    / F I t;E ",
         IN CLERKS OFFICE
IUPIII!ME COURT, ST.t.TE OF WASHII«mlN
     DATE      JUL 2 1 2ll16
 ~~~~·
~ CHIEF JIJfJTICE
                                                                      Supreme Court Clerk




          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                              )
   STATE OF WASHINGTON,                       )        No. 92261-6
                                              )
                        Petitioner,           )
                                              )        EnBanc
              v.                              )
                                              )
   SAYIDEN HUSSEIN MOHAMED,                   )        Filed       .IUL 2 i 20!6
                                              )
                        Respondent.           )
  ______________________ )

            YU, J.-This case requires us to determine whether it is permissible to

  impeach a hearsay declarant with his or her prior convictions under certain

  circumstances. ER 806 allows for impeachment of a hearsay declarant as if the

  declarant were a testifying witness. In this case, the defendant did not testify and

  his own out-of-court statements were admitted into evidence through his expert

  witness' testimony. Defense counsel expressly declined a limiting instruction

  offered by the trial court regarding the purpose of the defendant's statements. The

  State then cross-examined the expert witness with the defendant's previously

  admitted prior convictions pursuant to ER 806.
State v. Mohamed, No. 92261-6

      The defendant contends that his out-of-court statements were not admitted

for the truth of the matter asserted, barring impeachment pursuant to ER 806.

Because defense counsel declined an instruction that would have limited the

evidence to its proper purpose, we hold that the statements were also offered for

their truth and that impeachment of the defendant's credibility was therefore

permissible pursuant to ER 806. Consequently, we reverse the Court of Appeals

and reinstate the convictions.

                       FACTUAL AND PROCEDURAL HISTORY

      The underlying facts of defendant Sayiden Mohamed's arrest are

straightforward and undisputed. Two police officers were dispatched to the

defendant's residence to follow up on several 911 hang-up calls that had originated

from the house. Upon speaking with him, the officers observed that the defendant

was intoxicated but determined that no further action was needed. Shortly after

ending the initial contact, the officers received information that there was an

outstanding warrant for the defendant's arrest. When the officers returned to carry

out the arrest, the defendant became hostile and belligerent and resisted the

officers' attempts to place him in the patrol car. While the officers were in the

process offorcibly subduing him until backup arrived, the defendant spit in both of

the officers' faces. He continued to spit at the officers even after a spit mask was

placed over his head. Once the defendant was restrained, the officers were able to



                                          2
State v. Mohamed, No. 92261-6

place him in the patrol car and take him to jail. The defendant was charged with

two counts of third degree assault for spitting on the arresting officers.

      During pretrial motions, the State moved to have the defendant's prior

convictions involving dishonesty or false statements admitted for impeachment

purposes pursuant to ER 609(a)(2), should the defendant choose to testify. The

motion was granted by agreement between the parties.

      The defendant did not testify at trial, but sought to establish a diminished

capacity defense based on extreme intoxication. The only evidence that the

defendant offered was expert testimony from Dr. Robert Julien, a pharmacologist

specializing in the effect of drugs on brain function. Anticipating that Dr. Julien's

testimony would relate out-of-court statements made by the defendant, the State

filed a supplemental trial memorandum before Dr. Julien took the stand to apprise

the court of its intention to cross-examine Dr. Julien with the defendant's

previously admitted prior convictions pursuant to ER 806.

      Determining that impeachment was permissible in accordance withER 806,

the court granted the State's motion to cross-examine Dr. Julien with the

defendant's prior convictions. The court advised counsel that a limiting instruction

is typically given when "an expert was going to be relating material that was not

admissible as substantive evidence ... explaining to the jury the limited purposes

under which this material can be offered." Verbatim Report ofProceedings (VRP)



                                           3
State v. Mohamed, No. 92261-6

(July 1, 2014) at 27. Consequently, the court decided to prohibit the prosecution

from specifying the details of the convictions due to the "novel situation" of

"indirect impeachment" that was presented. Id. at 28-29.

      Additionally, before Dr. Julien testified, the court offered to provide a

limiting instruction to the jury stating that the defendant's out-of-court statements

were offered only to show the basis of Dr. Julien's opinion. The State initially

agreed to the instruction, but changed its position after defense counsel expressly

requested that no instruction be offered at all. The court agreed not to give the

limiting instruction prior to Dr. Julien's testimony.

      Dr. Julien testified that the defendant was in a state of alcohol-induced

blackout that prevented him from forming the requisite legal intent to commit

assault. His opinion was based on a phone interview conducted with the defendant

and a review of the police and witness reports. During his testimony, Dr. Julien

related the defendant's out-of-court statements regarding the quantity of alcohol he

had consumed. Based on the defendant's self-report, Dr. Julien estimated that the

defendant's blood alcohol concentration (BAC) was 0.4 percent at the time of the

arrest, "enough to guarantee blackout." Id. at 55.

      The State cross-examined Dr. Julien with the defendant's prior convictions

for theft. Dr. Julien conceded that the accuracy of his conclusions depended on the




                                           4
State v. Mohamed, No. 92261-6

veracity of the defendant's statements, but testified that he would not have taken

the prior convictions into consideration in generating his report.

      After the case was submitted to the jury, defense counsel informed the court

that she had just discovered State v. Lucas, 167 Wn. App. 100, 271 P.3d 394

(2012), 1 which she believed prohibited impeachment of the defendant with his

prior convictions through cross-examination of the expert witness. Counsel stated

that she would file a motion for mistrial based on Lucas if the jury came back with

a guilty verdict. The jury found the defendant guilty as charged, and defense

counsel filed a motion for mistrial or a new trial in the alternative.

       After hearing arguments on the defense's motion, the court concluded that

Lucas was controlling precedent and it had erred by permitting impeachment of the

defendant pursuant to ER 806. The court granted the motion for new trial in

accordance with CrR 7.5(a)(6). The State appealed.

       Finding the case indistinguishable from Lucas, Division One of the Court of

Appeals affirmed the trial court's decision to grant the motion for new trial in a

published opinion. State v. Mohamed, 189 Wn. App. 533, 535, 358 P.3d 442

(2015). The State then petitioned for review to this court, which we granted

pursuant to RAP 13.4(b). State v. Mohamed, 184 Wn.2d 1033 (2016).



       1
        Although Lucas was decided in 2012, neither defense counsel nor the trial court was
aware of the case.


                                              5
State v. Mohamed, No. 92261-6

                                      ANALYSIS

      "Except where questions of law are involved, a trial judge is invested with

broad discretion in granting motions for new trial. The exercise of that discretion

will not be disturbed on appeal absent an abuse of discretion." State v. Williams,

96 Wn.2d 215, 221, 634 P.2d 868 (1981). Where, as here, a motion for new trial is

based on an alleged legal error in interpreting an evidentiary rule, the order

granting a new trial is reviewed de novo. State v. Foxhoven, 161 Wn.2d 168, 174,

163 P.3d 786 (2007).

A. DEFENDANT'S HEARSAY STATEMENTS

      Out-of-court statements "offered in evidence to prove the truth of the matter

asserted" are hearsay, ER 801(c), and generally inadmissible, ER 802. When

hearsay statements are admitted into evidence, however, ER 806 permits

impeachment of the hearsay declarant as if he or she had taken the stand as a

witness:

             When a hearsay statement ... has been admitted in evidence,
      the credibility of the declarant may be attacked, and if attacked may
      be supported, by any evidence which would be admissible for those
      purposes if declarant had testified as a witness.

      As the rule states, impeachment of the declarant is permissible only when a

hearsay statement is admitted into evidence. See State v. Fish, 99 Wn. App. 86,

95, 992 P.2d 505 (1999) ("ER 806 authorizes impeachment of a declarant only

when the declarant's statement has been offered to prove the truth of the matter


                                           6
State v. Mohamed, No. 92261-6

asserted. If the statement is offered for some other nonhearsay purpose, ER 806

does not apply."). Thus, the applicability ofER 806 in this case depends on

whether the defendant's out-of-court statements were offered for the truth of the

matter asserted, therefore constituting hearsay, or if they were limited to some

other nonhearsay purpose.

      To determine whether the defendant's statements were offered for their truth

or some other nonhearsay purpose, we must look closely at the events that

unfolded at trial to evaluate the context in which the statements were actually

offered and used. The record shows that the defendant's statements were not

offered solely for the nonhearsay purpose of providing the factual basis for

Dr. Julien's expert opinion; they were also offered for the hearsay purpose of

proving their truth. Therefore, impeachment of those statements with the

defendant's prior convictions was permissible in accordance withER 806.

      The defendant contends that his out-of-court statements were not offered for

their truth, but rather for the nonhearsay purpose of showing the basis for

Dr. Julien's expert opinion. It is unquestionable that this is a nonhearsay purpose

for which the defendant's statements were relevant, see ER 703 and 705, but the

defendant's assertion is not supported by what actually happened at trial. It is

evident from the record that the defendant's statements were, in fact, offered for

their truth because (1) the defendant offered his own out-of-court statements,



                                          7
State v. Mohamed, No. 92261-6

(2) defense counsel expressly declined a limiting instruction, (3) the defendant's

out-of-court statements were the only evidence that could support the expert

witness' opinion, and (4) defense counsel agreed to an instruction that directed the

jury to consider the defendant's credibility. Based on these key facts, the

defendant's statements were effectively admitted for their truth. Furthermore,

Lucas must be overturned to the extent that the decision does not mention whether

or not a limiting instruction had been offered, given, or declined in that case.

      1.     Defense counsel declined a limiting instruction; therefore, the jury
             was permitted to consider the defendant's statements for their truth

      Expert witnesses are permitted to base their opinions on otherwise

inadmissible evidence, so long as it is "of a type reasonably relied upon by experts

in the particular field in forming opinions or inferences upon the subject." ER 703.

An expert may testify to these underlying facts or data. ER 705. It was

permissible for Dr. Julien to rely on the defendant's out-of-court statements

regarding how much alcohol he consumed to calculate the defendant's BAC. The

issue that the trial court wrestled with was the fact that the out-of-court statements

were admissible in accordance withER 705 to show the basis of Dr. Julien's




                                           8
State v. Mohamed, No. 92261-6

opinion, but inadmissible as substantive evidence of how much alcohol the

defendant had actually consumed. 2

       When evidence is admissible for one purpose but inadmissible for another,

ER 105 directs that "the court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly." Recognizing that the defendant's

statements could be used by the jury for an improper purpose, the trial court

offered to provide a limiting instruction and even proffered proposed language:

              The limiting instruction that I have in mind goes something like
       this: Ladies and gentlemen, you are about to hear the testimony of
       Dr. Robert Julien. And before he takes the stand, the Court is going to
       provide you the following instruction. Statements made by the
       defendant to Dr. Julien are being offered only for the limited purpose
       of seeking to help explain Dr. Julien's opinions and are to be
       considered by you only for that limited purpose.




       2
         It is undisputed that an expert witness may rely on and testify to otherwise inadmissible
evidence that forms the basis of his or her opinion pursuant to ER 703 and 705. See In re Det. of
Coe, 175 Wn.2d 482, 513-14, 286 P.3d 29 (2012) ("A trial court may allow an expert to reveal
the underlying basis for her opinion if doing so will help the jury understand the expert's
opinion."); State v. Russell, 125 Wn.2d 24, 74, 882 P.2d 747 (1994) ("ER 703 thus permits
expert opinion testimony based on hearsay data that would be otherwise inadmissible in
evidence, while ER 705 ... authorizes the admission of expert opinion testimony without prior
disclosure of the facts or data which underlie the opinion."). The defendant incorrectly asserts
that allowing impeachment pursuant to ER 806 is inconsistent with these evidentiary rules. The
cases that the defendant relies on for this point are unhelpful because they involve testimony that
was limited to its proper purpose or was properly excluded by the trial court. See State v.
Martinez, 78 Wn. App. 870, 881, 899 P.2d 1302 (1995) (trial court did not abuse its discretion in
limiting the scope of expert witness' testimony); State v. Anderson, 44 Wn. App. 644, 652-53,
723 P.2d 464 (1986) (exclusion of defense's expert witness testimony regarding defendant's out-
of-court statements was not an abuse of discretion); State v. Fullen, 7 Wn. App. 369, 383-84, 499
P.2d 893 (1972) (exclusion of psychiatrist's testimony about defendant's out-of-court statements
was harmless error). The defendant's hearsay statements in this case were neither properly
limited nor excluded.


                                                 9
State v. Mohamed, No. 92261-6

VRP (July 1, 2014) at 29-30. Plainly, this instruction would have been sufficient

to limit the defendant's out-of-court statements to their proper purpose. Had the

court given this instruction, the evidence would have been admitted solely for a

nonhearsay purpose, barring impeachment pursuant to ER 806.

      However, after the court offered its limiting instruction, the following

colloquy took place:

             MS. SILBOVITZ [defense counsel]: Your Honor, I'm
      considering it and thinking it through my head. Generally I'm not in
      favor oflimiting instructions. I'm not-- I'm not asking you to provide
      the limiting instruction.
             THE COURT: Understood. With that in mind, does that
      change the State's position at all?
             MR. DICKINSON [deputy prosecutor]: Well, if it's a tactical
      decision by the defense not to give a limiting instruction, I don't
      disagree then. I think then we should not give it.

I d. at 31 (emphasis added). Thus, by the agreement of the parties, the court did not

offer a limiting instruction prior to Dr. Julien's testimony.

      We presume that a jury will follow the instructions provided to it. State v.

Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015) (citing State v. Grisby, 97

Wn.2d 493, 499, 647 P.2d 6 (1982)). The corollary to this presumption is that

where evidence could be relevant for multiple purposes, a jury cannot be expected

to limit its consideration of that evidence to a proper purpose without an

appropriate instruction to that effect. Moreover, in the absence of a limiting

instruction, the jury is permitted to consider the evidence for any purpose,



                                           10
State v. Mohamed, No. 92261-6

including its truth. See State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997)

("[A]bsent a request for a limiting instruction, evidence admitted as relevant for

one purpose is deemed relevant for others."); State v. Kontrath, 61 Wn.2d 588,

591, 379 P.2d 359 (1963) ("The court's refusal to give appellant's requested

instruction allowed the jury to give unlimited consideration to the evidence.").

       In fact, the jury here was actually instructed that "[i]n order to decide

.whether any proposition has been proved, you must consider all of the evidence

that [the court] ha[s] admitted that relates to the proposition." Clerk's Papers (CP)

at 90. There was further instruction to "consider information that the defendant

has been convicted of a crime only in deciding what weight or credibility to give

the defendant's statements." ld. at 94 (emphasis added). Defense counsel

explicitly agreed to this instruction without objection or modification. 3 In the

absence of any limitations, the jury was not only permitted to consider the

defendant's statements as substantive evidence, not merely as the factual basis of

the expert's opinion, but was also directed to evaluate the defendant's statements

for their credibility.




       3
          The jury instruction that was given was a slight modification to the recommended jury
instruction for impeachment with prior conviction evidence when the defendant is a witness.
Compare CP at 94 (Instr. 4), with 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 5.05, at 172 (3d ed. 2008) (WPIC). Defense counsel's own proposed
jury instmction was identical to WPIC 5.05.


                                               11
State v. Mohamed, No. 92261-6

       As the State correctly points out, "If a party wishes to offer a statement for a

non-hearsay purpose, that party must request an instruction precluding

consideration of the truth of the statement." Suppl. Br. ofPet'r at 6. We have held

that when a party fails to request a limiting instruction, that party is precluded from

arguing that the lack of a limiting instruction was harmful error. State v. A than,

160 Wn.2d 354, 383, 158 P.3d 27 (2007). Here, defense counsel did not merely

fail to request a limiting instruction; she expressly declined the court's offer to

provide one. A party cannot refuse an instruction that would have limited the

evidence to its proper purpose and then later claim that the evidence should be

treated as if the limiting instruction had been given. Cf State v. Boyer, 91 Wn.2d

342, 345, 588 P.2d 1151 (1979) (invited error doctrine). 4

       2.      Defendant's out-ofcourt statements were the only evidence of a
               foundational fact necessary to his theory of the case

       The consequences of declining a limiting instruction were compounded by

the way in which the defendant's out-of-court statements were used to support his




       4
         The defendant asserts the State, as the opponent to the evidence, had the burden of
requesting a limiting instruction. Suppl. Br. ofResp't at 17-20. We have held that failure to
request a limiting instruction waives the right to assign error to the lack of a limiting instruction
on appeal. See Lockwoodv. AC&S, Inc., 109 Wn.2d 235,255,744 P.2d 605 (1987); State v.
Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999); State v. Barber, 38 Wn. App. 758,
771, 689 P.2d 1099 (1984). However, the State has not assigned error to the trial court's failure
to provide a limiting instruction, and we have consistently held that a trial court has no obligation
to provide a limiting instruction sua sponte. See State v. Russell, 171 Wn.2d 118, 123-24,249
P.3d 604 (2011) (citingAthan, 160 Wn.2d at 383; Myers, 133 Wn.2d at 36; State v. Hess, 86
Wn.2d 51, 52, 541 P.2d 1222 (1975); State v. Noyes, 69 Wn.2d 441, 447,418 P.2d 471 (1966)).


                                                 12
State v. Mohamed, No. 92261-6

theory of the case. Because these statements were the only evidence of a

foundational fact on which his only defense rested, it was necessary for the jury to

consider the statements for their truth.

      The defendant's voluntary intoxication defense was based solely on

Dr. Julien's testimony. Since there was no toxicology report, Dr. Julien had to

calculate the defendant's BAC based on the defendant's self-report of how much

alcohol he had consumed prior to the arrest. The officers testified that they

believed the defendant was intoxicated because he smelled of alcohol and was

slurring his speech, but this testimony only corroborates that the defendant was

intoxicated. It provides no basis for calculating the defendant's BAC. 5

       Furthermore, Dr. Julien's testimony was predicated entirely on the

truthfulness ofthe defendant's statements. On cross-examination, Dr. Julien

admitted that if the defendant's self-report was "garbage," then his conclusions

would also be "garbage." VRP (July 1, 2014) at 69. Dr. Julien further testified

that he did not assess the veracity of the defendant's statements, but stated that he

would "have to leave it to the jury, to the trier of fact, to determine the accuracy, or

lack thereof, of this individual." Id. at 68-69. The truthfulness of defendant's out-




       5
         Respondent's counsel conceded at oral argument that there was no independent
corroborating evidence of the quantity of alcohol the defendant had consumed. Wash. Supreme
Court oral argument, State v. Mohamed, No. 92261-6 (June 7, 20 16), at 17 min., 51 sec., audio
recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.


                                              13
State v. Mohamed, No. 92261-6

of-court statements went directly to the viability of his voluntary intoxication

defense. Thus, in order to determine the weight and credibility of Dr. Julien's

opinion, the jury had to consider whether the defendant's statements were truthful.

       That the defendant's statements were, in fact, offered for their truth is made

evident by the fact that if the defendant's statements were false, Dr. Julien would

not have had any basis for his opinion and his testimony would have been

irrelevant. The trial court has the discretion to exclude evidence that lacks

relevance. 6 ER 402. Thus, within the context of the defendant's theory of the

case, the out-of-court statements were, in effect, offered for their truth, not merely

to show the basis of the expert's opinion.

B.     STATE V. LUCAS

       The defendant contends that the trial court and Court of Appeals correctly

determined that Lucas barred impeachment with his prior convictions in this case.

The Court of Appeals in Lucas correctly stated that "out-of-court statements

offered at trial as the basis of an expert's opinion are not hearsay and, thus, do not

expose the declarant to impeachment under ER 806." 167 Wn. App. at 109-10.

However, this statement is true only if the evidence is limited to its proper purpose.

The court made no mention of whether a limiting instruction was offered to the


       6  In fact, before Dr. Julien took the stand, the prosecution brought a foundational
objection to Dr. Julien's testimony, asserting that he lacked the basis for his opinion because he
relied solely on the defendant's self-report.


                                                14
State v. Mohamed, No. 92261-6

jury. Consequently, Lucas is overturned to the extent that it bars impeachment

pursuant to ER 806 even in instances where hearsay evidence is not limited to its

proper purpose. 7

C.     IMPEACHMENT WITH PRIOR CONVICTION EVIDENCE

       ER 806 permits the credibility of a hearsay declarant to be attacked "by any

evidence which would be admissible for those purposes if declarant had testified as

a witness." (Emphasis added.) According to the plain language of the rule, the

defendant could be impeached with his prior convictions, which were admissible

pursuant to ER 609 and had been admitted for impeachment purposes during

pretrial motions.

       Since the jury had to determine whether the defendant's out-of-court

statements to Dr. Julien were true, the jury was entitled to consider the evidence

necessary to carry out this responsibility. This includes evidence showing that the

declarant is dishonest or untrustworthy. The Rules of Evidence contemplate that

prior conviction evidence is admissible for this purpose. ER 609(a)(2).

       Although the danger of undue prejudice resulting from the admission of

prior convictions is undeniable, the defendant makes no assertion that

impeachment with his prior convictions was unduly prejudicial. In fact, defense


       7 Defendant's  appellate counsel stated at oral argument that she was defense counsel in
Lucas and that a limiting instruction was never raised. Wash. Supreme Court oral argument,
supra, at 24 min., 22 sec.


                                               15
State v. Mohamed, No. 92261-6

counsel's only objection at trial was for relevance. Consequently, the question of

prejudice is not before us, and impeachment pursuant to ER 806 was permissible in

accordance with the plain language of the evidentiary rules.

                                     CONCLUSION


      ER 806 permits impeachment of a hearsay declarant to the same extent as a

witness. It is a broad rule that applies to all declarants, all forms of impeachment,

all types of cases, and all parties. The purpose of this rule is to provide the jury

with the information necessary to weigh the credibility of the evidence presented.

      This particular case presents an unexpected but permissible use ofER 806:

impeachment of a nontestifying defendant in a criminal case through cross-

examination of his own expert witness. In light of the facts before us, we hold that

where (1) a defendant offers his or her own out-of-court statements through an

expert witness, (2) no limiting instruction is requested or provided, (3) the jury is

directed to consider the defendant's credibility, and (4) no other evidence was

offered that could form the foundation of the expert's opinion, the defendant's out-

of-court statements are admitted for the truth ofthe matter asserted and may be

considered by the jury as substantive evidence. Under these specific

circumstances, impeachment pursuant to ER 806 is allowed.

      We reverse the Court of Appeals and reinstate the conviction.




                                           16
State v. Mohamed, No. 92261-6




WE CONCUR:




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