IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )
                                              )         No. 74124-1-I
                      Respondent,             )
                                              )         DIVISION ONE
              v.                              )
                                              )         UNPUBLISHED OPINION
 MITCHELL HENRY RAMM,                         )
                                              )
                      Appellant.              )         FILED: April 17, 2017
                                              )
      APPELWICK, J. — Ramm was convicted of assault in the second degree

while armed with a deadly weapon. He argues that the trial court erred in excluding

his statements made at the time of his arrest, because these statements were not

hearsay. We affirm.

                                     FACTS

      On May 18, 2014, John McKissick was working as a security officer at the

Woodland Park Zoo. McKissick was not armed, but carried a flashlight. At around

8:00 a.m., McKissick came into contact with a man who was camping near the

rose garden. The man was Mitchell Ramm. McKissick approached Ramm, who

was in a sleeping bag. At about 10 feet away from Ramm, McKissick stopped.

McKissick repeatedly told Ramm that he was not allowed to camp there.
No. 74124-1-1/2


       Ramm refused to leave. He said that McKissick should be paying him rent

for being in his space. After telling Ramm to leave three or four times, McKissick

informed Ramm that if he did not leave, McKissick would have to call the Seattle

Police Department to remove him. McKissick then left the area and called 911.

      While McKissick was on the phone with 911, Ramm approached him,

yelling. Ramm attempted to provoke McKissick, calling him a chicken for not

physically engaging him. When McKissick did not respond, Ramm became more

aggressive. He began swinging at McKissick, attempting to punch him in the face.

McKissick protected himself by blocking Ramm's hands. Ramm then pulled two

wooden billy clubs out of his pocket and attempted to hit McKissick in the head.

He struck McKissick about six times.

      Throughout the encounter, McKissick was backing away, trying to avoid

being hit. As he backed away, he tripped and fell in a ditch. There, McKissick

found several bicycle parts that he used to defend himself. Ramm threw a pallet

at McKissick, and then began throwing pieces of cement at McKissick.

      By this time, other people had become aware of the incident and were

gathering nearby. When Ramm noticed the growing crowd, he sat down on a

picnic bench nearby. The police arrived about 30 seconds later. Ramm was

compliant with the officers, obeying their commands and putting his arms behind

his back to be handcuffed.

       Ramm was charged with assault in the second degree. The State also

alleged that Ramm was armed with a deadly weapon, the wooden clubs, at the

time of the assault. At trial, Ramm pursued a diminished capacity defense. He


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No. 74124-1-1/3


argued that because of his mental illness, he could not form the requisite intent to

assault McKissick. Ramm was convicted as charged. He appeals.

                                   DISCUSSION

       Ramm argues that the trial court erred in excluding statements he made at

the time of his arrest. He contends that these statements were not hearsay,

because they were not offered to prove the truth of the matter asserted.

Alternatively, he suggests the excited utterance hearsay exception applies, and

his trial counsel provided ineffective assistance by failing to argue this exception.

The State argues that even if the trial couderred,the exclusion of these statements

was not prejudicial.

       When reviewing evidentiary decisions, we first determine the applicable

evidentiary rules and then decide whether the trial judge acted within the discretion

given by those rules. State v. Gunderson, 181 Wn.2d 916,921-22, 337 P.3d 1090

(2014). We review the trial court's decision to admit or exclude evidence for abuse

of discretion. Id. at 922. The court abuses its discretion where its decision is

manifestly unreasonable or based upon untenable grounds. Id.

  I.   Hearsay

       Ramm contends that the trial court erred in excluding his out-of-court

statements to police officers as hearsay. When police officers first arrived on the

scene, Ramm said something along the lines of, "[Willy are you arresting me, you

should be arresting the other guy." Ramm may have also said,"He attacked me."

       Pretrial, the State sought to suppress these statements as inadmissible

hearsay. Ramm argued that the statements were not hearsay, because they were


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No. 74124-1-1/4


offered to show his state of mind, not to prove the truth of the matter asserted.

Ramm contended that these statements would support his diminished capacity

defense by showing that Ramm's mental illness affected his ability to form intent.

The court ruled,

       So on its face this, of course, is not a statement that one would view
       as unusual or without more evidence of a diminished capacity. It has
       the hallmarks of an out-of-court assertion that hangs one's self in a
       better light, and is offered for the truth of the matter; but it's not his
       fault, it's the other guy's fault. So, with that, I do not find that the state
       of mind exception would allow this to be admissible.

Consequently, it granted the State's motion to exclude the statements.

       Hearsay is "a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." ER 801(c). Whether a statement is hearsay depends upon the purpose

for which the statement is offered. State v. Crowder, 103 Wn. App. 20, 26, 11 P.3d

828 (2000). When a statement is offered not to prove the truth of the matter

asserted, but instead as a basis to infer something else, the statement is not

hearsay. Id.

       Here, Ramm did not argue that McKissick attacked him first or that he was

acting in lawful self-defense. He did not offer the statements to prove the truth of

the matter asserted. Instead, Ramm sought to use the statements to show his

state of mind at the time of the altercation. He offered these statements to show

his objectively false belief that he was acting in self-defense. This was consistent

with Ramm's diminished capacity defense: he argued that he lacked the capacity




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No. 74124-1-1/5


to intentionally assault McKissick, because his mental illness caused him to believe

he was defending himself. Thus, Ramm's statements were not hearsay.1

       We conclude that the trial court erred in excluding Ramm's statements from

the time of his arrest. Because we hold that these statements were not hearsay,

we need not address whether they were otherwise admissible under the hearsay

exception for excited utterances.

 II.   Harmless Error

       The State contends that even if the trial court erred in excluding the

statements, this error was harmless.         It argues that McKissick's testimony

overwhelmingly demonstrated that Ramm instigated the altercation. And, it points

out that Dr. Muscatel testified as to Ramm's version of events and gave his opinion

that Ramm may have believed he was acting in self-defense.

       A violation of an evidentiary rule is grounds for reversal only if it resulted in

prejudice to the defendant. State v. Howard, 127 Wn. App. 862, 871, 113 P.3d

511 (2005). An error is not prejudicial unless, within reasonable probabilities, the

outcome of the trial would have been materially affected had the error not occurred.

State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

       Here, the defense presented other evidence tending to show Ramm's state

of mind at the time of the altercation. Defense counsel elicited testimony from

eyewitnesses on cross-examination. Zookeeper Erin Martin testified that people

       1 The trial court excluded the statements in part because they were Ramm's
own statements that painted him in a better light. But, there is no general rule that
an out-of-court statement is inadmissible hearsay because it is self-serving. State
v. Pavlik, 165 Wn. App. 645, 653, 268 P.3d 986 (2011). The fact that Ramm
himself made and offered the statements did not convert them into hearsay.

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No. 74124-1-1/6


approached Ramm to tell him to calm down, because he was very agitated, and

that Ramm was rambling as he walked away. Bruce Walling, a grounds events

coordination supervisor, described Ramm's demeanor as agitated and upset.

Walling said that Ramm seemed "deranged." Ashley Pittman, who worked at the

zoo on the day in question, heard Ramm talking to himself, but nothing he said

made sense. She heard him say something about being a veteran and not wanting

to go back overseas. Sonja Rosas, another zoo employee, heard Ramm say

something about being in the war and having fought somebody. She testified that

she thought something might be off about Ramm's mental state, because his

words involving the war did not seem related to being kicked out of the zoo. Tonja

Duncan, a warehouser at the zoo, testified that she wrote in her report of the

incident that Ramm had quite a bit to say but none of it made sense.

      And, two psychologists testified on Ramm's behalf. Dr. Wayne Winters is a

psychologist employed by Western State Hospital. Dr. Winters performed a

psychological evaluation of Ramm, based on Ramm's jail mental health records,

prior Western State Hospital reports, and Dr. Winter's clinical observations of

Ramm.     Dr. Winters concluded that Ramm met the diagnostic criteria for

schizophrenia.

      Dr. Kenneth Muscatel also testified. Dr. Muscatel is a psychologist who

evaluated Ramm in February and March 2015. After his evaluation of Ramm, Dr.

Muscatel concluded that Ramm had a chronic severe mental illness. Dr. Muscatel

believed that schizoaffective disorder was the best diagnosis, because that

diagnosis incorporates hallucinations and delusional thinking.         During Dr.


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No. 74124-1-1/7


Muscatel's interview of Ramm, Ramm jumped from subject to subject and

appeared to have grandiose and unrealistic thoughts. Ramm also explained that

he found being homeless to be very stressful, placing him in threatening and

vulnerable situations.

       Dr. Muscatel relayed Ramm's version of the events that occurred on May

18, 2014. Ramm told Dr. Muscatel that he was confronted by someone who told

him he had to leave, and he felt threated by the person. Ramm said that the person

swung at him or hit him with a flashlight. He told Dr. Muscatel that he then took

out two sticks and became very aggressive with the other person. From this

interview, Dr. Muscatel concluded that Ramm was mentally ill on May 18 and not

taking his medication at the time. . Dr. Muscatel opined that it was possible that

Ramm,due to his mental state, believed that he was acting in self-defense and did

not know the potential consequences of his actions.

      Thus, Ramm was still able to present extensive evidence as to the nature

of his mental illness. The jury heard that Ramm had a severe mental illness that

caused delusions. It heard that being homeless created additional stress for

Ramm. It heard that Ramm believed McKissick attacked him first. It heard that it

was possible that Ramm believed he was defending himself. Ramm's statements

at the time of his arrest were consistent with what Dr. Muscatel reported he was

told and relied upon in forming his opinion of diminished capacity. But, admitting

the statements would not have enhanced the expert opinion on which his defense

relied nor would they have provided new information to the jury. Therefore, we

conclude that there is not a reasonable probability that the outcome would have


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No. 74124-1-1/8


been different had this error not occurred. The trial court's erroneous exclusion of

Ramm's statements was harmless.

 111.   Appellate Costs

        Ramm argues that appellate costs should not be imposed. We agree.

Ramm was determined to be indigent for purposes of appeal. No evidence

suggests that Ramm's financial condition has improved or is likely to improve.

Ramm is chronically mentally ill and has spent years of his life homeless. We

presume that Ramm remains indigent. See State v. Sinclair, 192 Wn. App. 380,

393, 367 P.3d 612(2016)(noting that the Rules of Appellate Procedure establish

a presumption of continued indigency), review denied, 185 wn.2d 1034, 377 P.3d

733(2016). An award of appellate costs to the State is not appropriate.

        We affirm.




WE CONCUR:


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