                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         March 22, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 CITY OF TACOMA,                                                    No. 46314-8-II

                               Respondent,

        v.

 KENNETH DRISCOLL,                                              UNPUBLISHED OPINION

                               Petitioner.

       WORSWICK, P.J. — On discretionary review, Kenneth Driscoll challenges the superior

court’s affirmance of his municipal court jury trial conviction for fourth degree assault—

domestic violence. He argues that the municipal court violated his right to present a defense

when it excluded his testimony about two prior incidents when the victim attacked him. We

agree and reverse the conviction, and remand for a new trial.

                                             FACTS

       On May 30, 2013, a witness saw Kenneth Driscoll repeatedly kneeing Lisa Miles in the

face or head. Miles was lying prone on a bench in a bus shelter. Police officers responded to the

scene and found Miles with injuries on her face. Driscoll told officers he had acted in self-

defense. At the time, Driscoll had a no-contact order against Miles.

       The City of Tacoma charged Driscoll with one count of fourth degree assault involving

domestic violence. Driscoll asserted self-defense. In support of his defense, he offered evidence

of three prior incidents where he alleged Miles had attacked him.
No. 46314-8-II


       First, Driscoll submitted documents from a 2010 incident where Miles was charged with

committing second degree assault against him. In that incident, police officers responded to a

call in which Driscoll reported that Miles attempted to stab him with scissors. Second, Driscoll

offered testimony regarding an incident where Miles threatened him with a meat cleaver in 2009.

Third, Driscoll asserted that Miles threw a rock at him in late 2009 or early 2010. Driscoll did

not provide documents or other evidence to corroborate the incidents involving the meat cleaver

and rock.

       The City sought to exclude all three of these incidents as being unsubstantiated and too

remote in time, and because Miles would not be present to testify. The trial court considered the

documents and Driscoll’s offers of proof, then excluded the two incidents involving the meat

cleaver and the rock. The court ruled that these latter two incidents were unsubstantiated and

uncorroborated, and, therefore, the court concluded that they were irrelevant. But the trial court

permitted Driscoll to testify about the 2010 stabbing incident because official documents

corroborated it.

       The trial court entered formal findings of fact and conclusions of law concerning the

exclusion of the evidence. It found that Driscoll provided no corroborating information of the

meat cleaver and rock incidents. Then, in conclusion of law 4, the trial court determined that the

       defendant’s offered testimony was not relevant under Evidence Rule 401 with
       respect to two incidents concerning the meat cleaver and the rock throwing
       incidents. The evidence of both incidents provided by defense did not have a
       tendency to make existence of fact or consequence more or less probable than
       without the evidence.

Clerk’s Papers (CP) at 324. In conclusion of law 5, the trial court wrote:

       Additionally [the two incidents are] excluded under Evidence Rule 402 which
       makes non-relevant evidence inadmissible. Accuracy and credibility of offered


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No. 46314-8-II


       testimony by defendant regarding the two incidents have no corroboration. This
       was made more serious because of fact that victim wasn’t available to testify at
       trial.

CP at 324.

       The case proceeded to a jury trial. Driscoll testified that despite his no-contact order

against Miles, she contacted him and joined him to ride the bus downtown. Driscoll testified that

upon exiting the bus together, Miles “cold cocked [him] right on the side of [the] head” from

behind without warning. CP at 222. Driscoll testified that Miles began “coming at [him]

viciously” punching him. He testified that he began kneeing her in self-defense just when the

witness saw them. Driscoll also testified that Miles had threatened to stab him with scissors in

2010. The jury found Driscoll guilty as charged.

       Driscoll appealed to the superior court, alleging that the trial court violated his right to

present a defense and that it erred by excluding the two incidents. The superior court affirmed

the guilty finding. Driscoll sought, and we granted, discretionary review.

                                            ANALYSIS

       Driscoll argues that the trial court denied his constitutional right to present a defense

when it excluded his testimony about two incidents when Miles attacked him with a meat cleaver

and a rock. We agree.

                                     I. STANDARD OF REVIEW

       We review a municipal court’s decision according to the standards in RALJ 9.1. City of

Seattle v. May, 151 Wn. App. 694, 697, 213 P.3d 945 (2009), aff’d, 171 Wn.2d 847, 256 P.3d

1161 (2011). We review the record before the trial court, reviewing legal conclusions de novo.

May, 151 Wn. App. at 697; City of Bellevue v. Jacke, 96 Wn. App. 209, 211, 978 P.2d 1116



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No. 46314-8-II


(1999). Where, as here, neither party challenges the trial court’s factual findings, those findings

are verities on appeal. State v. McLean, 178 Wn. App. 236, 243, 313 P.3d 1181 (2013). We

review the trial court’s conclusions of law de novo to determine whether the district court

properly derived them from its factual findings. McLean, 178 Wn. App. at 243.

       We review a trial court’s decision to exclude or admit evidence for an abuse of discretion.

State v. Lord, 161 Wn.2d 276, 294, 165 P.3d 1251 (2007). A trial court abuses its discretion

when its decision is based on untenable grounds or untenable reasons. Lord, 161 Wn.2d at 283-

84. An abuse of discretion is found when the trial court adopts a view that no reasonable person

would take. State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). We may uphold a trial

court’s evidentiary ruling on any grounds the record supports. State v. Williams, 137 Wn. App.

736, 743, 154 P.3d 322 (2007). A trial court abuses its discretion by misapplying evidentiary

rules. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).

                                 II. ADMISSIBILITY OF EVIDENCE

A.     Evidence Was Relevant and Admissible

       Driscoll challenges conclusions of law 4 and 5, in which the trial court concluded that the

proffered evidence was irrelevant. We agree that the trial court abused its discretion in reaching

these conclusions of law because these conclusions misapply the rules of evidence.

       “Relevant evidence” is defined as “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” ER 401. Only relevant evidence is admissible

at trial. ER 402.




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No. 46314-8-II


       A defense of self-defense requires proof (1) that the defendant had a subjective fear of

imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the

defendant exercised no more force than was reasonably necessary. State v. Werner, 170 Wn.2d

333, 337, 241 P.3d 410 (2010). Evidence of a victim’s prior acts of violence known to the

defendant is relevant to a claim of self-defense because it can show the state of mind of the

defendant and can show whether, at that time, the defendant had reason to fear bodily harm. See

State v. Cloud, 7 Wn. App. 211, 218, 498 P.2d 907 (1972).

       Driscoll contends that conclusion of law 4, ruling that the offered evidence was irrelevant

under ER 401, is erroneous because the two incidents were relevant. We agree.

       The trial court found that Driscoll thought that his testimony regarding the meat cleaver

and rock incidents was “necessary to establish [his] state of mind as he acted in self-defense.”

CP at 323. The fact that Miles previously attacked Driscoll on two occasions has some tendency

to make the fact that he subjectively feared her more likely. ER 401; see State v. Woodard, 26

Wn. App. 735, 737, 617 P.2d 1039 (1980); Cloud, 7 Wn. App. at 218. Thus, the evidence was

relevant. The trial court’s conclusion that it was irrelevant was an abuse of discretion.

       Driscoll also contends that conclusion of law 5, ruling that the evidence was inadmissible

under ER 402, is erroneous because it incorrectly concludes that the “‘accuracy and credibility’”

of proffered testimony goes to its relevance. Br. of Appellant at 15 (quoting CP at 324). Again,

we agree.

       As stated above, relevance requires merely that the evidence have some tendency to make

some fact of consequence more or less likely. ER 401. Whether the evidence was corroborated

goes to the weight of the evidence, not its admissibility. “A defendant’s testimony alone is



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No. 46314-8-II


sufficient to raise the issue of self-defense.” State v. Adams, 31 Wn. App. 393, 396, 641 P.2d

1207 (1982). The relevance of this evidence is not dependent on the presence of the person

about whom evidence is offered; thus, the trial court erred by concluding that Driscoll’s

testimony was irrelevant because the victim was not available to testify. Because both incidents

were relevant, the trial court erred by concluding that they were not.

B.     ERs 404 and 405

       The City argues that we should affirm the trial court’s decision because ERs 404 and 405,

governing the admissibility of character evidence and specific acts of a victim, provide a valid

basis for the court’s decision. We disagree.1

       ERs 404 and 405 govern character evidence. ER 404(b) generally prohibits evidence of a

person’s other crimes, wrongs, or acts to prove a person’s character to show that the person acted

in conformity therewith. However, ER 404(b) provides that prior acts may be admitted for

purposes other than to prove a person’s character. Where a party seeks to admit prior acts

evidence under ER 404 for a permissible purpose, a trial court “‘must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which

the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove

an element of the crime charged, and (4) weigh the probative value against the prejudicial

effect.’” State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Thang,




1
 The trial court explicitly ruled based only on ERs 401 and 402. However, we may uphold an
evidentiary ruling on grounds the trial court did not use, so long as the record supports the other
grounds. Williams, 137 Wn. App. at 743.



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No. 46314-8-II


145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). The trial court is required to conduct an ER 404(b)

analysis on the record. Foxhoven, 161 Wn.2d at 175.

       Here, Driscoll sought to testify about specific acts of Miles’s conduct not to prove her

character (i.e., that she acted in conformity with her prior acts), but instead to prove his state of

mind. He sought to prove that, due to Miles’s prior attacks on him, he had a reasonable belief

that his use of force was necessary. State v. Walker, 13 Wn. App. 545, 549-50, 536 P.2d 657

(1975). This is a permissible purpose under ER 404(b).

       The trial court did not engage in an ER 404 analysis on the record. The City appears to

invite us to conduct this analysis ourselves, but the record before us will not support it. The trial

court mistakenly excluded the evidence on relevance. Because of this error, the record was not

developed regarding the Foxhoven factors. We decline to affirm the trial court on this alternative

ground.

                                 III. RIGHT TO PRESENT A DEFENSE

       Driscoll argues that the trial court violated his right to present a defense when it excluded

the two incidents. We agree, and we hold that this error was not harmless.

A.     Right To Present a Defense Was Violated

       Both the United States and Washington Constitutions guarantee the right to present

testimony in one’s defense. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). The right

to present a defense is the right to present a complete defense. State v. Cayetano-Jaimes, 190

Wn. App. 286, 297, 359 P.3d 919 (2015). If the defendant offers relevant and admissible

evidence, the burden shifts to the City to demonstrate that “the evidence is so prejudicial as to

disrupt the fairness of the fact-finding process at trial.” State v. Darden, 145 Wn.2d 612, 622, 41



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No. 46314-8-II


P.3d 1189 (2002). We review an alleged denial of the right to present a defense de novo. State

v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).

       In a trial involving a claim of self-defense, “the defendant’s actions are to be judged

against [his] own subjective impressions and not those which a detached jury might determine to

be objectively reasonable.” State v. Wanrow, 88 Wn.2d 221, 240, 559 P.2d 548 (1977). The

jury must evaluate the claim of self-defense by considering “all the facts and circumstances

known to the defendant.” Wanrow, 88 Wn.2d at 234; see also State v. Kelly, 102 Wn.2d 188,

196, 196 n.2, 685 P.2d 564 (1984). The jury must essentially stand “‘as nearly as practicable in

the shoes of [the] defendant’” to be able to evaluate the reasonableness of the defendant’s

apprehension of danger. Wanrow, 88 Wn.2d at 235 (quoting State v. Ellis, 30 Wash. 369, 373,

70 P. 963 (1902)).

       Here, because the proffered testimony was relevant and otherwise admissible, it could be

constitutionally excluded only if the City demonstrated that it was “so prejudicial as to disrupt

the fairness of the fact-finding process at trial.” Darden, 145 Wn.2d at 622. The City has not

presented any argument regarding the prejudicial nature of the evidence at issue; therefore, it

cannot meet this burden. Thus, the City has failed to carry its burden to uphold the exclusion of

this admissible evidence. Darden, 145 Wn.2d at 622.

       The trial court’s ruling barred Driscoll from presenting a complete self-defense claim.

Driscoll was permitted to testify about only one out of three incidents of Miles’s violence against

him. Therefore, the jury was unable to consider all of the facts and circumstances known to

Driscoll in considering his claim of self-defense. Wanrow, 88 Wn.2d at 234. Because the jury

heard only about one prior instance informing Driscoll’s reasonable fear of Miles, it could not



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No. 46314-8-II


understand his complete state of mind regarding the danger he believed she posed. See Wanrow,

88 Wn.2d at 235. Because Driscoll was prevented from presenting evidence essential to proving

his claim of self-defense, his Sixth Amendment right to present testimony in his defense was

violated.

B.     Error Not Harmless

       The City appears to argue that the exclusion of Driscoll’s testimony was harmless. We

disagree.

       Error of a constitutional magnitude is harmless if we are convinced beyond a reasonable

doubt that any reasonable jury would have reached the same result without the error. Jones, 168

Wn.2d at 724. We cannot say beyond a reasonable doubt that the jury would have rejected

Driscoll’s self-defense claim had he testified about the two excluded incidents. Had the trial

court admitted his testimony, Driscoll would have testified to repeated attacks by Miles. Instead,

Driscoll was permitted to testify about only one attack. The jury may have found his subjective

fear of Miles more credible had it heard that Miles had attacked Driscoll several times with

various weapons.

                                          IV. CONCLUSION

       In conclusion, we hold that the trial court abused its discretion by excluding Driscoll’s

testimony because it was relevant and admissible for a permissible purpose. Because the City

did not carry its burden of demonstrating that the evidence was so prejudicial as to disrupt the

fairness of trial, we agree with Driscoll that his right to present a defense was violated.

Accordingly, we reverse Driscoll’s conviction and we remand for a new trial.




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No. 46314-8-II


       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.



                                                                   Worswick, P.J.
 We concur:



 Lee, J.




 Sutton, J.




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