                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           July 21, 2020
   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
STATE OF WASHINGTON,                                                 No. 52196-2-II

                                Respondent,

        v.

RANDY JAMAL BLOUNT,                                           UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — A jury convicted Randy Blount of second degree assault and found that

he committed the assault while in possession of a firearm. On appeal, Blount argues that the

trial court abused its discretion by requiring him to register as a felony firearm offender and that

the judgment and sentence contains a clerical error. The State concedes the clerical error.

       Blount also raises two issues in a statement of additional grounds (SAG) for review,

arguing that a witness was not credible and that the trial court erred by granting the State’s

motion to exclude expert testimony regarding a diminished capacity defense.

       We hold that the trial court did not abuse its discretion by requiring Blount to register as a

felony firearm offender, but we agree that the judgment and sentence contains a clerical error.

Further, we hold that Blount does not raise reversible errors in his SAG. Thus, we affirm

Blount’s conviction and felony firearm offender registration determination, but remand for

correction of the clerical error.
No. 52196-2-II


                                              FACTS

         A verbal dispute arose between Blount and his family members, and Daniel Tomei in the

parking lot of their apartment complex. During the verbal altercation, Blount pointed a handgun

at Tomei. Blount was charged with second degree assault, and the matter proceeded to a jury

trial.

         Witness testimony regarding the details of the incident varied. Tomei testified that he

walked over to Blount’s apartment to speak with Blount’s cousin. Blount came out of his

apartment to address Tomei. Tomei testified that Blount took out a handgun, cocked it, and

pointed it at Tomei. Further, Tomei stated that Blount said he would kill Tomei.

         Tomei’s daughter testified that she approached the verbal altercation to remove Tomei

from the situation. She saw Blount pointing a gun at Tomei and yelling that Blount would kill

Tomei.

         Blount also testified. Blount stated that he awoke to his mother yelling at someone from

their apartment window. Blount went to the window and saw his cousin outside arguing with

Tomei. Blount testified that Tomei refused to leave. This made Blount anxious because Blount

has post-traumatic stress disorder (PTSD). Blount grabbed a handgun and went outside. Blount

testified that the handgun was not loaded at that time. Blount aimed the gun at Tomei and

demanded that he leave. Blount testified that he had his finger on the trigger and pointed the gun

at Tomei’s face and head.

         On July 3, 2018, the jury found Blount guilty of second degree assault and found that

Blount was armed with a firearm during the commission of the crime. Blount’s judgment and

sentence erroneously states that Blount was found guilty on July 9, 2018.



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No. 52196-2-II


       At sentencing, the State chose not to make a recommendation regarding whether Blount

should be required to register as a felony firearm offender and deferred to the trial court. The

State acknowledged that Blount did not have a criminal history, but emphasized Blount’s anger

and hostility. During the sentencing court’s explanation of Blount’s sentencing, the State

inquired about a felony firearm offender registration, and the court responded, “Yes, I am going

to require firearm registration.” 2 Verbatim Report of Proceedings (VRP) at 376. The

sentencing court did not orally elaborate on this ruling. However, Blount’s judgment and

sentence stated that the sentencing court considered “evidence of the defendant’s propensity for

violence that would likely endanger persons.” Clerk’s Papers at 120.

       Blount appeals his sentence, specifically, the imposition of the felony firearm registration

requirement.

                                            ANALYSIS

                                  I. FELONY FIREARM OFFENDER

       Blount argues that the trial court abused its discretion by requiring Blount to register as a

felony firearm offender. Specifically, Blount argues that the trial court failed to consider the

necessary factors before imposing the requirement. We disagree.

       Under RCW 9.41.330(1), a trial court “may, in its discretion,” require a defendant

convicted of a felony firearm offense to register as a felony firearm offender under RCW

9.41.333. In determining whether to exercise this discretion, RCW 9.41.330(2) provides that a

trial court “shall” consider “all relevant factors,” including three specific, nonexclusive factors:

(1) the defendant’s criminal history, (2) whether the defendant had “previously been found not




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No. 52196-2-II


guilty by reason of insanity of any offense,” and (3) evidence of the defendant’s “propensity for

violence that would likely endanger persons.”

       Because a trial court’s decision to impose the registration requirement is discretionary,

we review the decision for an abuse of discretion. RCW 9.41.330; State v. Sherman, 59 Wn.

App. 763, 767 n.2, 801 P.2d 274 (1990). A trial court abuses its discretion when its decision is

manifestly unreasonable or based on untenable grounds or reasons. State v. Garcia, 179 Wn.2d

828, 844, 318 P.3d 266 (2014).

       Blount appears to argue that the sentencing court abused its discretion by (1) not

articulating on the record its reason for imposing the registration requirement, (2) not considering

all three statutorily enumerated factors, and (3) by checking the box regarding evidence of

Blount’s propensity for violence when the record lacked evidence of such a propensity.

       First, a trial court is not required to articulate its reasoning on the record for imposing a

firearm registration requirement. See RCW 9.41.330. Second, RCW 9.41.330(2) requires a

sentencing court to consider “all relevant factors,” and then enumerates three suggested factors.

The statute does not require a sentencing court to articulate a consideration of every factor

considered when imposing the felony firearm offender registration requirement. RCW 9.41.330.

And third, trial testimony showed Blount’s propensity for violence that would likely endanger

persons. Blount’s own testimony acknowledged that he pointed a handgun at Tomei, other

witnesses testified that Blount said he would kill Tomei, and the State referenced Blount’s anger

and hostility during sentencing. Blount also argues that his lack of criminal history refutes a

propensity for violence, but criminal history is a separate statutory factor. RCW 9.41.330(2).




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No. 52196-2-II


        During sentencing, Blount and the State acknowledged that Blount did not have a

criminal history. Blount seems to be arguing that a lack of criminal history prohibits the

imposition of a firearms registration requirement, but this is not the case. Although the statute

says the trial court “shall consider” a defendant’s criminal history, it does not state that a lack of

criminal history precludes imposition of this registration requirement. RCW 9.41.330.

        The sentencing court was presented with evidence of Blount’s propensity for violence

and noted its decision by checking the corresponding box on the judgment and sentence. We

hold that the sentencing court did not abuse its discretion when it based its decision on Blount’s

propensity for violence that would likely endanger persons.1

                                        II. CLERICAL ERROR

        Blount argues that this court should remand to correct a clerical error in his judgment and

sentence. The State concedes this error. We agree with the parties and remand to the trial court

to correct the judgment and sentence.

        Clerical mistakes in judgments may be corrected at any time. CrR 7.8(a). The remedy

for correcting a clerical error in a judgment and sentence is remand to the trial court for

correction. State v. Coombes, 191 Wn. App. 241, 255, 361 P.3d 270 (2015).

        Here, Blount’s judgment and sentence states that the jury returned its verdict on July 9,

2018. However, the jury returned its verdict on July 3, 2018. We remand to the trial court to

correct this clerical error.



1
  On the record before us, we hold that the trial court did not abuse its discretion. However a
more meaningful appellate review would have been possible had the sentencing court stated on
the record its reasoning for imposing the felony firearm registration requirement.



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No. 52196-2-II


                            III. STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Blount claims that (1) witnesses offered inconsistent testimony and (2) his

mental health was not considered during the proceeding. We hold that Blount fails to raise

reversible issues in his SAG.

A.     Additional Facts

       Before trial, the State moved to exclude testimony from Blount’s expert, Dr. Jack Litman.

Dr. Litman interviewed Blount and produced a psychological evaluation which acknowledged

that Blount suffers from PTSD. Dr. Litman concluded that Blount thought his family was in

danger during the verbal altercation and as a result, brandished the handgun in an attempt to

rescue them. Blount planned to use Dr. Litman’s testimony to support a diminished capacity

defense. However, the State argued that Dr. Litman’s testimony merely explained Blount’s

reasoning behind his actions. After a hearing, the trial court granted the State’s motion to

exclude Dr. Litman’s testimony regarding diminished capacity.

B.     Additional Ground 1: Tomei’s Testimony

       In its entirety, Blount’s additional ground 1 states, “There are incongruities in the victims

[sic] statements to the police, being inconsistent and contradicting with the facts of the case. As

well he has previous criminal history of harassment on others.” SAG at 1. Blount appears to

challenge Tomei’s credibility. But we do not review credibility determinations on appeal. State

v. Lazcano, 188 Wn. App. 338, 363, 354 P.3d 233 (2015). We hold that Blount’s additional

ground 1 does not raise any reversible error.




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No. 52196-2-II


D.        Additional Ground 2: Dr. Litman’s Report

          In its entirety, Blount’s additional ground 2 states, “Factors concerning my mental health

were not considered and taken into account during the trial. I was diagnosed with PTSD and it

contributed to my thoughts and influenced my actions.” SAG at 1. Blount appears to assert that

the trial court erred when it excluded Dr. Litman’s report. We disagree.

          A criminal defendant does not have the right to present irrelevant evidence. State v.

Lord, 161 Wn.2d 276, 294, 165 P.3d 1251 (2007). “Relevant evidence” is “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. We

review a trial court’s decision to exclude evidence for an abuse of discretion. Lord, 161 Wn.2d

at 294.

          For a diminished capacity defense, a defendant must produce expert testimony

“demonstrating that a mental disorder, not amounting to insanity, impaired the defendant’s

ability to form the culpable mental state to commit the crime charged.” State v. Atsbeha, 142

Wn.2d 904, 921, 16 P.3d 626 (2001). Expert testimony must be relevant under ER 401 and

admissible under ER 702. Atsbeha, 142 Wn.2d at 921. Under ER 702, expert testimony must be

helpful to the jury. Atsbeha, 142 Wn.2d at 921.

          Here, Dr. Litman’s testimony was not relevant or helpful to the jury because it did not

establish that Blount lacked the capacity to form intent. Rather, Dr. Litman’s testimony

established that Blount formed a goal of protecting his family and carried out that goal-directed

activity by brandishing a handgun. Dr. Litman’s testimony explains why Blount did what he did.

However, it does not establish a diminished capacity to form intent. Thus, Dr. Litman’s



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No. 52196-2-II


testimony did not establish grounds for presenting a diminished capacity defense. Accordingly,

the trial court did not abuse its discretion when excluding Dr. Litman’s testimony. We hold that

Blount does not raise reversible error in his SAG.

       We affirm Blount’s conviction and felony firearm offender registration requirement, but

remand for correction of the clerical error.

       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, J.


_______________________________
 Melnick, J.



_______________________________
 Sutton, A.C.J.




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