fibroids. She explained that, over the course of the eleven years she
and James Bernhard owned their mattress, she often bled on the bed and the blood soaked
into the mattress. She cleaned the mattress directly with laundry detergent. She cleaned
the bed sheets with laundry detergent in a washing machine. Ashley averred that she
sometimes showered in the middle of the night because of the bleeding. Blood droplets
could have fallen on the carpet on her way to the shower.
10 No. 37665-6-III State v. Bernhard
The State highlighted that some of Ashley Bernhard’s trial testimony contradicted
statements uttered during a deposition. During her deposition, Ashley testified that she
did not receive any black eyes during her grocery store seizure episode. Also, during her
deposition, Ashley stated that she actually had gone to the hospital following her seizure
in the grocery store.
After interviewing Ashley Bernhard on April 12, Officer Jed Abastillas,
accompanied by Officer Thomas Groom, visited the Bernhard residence. The officers
arrived after 11:00 p.m. on April 12. James Bernhard escorted them to the master
bathroom. Inside the corner of the shower stood a plastic, four-legged stool. According
to Bernhard, the stool was either on its side or upside down when he found Ashley in the
shower, with products normally kept on top of the stool strewn throughout the shower.
During her trial testimony, neighbor Shelley Ransier averred that, on April 13,
2016, she peered inside the Bernards’ garbage can. Ransier saw two white garbage bags
“full of like clothing or something fluffy.” RP at 598.
On April 14, 2016, Pasco Detectives Tony Aceves and Jesus Romero interviewed
James Bernhard for three hours. The detectives recorded the entirety of the interview,
which was admitted as Exhibit 143. During the interview, Bernhard narrated an account
of the events that took place the night of April 10, 2016 and the morning of April 11,
2016. We do not particularize his entire statement. Nevertheless, portions of his story
during the interview conflicted with comments he earlier told paramedics. When the
11 No. 37665-6-III State v. Bernhard
detectives confronted Bernhard with the notion that physical evidence conflicted with his
narrative, Bernhard modified his story further. Bernhard insisted that any blood present
in the master bedroom and bathroom came from Ashley’s menstrual cycle.
During the law enforcement interview, the detectives mentioned that Shelby
Cooper saw blood on the mattress in the master bedroom. James Bernhard responded
that he had not seen any blood on the bed or on the bed sheets, which sheets he had
recently laundered. Bernhard denied throwing any bed sheets away and expressed his
belief that Cooper wished to harm him.
Detective Tony Aceves showed James Bernhard the photos Shelby Cooper took of
the bloody objects in the Bernhard residence. Aceves asked why Ashley Bernhard bled
so much. Bernhard replied that, contrary to the detectives’ assertion, he had not reported
that Ashley fell, but rather he lacked knowledge of events occurring in the bathroom.
Bernhard suggested that Ashley returned to bed after injuring herself, which would
explain blood on the bed. The detectives retorted that Ashley’s doctors denied that she
could have walked to the shower with the insulin level recorded at 2:00 a.m. Bernhard
remonstrated that he observed Ashley being conscious and talking at even lower levels.
Two hours into the interview, James Bernhard admitted that he witnessed blood on
the bed mattress, but not an amount explained by a nosebleed. Bernhard also told
detectives that he removed some of the blood on the mattress, while not realizing the
stain was fresh. Detective Tony Aceves queried Bernhard as to why he did not earlier
12 No. 37665-6-III State v. Bernhard
apprise officers of the blood on the bed. Bernhard replied that he had not inspected the
bed when Ashley experienced her seizure, and, when he later discovered the stain, he
worried that a late disclosure would appear suspicious.
At trial, James Bernhard delivered another narrative of the events on April 10 and
11, 2016. We do not repeat this testimony.
During trial, James Bernhard testified that he and Ashley’s sister, Shelby Cooper,
maintained a strained relationship since high school. He accused Cooper of trespassing
into his home and manipulating the crime scene.
According to James Bernhard, he returned home to shower after being at Kadlec
Medical Center on April 11, 2016. Bernhard performed some home chores. He removed
sheets from the master bed, but, at trial, he could not remember whether he washed them
or threw the bed sheets into the laundry chute. When he removed the sheets, he noticed
staining on the mattress. Bernhard used a cleaning cloth to rub the stain on the bed
before making the bed and going to sleep.
When asked, on direct examination, about his interview with detectives, James
Bernhard admitted to answering questions untruthfully after realizing that they suspected
him of harming Ashley. He declared that he did not wish to help the detectives, because
they unfairly believed that he harmed his wife.
On April 15, 2016, staff discharged Ashley Bernhard from Kadlec Medical Center.
On the same day, law enforcement executed a search warrant at the Bernhard residence.
13 No. 37665-6-III State v. Bernhard
Law enforcement located no bloody dress or bloody yellow rag, previously photographed
by Shelby Cooper, in the house.
During the execution of the search warrant, Pasco Police Department technician
Ashley Lucas sprayed objects within the Bernhard’s house with “BLUESTAR,” a
chemical agent based on luminol that reacts with hemoglobin in blood, some metals, and
some cleaning solutions. BLUESTAR reacts with small traces of blood that may not be
visible to the naked eye, producing a bright blue chemiluminescence that can be
photographed. State v. Little Long, 962 N.W.2d 237, 243 (S.D. 2021). The resulting
reaction remains visible only for seconds in a dark room. Use of BLUESTAR and other
versions of luminol is a presumptive test for blood, not a determinative one.
Some of the objects sprayed by Ashley Lucas with BLUESTAR illuminated.
Lucas noted luminol reactions in the master bedroom on the left side and foot of the bed.
The spraying resulted in a luminol reaction consisting of “two pretty distinctive lines on
the carpet” leading onto the linoleum in the master bathroom. RP at 972. Lucas
estimated each line to extend eight to ten feet long and three or four inches wide. Lucas
sprayed the shower floor and back wall and noticed a luminol reaction in the form of a
droplet two feet up the wall.
Ashley Lucas unsuccessfully attempted to photograph the luminol reactions. She
could not adjust the camera’s settings to capture the reaction. Lucas decided to collect
the objects that reacted positively to the spray to test them a second time at police
14 No. 37665-6-III State v. Bernhard
department headquarters. Lucas collected cutouts from the carpet, bathroom linoleum,
and a shower step for further testing. Officers also seized a gray sheet, a tan sheet, and
the shower table for purposes of testing.
On April 18, 2016, Ashley Lucas and Detective Corey Smith sprayed BLUESTAR
on the objects seized from the Bernhard residence. Presumably, the testing occurred at
the Pasco Police Department headquarters. The spraying caused illumination on the gray
sheet, bathroom shower step, carpet, mattress pad, and shower table leg. Lucas swabbed
each of the illuminated areas and sent the swabs to the Washington State crime laboratory
to test for DNA. Lucas unsuccessfully attempted to recreate the luminol reaction on a
large section of the carpet, but the cutout had been diluted by that time. At trial, Lucas
explained that luminol can dilute the surface of the tested object if used more than twice.
Crime laboratory Forensic Scientist Beau Baggenstoss tested the swabs sent to the
laboratory by Pasco Police Department Technician Ashley Lucas. To test the swabs,
Baggenstoss applied phenolphthalein, a chemical that, like BLUESTAR, presumptively
indicates the presence of blood. Phenolphthalein is more specific than BLUESTAR. The
phenolphthalein testing found no blood on the carpet, mattress, or shower table. The
phenolphthalein confirmed blood present on the gray sheet and the bathroom shower
step.
According to Beau Baggenstoss, a negative phenolphthalein test does not
conclusively rule out the presence of blood. Further testing revealed Ashley Bernhard’s
15 No. 37665-6-III State v. Bernhard
DNA on the gray sheet and the shower step. Baggenstoss also found DNA from another
individual on the step, but the poor quality of the DNA prevented identification of the
contributor.
PROCEDURE
On April 18, 2016, the State of Washington charged James Bernhard with rape
and assault of his wife, Ashley. By trial, the State had charged James Bernhard, by fifth
amended information, with second degree rape, first degree assault, and second degree
assault. The State alleged that each crime constituted domestic violence.
On April 16, 2019, the State filed a motion to admit testimony relating to
BLUESTAR testing. In the motion, the State acknowledged that nearly all the items
tested with luminol produced a negative result when later tested with phenolphthalein. It
also recognized that BLUESTAR is only a presumptive test. The State maintained,
nonetheless, that admission of the evidence would present the jury with a full and
complete picture of the forensic evidence collected and tested by law enforcement. The
presumptive nature of the BLUESTAR testing went to the weight, not the admissibility,
of the evidence, according to the State.
The trial court conducted an evidentiary hearing on the State’s request to admit
BLUESTAR evidence. Pasco evidence technician Ashley Lucas and Washington State
Crime Laboratory forensic scientist Beau Baggenstoss testified at the hearing. Both
Lucas and Baggenstoss testified that luminol, such as BLUESTAR, is a presumptive test
16 No. 37665-6-III State v. Bernhard
for blood. According to Baggenstoss, law enforcement ordinarily sprays luminol to
identify an area that should be tested with phenolphthalein, which latter chemical results
in a second presumptive result. According to Baggenstoss, phenolphthalein confirmed
the presence of blood on the gray bed sheet.
During the motion hearing, the State argued that James Bernhard could cross-
examine Ashley Lucas and Beau Baggenstoss on the subject that BLUESTAR is not
conclusive. The State theorized that Bernhard cleaned Ashley’s blood from the tested
areas. As such, it argued that the luminol tests were relevant, even though most of the
tested objects did not have DNA on them. Bernhard rejoined that the luminol evidence
was minimally valuable, because cleaning products are routinely used to clean carpets
and bathroom floors.
The trial court ruled testimony of the BLUESTAR testing admissible provided the
State’s witnesses inform the jury of the presumptive nature of testing. The superior court
deemed State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997) controlling.
At trial, Ashley Bernhard expressed her anger at the State for charging James
Bernhard with crimes he did not commit. Ashley mentioned that, before trial, she
threatened to sue the Franklin County Prosecutor’s Office for millions of dollars if the
office refused to drop the prosecution of James.
At trial, Ashley Lucas and Beau Baggenstoss testified consistently with their
motion hearing testimony. Lucas explained that BLUESTAR is a presumptive test, as it
17 No. 37665-6-III State v. Bernhard
reacts with household cleaning products. Lucas testified to her observations of the
BLUESTAR reactions, including the two lines that stretched from the carpet near the
master bed into the master bathroom. Lucas described the lines as “distinctive” and
“drag marks.” RP at 972, 979. When examining Ashley Lucas, the State admitted
photographs depicting BLUESTAR reactions on items sprayed at the police station.
During his testimony, Beau Baggenstoss explained that phenolphthalein testing is
presumptive of blood, but more specific than luminol testing, and used to corroborate a
BLLUESTAR reaction. Baggenstoss informed the jury that phenolphthalein testing
confirmed blood on the gray bed sheet and shower step, but not on any other objects that
initially reacted to luminol.
During trial, the State argued to the jury that James Bernhard felt frustrated with
his and Ashley Bernhard’s sex life, their financial problems, her alcoholism, and her
medical issues. According to the State, Bernhard purposely injected his wife with
excessive insulin to induce unconsciousness before raping her.
In its closing argument, the State forwarded three alternatives for how James
Bernhard committed second degree assault. It argued that Bernhard committed the crime
by poisoning Ashley Bernhard with a dangerous dose of insulin, penetrated her vagina
with a fist or object causing lacerations, or assaulted her with the intent to commit second
degree rape. The trial court instructed the jury that, to convict Bernhard of assault in the
second degree, it needed to find beyond a reasonable doubt that he:
18 No. 37665-6-III State v. Bernhard
(a) intentionally assaulted [Ashley Bernhard] and thereby recklessly inflicted substantial bodily harm on [Ashley]; or (b) administered or caused to be taken by [Ashley] a poison or a destructive noxious substance with intent to inflict bodily harm on [Ashley]; or (c) assaulted [Ashley] with intent to commit Rape in the Second Degree[.]
Clerk’s Papers (CP) at 160.
The jury could not reach a unanimous verdict on the first degree assault charge.
Accordingly, the trial court declared a mistrial on that count.
The jury found James Bernhard guilty of second degree rape and second degree
assault. In a special verdict form, the jury determined that James intentionally committed
second degree assault by recklessly inflicting substantial bodily harm and assaulted her
with the intent to inflict bodily harm. The jury unanimously rejected that Bernhard
assaulted Ashley by poisoning her with a “destructive or noxious substance.” CP at 189.
The jury further found that Bernhard committed each crime against a member of his
family or household.
The trial court calculated James Bernhard’s offender score at 5 for the charge of
second degree rape and 3 for the charge of second degree assault. The trial court
sentenced James to 126 months’ confinement on the rape charge and 15 months’
confinement on the assault charge. The trial court ordered that these sentences run
concurrently. The trial court also imposed a 24-month sexual motivation enhancement
for the assault conviction to run consecutively with James’ 126-month sentence, for a
19 No. 37665-6-III State v. Bernhard
total term of 150 months’ confinement. At sentencing, defense counsel did not argue that
James Bernhard’s convictions for second degree rape and second degree assault
constituted the same criminal conduct.
LAW AND ANALYSIS
On appeal, James Bernhard challenges the superior court’s admission of evidence
of BLUESTAR’s lumination of objects found in his home. He asks that we reverse both
of his convictions and remand for a new trial without such evidence. Bernhard also
complains of his counsel’s failure to argue that his convictions constituted the same
criminal conduct for purposes of sentencing.
BLUESTAR Evidence
James Bernhard labels the State’s BLUESTAR evidence as speculative,
inflammatory, and prejudicial. He assigns error to the admission of the evidence because
the evidence did not assist the jury as required for expert testimony under ER 702 and the
superior court failed to perform a balancing of prejudice and probity under ER 403. We
only address the challenge of the evidence under ER 702 because Bernhard did not ask
the superior court to bar the evidence under ER 403 at trial. We generally do not address
assignments of error not raised before the superior court. RAP 2.5(a).
The admissibility of expert testimony lies within the discretion of the trial court.
State v. Stenson, 132 Wn.2d 668, 715 (1997). Unless the superior court abuses its
discretion, we will not disturb the court’s evidentiary ruling. State v. Ortiz, 119 Wn.2d
20 No. 37665-6-III State v. Bernhard
294, 308 831 P.2d 1060 (1992) (plurality opinion). A trial court abuses its discretion
when its decision is manifestly unreasonable or exercised on untenable grounds. State v.
Hamilton, 196 Wn. App. 461, 476 n.8, 383 P.3d 1062 (2016).
ER 702 declares:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
James Bernhard does not dispute the qualifications of technician Ashley Lucas and
scientist Beau Baggenstoss to introduce evidence of BLUESTAR testing. We focus on
whether the scientific evidence could have assisted the jury to understand the evidence or
to determine the guilt or innocence of Bernhard.
If we decided this appeal on a vacant whiteboard, we might agree with James
Bernhard. Testing results should not be admissible unless an expert testifies that more
likely than not the result proves the presence of a substance. A possibility does not
suffice for admissibility. Nevertheless, the Washington Supreme Court, in State v.
Stenson, 132 Wn.2d 668 (1997), previously addressed the admissibility of presumptive
blood tests. We observe important differences between the blood testing performed
during the investigation of Bernhard’s conduct and the testing performed in State v.
Stenson. Nevertheless, the Supreme Court’s decision broadly endorsed introduction of
presumptive blood testing results as long as scientists employ the testing and as long as
21 No. 37665-6-III State v. Bernhard
the State informs the jury of the presumptive, not conclusory, nature of the testing. In
short, as noted by the trial court, State v. Stenson controls the admissibility of the
BLUESTAR evidence.
In State v. Stenson, the State charged Darold Stenson with the first degree murders
of his wife and his business partner. The pants Stenson wore at the time of the murders
exhibited stains. Forensic scientist Michael Grubb of the Washington State Patrol Crime
Laboratory visually identified the stains on Stenson’s pants as blood. On testing with
phenolphthalein, the stains reacted positively. During his trial testimony, Grubb
explained:
the luminol test does require some other confirmatory test to reach the conclusion that it is blood, but in the phenol [phenolphthalein] test, if accompanied by a visual observation of blood, the appearance of blood is considered specific by many, including himself.
State v. Stenson, 132 Wn.2d at 717 (emphasis added). Defense counsel asked Grubb
whether a positive phenolphthalein test in conjunction with a positive visual inspection
was accepted as conclusive evidence of blood. Grubb responded in the negative.
On appeal, Darold Stenson argued that the trial court erred by admitting the
presumptive phenolphthalein testing result. Stenson contended that the evidence was
inadmissible under ER 702, because it was not helpful to a trier of fact based on its
presumptive nature. The Washington Supreme Court rejected Stenson’s challenge. The
court held that the trial court did not abuse its discretion by admitting the phenolphthalein
22 No. 37665-6-III State v. Bernhard
evidence. The court reasoned that the results of the phenolphthalein testing were
supported by Michael Grubb’s testimony that the stains looked like blood.
The Washington Supreme Court, in State v. Stenson, underscored that multiple
jurisdictions, including Washington, recognize presumptive tests for blood as acceptable.
The Court wrote:
Lack of certainty in scientific tests (that are generally accepted by the scientific community) goes to the weight to be given the testimony, not its admissibility. . . . So long as a jury is clearly told that the phenol test is only a presumptive test and may indicate a substance other than human blood, it is admissible under ER 702.
State v. Stenson, 132 Wn.2d at 718.
James Bernhard astutely forwards three distinctions between State v. Stenson and
his appeal. First, the forensic scientist in Stenson, Michael Grubb, testified that a positive
phenolphthalein reaction sufficiently corroborated a visual inspection for blood in his and
other experts’ opinions. By contrast, no expert witness in Bernhard’s prosecution
visually confirmed the presence of blood on any object. We agree with this difference in
the evidence. Nevertheless, the Supreme Court never emphasized the confirmation of the
presence of blood by later phenolphthalein testing. To the contrary, the Court relied
heavily on foreign decisions that entail only the use of luminol testing.
Further, the Supreme Court, in State v. Stenson, held that the presumptive nature
of blood testing goes to the weight, not admissibility, of expert testimony on the subject.
23 No. 37665-6-III State v. Bernhard
Grubb’s opinion that he conclusively found blood on Darold Stenson’s pants merely
served to bolster his credibility.
Second, James Bernhard highlights that Michael Grubb differentiated luminol
testing from phenolphthalein testing. According to Grubb, the former required
confirmatory evidence, while the latter did not, if corroborated by a positive visual
detection of blood. In James Bernhard’s prosecution, not only did the State admit
luminol testing evidence, but nearly all of the luminol tests were uncorroborated by
subsequent phenolphthalein testing. Again, we agree with Bernhard’s accurate
description of the difference between the testing in his prosecution from the testing in
State v. Stenson. We answer, however, that the Supreme Court never ruled confirmation
by phenolphthalein to be a requirement for admissibility of luminol testing. A negative
phenolphthalein assessment does not necessarily mean the absence of blood. Again, the
Supreme Court relied on foreign decisions entailing luminol testing.
We agree that luminol is less accurate in detecting blood than phenolphthalein, but
this fact goes to the weight of an expert’s testimony discussing the luminol testing, rather
than the admissibility of the testimony. Ultimately, both tests are presumptive.
Third, Michael Grubb, the expert in Stenson, testified that the substance at issue
was blood. In James Bernhard’s prosecution, no witness testified that he or she actually
discovered blood. We provide the same answer that we supplied in response to
Bernhard’s first distinction.
24 No. 37665-6-III State v. Bernhard
James Bernhard’s prosecution includes several unique factors that bolster the
admission of the BLUESTAR results. Blood spots illuminated by BLUESTAR
confirmed the presence of Ashley Bernhard’s DNA. Later phenolphthalein testing
showed the presence of blood on the gray sheet and the shower step. The luminosity also
held relevance because of the potential use by Bernhard of compounds to wipe clean the
purported crime scene. Luminol reacts to certain bleaches. People v. Cumbee, 366 Ill.
App. 3d 476, 851 N.E.2d 934, 946, 303 Ill. Dec. 747 (2006).
BLUESTAR works as an advance species of luminol. Although we find reported
decisions that include facts depicting the use of BLUESTAR, none of these decisions
addressed the admissibility of BLUESTAR. The defendant did not challenge the
admissibility of the testing on appeal. Pugh v. State, 639 S.W.3d 72, 79 (Tex. Crim. App.
2022); State v. Little Long, 962 N.W.2d 237, 243 (S.D. 2021); State v. Ceplecha, 2020
S.D. 11, 940 N.W.2d 682, 689; Vinson v. State, 2020 WY 93, 467 P.3d 1009, 1015.
James Bernhard cites four decisions that hold results of luminol testing
inadmissible. United States v. Hill, 41 M.J. 596 (U.S. Army Ct. Crim. App. 1994); Brenk
v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); State v. Moody, 214 Conn. 616, 573 A.2d
716 (1990); State v. Fukusaku, 85 Haw. 462, 946 P.2d 32 (1997). Nevertheless, the
majority of states permit introduction of the results of luminol testing despite the
recognition that luminol reacts to substances other than human blood such as animal
blood and certain metals. Lobato v. State, 125 Nev. 1057, 281 P.3d 1196 (2009); Dunn v.
25 No. 37665-6-III State v. Bernhard
State, 371 Ark. 140, 264 S.W.3d 504, 510-11 (2007); People v. Cumbee, 366 Ill. App. 3d
476, 851 N.E.2d 934, 946-50, 303 Ill. Dec. 747 (2006); Mackerley v. State, 900 So. 2d
662, 663-64 (Fla. Dist. Ct. App. 2005); Dodd v. State, 2004 OK CR 31, 100 P.3d 1017,
1037; Commonwealth v. Duguay, 430 Mass. 397, 720 N.E.2d 458, 462 (1999); State v.
Canaan, 265 Kan. 835, 964 P.2d 681 (1998); State v. Moseley, 336 N.C. 710, 445 S.E.2d
906, 912 (1994); Robedeaux v. State, 866 P.2d 417, 425 (Okla. Crim. App. 1993);
Johnston v. State, 497 So. 2d 863 (Fla. 1986); Graham v. State, 374 So. 2d 929 (Ala.
Crim. App. 1979). The limits to luminol testing impact the weight, not admissibility, of
the evidence. Luminol testing is reliable and generally accepted in the scientific
community such that no Frye hearing is needed. People v. Cumbee, 851 N.E.2d 934, 947
(Ill. App. Ct. 2006); State v. Canaan, 265 Kan. 835 (1998); Michael v. State, 437 So. 2d
138, 140 (Fla. 1983); People v. Garries, 645 P.2d 1306, 1308 (Colo. 1982).
In three decisions, Lobato v. State, People v. Cumbee, and Commonwealth v.
Duguay, a later confirmatory test failed to confirm the presence of blood. The respective
reviewing courts still affirmed the admission of the luminol testing result.
In State v. Stenson, Darold Stenson relied on an Arkansas decision, Brenk v. State,
847 S.W.2d 1 (1993), that held admission of the results of luminol testing in the absence
of follow-up testing to confirm the substance causing the reaction was human blood
constituted reversible error. James Bernhard also relies on this Arkansas decision. In
Dunn v. State, 371 Ark. 140, 264 S.W.3d 504, 510–11 (2007) the Arkansas Supreme
26 No. 37665-6-III State v. Bernhard
Court distinguished Brenk on the basis that no later testimony confirmed the luminol
testing in Brenk. The court affirmed admission of the luminol results. In James
Bernhard’s appeal, the phenolphthalein testing confirmed blood’s presence on a sheet and
a shower step.
In one decision of the decisions cited by James Bernhard, the reviewing court held
that the trial court did not abuse its discretion when excluding expert testimony
on luminol and phenolphthalein test results because of the inconclusive nature of the
results. State v. Fukusaku, 85 Haw. 462, 946 P.2d 32, 66-67 (1997). Nevertheless, the
high court did not address whether the trial court would have abused its discretion if it
admitted the evidence.
In James Bernhard’s appeal, Ashley Lucas and Beau Baggenstoss explained to the
jury that BLUESTAR reactions do not confirm, but instead indicate, the possible
presence of blood. Under State v. Stenson, this testimony suffices for introduction of the
evidence. The superior court did not abuse its discretion when admitting the
BLUESTAR evidence under ER 702.
James Bernhard questions Ashley Lucas’ description of the lines of BLUESTAR
reaction coming from the foot of the bed into the master bathroom as “drag marks.” RP
at 979. Nevertheless, James did not object, during trial, to this portion of Lucas’
testimony. Accordingly, we decline to address James’ assigned error for not first raising
this issue with the trial court. RAP 2.5(a).
27 No. 37665-6-III State v. Bernhard
Ineffective Assistance of Counsel
James Bernhard asserts that defense counsel provided ineffective assistance by not
arguing that his convictions for second degree rape and second degree assault were the
same criminal conduct for purposes of his offender score. As such, he requests that this
court remand for resentencing with a lower score. The State responds that defense
counsel did not err, because she had no basis to make a same criminal conduct argument.
We agree with Bernhard.
To prevail on an ineffective assistance of counsel claim, the defendant must
demonstrate both (1) that defense counsel’s representation was deficient, and (2) that the
deficient representation prejudiced the defendant. State v. Estes, 193 Wn. App. 479, 488,
372 P.3d 163 (2016), aff’d, 188 Wn.2d 450, 395 P.3d 1045 (2017). Representation is
deficient if, after considering all the circumstances, the performance falls below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Estes, 193 Wn. App. 479, 488 (2016).
Prejudice comes with a reasonable probability that, except for counsel’s errors, the result
of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 694
(1984).
A same criminal conduct analysis may be necessary when a defendant is convicted
of more than one current offense. When sentencing an offender for one or more felonies,
the trial court must calculate the defendant’s offender score, which score influences the
28 No. 37665-6-III State v. Bernhard
standard sentence range. The sentencing court computes an offender’s score based on the
number of current and prior convictions. RCW 9.94A.525, .589(1)(a); State v. Aldana
Graciano, 176 Wn.2d 531, 535-36, 295 P.3d 219 (2013). If the court finds that some of
the current offenses encompass the same criminal conduct, the sentencing court shall
count those current offenses as one crime. RCW 9.94A.589(1)(a); State v. Aldana
Graciano, 176 Wn.2d 531, 536 (2013).
RCW 9.94A.589, a critical section of the Sentencing Reform Act of 1981, chapter
9.94A RCW, reads, in pertinent part:
(1)(a) . . . [W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. . . . “Same criminal conduct,” as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.
(Emphasis added.) James Bernhard committed the rape and assault at the same time and
place against the same victim. We focus on the same criminal intent element of the test.
Offenses have the same criminal intent when, viewed objectively, the intent does
not change from one offense to the next. State v. Kloepper, 179 Wn. App. 343, 357, 317
P.3d 1088 (2014). Intent, in this context, is not the particular mens rea element of the
particular crime, but rather is the offender’s objective criminal purpose in committing the
crime. State v. Kloepper, 179 Wn. App. 343, 357 (2014). Courts have also looked at
29 No. 37665-6-III State v. Bernhard
whether one crime furthers the other or whether the offenses were part of a recognized
plan or scheme. State v. Kloepper, 179 Wn. App. at 357.
In addressing James Bernhard’s challenge to the effectiveness of his trial counsel’s
conduct, we must review the verdict of the jury. The rule of lenity requires this court to
interpret an ambiguous verdict in favor of the criminal defendant when determining if
one crime relates to another crime. State v. Taylor, 90 Wn. App. 312, 317, 950 P.2d 526
(1998). In Taylor, the jury concluded that Jonathan Taylor assaulted and kidnapped
Rodney Murphy.
[B]ut the verdict did not indicate which assaultive incident the jury was relying upon to find guilt—incident (a), Taylor’s accomplice liability for [Michael] Nicholson’s conduct in pointing the gun during the kidnapping, or incident (b), the shooting of the gun at the car.
State v. Taylor, 90 Wn. App. at 317.
On appeal, Jonathan Taylor argued that the assault and kidnapping convictions
constituted the same criminal conduct for purposes of sentencing. This court agreed. For
purposes of its analysis, based on the rule of lenity, this court assumed that Taylor’s
assault conviction arose from incident (a). This court relied, in part, on an Eighth Circuit
case, in which the court held that, when imposing a sentence on an “ambiguous verdict
susceptible of two interpretations,” a trial court may not impose an alternative producing
a higher sentencing range. State v. Taylor, 90 Wn. App. at 317 (citing United States v.
Baker, 16 F.3d 854, 857-58 (8th Cir. 1994)). In State v. Deryke, 110 Wn. App. 815, 824
30 No. 37665-6-III State v. Bernhard
n.22, 41 P.3d 1225 (2002), aff’d, 149 Wn.2d 906, 73 P.3d 1000 (2003), this court again
held that principles of lenity require an interpretation of an ambiguous verdict in favor of
the criminal defendant for purposes of sentencing.
In its prosecution, the State of Washington raised three alternatives means by
which James Bernhard committed second degree assault. A jury instruction listed these
alternatives. The instruction directed the jury to convict Bernhard of assault in the
second degree if it found, beyond a reasonable doubt that he:
(a) intentionally assaulted [Ashley Bernhard] and thereby recklessly inflicted substantial bodily harm on [Ashley]; or (b) administered or caused to be taken by [Ashley] a poison or a destructive noxious substance with intent to inflict bodily harm on [Ashley]; or (c) assaulted [Ashley] with intent to commit Rape in the Second Degree.
CP at 160. In its verdict, the jury found the State proved alternatives (a) and (c) beyond a
reasonable doubt and unanimously rejected alternative (b). For second degree rape, a
jury instruction informed the jury that it must find that Bernhard engaged in sexual
intercourse with Ashley when Ashley was incapable of consent by reason of being
physically helpless.
James Bernhard argues that, consistent with State v. Taylor and State v. Deryke,
this court must assume that his second degree rape and second degree assault convictions
constituted the same criminal conduct. James reasons that alternatives (a) and (c) both
required a finding that he committed the rape and assault at the same time with the same
31 No. 37665-6-III State v. Bernhard
act of penetration. The assault furthered, if not led directly to, the rape. In the
alternative, the assault and rape involved the same intent and constituted the same act.
The State answers that James Bernhard’s convictions for second degree rape and
second degree assault did not constitute the same criminal conduct, because each crime
required a separate intent. The State contends that State v. Brown, 100 Wn. App. 104,
995 P.2d 1278 (2000), reversed in part on other grounds by 147 Wn.2d 330, 58 P.3d 889
(2002) and State v. Kloepper, 179 Wn. App. 343 (2014) control.
In State v. Brown, a jury found Jacob Brown guilty of first degree rape and first
degree assault against one victim. On appeal, this court concluded that Brown’s two
crimes were not the same criminal conduct, because rape and assault have separate
intents.
In State v. Kloepper, a jury convicted Cody Kloepper of first degree rape, first
degree burglary, and first degree assault. The trial court ruled that the rape and assault
convictions arose from separate conduct. Kloepper appealed the trial court’s ruling. This
court noted that crimes that do not constitute the same criminal conduct are necessarily
separate and distinct offenses.
On appeal, Cody Kloepper argued that his assault of the victim furthered the rape,
because the assault ended when the victim submitted to the rape. This court
acknowledged that the trial court could have viewed the evidence as Kloepper did, but it
32 No. 37665-6-III State v. Bernhard
did not. Instead, based on the record, the court could view the rape as a crime of
opportunity that presented itself after the assault rather than as the object of the attack.
The State argues that the record in James Bernhard’s appeal only supports the
conclusion that Bernhard’s rape and assault of Ashley arose from separate criminal
intents. The State highlights that the jury found that Bernhard not only assaulted Ashley
with the intent to commit second degree rape, but that he also intentionally assaulted her,
thus recklessly inflicting substantial bodily harm. The State argues that, unlike in State v.
Kloepper, because Ashley was already unconscious, Bernhard did not need to assault her
to further the crime of rape. Instead, each crime had its own purpose.
James Bernhard assumes that vaginal penetration served as the basis for his second
degree assault conviction. The State apparently disagrees, without specifying what
underlying act comprised the assault. The jury found that Bernhard intentionally
assaulted Ashley, recklessly causing her substantial bodily harm, and assaulted her with
the intent to commit second degree rape. The jury’s verdict as to second degree assault
is, therefore, ambiguous. Pursuant to State v. Taylor and State v. Deryke, we apply the
rule of lenity to the jury’s verdict, thereby accepting the interpretation more favorable to
Bernhard for the purposes of sentencing. We conclude that Bernhard committed the
assault under alternative (c), with the intent of committing rape.
As this court noted in State v. Kloepper, 179 Wn. App. 343, 357 (2014), when
considering whether two offenses constitute the same criminal conduct, courts have
33 No. 37665-6-III State v. Bernhard
looked at whether one crime furthers the other or whether the offenses were part of a
recognized plan or scheme. The State’s theory at trial was that James Bernhard poisoned
Ashley Bernhard with an excessive amount of insulin, which rendered her unconscious,
so that he might rape her out of frustration for Ashley’s lack of interest in sex, among
other reasons. The jury’s verdict supports that Bernhard assaulted his wife with the
purpose of raping her. Unlike in Kloepper, the record does not support the conclusion
that Bernhard’s rape of Ashley was a crime of opportunity that arose after the assault.
Sentencing defense counsel erred by not arguing that James Bernhard’s
convictions for second degree assault and second degree rape constituted the same
criminal conduct. This error prejudiced James, because the record supports that his
crimes were neither separate nor distinct. The trial court likely would have accepted this
argument and thus calculated a lower offender score, resulting in a lower sentence.
Judgment and Sentence Error
James Bernhard maintains that the judgment and sentence incorrectly stated his
sentence for second degree rape. The judgment and sentence lists the minimum term for
the rape as “150 months.” CP at 208. The sentencing court instead imposed an actual
minimum term of 126 months’ confinement, with the total term being 150 months
confinement when adding the sexual motivation enhancement. The State answers that,
on January 19, 2021, the sentencing court amended the judgment and sentence to resolve
this scrivener’s error.
34 No. 37665-6-III State v. Bernhard
James Bernhard’s appellate counsel now acknowledges that the sentencing court
corrected the mistake. Therefore, we do not address the assigned error.
CONCLUSION
We affirm James Bernhard’s convictions for rape and assault. We remand for
resentencing, during which process the court should exercise its discretion consistent with
this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Siddoway, C.J.
______________________________ Pennell, J.