                                                            CCUHT OF APF'FA3 $ r-


                                                             2015 FEB-9 AH 10: 3




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                       DIVISION ONE

STATE OF WASHINGTON,                            No. 70807-4-


                    Respondent,

          v.



JAMES WILLIAM SCHUMACHER,                       UNPUBLISHED OPINION

                    Appellant.                  FILED: February 9, 2015


      Verellen, A.C.J. — James Schumacher appeals from a second degree

murder conviction for the murder of his wife, Jean.1 He contends that the trial court

erred by admitting evidence of Jean's state of mind, his past abuse of Jean, general

marital discord, and statements Jean made to medical providers about past abuse.

Because Schumacher put at issue the tumultuous nature of the marital relationship,

evidence that Jean feared him was relevant and properly admitted. And because the

other challenged evidence was properly admitted as evidence of Schumacher's intent

and motive, we affirm the conviction.

      Schumacher further challenges his exceptional sentence, contending that the

sentencing aggravator of an ongoing pattern of psychological abuse is

unconstitutionally vague and that the evidence was insufficient to support a finding of



        To avoid confusion, we refer to Schumacher's wife by first name.
No. 70807-4-1/2



that aggravator. Because the void for vagueness doctrine does not apply to a

sentencing aggravator, and the record supports the jury's finding that there was an

ongoing pattern of physical or psychological abuse, we affirm the exceptional

sentence.


                                          FACTS

       On March 23, 2012, James Schumacher walked into the Bellevue Police

Department headquarters and confessed to murdering his wife of 46 years, Jean. He

told the first officer he met that he and Jean had been arguing for over 15 years and

that a few days earlier, during an argument, she approached him with a hammer and

threatened to divorce him. She did not strike him with the hammer, but put it away

and went to bed, telling him she did not want to be bothered. She went to her

separate bedroom and locked the door.

       Schumacher stayed up all night "seething" about the incident.2 The next

morning, he got up and retrieved a hatchet from the garage. He picked the lock on

Jean's bedroom door and while she was still sleeping, struck her in the face with the

hatchet five to six times, killing her.

       He hid the body under the bed. He put the hatchet back in the garage, packed

up some belongings and considered fleeing. He went to the bank, withdrew money,

and took the family dog to an animal shelter to be boarded for an extended period.

He then reconsidered leaving town and contemplated killing himself, but ultimately

decided to turn himself in.




         Report of Proceedings (RP) (May 21, 2013) at 37.
No. 70807^-1/3



      After Schumacher confessed, the officer asked him if he felt okay, and

Schumacher responded that he felt "a weight had been lifted."3 He proceeded to give

a full videotaped confession, detailing how he murdered his wife and that he did so

because he was tired of her constant nagging. He stated that he decided that

morning that "he just [couldn't] take it anymore" and hit her with the hatchet five or six

times "to make sure that it was done . . . [t]hat she was dead."4

       Police found the body hidden under the bed, as he had indicated. The

medical examiner confirmed that Jean had suffered at least five chopping wounds to

her head and found no defensive wounds on her body.

       The State charged Schumacher with first degree murder with a deadly weapon

sentencing enhancement. The State also alleged as a sentencing aggravator that

the crime was a domestic violence offense that was part of an ongoing pattern of

psychological, physical, or sexual abuse of the victim.

       At trial, Schumacher asserted a defense of diminished capacity. He offered

the expert testimony of Dr. Craig Beaver, who opined that Schumacher has early

stage dementia and that his unmanaged diabetes, depression, poor nutrition, and

illness contributed to his diminished mental state. He further testified that the stress

of Schumacher's tumultuous marriage contributed to his mental impairment.

Dr. Beaver concluded that, as a result of this impairment, Schumacher was unable to

intend or premeditate the murder. The State offered expert testimony from Dr. Brian

Judd, who testified that even if Schumacher had mild dementia, neither this condition


       3 Id, at 46.
       4 Ex. 241 at 19, 24.
No. 70807-4-1/4



nor his other health ailments rendered him incapable of forming premeditated intent

at the time of the murder.

          Over defense objection, the State also offered evidence of prior marital discord

between Schumacher and Jean, including a domestic violence incident in November

2010 that resulted in Schumacher's conviction for fourth degree assault. The State

also offered statements Jean made to her daughter that she feared Schumacher

would kill her when he was released from jail following the November 2010 incident

and statements that Jean made to medical providers in 2010 about past abuse. The

court ruled that all of this evidence was admissible and probative of motive and

intent.

          A jury found Schumacher guilty of the lesser included offense of second

degree murder and also found that the State proved the sentencing enhancement

and the sentencing aggravator. The court imposed an exceptional sentence of 300

months based on the sentencing aggravator. The standard range was 147 to 244

months. Schumacher appeals.

                                       DISCUSSION

                           Evidence of the Victim's State of Mind

          Schumacher contends that the trial court erred by admitting Jean's statement

that she feared he would kill her upon his release from jail in November 2010

because her state of mind was not at issue in the case. We disagree.

          Over defense objection, the trial court admitted evidence of Jean's statements

to her daughter, Susan Schumacher (Susan), made after Schumacher had been

arrested in November 2010 on a domestic violence charge. The court permitted
No. 70807-4-1/5



Susan to testify that after Jean learned Schumacher was going to be released from

jail following the November 2010 incident, Jean "started screaming and crying" and

said, "He is going to kill me. Oh my God, what am I going to do?"5 The court ruled:

       [W]ith respect to the statements made on hearing [of] his release from
       jail, and certainly, the State will have to lay a foundation for an excited
       utterance, but it appears to meet all the criteria for an excited utterance.
       I can't imagine what could be a more startling event than knowing
       someone that you fear, that assaulted you in the past, is now going to
       be released and will have access to you again. . .. And again, because
       there is no question of identity and whether, in fact, the killing—whether
       in fact, he actually killed her, while a limiting instruction may be
       appropriate, it's not—we could certainly offer, if someone wants to
       prepare a limiting instruction, we can certainly indicate, I suppose, that
       they are not to consider it for the fact of whether her opinion was
       accurate that in fact he was going to kill her, although I'm not sure how
       that would benefit the defense or State of the factual circumstances, I'm
       not sure that that's necessary. But rather, it is to show the depth of the
       dysfunctionality of their relationship; that she would think not only that
       he would be angry, but that she was so fearful that she would have an
       opinion, rightly or wrongly, and wrongly as it turned out, because of
       course, he did not kill her upon being released from jail, that he was
       going to kill her as a result of being arrested. For that reason, the Court
       finds that it's not unfairly prejudicial and is more probative than unfairly
       prejudicial and will allow it.[6]

       ER 803(a)(3) provides an exception to the hearsay rule for statements "of the

declarant's then existing state of mind."7 But the declarant's state of mind must still

be "relevant to a material issue in the case."8 Thus, "[i]n a homicide case, ifthere is

no defense which brings into issue the state of mind of the deceased, evidence of




       5 RP (May 29, 2013) at 54-55.
       6 RP (May 16, 2013) at 118-19.
       7 As the trial court also found, Jean's hearsay statements fall within the excited
utterance exception to the hearsay rule.
       8 State v. Johnson. 61 Wn. App. 539, 545, 811 P.2d 687 (1991).
No. 70807-4-1/6



fears or other emotions is ordinarily not relevant."9 But in cases where the defendant

asserts accident or self-defense, admission of evidence of the victim's fears is

relevant to whether the victim would have been likely to act as the defendant

claimed.10

       In State v. Athan. the court held it was not an abuse of discretion to admit a

murder victim's statements under ER 803(a)(3) as evidence of state of mind because

the defendant put the victim's state of mind at issue.11 There, the State alleged the

defendant sexually assaulted the victim before murdering her, but at trial, the

defendant's theory was that he had had consensual sex with her and that she was

murdered by someone else.12 The trial court admitted statements the victim made to

her friends that she had no romantic interest in the defendant and that he gave her

"the creeps."13 On appeal, the court rejected the defendant's argument that the

victim's state of mind was irrelevant because he did not raise a claim of accident or

self-defense. Rather, the court concluded that, by suggesting that he had a romantic

relationship with the victim, her statements about her feelings toward him became

relevant.14

       Likewise here, Schumacher put at issue the nature of his relationship with

Jean. He claimed that the tumultuous nature of the relationship contributed to his



       9 State v. Parr, 93 Wn.2d 95, 103, 606 P.2d 263 (1980).
       10 jd
       11 160 Wn.2d 354, 383, 158 P.3d 27 (2007).
       12 IdL at 381-82.
       13]dL at 381.
       14 Id. at 383.
No. 70807-4-1/7



impaired mental state and offered expert testimony from Dr. Beaver that the stress of

the relationship affected his ability to form intent. Thus, as in Athan, Jean's

perspective of the relationship, which included her fears of him, became relevant.

Indeed, Dr. Beaver agreed that an understanding of the nature of the marital

relationship was helpful to determining whether he had the ability to form the requisite

intent to commit the murder.

       Dr. Beaver testified that Schumacher told him that he was very unhappy in his

marriage, that Jean had a separate bedroom with a lock on the door, and that Jean

always criticized him. Dr. Beaver further testified that "there was a lot of stress and

tension between he and his wife, some indication that he felt threatened,"15 and that

Schumacher said that there were threats to kill made by both of them. He also

testified that Schumacher described an incident where Jean came into his room and

waived a hammer at him because she was upset with him for not getting out of bed

and taking care of chores around the house. Dr. Beaver opined that the increasing

conflict was a factor that contributed to Schumacher's stress and impacted his

cognitive ability to form the requisite intent. Thus, evidence that Jean in fact feared

him was relevant to address these claims and present the complete picture of the

relationship that he claimed contributed to his diminished mental state. The trial court

did not abuse its discretion by admitting the statements.

       Schumacher's reliance on State v. Cameron is misplaced.16 In Cameron, the

court held it was reversible error to admit evidence that the murder victim expressed


       15 RP (May 22, 2013) at 70.
       16 100 Wn.2d 520, 674 P.2d 650 (1983).
No. 70807-4-1/8



fear of the defendant because "the victim's state of mind itself was not relevant to any

material issue before the before the jury."17 There, the defendant asserted an

insanity defense, claiming that he killed the victim because she was possessed by an

evil spirit and on a "strong sorcery trip."18 The victim's daughter and ex-husband

testified that before the murder, the victim told them she feared the defendant.

Because self-defense was not at issue and these statements were about the victim's

state of mind, the court held that they were not admissible to prove the defendant's

thought process at the time of the murder.19

       But unlike here, Cameron did not involve a spousal murder, and there was no

history of conflict and abuse between the defendant and the victim. And more

importantly, the defendant in Cameron did not put at issue the nature of his

relationship with the victim, nor did he claim that it affected his ability to form intent,

as Schumacher did here. Thus, unlike here, what the victim in Cameron feared in the

past was irrelevant to the defendant's state of mind at the time of the murder.

                                   ER 404(b) Evidence

       Schumacher also challenges the trial court's admission of evidence of his

assault conviction in November 2010, testimony from his son and daughter about his

past verbal and physical abuse of Jean, and Jean's statements to police that he had

hit her in the past and had verbally and emotionally abused her for years before the




       17 id, at 531.
       18 id, at 523.
       19 Id. at 530-31.



                                              8
No. 70807-4-1/9



November 2010 incident. He contends that such evidence was inadmissible under

ER 404(b) because it was not probative of his motive or intent at the time of the

murder. We disagree.

       We review the decision to admit evidence of a defendant's prior bad acts for

an abuse of discretion.20 ER 404(b) provides that evidence of a defendant's prior

misconduct may be admissible for a purpose other than to prove propensity, "such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence

of mistake or accident." In cases of marital homicide, courts may properly admit

evidence of prior bad acts to show motive, intent, opportunity, premeditation, and res

gestae.21 A diminished capacity defense puts at issue the defendant's state of mind

because it allows the defendant to negate the requisite intent that is an element of a

crime.22

       Here, the trial court ruled that the prior incidents of domestic violence and

conflict between Schumacher and his wife were relevant to prove Schumacher's

motive and intent to cause the death of his wife and that the probative value

outweighed any prejudice to Schumacher. As the court explained:

      Here, we have a first degree murder case where the State must prove
      not only intent, but the intent was a settled intent, and also must, in
      order to prevail, rebut the claim of diminished capacity. Although it's
      true that diminished capacity merely allows the jury to take evidence of
      mental illness or disorder into consideration in determining whether the
      defendant had the capacity to form a settled intent or a premeditated
      intent, the jury will not only look at expert evidence, such as the two
      doctors, but they will look at their—they will draw on their own common


      20 State v. Brown. 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997).
      21 State v. Powell. 126 Wn.2d 244, 260-64, 893 P.2d 615 (1995).
       22 See State v. Stumpf. 64 Wn. App. 522, 525, 827 P.2d 294 (1992).
No. 70807-4-1/10



      sense as to whether an older man, who has been married for 46 years
      to a woman, would suddenly bludgeon her to death without there being
      any discord or difficulties in the relationship, or whether, if this were to
      come out of the blue, what must it necessarily be or more likely be as a
      result of some sort of diminished capacity. So it's relevant to those
      claims, generally speaking. Moreover, while the 2010 incident in itself
      might not be evidence of settled intent, it is material to the State's
      argument that the defendant had a settled intent to do everything he
      could to prevent his wife from leaving him, and that over pretty much
      the entirety of their relationship, he had that intent, that he expressed it
      in violent and abusive ways to her, and was willing to do whatever was
      necessary to make sure she did not leave himJ23'



             . . . The evidence is not too remote. Certainly in 2010, there
      seemed to be some evidence that could come in that some people
      were seeing some changes in his thinking or behavior. And given his
      age, a jury might well speculate that, well, in 2010, he was also,
      perhaps, having some early dementia, and maybe this is what caused
       his behavior. So the issue is relevant to the issue of whether there is
       premeditated intent, and it is more probative than prejudicial; certainly,
       not unfairly prejudicial.1241

      The trial court's ruling was a proper exercise of discretion. The evidence was

directly related to Schumacher's state of mind and intent at the time of the murder.

He told police that he and Jean had been arguing for years and that this most recent

argument is what caused him to finally act. He talked about his assault of Jean in

2010, being charged with a crime, having a protection order against him, having to

stay away from the home for eight months, and that when he was allowed to go back

home, "the bullshit started again."25 He further stated that in the last few weeks

before the murder, "she really started pissing and moaning" and that he decided he'd



      23 RP (May 14, 2013) at 133-35.
      24 RP (May 15, 2013) at 63-64.
      25 Ex. 241 at 14.



                                           10
No. 70807-4-1/11



"had enough" and "could not take this anymore."26 Finally, he stated that he was

"seething" and did not sleep at all the night before the murder, and in the morning, he

said to himself "[t]his is it" before proceeding to kill her.27 Additionally, Schumacher

himself put the nature of the marital relationship at issue. As discussed above,

Schumacher's expert testified about the nature of the marital relationship and how

the increasing conflict had an impact on his state of mind and ability to form the

requisite intent.

       Schumacher contends that evidence of the prior abuse and marital discord

was not relevant because these acts were not close in time to the current offense.

He notes that the most recent incident occurred in November 2010, nearly a year and

a half before the charged offense. He cites State v. Acosta. where the court held

inadmissible evidence of the defendant's prior arrests and convictions that were all at

least two years old because they were irrelevant to his intent to commit the current

offense.28 But in Acosta. the State offered evidence of 23 arrests and convictions

unrelated to the charged offense that dated back more than a decade to rebut a

claim of diminished capacity.29 The court held that because they involved unproven

charges and charges unrelated to the crime charged, the prior arrests and

convictions were not relevant to the defendant's state of mind during the current

offenses.30 As discussed above, this case is demonstrably different. The history of


       26 jd at 15-16.
       27 Id, at 19.
       28 123 Wn. App. 424, 435, 98 P.3d 503 (2004).
       29 Id, at 429-30.
       30 Id. at 434.



                                           11
No. 70807-4-1/12



conflict and abuse was directly related to, and was what eventually led to, the

charged offense.31

                   Evidence of Statements Made to Medical Providers

       Schumacher contends that the trial court erroneously admitted evidence of

statements Jean made to medical providers who treated her for injuries she

sustained as a result of the November 2010 domestic violence assault incident. He

contends that these statements do not fall within the scope of ER 803(a)(4), the

medical diagnosis exception to the hearsay rule. But because Schumacher did not

challenge the admission of this evidence on this basis at trial, he has waived the

issue on appeal.32 Nonetheless, his claim is without merit.

       ER 803(a)(4) provides an exception to the hearsay rule for "[statements made

for purposes of medical diagnosis or treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general character

of the cause or external source thereof insofar as reasonably pertinent to diagnosis

or treatment." Such statements are admissible if (1) the declarant's motive in making

the statement is consistent with the purpose of promoting treatment, and (2) the

content of the statement must be that upon which a medical provider would

reasonably rely in treatment or diagnosis.33 "Medical diagnosis and treatment"




      31 This evidence was also material to the pattern of abuse aggravator.
      32 See State v. Simms. 77 Wn. App. 236, 240-41, 890 P.2d 521 (1995)
(refusing to consider for the first time on appeal defendant's challenge to statements
as not falling within ER 803(a)(4) hearsay exception).
      33 State v. Carol M.P.. 89 Wn. App. 77, 85, 948 P.2d 837 (1997).


                                          12
No. 70807-4-1/13



includes both physical and psychological treatment.34 In domestic violence cases,

our courts have routinely held admissible victims' statements to medical providers

about the nature of the abuse and the identity of the abuser, recognizing the unique

circumstances of such cases where the patient is in an intimate or familial

relationship with the abuser, may be suffering from emotional or psychological injury

due to long term abuse, and may be at risk of future harm from the same abuser.35

       Here, an emergency room physician testified that Jean told him Schumacher

verbally and emotionally abused her for years. A social worker also testified that

Jean told her there was a history of verbal and emotional abuse and that

Schumacher had hit and shoved her once before in the past. The court properly

admitted these statements as reasonably pertinent to treatment because they

contained information that enabled both providers to evaluate her condition and

recommend treatment.


       Schumacher contends that because these statements relate to a history of

prior abuse, they are not reasonably pertinent to treatment of a present injury or

condition and therefore do not fall with the medical diagnosis exception to the

hearsay rule. But the scope of the rule is not limited to statements about treatment

for injuries related to the charged offense, and Schumacher provides no authority to

the contrary. Rather, the focus of the rule is reliability of the statements; so long as




       34 State v. Woods. 143 Wn.2d 561, 602, 23 P.3d 1046(2001).
      35 See, e.g.. Simms. 77 Wn. App. at 239-40; State v. Butler. 53 Wn. App. 214;
222, 766 P.2d 505 (1989); In re Dependency of S.S.. 61 Wn. App. 488, 503, 814
P.2d 204 (1991).



                                            13
No. 70807-4-1/14



they were made to facilitate treatment, they are sufficiently reliable hearsay.36 Of

course, they still must be relevant to a material issue in the case, but as discussed

above, the court properly found that they were relevant to Schumacher's motive and

intent to commit premeditated murder.

       Schumacher also asserts that because these statements were in response to

questions aimed solely at ensuring patient safety, they do not fall within the hearsay

exception for statements of treatment or diagnosis, citing the Ninth Circuit's opinion in

People of the Territory of Guam v. Iqnacio.37 Schumacher's reliance on Iqnacio is

misplaced. There, the court held inadmissible a child abuse victim's statements to a

social worker where the record showed that the social worker questioned her simply

to determine whether to report the suspected abuse to Child Protective Services, not

for the purpose of treating or diagnosing the child's physical or psychological

needs.38 Statements the child made to the medical provider who initially examined

her, however, were properly admitted.39 Here, the testimony established that Jean's

statements were not made solely to report the allegations but were made for the

purpose of medical treatment and diagnosis.




       36 See Butler. 53 Wn. App. at 220 ("'[l]t is assumed that a patient has a strong
motive to speak truthfully and accurately because the treatment or diagnosis will
depend in part upon the information conveyed. The declarant's motive thus provides
a sufficient guarantee of trustworthiness to permit an exception to the hearsay.'"
(quoting United States v. Iron Shell. 633 F.2d 77, 84 (8th Cir. 1980))).
       3710F.3d608(9thCir. 1993).
       38 Id, at 613.
       39 Id.



                                           14
No. 70807-4-1/15



                                 Sentencing Aggravator

       Schumacher challenges as unconstitutionally vague the sentencing aggravator

of an ongoing pattern of psychological, physical, or sexual abuse of a victim and

contends that his exceptional sentence based on this aggravator must be reversed.

He concedes that our Supreme Court has expressly held in State v. Baldwin that the

"the due process considerations that underlie the void-for-vagueness doctrine have

no application in the context of sentencing guidelines,"40 but asserts that Baldwin is

no longer good law after the United States Supreme Court's decision in Blakely v.

Washington.41 Blakely held that a judge may not impose a sentencing enhancement

without findings by the jury or a stipulation by the defendant.42

       Schumacher focuses on Blakelv's treatment of aggravator factors as

equivalent to elements of a crime, arguing that this establishes a due process right

that encompasses vagueness challenges to sentencing enhancements. But Blakely

implicated the right to a jury trial, while the vagueness doctrine focuses on providing

notice to the public and protecting against arbitrary state intrusion.43 Schumacher

provides no cogent legal argument that Baldwin does not survive Blakely. Because

we are bound by the court's decision in Baldwin, we reject the vagueness challenge.

       Finally, Schumacher challenges the sufficiency of the evidence to support the

finding of the aggravating factor of an ongoing pattern of psychological or physical



       40 150 Wn.2d 448, 459, 78 P.3d 1005 (2003).
       41 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
       42 jd, at 303-04.
       43 Baldwin. 150 Wn.2d at 458.



                                           15
No. 70807-4-1/16



abuse. Viewed in the light most favorable to the State, the evidence supports the

finding.

       A jury must find any facts supporting aggravating circumstances beyond a

reasonable doubt.44 We review the jury's finding under the standard for challenges to

the sufficiency of the evidence.45 Under that standard, we view the evidence in the

light most favorable to the State to determine whether any rational trier of fact could

have found the existence of the aggravating circumstance beyond a reasonable

doubt.46 We must draw all reasonable inferences from the evidence in favor of the

State and construe the evidence most strongly against the defendant.47

       Schumacher contends that the evidence shows only one or two prior incidents

of past physical abuse and vague accounts of psychological abuse and is therefore

insufficient to support an ongoing pattern of abuse. We disagree. Viewed in the light

most favorable to the State, the evidence sufficiently demonstrates such a pattern.

           Courts use the common meaning of "pattern," which is "'a regular, mainly

unvarying way of acting or doing.'"48 The evidence here establishes such a pattern.

Schumacher's son recalled that for his "entire life," Schumacher would lose control

and scream at Jean, calling her derogatory names.49 His daughter similarly testified


           44 State v. Stubbs. 170 Wn.2d 117, 123, 240 P.3d 143 (2010).
           45 id,
           46 State v. Zigan. 166 Wn. App. 597, 601-02, 270 P.3d 625 (2012).
           47 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
           48 State v. Russell. 69 Wn. App. 237, 247, 848 P.2d 743 (1993) (quoting
Webster's New World Dictionary 1042 (1976)).
      49 See RP (May 29, 2013) at 14-15 (he called her a "fucking bitch," and
"honky," a similar derogatory term used for Eastern European immigrants).


                                             16
No. 70807-4-1/17



that he called Jean derogatory names while the daughter lived at home and after she

moved out.50 Schumacher also admitted to his son and at the hearing for a

protection order in 2010 that he had been physically and verbally abusive many times

in the past. Additionally, as discussed above, Jean told medical personnel in 2010

that he had been physically and verbally abusive to her for 43 years. Schumacher

also stated that he argued with her one to two times a weeks for 40 years and

admitted that he had threatened to kill her several times in the past. Based on this

evidence, a rational trier of fact could find beyond a reasonable doubt that

Schumacher engaged in a pattern of physical and emotional abuse of Jean for a

prolonged period of time.

      We affirm the judgment and sentence.




WE CONCUR:




       50 See jd, at 52 ("[T]he defendant would call my mother a bitch, a whore, a
cunt, a mother fucking cunt, a honky, an asshole, bitch.").


                                           17
