 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                      )
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                                          )       No. 77013-6-1                   1"-a
                     Respondent,          )                                       co       .
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                                          )       DIVISION ONE                        rn cl-ri
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                                          )       UNPUBLISHED OPINION                 1••5     7 ,-tl.f
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PHILLIP LINCH SCHLOREDT,                  )                                             Ts' Z•7>
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                     Appellant.           )       FILED: December 24, 2018
                                                                                         as


       BECKER, J.—Appellant Phillip Schloredt lit a container full of gasoline and

threw it in the direction of a police officer. The officer's car and several nearby

vehicles were set aflame. A jury convicted Schloredt of first degree arson. He

appeals his conviction on a number of grounds, including that the trial court

improperly excluded layperson testimony regarding Schloredt's mental illness.

We affirm.

                                       FACTS

       The alleged arson occurred on September 21, 2015. Seattle Police

Officers John Paquette and James Norton responded to a 9-1-1 call at the home

where appellant Phillip Schloredt lived with his mother. The call was from

Schloredt's mother. She said that her son, 56 years old at the time of trial, had a

history of mental illness and was declaring that he was going to kill himself. She

requested that someone come to her house to take Schloredt to a hospital.
No. 77013-6-1/ 2

       When the officers arrived at the scene, Schloredt's gray truck was parked

in the middle of the street along with other vehicles that were blocking traffic.

Schloredt was dragging a container full of gasoline towards his truck. Officer

Paquette testified that when he got out of his police car, he saw flames shoot up

and the container landed in the bed of the pickup truck with the flaming liquid

splashing onto the hood of the patrol car. The flames engulfed the truck, Officer

Paquette's car, and several other cars parked on the street. The officers' dash-

cam video, which captured the dramatic scene, was shown to the jury at trial.

Using their fire extinguishers, and aided by a neighbor with a garden hose, the

officers were able to extinguish the blaze. In the chaos, Schloredt ran away. A

short time later, officers found him hiding not far away in a blackberry thicket and

arrested him.

       The State charged Schloredt with arson in the first degree, RCW

9A.48.020(1)(a). This charge required the State to prove that Schloredt

"knowingly and maliciously" caused a fire or explosion which was "manifestly

dangerous to any human life, including firefighters." RCW 9A.48.020(1)(a).

       Before trial, Schloredt moved to be found incompetent. Schloredt was

evaluated and diagnosed with an unspecified schizophrenia spectrum and other

disorders. At the time, Schloredt was taking antipsychotic medication and an

antidepressant. The evaluator concluded that Schloredt was competent to stand

trial and the trial court agreed.




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No. 77013-6-1/ 3

         Schloredt's defense was a general denial. He did not assert a defense of

diminished capacity and he did not plan to present expert testimony regarding his

mental state.

         The trial in March 2017 lasted four days. The jury deliberated for two

hours before convicting Schloredt as charged. His sentence of 108 months was

within the standard range.

                                      ANALYSIS

Rebutting Proof of Malice

         Schloredt contends the trial court improperly excluded key evidence

offered to rebut the State's proof of malice.

         The term "malice" imports "an evil intent, wish, or design to vex, annoy, or

injure another person. Malice may be inferred from an act done in willful

disregard of the rights of another, or an act wrongfully done without just cause or

excuse, or an act or omission of duty betraying a willful disregard of social duty."

RCW 9A.04.110(12). The dash-cam video was the primary evidence the State

relied on to prove malice. The jury also heard the recording of a call Schloredt

made from jail on the night of the fire to his friend, Louie Gaddini. In the call,

Schloredt began by asking,"Was that awesome or what?" When Gaddini

suggested that Schloredt would be charged with arson, Schloredt answered that

he would also be charged with assaulting a police officer. Gaddini told Schloredt

that he burned a police car, to which Schloredt responded, "Did I? Sweet. That's

good."




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No. 77013-6-1/4

      To rebut the evidence of malice, Schloredt wished to present testimony by

his mother and sister that he was mentally ill and that he had not been taking his

prescribed medications at the time of the incident. The State successfully moved

in limine to exclude such evidence as irrelevant because Schloredt was not

asserting a diminished capacity defense.

       A diminished capacity defense "allows a defendant to undermine a

specific element of the offense, a culpable mental state, by showing that a given

mental disorder had a specific effect by which his ability to entertain that mental

state was diminished." State v. Clark, 187 Wn.2d 641, 650, 389 P.3d 462 (2017).

Clark, a decision issued only a few weeks before Schloredt's trial, was the

principal authority considered by the trial court on the State's motion to exclude.

Clark holds that expert opinion testimony will not be admitted to prove what is

functionally a diminished capacity defense unless that defense is affirmatively

pleaded.

       The defendant in Clark had killed the victim with a single gunshot to the

head. Charged with premeditated murder, he claimed the shooting was an

accident. Thus, as in the present case, the primary disputed issue was the

defendant's level of intent. Clark, 187 Wn.2d at 645. Although Clark did not

assert diminished capacity as a defense, he sought to present an expert witness

who would testify that he scored at the very bottom in standardized intelligence

tests. The trial court excluded the expert testimony as irrelevant and confusing to

the jury. The court did, however, rule that the defendant could elicit relevant

observation testimony by lay witnesses concerning his intellectual deficits,



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No. 77013-6-1/ 5

including that he had been enrolled in special education, received Social Security

disability benefits and was generally considered as "slow" by people who knew

him. Clark, 187 Wn.2d at 646.

       On appeal, the Supreme Court approved the trial court's ruling. It was

clear the purpose for offering the expert's testimony was to establish diminished

capacity, Le., that Clark's intellectual deficits "impaired his ability to understand

and assess the risks of his behavior, thereby reducing the likelihood that Clark

acted with a culpable mental state" when he shot the victim. Clark, 187 Wn.2d at

651.

              We do not question the principle that a criminal defendant
       has the constitutional right to present evidence in his or her own
       defense, and relevant observation testimony tending to rebut any
       element of the State's case, including mens rea, is generally
       admissible. However, expert opinion testimony that a defendant
       has a mental disorder that impaired the defendant's ability to form a
       culpable mental state is, by definition, evidence of diminished
       capacity. And where, as here, the defense does not plead
       diminished capacity, such testimony is properly excluded.

Clark, 187 Wn.2d at 653.

       Here, the trial court applied Clark when ruling on the State's motion in

limine. The court ruled that Schloredt's mother and sister could testify to their

observations of Schloredt's behavior, but as lay witnesses they could not testify

about his mental health diagnoses or history, and they could not say he was

refusing to take prescribed medications for his mental illness. Medication, the

court ruled, "is a back doorway of getting into diagnosis." Schloredt argues that

the court's ruling excluded "highly probative" evidence from which the jury could

have found that he did not act maliciously.


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No. 77013-6-1/6

       Evidentiary rulings are reviewed for abuse of discretion. If relevant

defense evidence is excluded, we review as a matter of law whether the

exclusion violated the constitutional right to present a defense. Clark, 187 Wn.2d

at 648-49.

       Schloredt did not formally assert a diminished capacity defense. Unlike

the defendant in Clark, he did not even try to offer expert testimony about his

mental state. He is correct that offering evidence to raise a reasonable doubt on

the essential element of malice is not equivalent to a claim that he lacked the

capacity to act maliciously. Testimony by lay witnesses who observed what the

defendant did and heard what he said is potentially relevant to a mens rea issue

if it shows what in fact was on the defendant's mind when he committed the act

at issue. Clark v. Arizona, 548 U.S. 735, 757, 126 S. Ct. 2709, 165 L. Ed. 2d 842

(2006). Nevertheless, we conclude the line drawn by the trial court did not

impinge upon Schloredt's constitutional right to challenge the State's proof of

malice.

       As the trial proceeded, the court permitted a substantial amount of

evidence that Schloredt's family members believed he was in a mental health

crisis of some kind. Officer Norton testified on cross-examination that he was

dispatched for a possible suicidal person and that Schloredt's mother told him

her son was suicidal. Officer Paquette testified similarly on cross-examination.

Schloredt's mother testified about Schloredt's erratic behavior.earlier that day,

which led her to call "the professionals at the crisis center" to get help. She

testified that when she called 9-1-1, she asked the dispatcher to send "the order



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No. 77013-6-1 / 7

for someone to take him to a hospital." Schloredt's sister testified that earlier in

the day, she attempted to take the lock off Schloredt's door "so the crisis health

people could come take him into the hospital for evaluation."

       Schloredt himself testified on direct examination that before the fire he

made statements about wanting to kill himself. Pressed by the prosecutor on

cross-examination, he admitted that he was angry at his mother and sister, that

he intentionally parked his truck in the middle of the street, that he went back to

get the container of gas while carrying a lighter, and that when he saw the officer

approaching he lit the container on fire. But when the prosecutor asked him to

admit that he threw the flaming gas container at the officer, he denied it. "That's

not what happened at all." He testified that when he lit the fire, he had "this

vision of punishing my mother and sister by pouring this gasoline on my head

and letting them watch it burn." But when he felt how hot the fire was, he had a

"moment of clarity. . . where I decided whatever I was doing was insane, you

know, and that I should be doing something else. . . . I decided this is really

stupid. This is going to be a really bad, really painful ordeal. . . . I flicked it, but

just barely flicked it away from me and Mom like this, and it flew over, flew and

landed, what, 10 feet. It didn't even go 10 feet." "And the only thing I did was try

to kill myself with that gasoline and that's the goddamn truth, I swear to God." He

said, "This whole thing was to punish them. The reason for the fire was for one

reason, to punish them for not being my family."

       Schloredt testified about what was on his mind and presented the

observations of his behavior by his mother and sister to support his position that


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No. 77013-6-1/ 8

he did not set the fire maliciously. Schloredt was able to argue in closing that his

behavior was not rational and that it was the result of a personal crisis for which

his family believed he needed professional help. The trial court properly

excluded evidence of a specific diagnosis of mental illness, which would have

been hearsay without an expert witness. The court correctly perceived that

allowing observational testimony that Schloredt behaved differently when he was

not taking prescribed medication would have been a "back doorway" into expert

diagnosis.

       The trial court's reasoning is equally applicable to Schloredt's alternative

argument that the excluded evidence was admissible as res gestae, to complete

the story of the crime. See State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615

(1995). There was extensive testimony about the events leading up to the fire

from which the jury could deduce that Schloredt's act was one of a troubled

individual. He fails to show that nonexpert testimony about schizophrenia and

prescription medication was necessary to give the jury a more complete picture.

       We conclude the excluded evidence was not relevant to rebutting the

State's proof of the element of malice. The trial court's ruling was not an abuse

of discretion.

Admission of Phone Conversation

       Six days after the incident, the jail recorded a telephone call between

Schloredt and his friend Gaddini. Gaddini talked to Schloredt about bail and

sentencing guidelines, and he told Schloredt of a friend's suggestion that

Schloredt's best defense would be to act insane. After Schloredt testified, the


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No. 77013-6-1/ 9

court permitted the prosecutor to introduce, for rebuttal, a redacted excerpt of the

recording for the stated purpose of showing that Schloredt's testimony about his

mental health was feigned or exaggerated. In the excerpt, references to

Gaddini's friend were redacted. As the jury heard it, Gaddini himself advised

Schloredt "to act insane":

      SCHLOREDT:             Hey, Louie.
      [GADDINI]:             Hey- Hey Phil.
      SCHLOREDT:             How are you? (Unintelligible.)
      [GADDINI]:             Phil?
      SCHLOREDT:             Yeah.
      [GADDINI]:             What's goin' on buddy?

       There is a gap for redacted conversations.

      [GADDINI]:           . . . Your best bet is to act insane.
      SCHLOREDT:           Yeah.
      [GADDINI]:           You know what I mean?
      SCHLOREDT:           Yeah.
      [GADDINI]: That you're retarded and you know, blah, blah, blah.
      That's the best bet you could do. You blacked out. You're a former
      drug addict and shit like that.
      SCHLOREDT:           Yeah.

Schloredt then testified on redirect that the advice to "act crazy" was "stating the

obvious" in view of the fact that he had a "history of crisis" since he was 19 years

old and was "diagnosed with a significant illness."

       Schloredt contends that the trial court erred in playing the recording

notwithstanding his objection that it was hearsay. He argues that the recording

was several levels of hearsay, in that Gaddini, who was not testifying, was

relaying advice from his friend, a third party who also was not testifying.

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

testifying at the trial or hearing, offered to prove the truth of the matter asserted.



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No. 77013-6-1/ 10

ER 801(c). Gaddini's advice to Schloredt was not offered to prove that

Schloredt's best defense was to act insane. It was offered to show that Schloredt

heard a suggestion that his best defense was to act insane and that he agreed

with it. Because Gaddini's part of the conversation was not offered for the truth

of the matter asserted, Schloredt's hearsay objection was not well taken.

       Schloredt also argued that by playing the recorded call with its suggestion

that Schloredt was faking a mental illness, the prosecutor opened the door to the

previously excluded evidence that he had a long-standing diagnosis of

schizophrenia and was not taking the medication prescribed for it. Noting again

that Schloredt had not raised an affirmative defense, the trial court declined to

admit the requested evidence. Schloredt contends this ruling was part of a

pattern of allowing the State to introduce evidence that he acted maliciously while

unfairly preventing him from introducing relevant evidence in response.

       Whether a party has opened the door to the admission of otherwise

inadmissible evidence is within a trial court's discretion. State v. Wafford, 199

Wn. App. 32, 34, 397 P.3d 926, review denied, 189 Wn.2d 1014, 402 P.3d 822

(2017). We find no abuse of discretion. Schloredt was able to make his point

that he had mental issues, albeit unspecified ones. For the reasons already

discussed, the trial court had a tenable basis for excluding nonexpert testimony

about Schloredt's diagnosis and his medication.




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No. 77013-6-1/ 11

Prior Act of Burning

       About two weeks before the charged arson, Schloredt had an argument

with his mother about his storage of excess construction materials at the house.

When she walked out instead of continuing to listen to him, Schloredt set the

living room couch on fire. His mother easily put out the fire, but called 911 for

assistance. During motions in limine, the trial court provisionally granted

Schloredt's motion to exclude evidence of this incident under ER 404(b).

       Schloredt's opening statement initiated his theme that he was suffering a

personal crisis on the day in question. He said the evidence would show that he

was threatening suicide and severe self-harm.

       On the second day of trial, the State moved for permission to introduce

evidence about the previous couch-burning incident, arguing that Schloredt

opened the door to it in his opening statement. The trial court granted the

motion. The State elicited testimony about the couch-burning from the

responding officer and from Schloredt's mother.

       Schloredt contends the court abused its discretion in allowing this

testimony. We disagree. His opening statement suggested, without expressly

saying so, that he was so debilitated by personal crisis that he was not capable

of forming malicious intent. This is the essence of diminished capacity, a

defense that has to be pleaded affirmatively and supported by expert testimony.

Because Schloredt did not plead diminished capacity, the State was unprepared

to offer expert testimony about his mental state. It was fair to allow the State to




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No. 77013-6-1/ 12

rebut the implied defense with evidence that might otherwise have been

excluded.

       And in any event, admission of the couch-burning incident was

permissible under ER 404(b) as proof of Schloredt's intent. "Evidence of prior

misconduct is generally admissible to show intent and the absence of accident

when a defendant admits doing the act, but claims that he did not have the

requisite state of mind to commit the charged offense." State v. Hernandez, 99

Wn. App. 312, 322, 997 P.2d 923(1999), review denied, 140 Wn.2d 1015,5

P.3d 8(2000). The court found the couch-burning incident was relevant to the

issue whether Schloredt acted with malice when he threw the burning gasoline.

This was a proper purpose.

      "Even when ER 404(b) evidence is admitted for a proper purpose and is

relevant to a material issue in the case, the trial court must still weigh the

probative value against its prejudicial effect." State v. Lough, 125 Wn.2d 847,

862, 889 P.2d 487 (1995). Unfair prejudice is prejudice that is more likely to

arouse an emotional response than a rational decision by the jury and suggests a

decision on an improper basis. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d

752(2000). Schloredt contends that the trial court erred in concluding that the

probative value clearly outweighed the potential prejudice. We disagree.

       Schloredt's mental state was the disputed element. Schloredt's trial

strategy as revealed in his opening statement was to argue that his actions were

driven by irrational thinking, not by malice. Evidence that he had recently set a

fire to vex his mother when he was angry with her was probative of the State's


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No. 77013-6-1/ 13

theory that he acted maliciously when he directed the flames at the officers. The

court instructed the jury to consider the incident only as evidence of malice. The

evidence did not suggest making a decision on an improper basis. We find no

abuse of discretion.

Sufficiency of Evidence

       Due process requires that the State prove every element of a crime

beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d

507 (2017). When a jury instruction is not objected to, it becomes the law of the

case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Thus, the

State assumes the burden of proving otherwise unnecessary elements that are

included without objection as part of the jury instructions. Hickman, 135 Wn.2d

at 102.

       Jury instruction 9 set forth the following elements to convict Schloredt:

      (1) That on or about September 21, 2015, the defendant caused a
      fire or explosion;
      (2) That the fire or explosion was manifestly dangerous to human
      life, including fire fighters;
      (3) That defendant acted knowingly and maliciously; and
      (4) That the acts occurred in the State of Washington.

CP 191 (emphasis added). This language closely follows the statutory definition

found in RCW 9.A.48.020(1) and the pattern jury instruction. 11A WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 80.01. However,

in the pattern jury instruction, "including fire fighters" is enclosed in brackets,

indicating that the language does not need to be used in every situation. In this

case, the phrase "including fire fighters" may have been unnecessary, but under



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No. 77013-6-1/ 14

Hickman, the State had the burden of proving the second element with that

phrase included.

       There was evidence that Schloredt's fire could have presented a danger to

firefighters if the officers had not quickly extinguished it before firefighters arrived.

Still, it is undisputed that no firefighters were involved in putting out the fire.

Schloredt contends that because the fire was not manifestly dangerous to any

particular firefighter, the evidence was insufficient to prove the second element

and the charge must be dismissed with prejudice.

       The instruction as given did not require proof that the fire was dangerous

to a particular firefighter. The most natural interpretation of the instruction is that

the fire must be manifestly dangerous to human beings as opposed to occurring

in a setting where no person is nearby. Firefighters as a group are specifically

mentioned to dispel any notion that firefighters, who are trained to fight fire, are

not endangered by it. We reject Schloredt's challenge to the sufficiency of the

evidence.

       Affirmed.


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WE CONCUR:




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