                                                                                                                          ED
                                                                                                          COURT OF APPEALS
                                                                                                          CRT
                                                                                                                 O' rIS! O,; 1!

                                                                                                        ZQ( rI MAY 13         AN 9: 15
    IN THE COURT OF APPEALS OF THE STATE OF                                                                         C
                                                                                                  WASR                  tf 5

                                                      DIVISION II

STATE OF WASHINGTON,                                                                     No. 43240 -4 -II


                                          Respondent,




BARBARA ANN CLAYTON,                                                           UNPUBLISHED OPINION


                                          Appellant.


        MELNICK, J. —            Barbara Clayton appeals her convictions for second degree murder,

malicious mischief, and unlawful possession of a                       firearm.    She also appeals her judgment and


sentence as a persistent offender under               RCW    9. 94A. 570. She argues that ( 1) the trial court erred

when   it   excluded evidence relevant           to her defense, (      2) the trial court violated her right to be free


from double jeopardy when it merged her two murder convictions instead of vacating one of the

convictions,     and (   3)    her persistent offender sentence violates her due process and equal

protection rights.       We hold that ( 1) the trial court reasonably excluded the challenged evidence,

                                                                        Clayton'                  convictions,   and (   3)    her
 2) the trial    court    erred      by   not   vacating    one   of               s   murder




persistent    offender    sentence        did   not   violate   due     process    and    equal    protection.    We affirm


Clayton'    s convictions      for   second     degree   murder ( count     I), unlawful possession of a firearm, and


malicious mischief We remand the case to the trial court with direction to strike her second

degree felony murder (count II) from the judgment and sentence.

                                                            FACTS


            On April 1, 2011, Clayton           shot and    killed her boyfriend, Curtis Giffin.          They, along with

Clayton'     s minor   daughter, had been          living   together for     several years.       In the months before the


shooting,     Clayton    and   Giffin had been arguing          over    Giffin' s seeing   another woman.
43240 - -II
      4



         Before the shooting, Clayton              and    Giffin     argued       in   a   parking lot.       Both parties entered


separate   cars.   Clayton then "       rammed"         her    car       into Giffin'      s   car   and   drove   off.   4 Report of


Proceedings ( RP)      at    126.     Clayton returned to their home, told her daughter to pack her


belongings, and said that they were leaving because Giffin had impregnated another woman.

Clayton    also retrieved a gun and placed               it   under a couch cushion.                   Giffin arrived at the house


                                    later         began arguing                   Clayton.           Clayton obtained the gun and
approximately 10      minutes               and                            with




shot Giffin approximately four times. He died at the scene.

         The State charged Clayton with premeditated first degree murder ( count I) and second

degree   felony    murder ( count      II).     The State charged firearm enhancements for both counts and

alleged that the shooting           was     a   domestic      violence        incident.          It further alleged the incident


occurred within      the    sight or sound        of   Clayton' s        minor child.           The State also charged Clayton


with first degree unlawful possession of a firearm; and, for the car ramming incident, second

degree malicious mischief. Clayton pleaded not guilty by reason of insanity.

          Prior to trial,    Clayton was interviewed by a psychologist, Dr. Donald Dutton, who

diagnosed her as suffering from borderline personality disorder. Dutton believed that, at the time

of the shooting, Clayton was in a transient psychotic state. He opined that Clayton felt a sense of
abandonment        that caused her to become extremely                        anxious          and panicked.       Dutton based his


opinions on his own interviews with Clayton, police reports, psychological tests, Clayton' s

journal entries, and Clayton' s phone calls from jail.


           The State moved to prohibit Dutton from testifying about specific acts of domestic

violence involving Clayton and Giffin that occurred prior to the shooting. The trial court granted

the motion because Dutton did not know when the events had occurred and because no

corroborating      evidence existed.            The court held that the danger of unfair prejudice outweighed

                                                                     2
43240 -4 -II



the   probative     value      of   the   evidence.    It also found a high risk of misleading the jury and

confusing the issues.

          The trial court permitted Dutton to testify about numerous events Clayton apprised him

of, including her recollection of the day of the shooting; her early years growing up in California,

including childhood traumas and abusive family relationships; her relationship history with other

men, including their jealousies, control issues, and physical abuse perpetration; and, her history
of    parenting,    including       financial   hardship   and   homelessness.       Dutton could also testify about


Clayton' s perceptions of her relationship with Giffin, which included his being argumentative,

abusive, violent, and an excessive alcohol user, as well as Clayton' s daughter' s observations

about ongoing domestic violence between Clayton and Giffin and how Clayton would sometimes

fight back.       Additionally, Dutton could testify about psychological testing he performed and the
bases for his diagnosis.


          The State also moved to prohibit Clayton from introducing her post -arrest statements in

the State' s case -in-chief. The trial court granted the motion and held the statements were hearsay

that did not fit within any exception.

         The jury found Clayton guilty of the lesser included charge of second degree murder
 count     I),   second       degree      felony   murder ( count      II), unlawful possession of a firearm, and


malicious mischief.            The jury also found that she was armed with a firearm during the murder

and    that the    murder was an aggravated            domestic      violence offense.   Clayton moved to vacate her


 second    degree       murder conviction ( count        I) because it    violated   double   jeopardy.   The trial court


merged count II, felony murder, into count I, second degree murder, for purposes of sentencing

 and noted       this   on   the judgment     and sentence.      The court also merged the firearm enhancements.




                                                                 3
43240 -4 -II




The trial court found that Clayton was a persistent offender and sentenced her to life without

parole. Clayton appeals.


                                                                ANALYSIS


I.      EVIDENTIARY RULINGS


        Clayton first argues that several of the trial court' s evidentiary rulings deprived her of the

right to present a defense. Because the court did not abuse its discretion, we affirm.

        A criminal defendant has a constitutional right to present relevant, admissible evidence in

her defense. State            v.   Rehak, 67 Wn.         App.       157, 162, 834 P. 2d 651 ( 1992).       But this right is not


absolute. Rehak, 67 Wn. App. at 162. The decision to admit or exclude evidence lies within the

sound   discretion       of   the trial   court.       State   v.   Neal, 144 Wn.2d 600, 609, 30 P. 3d 1255 ( 2001).          An


abuse   of     discretion          exists "[    w]hen a trial court's exercise of its discretion is manifestly

unreasonable        or   based       upon untenable            grounds    or reasons."    Neal, 144 Wn.2d at 609 ( quoting

State v. Stenson, 132 Wn.2d 668, 701, 940 P. 2d 1239 ( 1997)).

         A.         Psychologist' s Testimony

         Clayton asserts that the trial court erred when it prohibited Dutton from providing

hearsay testimony about specific instances of abuse between Clayton and Giffin. We disagree.
                                                             is inadmissible.        ER     802.   An expert may rely on
         Generally, hearsay                evidence




 inadmissible evidence as a basis for an opinion or inference if the facts or data utilized are the

                                                         in that                  field for   forming   opinions.   ER 703.   An
 type reasonably         relied on      by     experts               particular




 expert may testify in terms of opinion or inference and the reasons behind it without prior
 disclosure    of   the underlying             facts    or   data.    ER 705.      Additionally, relevant evidence may be

 excluded      if the danger           of unfair       prejudice,       confusion    of   the issues,   or misleading the jury

 substantially outweighs its probative value. ER 403.
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43240 -4 -II




           Here, Clayton          argues   that the   statements were admissible under                ER 703       and   705.   But the


trial court concluded that the risk of confusing and misleading the jury outweighed the relevance

of   the   evidence.      Because Dutton did not know when the incidents occurred, the trial court was


concerned that the jury might be misled into believing that the incidents had resulted in the

                   that the shooting had been in                   defense, something Clayton had                   not raised.    Her
shooting      or                                            self




sole defense was insanity.

           Moreover, the trial court allowed Dutton to make general references to Clayton' s

allegations of abuse against Giffin. Dutton referenced Giffin and Clayton' s abusive relationship

and how it related to his findings regarding her mental state at the time of the shooting.

                                                                                               to            at   his   opinion.   And
Consequently,           Dutton      explained   to the   jury    the reasoning          used        arrive




Clayton did present specific instances of abuse through the testimony of her daughter, who

witnessed some            of   the incidents.     For the preceding reasons, the trial court did not abuse its

discretion and there is no error.


            B.          Clayton' s Post -
                                        Arrest Statements


            Clayton next argues that the trial court erred when it excluded her post -
                                                                                     arrest statements

as hearsay because they were admissible under the state of mind hearsay exception. Because the
statements related to Giffin' s actions rather than to Clayton' s state of mind, the state of mind


hearsay exception does not apply and we affirm.

            Generally, a defendant' s self -
                                           serving out -of court statements are not admissible in the
                                                           -
 State'    s case -in -
                      chief as       an exception       to the   hearsay      rule, when offered on           his   behalf. State v.


 Bennett, 20 Wn.             App.   783, 787, 582 P. 2d 569 ( 1978).                To be admissible, they must fit within an

 exception       to the   rule.     An out -of court statement of the declarant' s then existing state of mind is
                                               -

                                                          ER 803(             3).      However,      a declarant' s       out - - ourt
                                                                                                                              of c
 admissible        as    a    hearsay      exception.                   a)(


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43240 -4 -II



statements are inadmissible when they relate to the conduct of another person who may have

created   the declarant' s       state of mind.         ER 803( a)( 3).     State v. Sublett, 156 Wn. App. 160, 199,

231 P. 3d 231 ( 2010).


          In this case, Clayton contends that the trial court erred by excluding her out -of court
                                                                                             -

statements about past          incidents      of    domestic   violence.   The proffered statements were made after


the shooting and after Clayton drank a large amount of alcohol and was admitted to the hospital.
The   officer who accompanied                her to the hospital heard her        make     the   following   comments: "   I was


his Negro      slave "; "[   t] hat   mother      fucker kicked   me so    hard   with   his boot "; "[ h] e   picked up an axe

and   threw it    at me "; "[   h] e   was    the   worst of anyone    in my      entire   life "; and   " I' ve been beat up so

bad."     RP ( Dec. 2, 2011)           at   71.    Clayton argues that these statements are admissible under the


state of mind hearsay exception.

          Because Clayton' s statements at the hospital described Giffin' s past conduct and did not

reflect   her   state of mind,         they   were    inadmissible. ER 803( a)( 3);         Sublett, 156 Wn. App. at 199.

The trial court did not err when it excluded Clayton' s statements at the hospital as hearsay.

          C.         Impeachment


          Next, Clayton argues that the trial court erred when it prohibited her from impeaching a

witness' s      testimony.        Because Clayton failed to make an offer of proof, this issue is not

preserved for appeal.


          The State called Joann Rardin, who testified about Clayton and Giffin' s argument and car

wreck     in the parking lot.               Clayton attempted to impeach Rardin with her prior statement to

police.     Not satisfied with Rardin' s answers on cross examination, Clayton then attempted to

 impeach Rardin through the responding officer' s testimony. The State objected that the officer' s

testimony regarding Rardin' s statements constituted impeachment on a collateral matter, and the
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43240 - -II
      4




trial court upheld the objection. Because the police officer was not able to testify about Rardin' s

statements and because Clayton did not make an offer of proof, this issue is not preserved for

appeal. ER 103( a)( 2).


         For a prior statement to be admissible for impeachment purposes, the statement must be

inconsistent with the witness' s in - ourt testimony. State v. Newl ern, 95 Wn. App. 277, 294, 975
                                    c

P. 2d 1041 ( 1999).         Here, as the State points out, it is not possible to determine whether Rardin' s

statements at trial were inconsistent with her prior statements to police because the defense never

made an offer of proof. ER 103( a)( 2) requires that a party make an offer of proof where error is

predicated on a        ruling excluding     evidence.   Because Clayton failed to make an offer of proof,


this issue is not preserved for appeal.

II.      DOUBLE JEOPARDY


         Clayton next argues that the trial court violated her right to be free from double jeopardy

by merging her murder convictions rather than striking one of them from her judgment and
sentence. We agree.


         Double                                                    law that   we review   de   novo.    State v. Fuller,
                      jeopardy     violations are questions of




169 Wn.               797, 832, 282 P. 3d 126 ( 2012),   review      denied, 176 Wn.2d 1006 ( 2013).          The state
             App.

and federal constitutions prohibit a defendant from being punished multiple times for the same

offense.      State   v.   Turner, 169 Wn.2d 448, 454, 238 P. 3d 461 ( 2010); U.S. CONST. amend. V;


WASH. CONST.           art.   I, § 9.   A conviction alone, even without an accompanying sentence, may


constitute " punishment"           in the double   jeopardy      context.   Turner, 169 Wn.2d at 454 -55 ( citing

State   v.   Womac, 160 Wn.2d 643, 657, 160 P. 3d 40 ( 2007)).                Accordingly, where a jury finds the

 defendant guilty          of multiple   alternative means    of   committing    a crime,   the trial   court "'   should




 enter a judgment on the greater offense only and sentence the defendant on that charge without
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43240 -4 -II



reference           to the    verdict on   the lesser        offense.'           Turner, 169 Wn.2d          at    463 (     quoting State v.

Trujillo, 112 Wn. App. 390, 411, 49 P. 3d 935 ( 2002)).

              In Fuller, we determined that the trial court did not violate the defendant' s right to be free

from double jeopardy where it merged the defendant' s two murder convictions at sentencing and

included only              one conviction      in the judgment          and sentence.           169 Wn.     App.       at   835.    There, the


trial court entered a judgment stating that the defendant was guilty of only one count of murder

and     sentenced          him to only     one   count of murder.                 Fuller, 169 Wn.         App.    at   835.        Because the


judgment            and     sentence    did    not     reference      the       other    murder   verdict,       it did not violate the


defendant'          s right   to be free from double           jeopardy.          Fuller, 169 Wn.         App.    at   835.   But, here, the

                                                                                                      1
trial   court       listed both   merged counts on            the judgment and            sentence.




              Because the trial        court   did     not sentence      Clayton "` without reference to the verdict on the


lesser    offense, '          the sentence     violates      Clayton' s     right       to be free from double         jeopardy.       Turner,


169 Wn.2d             at   463 ( quoting Trujillo, 112 Wn.             App.       at   411).   And we remand to the trial court to


strike her second degree felony murder conviction, count II, from the judgment and sentence.

III.          PERSISTENT OFFENDER SENTENCE


              Finally, Clayton argues that her due process and equal protection rights were violated

when the trial court sentenced her as a persistent offender because her prior convictions were not

proved         to    a   jury. Washington courts have already rejected these same arguments; therefore,

there is no error.


              Our Supreme Court has rejected Clayton' s due process argument based on binding

                                                           Wheeler, 145 Wn.2d 116, 34 P. 3d 799 ( 2001).                       We are bound
 federal      and state       authority. State        v.




 by     our    Supreme Court'          s precedent.         State v. McKague, 159 Wn. App. 489, 514, 246 P. 3d 558

 1                                                                                                                     CP at 253.
     The judgment            and sentence     lists   count    II   and states, "       Merged into Count I."
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43240 - -
      4 II




2011).    Similarly, we have previously rejected Clayton' s equal protection argument in State v.

Reyes -Brooks, 165 Wn.          App.   193, 207, 267 P. 3d 465 ( 2011), and State v. Williams, 156 Wn.


App. 482, 496 -98, 234 P. 3d 1174 ( 2010).

         We   affirm   Clayton'   s convictions   for   second   degree   murder ( count   I),   unlawful possession




of a   firearm,   and malicious mischief.         We remand the case to the trial court with direction to


strike second degree felony murder (count II) from the judgment and sentence.

         A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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