                                                                           FILED
                                                                        MARCH 12, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                           )
                                               )          No. 34670-6-III
                      Respondent,              )
                                               )
       v.                                      )
                                               )
JOSEPHINE ELLEN JOHNSON,                       )          UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       KORSMO, J. — Josephine Johnson appeals from her conviction for first degree

assault of her husband, arguing that the trial court erred in refusing to instruct on self-

defense, in excluding expert testimony, and in receiving and instructing the jury

concerning the special verdicts. We affirm.

                                           FACTS

       Josephine Johnson shot her husband, Donald Bitterman, on December 23, 2014.

How and why she did so are questions to which she gave varying answers over time.

Those varying answers present the basis for several of her arguments in this appeal.

       According to Bitterman, Ms. Johnson walked up to him after overhearing a

telephone conversation he was having with his sister, said “I don’t want to do this, but I
No. 34670-6-III
State v. Johnson


have to,” and then pulled out a gun and shot him. Johnson’s son, Arthur Osborn, said

that she ran into his nearby trailer still holding the gun. Osborn took the gun from her

and went to the house to aid Bitterman.

       Johnson told the police that afternoon that she was planning to leave Bitterman

that day, but that her husband would not let her take her belongings. She could not take it

anymore, so she got a gun out of a bedroom drawer and pointed it at his chest where it

would “do the most good.” Bitterman tried to grab the gun and it went off. She

acknowledged that she should not have shot him.

       At the omnibus hearing, defense counsel gave notice of reliance on self-defense,

diminished capacity, and battered spouse syndrome defenses. Dr. April Gerlock, an

expert on battered spouse syndrome, interviewed Ms. Johnson and opined that she was a

battered spouse. Dr. Gerlock did not indicate whether Ms. Johnson had the ability to

form the intent to shoot her husband.

       Dr. Cedar O’Donnell of Eastern State Hospital evaluated Ms. Johnson for

diminished capacity due to evidence that she had suffered traumatic brain injury in a

vehicle accident years earlier. The doctor determined that Ms. Johnson had “a

documented history of deficits in memory, judgment, and reasoning.” However,

O’Donnell’s report concluded that her actions at the time of the incident were “consistent

with the capacity for intentional behavior.”



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State v. Johnson


       On the first day of trial, defense counsel advised the court that he would forego

self-defense and pursue the case on a theory of accident. He still desired to introduce

evidence of prior instances of domestic violence and the battered spouse syndrome to

explain why Ms. Johnson picked up the gun. The trial court found that the battered

spouse diagnosis was no longer relevant since the defense had abandoned the theory of

self-defense, but that some of the individual acts of domestic violence that Ms. Johnson

testified about during a motion-in-limine were admissible. Dr. Gerlock’s testimony was,

thus, excluded.

       The court also granted the State’s motion-in-limine to exclude testimony from Dr.

O’Donnell since there was no basis to instruct on diminished capacity. Defense counsel

agreed that there was ample evidence that his client understood what she was doing at the

time of the incident.

       Ms. Johnson testified at trial that the gun accidentally discharged and was cross-

examined about discrepancies between her original story to the police and her current

version. A video copy of the police interview was admitted into evidence in rebuttal. Ex.

32. At the conclusion of the case, defense counsel then proposed an instruction on self-

defense, arguing that the video provided a factual basis for the instruction. The trial court

denied the instruction, ruling that there was no factual basis for Ms. Johnson subjectively

believing that she needed to use force at that time.



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No. 34670-6-III
State v. Johnson


         The defense argued the case to the jury on a theory of accident. Nonetheless, the

jury convicted Ms. Johnson of first degree assault. When the jury initially returned with

its verdict, the court discovered that none of the three special verdict forms had been

filled out. The judge instructed the jury to complete the special verdicts. When the jury

returned, it answered “yes” on all of the special verdict forms.

         The court imposed a standard range sentence that included a firearm enhancement.

Ms. Johnson timely appealed to this court and was allowed to remain out of custody

during the appeal. A panel heard oral argument of the appeal.

                                         ANALYSIS

         Ms. Johnson argues that the trial court violated her right to present a defense by

denying the self-defense instruction and excluding evidence by Dr. Gerlock and Dr.

O’Donnell. She also argues that the court erred by coercing the special verdicts and in its

instructions concerning the special verdicts. We address the four issues in the stated

order.

         Self-Defense Instruction

         Ms. Johnson first argues that the trial court erroneously rejected her self-defense

instruction, contending that Exhibit 32 provided a basis for the instruction. We agree

with the trial court that there was insufficient evidence to submit the issue to the jury.

         The governing law is well settled. Trial courts have an obligation to provide

instructions that correctly state the law, are not misleading, and allow the parties to argue

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State v. Johnson


their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403

(1968). A court should give an instruction only if it is supported by substantial evidence.

State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986).

       Self-defense is evaluated “from the standpoint of a reasonably prudent person who

knows all the defendant knows and sees all the defendant sees.” State v. Read, 147

Wn.2d 238, 242, 53 P.3d 26 (2002). This analysis involves both subjective and objective

components. Id. at 242-243. For the subjective component, the jury must “place itself in

the defendant’s shoes and view the defendant’s acts in light of all the facts and

circumstances the defendant knew when the act occurred.” Id. at 243. For the objective

component, the jury must “determine what a reasonable person would have done if

placed in the defendant’s situation.” Id.

       These two components of self-defense break down into four elements: “(1) the

defendant subjectively feared that he was in imminent danger of death or great bodily

harm; (2) this belief was objectively reasonable”; “(3) the defendant exercised no greater

force than was reasonably necessary”; and “(4) the defendant was not the aggressor.”

State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997). If a jury is instructed on

self-defense, the State is required to disprove the defense beyond a reasonable doubt.

State v. Acosta, 101 Wn.2d 612, 615-616, 683 P.2d 1069 (1984). Disproof of any one of

these elements negates the self-defense claim. Callahan, 87 Wn. App. at 929.



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State v. Johnson


       When a trial court refuses to give a self-defense instruction because it finds no

evidence supporting the defendant’s subjective belief of imminent danger of great bodily

harm, the standard of review on appeal is abuse of discretion. Read, 147 Wn.2d at 243.

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The failure to

provide a self-defense instruction when supported by the evidence is reversible error.

State v. George, 161 Wn. App. 86, 100-101, 249 P.3d 202 (2011).1

       Here, the trial court rejected the instruction due to Ms. Johnson’s failure to

establish that she subjectively feared she was in imminent danger of great bodily injury.

We review that decision for abuse of discretion. Read, 147 Wn.2d at 243. There were

tenable reasons for declining to give the instruction. Ms. Johnson never testified that she

believed she needed to point a gun at, let alone shoot, her husband due to fear of

imminent harm. She also did not present any evidence that her husband was about to

harm her, or that she even had any reason for believing that might be the case. In short,

there were multiple reasons for concluding that the first element was not established.2

       The court did not abuse its discretion by rejecting the self-defense instruction.



       1
          For this reason, we need not separately consider Ms. Johnson’s argument that her
right to present a defense also was violated by the refusal to give a self-defense
instruction.
        2
          For that reason, we need not address the reasonableness of the need to act, nor
the proportionality of that behavior to any alleged threat.

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State v. Johnson


       Excluded Testimony

       Ms. Johnson next argues that her right to present a defense was violated by the

exclusion of the diminished capacity defense and testimony from Dr. O’Donnell and Dr.

Gerlock. Because the proposed testimony did not support any defense that was before

the jury, there was no error.

       We review this claim under familiar standards. The trial court’s decision to admit

or exclude evidence is reviewed for abuse of discretion. State v. Franklin, 180 Wn.2d

371, 377 n.2, 325 P.3d 159 (2014); State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d

100 (2011). “An erroneous evidentiary ruling that violates the defendant’s constitutional

rights, however, is presumed prejudicial unless the State can show the error was harmless

beyond a reasonable doubt.” Franklin, 180 Wn.2d at 377 n.2. Both the Sixth

Amendment of the United States Constitution and article I, § 22 of the Washington

Constitution guarantee the criminal defendant’s right to present a defense. Washington v.

Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Thomas, 150

Wn.2d 821, 857, 83 P.3d 970 (2004); Strizheus, 163 Wn. App. at 829-830. But a

criminal defendant does not have a constitutional right to present irrelevant or

inadmissible evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010); State v.

Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).

       Diminished capacity is a common law defense in Washington. It can be raised

“whenever there is substantial evidence of such a condition and such evidence logically

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State v. Johnson


and reasonably connects the defendant’s alleged mental condition with the inability to

possess the required level of culpability to commit the crime charged.” State v. Griffin,

100 Wn.2d 417, 419, 670 P.2d 265 (1983). A defendant is entitled to a diminished

capacity instruction if (1) the crime charged includes a particular mental state as an

element, (2) the defendant presents evidence of a mental disorder, and (3) expert

testimony logically and reasonably connects the defendant’s alleged mental condition

with the asserted inability to form the mental state required for the crime charged. State

v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001). The testimony of an expert

witness is necessary to present a diminished capacity defense. State v. Stumpf, 64 Wn.

App. 522, 526, 827 P.2d 294 (1992).

       It is doubtful that any claim related to diminished capacity was preserved in the

trial court. The trial court granted the motion-in-limine excluding the defense after

defense counsel eschewed reliance on the defense. Moreover, no instruction was ever

proposed concerning the topic. The defense lost its relevance because Ms. Johnson

decided not to pursue the defense.

       Nonetheless, even if diminished capacity is properly before this court, the trial

court correctly determined there was no basis for presenting evidence on the topic.

Critical to the defense is the testimony of an expert who could explain why Ms. Johnson,

by reason of mental disease or defect, lacked the ability to intend her actions. Stumpf, 64

Wn. App. at 526. Dr. O’Donnell did not propose to offer that testimony. Indeed, the

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State v. Johnson


evaluation concluded that Ms. Johnson did have capacity to intend her actions. Dr.

Gerlock did not even opine on the topic.3 Thus, one of the critical foundation elements to

a diminished capacity defense was lacking. The trial court did not abuse its discretion in

excluding the defense. Because there was no basis for pursuing diminished capacity, Dr.

O’Donnell’s testimony was irrelevant.4 The constitutional right to present a defense was

not implicated. Hudlow, 99 Wn.2d at 15.

       The same conclusion applies to Dr. Gerlock’s testimony. Her proposed testimony

on battered spouse syndrome related to the self-defense theory. E.g., State v. Allery, 101

Wn.2d 591, 597, 682 P.2d 312 (1984). However, that theory, as discussed earlier, was

not supported by the evidence. Testimony concerning the battered spouse syndrome was,

therefore, irrelevant. The trial court understandably excluded the evidence. That action

did not constitute a violation of Ms. Johnson’s right to present a defense.




       3
          Defense counsel admitted that there was plenty of evidence that his client had the
capacity to act intentionally, and did not suggest there was any evidence that she lacked
capacity. Report of Proceedings (RP) (June 17, 2016) at 99.
        4
          Ms. Johnson also contends that evidence of her dementia was relevant to explain
her varying stories about the incident. However, this claim was raised only in support of
possible sur-rebuttal and was never explained to the trial court, nor was it ruled on by the
trial judge. RP (June 17, 2016) at 120 et seq; RP (June 20, 2016) at 1-43. The defense
rested without calling Dr. O’Donnell or asking to be allowed to do so. RP (June 20,
2016) at 59. The opportunity to present this evidence was waived. Potential evidence
explaining prior testimony also does not itself constitute a defense to a crime nor present
an issue of constitutional magnitude that can be addressed for the first time on appeal.
RAP 2.5(a).

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State v. Johnson


       Each of the claimed defenses lacked evidentiary support. The trial court did not

err in excluding irrelevant testimony relating to legally insufficient defenses.

       Special Verdicts

       Lastly, Ms. Johnson contends that the trial court erred both in accepting the special

verdicts and in the form in which the instructions were presented. Her arguments fail to

establish error.

       When the jury initially returned with its verdict on the assault charge, none of the

special verdict forms had been filled out. The court directed the jury to return to

deliberations and “attend” to the special verdict forms. Defense counsel did not object to

the court’s action. Ms. Johnson’s claim that the trial court improperly interfered with the

special verdicts is unpersuasive. She had the right to have the jury return a verdict free of

coercion by the trial judge. E.g., State v. Boogaard, 90 Wn.2d 733, 736-737, 585 P.2d

789 (1978). However, nothing in this record suggests that the judge behaved coercively

by telling the jury to return to deliberations. This contention simply is without merit.

       Ms. Johnson also contends that the three special verdicts were erroneously

returned because none of the verdict forms expressly stated that the jury needed to be

unanimous to answer the special verdict. She points out that the pattern instruction

verdict forms now state the unanimity requirement. From these facts, she argues that her

right to a unanimous finding was violated. It was not.



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       Her argument ignores jury instruction 2, which states in part:

       As jurors, you have a duty to discuss the case with one another and to
       deliberate in an effort to reach a unanimous verdict.

Clerk’s Papers (CP) at 163.

       Similarly, the concluding instruction told jurors that they must deliberate in order

to reach a unanimous verdict on the charge of first degree assault and the two included

assault offenses. CP at 191-192. While she correctly notes that the concluding

instruction did not mention the special verdicts, she can point to no competing

instructions that would have suggested nonunanimity was possible on the special

verdicts. The only instructions given to the jury required unanimity in order to return a

verdict. There was no reason to think that jurors could have applied a different standard

to the special verdicts.

       If these verdict forms constituted constitutional error, the error was harmless

beyond a reasonable doubt because each question presented involved an uncontested

factual issue. Both parties testified that they were married to each other and living

together at the time of the incident; it simply was not a contested factual question that the

two were involved in a domestic relationship. The fact that the assault was committed

with a firearm likewise was not a disputed issue.

       The jury’s verdict on the first degree assault charge necessarily answered the

remaining special verdict. The special interrogatory concerning the assault having been


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State v. Johnson


committed with intent to commit great bodily harm was a restatement of the elements of

the first degree assault charge; once the jury unanimously concluded that Ms. Johnson

intentionally assaulted Mr. Bitterman, that answer necessarily compelled the same

response to the special interrogatory. CP at 173, 199.

       Ms. Johnson has not established that she was prejudiced by the alleged errors

relating to the return of the special verdicts.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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