IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 73813-5-1
                     Respondent,
                                                  DIVISION ONE                     CD

              v.
                                                                                   CO
                                                  UNPUBLISHED OPINION
                                                                                   3>-
SHAUN WEBB,

                     Appellant.                   FILED: November 28, 2016         JL


      Trickey, A.C.J. — Shaun Webb appeals his conviction for custodial assault.

He argues that the trial court erroneously granted the State's motion in limine

barring evidence of his mental illness, thereby precluding him from presenting a

defense. Because his counsel did not raise a diminished capacity defense, we

hold that barring evidence of his mental illness did not interfere with his right to

present a defense. Webb also argues that his trial counsel failed to provide

effective representation by not raising the defense of diminished capacity. The

record is insufficient to find ineffective assistance of counsel, and we affirm.

                                       FACTS

       Webb is an inmate at the Washington State Department of Corrections

Monroe Correctional Complex. He resides in the Special Offender Unit, which is

reserved for inmates with diagnosed mental health conditions and other behavioral

difficulties. On May 14, 2014, Webb met with Alicia St. John, his mental health

counselor. The meeting took place in the Correctional Complex's program room,

and Sergeant Dennis Bennett accompanied Webb.

       During the meeting, Webb became agitated. Sergeant Bennett repeatedly

ordered Webb to return to his cell. St. John was instructed to leave the program
No. 73813-5-1/2


room and Sergeant Bennett issued a distress signal for the Quick Response Strike

Team, who responded rapidly.

      Sergeant Bennett ordered Webb to kneel down, which Webb refused to do.

Sergeant Bennett grabbed Webb's right arm, which Webb pulled away. Webb

closed his hand into a fist, and punched Sergeant Bennett in his temple. Multiple

correctional officers tackled Webb,      restrained   him,   and escorted    him to

segregation.

      Webb was charged with one count of custodial assault against Sergeant

Bennett.


       Prior to trial, the State moved in limine to exclude evidence related to

Webb's mental health diagnoses or conditions. Webb stated that he was only

raising a general denial defense, not one based on diminished capacity.

      The trial court granted the State's motion in limine, reasoning that Webb's

mental condition was not relevant to an element of custodial assault if a defense

of diminished capacity was not raised.

      The jury convicted Webb of custodial assault. He appeals.

                                    ANALYSIS

                                 Motion in Limine

      Webb argues that the trial court deprived him of his constitutional right to

present a defense when it granted the State's motion in limine to exclude evidence

relevant to his mental illness. We disagree.

       "The right of an accused in a criminal trial to due process is, in essence,

the right to a fair opportunity to defend against the State's accusations.'" State v.
No. 73813-5-1/3


Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v.

Mississippi. 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). This

encompasses a defendant's right to an opportunity to be heard in his defense,

including the rights to confront and cross-examine witnesses against him and offer

testimony. State v. Darden. 145 Wn.2d 612, 620, 41 P.3d 1189 (2002) (citing

Washington v. Texas. 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L Ed. 2d 1019 (1967)).

      This right is not absolute, and defendants do not have a right to have

irrelevant evidence admitted. Darden, 146 Wn.2d at 624; ER 402. But if evidence

is relevant, it must be admitted unless the State can show that the evidence is so

prejudicial that it would disrupt the fairness of the fact-finding process. Darden,

145Wn.2dat622.

      "A person is guilty of custodial assault ifthat person is not guiltyof an assault

in the first or second degree and where the person ... [ajssaults a full or part-time

staff member or volunteer ... at any adult corrections institution or local adult

detention facilities who was performing official duties at the time of the assault."

RCW 9A.36.100(1)(b). Washington courts apply common law definitions of the

elements of "assault." State v. Aumick, 73 Wn. App. 379, 382, 869 P.2d 421

(1994). An essential element of assault is the specific intent either to create

apprehension of bodily harm or to cause bodily harm. State v. Bvrd, 125 Wn.2d

707, 713, 887 P.2d 396 (1995).

       A defendant may raise the defense of diminished capacity to argue that he

or she lacked the ability to form a specific intent due to a mental disorder not

amounting to insanity. State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973).
No. 73813-5-1/4



      A decision to admit or exclude evidence lies within the sound discretion of

the trial court. State v. Neal. 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). A court

"necessarily abuses its discretion by denying a criminal defendant's constitutional

rights." State v. Perez. 137 Wn. App. 97, 105, 151 P.3d 249 (2007). This court

reviews a claim of denial of constitutional rights de novo. Brown v. State, 155

Wn.2d 254, 261,119 P.3d 341 (2005). Therefore, this court reviews Webb's claim

of denial of his Sixth Amendment rights de novo. State v. Iniquez, 167 Wn.2d 273,

280-81, 217 P.3d 768 (2009).

      Webb argued that the officers' knowledge of his mental status was relevant

to show the officers' motivation and bias in their actions toward him. Webb argued

that the officers knew of his mental illness, and the evidence would be relevant to

showing the jury the context of the incident. In addition, Webb argued it would be

relevant in terms of cross-examining the officers on their actions toward Webb.

Webb specifically stated that he was not planning to offer evidence of his mental

condition for the purpose of proving the bias of the State's witnesses.

      These arguments are insufficient to show that evidence of Webb's mental

status is relevant to his charge of custodial assault absent a defense of diminished

capacity. Webb was not offering evidence of his mental status to show that one

the elements of custodial assault had not been met. He was also not offering it to

show that the officers would be biased in their testimony against him. Rather, it

was being offered to show the officers' actions toward Webb. Because evidence

of Webb's mental status was not being offered to show that the elements of
No. 73813-5-1/5


custodial assault had not been met or that the officers may have been biased

against him in their testimony at trial, the evidence was not relevant.

       On appeal, Webb argues that his mental illness was relevant to his

diminished capacity. A defendant may raise the defense of diminished capacity to

argue that he or she lacked the ability to form a specific intent due to a mental

disorder not amounting to insanity. Ferrick. 81 Wn.2d at 944. A defendant must

produce expert testimony in support of a diminished capacity defense. State v.

Atsbeha. 142 Wn.2d 904, 914, 16 P.3d 626 (2001). A witness may be qualified as

an expert by knowledge, skill, experience, training, or education. ER 702. The

defendant must disclose the identities and statements of those he intends to call

as witnesses, the general nature of the defense raised, and a list of expert

witnesses and the content of their testimony.         CrR 4.7(b)(1), (b)(2)(xiv), (g).

Washington courts do not consider issues raised for the first time on appeal unless

it is a manifest error affecting a constitutional right. RAP 2.5(a)(3).

       Prior to trial, Webb stated that he was raising a general denial defense, not

one based on diminished capacity. This was before the trial court had ruled on the

State's motion in limine.    Webb was not precluded from raising the defense

because of the court's granting of the motion in limine; he had already decided to

not raise it. The trial court's granting of the motion did not prevent Webb from

presenting a defense.

       Webb also failed to produce an expert witness to corroborate a defense of

diminished capacity, but argues on appeal that his mental health counselor, St.

John, would have qualified. At trial, Webb offered St. John as a defense witness
No. 73813-5-1/6


to testify generally about his mental health status. Webb did not provide any

information to qualify St. John as an expert witness. Webb's arguments on appeal

that St. John was an expert witness who could testify as to his ability to form intent

do not remedy trial counsel's failure to raise this issue below.

       By not raising a diminished capacitydefense, Webb did not put the effectof

his mental status on his ability to form the requisite intent into issue. The trial court

reasoned that, without a diminished capacity defense, Webb's mental status was

irrelevant to showing that an assault had occurred. We agree.

                          Ineffective Assistance of Counsel

       Webb argues that he was denied effective assistance of counsel when his

trial counsel failed to pursue a diminished capacitydefense. The record beforethe

court is insufficient to sustain a finding of ineffective assistance of counsel.

       To prevail on a claim of ineffective assistance of counsel, the defendant
must show that "(1) defense counsel's representation was deficient in that it fell
below an objective standard of reasonableness and (2) the deficient performance
prejudiced the defendant." State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916
(2009); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Legitimate trial strategy cannot serve as the basis for a claim of
ineffective assistance of counsel. State v. Aho. 137 Wn.2d 736, 745-46, 975 P.2d

512 (1999). An appellate court presumes that the defendant was properly
represented and that performance was not deficient. State v. Lord, 117 Wn.2d
829, 883, 822 P.2d 177 (1991). Prejudice results when there is a reasonable
probability that, but for counsel's errors, the result of the trial would have been
No. 73813-5-1/7


different. State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If either

part of the test is not satisfied, the inquiry ends. Lord, 117 Wn.2d at 883-84; State

v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).

       Where a claim of ineffective assistance of counsel is brought on direct

appeal, the reviewing court will not consider matters outside the trial record. State

v. Crane, 116Wn.2d315, 335, 804 P.2d 10. cert, denied, 501 U.S. 1237, 111 S.

Ct. 2867, 115 L. Ed. 2d 1033 (1991); accord State v. Stockton, 97 Wn.2d 528, 530,

647 P.2d 21 (1982) (matters referred to in the briefing but not included in the record

cannot be considered on appeal).        The burden is on the defendant alleging

ineffective assistance of counsel to show deficient representation based on the

record established in the proceedings below. State v. McFarland, 127 Wn.2d 332,

335, 899P.2d 1251 (1995).

       Several cases have found ineffective assistance of counsel in the context

of a failure to raise a defense. However, these cases involved instances where

significant evidence in the record supported a defense theory that trial counsel did

not adequately pursue. See State v. Cienfueqos. 144 Wn.2d 222, 225, 25 P.3d

1011 (2001) (defendant's impairment due to withdrawal symptoms and cognitive

disorder supported by expert testimony); In re Pers. Restraint of Humbert, 138 Wn.

App. 924, 928-29, 158 P.3d 1282 (2007) (defendant's testimony supported

defense of reasonable belief that other person was not mentally incapacitated to

attempted rape); State v. Powell, 150 Wn. App. 139, 154-56, 206 P.3d 703 (2009)

(testimony of defendant, witness, and victim supported defense of reasonable
belief that other person was not mentally incapacitated to attempted rape);
No. 73813-5-1/8


Thomas, 109 Wn.2d at 227-28 (defense theory of the case was that the defendant

was too intoxicated to form the requisite intent, but counsel did not request a

diminished capacity instruction or make the subjectivity of the required intent clear

despite introduction of facts supporting the instructions); State v. Tilton, 149 Wn.2d

775, 784, 72 P.3d 735 (2003) (despite incomplete record, sufficient evidence

submitted during trial and references during sentencing hearing to expert opinions

supporting unpursued defense theory to merit new trial).

       A claim of ineffective assistance of counsel presents a mixed question of

fact and law and is reviewed de novo. In re Pers. Restraint of Fleming, 142 Wn.2d

853,865, 16P.3d610(2001).

       Here, the record is insufficient to support a finding of ineffective assistance

of counsel. Webb's trial counsel was aware of Webb's mental illness diagnoses.

But there is no evidence in the record explaining how these diagnoses would have

been related to a diminished capacity defense. Webb did not produce any expert

testimony or affidavits to show that his mental illness affected his ability to form the

intent required for custodial assault. The record does not disclose the reason why

Webb's trial counsel elected to not pursue a diminished capacity defense, and we

cannot evaluate whether this decision fell within the range of acceptable

representation.

       We disagree with the State's position that the record is complete and

Webb's testimony at trial is sufficient to find that he did not suffer from diminished

capacity. We are not in a position to evaluate Webb's mental state at the time of

the incident. The trial court excluded evidence of Webb's mental health status, no



                                           8
No. 73813-5-1/9


testimony or affidavits concerning Webb's mental condition were submitted, and

Webb's trial testimony is not a sufficient basis for the court to evaluate his

diminished capacity.

      We affirm.




                                               "T^cv j AcJT
WE CONCUR:




^(L.y^g.cy                                            Qzrt.^T.
