                                                                          July 11,2013

                                                                  I n the Office ofthe Clerk oFCourt
                                                                WA State Court of Appeals, Division 11
                                                                                                     11




            I THE COURT OF APPEALS OF THE STATE OF WASHINGTON
            N
                                    DIVISION THREE

STATE OF WASHINGTON,                          1
                                              1         No. 30034-0-111
                     Respondent,              1
                                              1
       v.                                     1
                                              1
DON DOUGLAS LOVELL,                           1         UNPUHLISHED OPINION
                                              1
                     Appellant.               1
       SIDDOWAY, -Don
              J.              Lovell, having been charged with five crimes including the

second degree rape of his girl friend, was convicted and sentenced for only the crime of

second degree assault. He appeals that conviction, claiming the court violated his

constitutional rights when it sustained an objection to expert testimony that the girl friend

was an alcoholic and vulnerable to blackouts. The evidence was irrelevant and was

properly excluded. For that reason and because Mr. Lovell raises no viable challenge in

his statement of additional grounds, we affinn.

                     FACTS AND PROCEDURAL BACKGROUND

       At around 4 a.m. one morning in August 2009, Walla Walla police officers

responded to a 91 1 call reporting a domestic violence incident at an address on East

Chestnut Road. When they arrived, the victim, P.M., hesitantly approached them from
No. 30034-0-111
State v. Lovell


the backyard of an adjacent home, uncertain they were the police. One of the responding

officers, Brett Barberich, would later describe her as acting "very frightened" and

i~nmediatelynoticed bruising around her left eye and the collarbone area. Report of

Proceedings (RP) at 306. Ms. M. told the officers that her boyfriend, Don Lovell, had

beaten her earlier in the evening and that she waited until he fell asleep to leave her home

and make a 91 1 call from the neighbors' home. The officers determined that a valid

restraining order was in place restraining Mr. Lovell from contact with Ms. M.

       The officers could see that Ms. M. was very intoxicated and upon locating Mr.

Lovell in the bedroom of her home, found that he was very intoxicated as well. Whcn

asked about what had happened, Mr. Lovell claimed that Ms. M. "went crazy and

assaulted him," hitting him in the face and biting him, in response to which he defended

himself. RP at 323. He pointed out marks on his torso that appeared to the officers to be

consistent with bite marks. Officer Steven Slawson photographed them. The officers

nonetheless concluded from Ms. M.'s Inore extensive injuries that Mr. Lovell was the

primary aggressor.

       Having made that determination, Officer Barberich transported Mr. Lovell to the

county jail. Mr. 1,ovell was cooperative. Officer Slawson stayed behind and took

photographs ofMs. M.

       After the officers completed their investigative work, Ms. M. was taken to the

hospital by paramedics. Emergency room records reflect that Ms. M.'s chief complaint
No. 30034-0-111
State v. Lovell


on arrival was facial bruises and lacerations to her left posterior thigh.' The hospital

diagnosed Ms. M. with a severe concussion.

       In the morning, Ms. M. was interviewed twice by Detective Tracy Klem. Ms. M.

told the detective that she had picked up Mr. Lovell the prior evening and driven him to

her home [or a dinner she had prepared. She told the detective she had been trying to get

the restraining order dropped because she and Mr. Lovell wanted to get back together. It

was after dinner that their reunion went badly awry and Mr. Lovell beat her up, including

by strangling her.

       The State originally charged Mr. Lovell with violating a domestic violence (DV)

protection order, a class C felony. Approximately 10 days following the incident it

amended the information to charge him with two additional crimes against Ms. M.:

assault in the second degree-DV, for what it alleged was his strangulation of her, and

harassment-DV, for allegedly threatening to lcill her. It also charged Mr. Lovell at that

time with a felony harassment of Jason Spencer, an off-and-on friend of Mr. Lovell's,

based on Ms. M.'s report that Mr. Lovell threatened to kill Mr. Spencer in the course of

his August 24 assault of her.




       1
        Ms. M. later testified that the cut on her thigh was an accident caused when Mr.
Lovell threw a glass at a coffee table early in the evening. A piece of the glass had struck
her. He apologized and had assisted hcr in bandaging it.
No. 30034-0-111
State v. Lovell


       On September 3, Ms. M. had a doctor's appointment with her primary physician,

Dr. Lauri Larson. Ms. M. had seen Dr. Idarsonearlier in the summer complaining of

anxiety and the doctor had been treating Ms. M. with antidepressants. Ms. M. made the

appointment for the 3rd to discuss the assault. RP at 391. Shc told Dr. Larson about her

injuries. The doctor asked if sex had occurred that night; Ms. M. said yes, sex had

occurred. RP at 286. She told the doctor that it was vaginal intercourse and it hurt

terribly.   RP at 393. Dr. Lars011then conducted a pelvic examination and observed
lacerations that the doctor attributed to forcible intercourse. RP at 399-400.

       Five days later, on September 8, Ms. M. called Detective Iclem and told hirn for

the first tilnc that she had been raped by Mr. 1,ovell during the course of the assault. The

detective asked her to come in to the police department and speak with him, which she

did on September 10. In Ms. M.'s later interviews by Detective Klc~n, told him Mr.
                                                                    she

Lovell's assault had begun when she rebuffed his efforts to initiate sexual intercourse.

She said Mr. Lovell responded by overpowering her efforts to resist and raping her.

Based on this additional information, the State amended its information a third time, in

January 201 1, charging Mr. Lovell with four crimes against Ms. M.: (1) assault in

violation of a protection order, (2) assault in the second degree for strangulation, (3)

felony harassment domestic violence, and (4) rape in the second degree. It carried

forward the charge of the felony harassment of Jason Spencer.
No. 30034-0-117
State v. Lovell


       The jury trial took place in April 201 1. Evidence presented during the four-day

trial illcluded considerable evidence of Mr. Lovell's and Ms. M.'s heavy drinking

throughout their teinpestuous relationship, including their drinking on the night of the

assault. In addition to testitjling that Mr. Lovell overpowered and raped her, Ms. M.

testified that he demandcd that she admit to having an affair with his friend, Mr. Spencer,

which she refused to do. She testified that Mr. Lovell then threatened to lcill her, lcill Mr.

Spencer, and l<illhimself. At other points during the evening, she testified, Mr. Lovell

asked her to kill him (Mr. Lovell).

       Mr. Spencer was called as a witness by the State. He testified that Mr. Lovell had

never threatened him directly. I-Ie said he learned from a Walla Walla police officer that

Ms. M. said Mr. Lovell threatened to kill him the night he assaulted her but Mr. Spencer

discounted the report, testifying that "sometimes people get upset and say things that they

don't mean" and "I wasn't that concerned. I thought he was just blowing steam." RP at

302-03. At the close of the State's case, the court granted Mr. Lovell's motion to dismiss

the charge of felony harass~neilt Mr. Spencer.
                                of

       Throughout the case, Mr. Lovell's lawyer developed evidence of Ms. M.'s and

Mr. Lovell's excessive drinking and what he characterized as Ms. M.'s alcoholism, as a

context for events on the night of the assault. In the defense case, he also used the

evidence of Ms. M.'s drinking to elicit the testimony of a defense expert, Dr. Ronald

Fleck, that someone who consumed as much alcohol as Ms. M. admitted consuming

                                               5
NO. 30034-0-111
State v. Lovell


would "definitely" have an increased susceptibility to bruising for several reasons:

capillary fragility, an increased likelihood oSSalls and accidents, and nutritional

deficiencies. RP at 507.

       Mr. Lovell's lawyer finally attempted to question Dr. Flecli about alcoholic

blackouts. When the State objected on relevance grounds, the trial court excused the jury

and heard argument from the lawyers and Mr. Lovell's offer of proof. The offer of proof

was that Dr. Fleck would testify that alcoholics can have no memory of periods when

they were unquestionably awake and alert. The memory gaps can be a few seconds, a

few hours, or even a few days. Dr. Flecli would also testify that alcoholics suffer another

conditiol: called "amnestic syndrome" that is a memory problem caused by a thiamine

deficiency. RP at 500. Mr. Lovell argued that Ms. M. had explained certain gaps in her

memory to the jury by saying her mind was "a little warped," and that "it is important for

the jury to be able to understand these things." RP at 502.

       The trial court sustained the State's objection, concluding that evidence

concerning blackouts was not relevant or was at best marginally relevant, and that its

limited relevance was outweighed by unfair prejudice.

       At the conclusion of trial, the jury convicted Mr. Lovell of violation of the

restraining order and the second degree assault chargcd [or strangulatioi: o r Ms. M. It

acquitted him of harassing and raping her. Following the verdict and entry of the

judgment and sentence, Mr. Lovell moved for arrest ofjudgment, arguing that the State's
NO. 30034-0-111
State v. Lovell


information failed to islclude all the necessary elements for the charge of violating of the

restraining order. The trial court agreed and vacated conviction on that count.

       The court ultimately sentenced Mr. Lovell to 14 months' ilnprisonrnent for the

second degree assault. He appeals.

                                        ANALYSIS

       Mr. I ,ovell's brief makes only one assignment of error: he argues that the court

violated his constitutional rights to compulsory process and jury trial when it excluded

Dr. Fleck's opinion that Ms. M. is an alcoholic and his explanation of alcoholic blackouts

and memory loss.

       Criminal defendants enjoy a constitutional right to compulsory process, to obtain

witnesses in their favor. U.S. CONST.
                                    amend. VI, applicable to the states through U.S.

CONST.
     amend. XIV; Washington v Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 18 L. Ed.

2d 1019 (1967). The right to compulsory process "is in plain terms the right to present a

defense [and] a right to present the defendant's version of the facts." Id. at 19; State v.

Tlzomas. 150 Wn.2d 821, 857, 83 P.3d 970 (2004). The right to present a defense has its

limits, however, and "a criminal defendant has no constitutional right to have irrelevant

evidence admitted in his or her defense." Stale v Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514

(1983).

       Only relevant evidence is admissible. ER 402. '"Relevant evidence' means

evidence having any tendency to make the existence of any fact that is of consequence to
NO. 30034-0-111
State v.Lovell


the determination of the action more probable or less probable than it would be without

the evidence." ER 401. Even if relevant, evidence inay be excluded if the court finds it

to be unfairly prejudicial, that it confuses the issues, or that it inisleads the jury. ER 403.

       Mr. Lovell maintains that we must review the trial court's decision to exclude Dr.

Flecl<'s testimony de novo, the standard of review that applies to admissibility decisions

under Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). He argues that the

court should have analyzed the evidence under ER 702 through 705 before sustaining the

State's objection. But the trial court never reached the question of whether Dr. Fleck's

opinions satisfied the requirements of those rules; it excluded the evidence as irrelevant

under ER 401, or only marginally relevant and unduly prejudicial under ER 403. Expert

opinion testimony must satisfy ER 401 and 403 in addition to the rules included in Title

VII of the evidence rules. Anderson v. Akzo Nobel Coalings, Inc., 172 Wn.2d 593,606-

07, 260 P.3d 857 (201 1).

       We review a trial court's ruling on the admissibility of evidence for abuse of

discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court's

evaluation of relevance under ER 40 1 and its balancing of probative value against its

prejudicial effect under ER 403 is accorded a great deal of deference, using a "manifest

abuse of discretion" standard of review. Id. (quoting State v. Luvene, 127 Wn.2d 690,

706-07,903 P.2d 960 (1995)).
No. 30034-0-111
State v. Lovell


       Therc was no evidence that Ms. M.'s delay in reporting the full extent of Mr.

Lovell's claimed wrongdoing on the night of the assault was because she suffered from

lapses of inernory. She testified at trial to many things she recalled from the events of

August 23 and 24. She was cross-examined extensively, including about her delayed

reporting, which she largely attributed to not initially understanding that she could be

"raped" by a boyfriend with whom she had previously had consensual intercourse. She

never claimed to have forgotten events. For his part, of course, Mr. Lovell claimed that

the criminal conduct never happened.

       A careful review of the offer of proof reveals nothing that would have discredited

Ms. M.'s testimony as to what she claimed to recall. The offer ooTproof was that

alcoholics suffering from blacl<outs"essentially don't remember anything about what

happened." F at 501 (emphasis added). The offer of proof also characterized blacltouts
           W
as random and of different duration; Dr. Fleck did not claim to be able to diagnose

whether Ms. M. had memories of the assault or whether they were accurate. Mr. Lovell

is unable to offer any basis on which Dr. Fleck's testimony that alcoholics can experience

blackouts would be relevant. Because the evidcnce was inadmissible, Mr. Lovell's

constitutional rights were not violated.

       Mr. Lovell also claims the court erred in sustaining the State's objection to Dr.

Fleck's opinion that Ms. M. is an alcoholic. The trial court explained its decision as

based in part on the fact that Dr. Fleck never examined Ms. M., unlike other physicians

                                              9
No. 30034-0-111
State v, Lovell


who had examined her and testified. Also important was the fact that when called as a

witness, Ms. M. had testified to the amount of alcohol she regularly consurned in the time

frame leading up to the assault and characterized herself as a "functioning alcoholic." RP

at 252. We cannot see how labeling Ms. M. an alcoholic would have been helpful to the

jury but where she had already applied the label to herself, Dr. Fleck's testimony would

have been cu~nulative excludable on that basis under ER 403.
                    and

       Mr. Lovell has not demonstrated any abuse of discretion by the trial court in

sustaining the State's objection to the excluded

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro sc statement of additional grounds, Mr. Lovell expresses a number of

complaints about his trial but the nature and occurrence of only two asserted errors are

sufficiently identified for review. See RAP 10.10(c). He cotnplains that his lawyer

provided ineffective assistance of counsel in failing to ask that the judge define

"strangulation" appropriately and in failing to request instruction on the lesser degree

crime of fourth degree assault.




         Mr. Lovell malces one more essentially unexplained argument: that by sustaining
the objection to Dr. Fleck's testimony, the trial court was "vouching" for Ms. M. He
relies on decisions holding that an expert who offers an opinion on the guilt of a
defendant, directly or inferentially, invades the exclusive province of the finder of fact.
The cases he cites do not apply directly or by analogy.
No. 30034-0-111
State v. Love11


       To establish a claim of ineffective assistance of counsel, a defendant must prove

that counsel's performance was deficient and that the deficient performance prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007); State v.

Reiclzenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Deficient performance is that

which falls "below an objective standird of reasonableness based on consideration of all

the circumstances." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

Prejudice exists if the defendant can show that "there is a reasonable probability that, but

for counsel's unprofessio~lal
                            errors, the outcorne of the proceeding would have been

different.'' Nichols, 161 Wn.2d at 8. If a party fails to satisfy one element, a reviewing

court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266,273,

166 P.3d 726 (2007).

       In evaluating claims for ineffectiveness, we are highly deferential to counsel's

decisions and there is a strong presu~nption
                                           that counsel performed adequately.

Strickland, 466 U.S. at 689-91. Strategic and tactical decisions are not grounds for error.

Id.; Reichenbach, 153 Wn.2d at 130.

       A person is guilty of assault in the second degree if he or she assaults another by

strangulation. RCW 9A.36.021(l)(g). "Strangulation" is defined by statute to mean "to

compress a person's neck, thereby obstructing the person's blood flow or ability to

breathe, or doing so with the intent to obstruct the person's blood flow or ability to

                                             11
No. 30034-0-111
State v. Lovell


breathe." RCW 9A.04.110(26). The Washington pattern instructions for criminal trials

include a pattern instruction tracking this statutory definition of strangulation. 1I

WASHINGTON
         PRACTICE:
                WASHINGTON
                         PATTERN
                               JURYINSTRIJCTIONS:
                                               CRIMINAL
                                                      35.53

(Supp. 201 1). The trial court gave the pattern instruction. Clerk's Papers at 1 13

(Instruction 12).

       Mr. Lovell argues, however, that the legislativefindings included in Laws of 2007,

chapter 79, section 1, which enacted the crime of second degree assault by strangulation,

should have been proposed by his lawyer as the proper source of a definition for the jury.

The legislative findings refer to the fact that assault by strangulation "may result in

immobilization of a victim, may cause a loss of consciousness, injury, or even death,"

and that strangulation is often knowingly inflicted "with the intent to coinmil physical

injury, or substantial or great bodily harm." Id.

       Legislative findings are not law on the meaning of strangulation. The statutory

definition is. It was the definition given to the jury. There was no error.

       Mr. L,ovell also argues that the jury should have been instructed on the lesser

degree crime of fourth degree assault. A person is guilty of assault in the fourth degree

if, under circuinstances not amounting to assault in the first, second, or third degree, or

custodial assault, he or she assaults another. Fourth degree assault is a gross

misdemeanor. RCW 9A.36.041.
No. 30034-0-111
State v. Love11


       Mr. Lovell's theory of the case was that he acted in self-defense. He relied on his

own testimony and pointed to photographs taken on the morning of his arrest that

depicted the fact that he, too, had been injured. An "all or nothing" strategy is a

legitimate trial tactic to achieve an outright acquittal. State v Gvier, 171 Wn.2d 17, 43,

246 P.3d 1260 (201 1). The record reveals that Mr. Lovell's lawyer represented h i ~ n

zealously, effectively, and largely successfully. That an "all or nothing" defense,

reasonable under the circumstances, was not entirely successful does not demonstrate

deficient performance.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to KCW

2.06.040.




W E CONCUR:


                    -
                   c-)-
Korsmo, C.J.



Knlik, J.
