State v. Eakins , 127 Wash. 2d 490 ( 1995 )

Johnson, J.

Ted Eakins was convicted of two counts of second degree assault. He admitted pointing a loaded revolver at two people, but claimed drug- and alcohol-induced diminished capacity, so that he was not capable of forming specific intent to assault them. Only his specific intent was at issue at trial. The issue before us is whether his reputation for peacefulness is relevant under ER 404(a)(1) when only specific intent is at issue. The trial court refused to admit his proffered character evidence, finding it irrelevant to the issue of whether Eakins had the intent to support the assault charges. The Court of Appeals reversed, holding such evidence relevant to the issue of intent. We affirm the Court of Appeals.

Facts

When Shelley Lindal and Ted Eakins ended their romantic relationship, Eakins became despondent. On May 25, 1990, he went to Captain K’s Restaurant in Bremerton where Lindal worked as a manager. After Eakins was seated, he became increasingly agitated and demanded to see Lindal. Because he was causing a disruption, Lindal finally asked him to leave. As she walked away, he threw a coffee cup at her, hitting her in the back, then pursued her into the bar.

Lindal and other employees summoned Mark Hansen, the restaurant’s kitchen manager, to the bar where he confronted Eakins. After unsuccessfully attempting to push Hansen away, Eakins drew a loaded revolver and pointed it at Hansen’s head. Katherine Yaw, the bartender, testified she heard two clicks, which she recognized as the sound of a gun, then saw Eakins point the revolver at Hansen’s head or upper body and tell him to back off. Hansen testified Eakins threatened to shoot him if he did not move away. Eakins then held the revolver to Lindal’s head and threatened to shoot her, after which he lowered the weapon and left the restaurant. He returned a moment later and gave the gun to Lindal, who placed it behind the bar. Eakins jumped over the bar, retrieved the revolver, and again left the restaurant.

About four hours later, Eakins turned himself in to the police. He was charged with two counts of second degree assault while armed with a deadly weapon, in violation of RCW 9A.36.021(l)(c).

At trial, Eakins conceded he had pointed the revolver at Ms. Lindal and Mr. Hansen but presented evidence of alcohol- and drug-induced diminished capacity. He testified it had become his practice each evening to take a triple dose of tranquilizers prescribed for his depression and wash them down with alcohol. Although this combination of drugs and alcohol caused him to have vivid nightmares, he said he took them to pass out and stop thinking. On the night of the assaults, Eakins said he took the drugs and alcohol and dreamed about confronting Lindal. He testified that when he realized he was not dreaming and his actions were real, he gave the revolver to Lindal and left.

At trial, David Rommen, a licensed professional therapist, testified Eakins was depressed and suffered from a personality disorder involving dependency upon Ms. Lindal, for which Eakins was taking prescribed tranquilizers. Mr. Rommen testified he was aware Eakins used alcohol with the tranquilizers, despite Rommen’s advice not to mix alcohol with the tranquilizers. Mr. Rommen also testified he had been in contact with Eakins the night before the assaults and found Eakins to be incoherent, slipping in and out of consciousness, apparently in a delirium induced by drugs and alcohol. In therapy sessions with Mr. Rommen following the assaults, Eakins had difficulty remembering what happened the night of the assaults. Mr. Rommen testified he believed Eakins consumed as much as twenty-four ounces of alcohol on the night of the assaults.

Dr. Martin Haykin, a licensed and certified psychiatrist, testified Eakins was incapable of forming the intent to assault on the night in question, based on his depression and consumption of both alcohol and the prescription medication. He also described Eakins’ behavior during the assaults as consistent with a delirium induced by drugs and alcohol.

Ms. Lindal, Mr. Hansen, Ms. Yaw, and Julie Cathey (another restaurant employee) all testified Eakins appeared angry but not intoxicated or delirious the night of the assaults. Two police officers who interviewed Eakins four hours after the assaults testified he did not appear intoxicated and spoke clearly and coherently.

Eakins sought to offer fifteen lay character witnesses, each of whom would testify as to his peaceful nature. The trial court rejected the offered evidence, relying on State v. Lewis, 37 Wn.2d 540, 225 P.2d 428 (1950). Because Eakins admitted the charged acts, the court concluded the only issue was whether he had the requisite intent to assault and the offered character evidence was irrelevant as to that issue. Having excluded this evidence, the trial court subsequently refused to give an instruction on the lesser included offense of displaying a weapon in violation of RCW 9.41.270.

The Court of Appeals reversed, concluding reliance on Lewis was misplaced. It held intent or malice was an essential element of Eakins’ offense and reputation evidence of his peaceful character was admissible under ER 404(a)(1) and ER 405(a). State v. Eakins, 73 Wn. App. 271, 278-79, 869 P.2d 83 (1994). The State petitioned for review, contending this holding conflicts with State v. Janes, 64 Wn. App. 134, 144-45, 822 P.2d 1238 (1992), rev’d on other grounds, 121 Wn.2d 220, 850 P.2d 495, 22 A.L.R.5th 921 (1993). We affirm the Court of Appeals.

Issue

The sole issue raised in the State’s petition is whether a defendant’s reputation for peacefulness is relevant when the defendant has conceded the underlying acts giving rise to charges of second degree assault while armed with a deadly weapon, in violation of RCW 9A.36.021(1)(c).

Analysis

The admissibility of character evidence by a defendant is governed by ER 404(a)(1):

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same[.]

ER 404(a)(1).

Where intent or malice is an essential element of an offense and the defendant denies having the mental state necessary to form the requisite intent, character evidence may be relevant and admissible to support an inference that the defendant lacks the necessary mental state. 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 101, at 549 (2d ed. 1994); 1A John H. Wigmore, Evidence § 56, at 1173-74 (1983).¹ The relevance of such character evidence is undiminished where, as here, intent is the only essential element in dispute. So long as character evidence offered by the defendant involves a "pertinent trait of his character,” it is admissible.

We have not defined "pertinent” in the context of ER 404(a)(1). Federal courts interpreting identical language in Fed. R. Evid. 404(a)(1) have read the word "pertinent” as synonymous with "relevant.” See, e.g., United States v. Santana-Camacho, 931 F.2d 966, 968 (1st Cir. 1991); United States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989); United States v. Staggs, 553 F.2d 1073, 1075 (7th Cir. 1977). Following this interpretation, a pertinent character trait is one that tends to make the existence of any material fact more or less probable than it would be without evidence of that trait. ER 40Í.²

Eakins was charged with two counts of assault in the second degree while armed with a deadly weapon, in violation of RCW 9A.36.021(l)(c).³ An essential element of second degree assault is specific intent either to cause bodily harm or to create apprehension of bodily harm. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Although Eakins conceded the acts giving rise to the charges, he maintains he lacked the requisite specific intent because of diminished capacity caused by drugs and alcohol. Diminished capacity is an affirmative defense against second degree assault, and it must be supported by evidence of a mental condition and evidence showing the mental condition impaired the defendant’s ability to form the required specific intent. State v. Davis, 64 Wn. App. 511, 515-17, 827 P.2d 298 (1992), rev’d on other grounds, 121 Wn.2d 1, 846 P.2d 527 (1993). Eakins offered expert testimony that he suffered from a mental condition caused by drugs and alcohol which impaired his ability to form the required specific intent. We must determine whether, under ER 404(a)(1), character evidence of Eakins’ reputation for peacefulness is also relevant to determine whether he specifically intended to create apprehension of bodily harm or to cause bodily harm when he threatened Ms. Lindal and Mr. Hansen with his revolver.

The trial court excluded Eakins’ character evidence in reliance on State v. Lewis, supra, in which the defendant was convicted of manslaughter for a death resulting from a hunting accident. Lewis admitted the act but denied he was careless or negligent. This court upheld the trial court’s refusal to admit testimony that Lewis "was careful in the handling of firearms on other occasions” because that evidence "did not tend to prove that he was careful when he fired the shot which killed Mrs. Packer.” Lewis, 37 Wn.2d at 545. The defendant’s specific intent was not at issue in Lewis. Consequently, Lewis does not control this case and we agree with the Court of Appeals that the trial court’s reliance on Lewis was error.⁴

Division Two in this case explicitly disagreed with Division One’s decision in State v. Janes, supra, regarding the admissibility of character evidence when specific intent is the only essential element at issue. In Janes, the defendant was convicted of second degree murder and two counts of second degree assault for killing his stepfather and firing at police officers when they arrived to arrest him. Janes claimed diminished capacity and self-defense based on "battered child syndrome.” Janes contended the trial court erred by excluding evidence of his reputation for peacefulness offered to support his theory of diminished capacity. The Court of Appeals rejected his contention:

Character evidence does not prove or disprove an element of a charged crime or a particular defense; rather, "[i]ts relevance is to permit, hut not require, the jury to infer from the particular character trait that it is unlikely or improbable that the defendant committed the charged act.” State v. Thomas, 110 Wn.2d 859, 865, 757 P.2d 512 (1988). Here, there is no dispute as to whether the defendant committed the act; the only issue is his mental state. Since his reputation is not probative of his mental state, it was properly excluded.

Janes, 64 Wn. App. at 144-45.

The Court of Appeals in Janes incorrectly read Thomas as holding character evidence irrelevant to the issue of a defendant’s mental state. Thomas held character evidence is relevant to the jury’s determination whether "the defendant committed the charged act.” This phrase refers inclusively to all essential elements of the charged offense. Where intent is an essential element of the crime charged, the defendant cannot be convicted of having "committed” the crime unless the element of intent is proved beyond a reasonable doubt.

Janes also may be distinguished factually from this case. Eakins involves the defense of diminished capacity caused by self-induced intoxication, while Janes involved alleged diminished capacity in the context of "battered child syndrome.” Eakins’ evidence of peaceful character when not influenced by drugs and alcohol was offered in support of expert testimony that his drug and alcohol abuse caused a mental condition that reduced or eliminated his ability to form specific intent. By showing his behavior on the night in question was out of character when he was not influenced by drugs and alcohol, the proffered evidence is relevant to show Eakins, but for his induced mental condition, would not or could not form the intent to assault. In contrast, Janes’ evidence of peaceful character is not relevant to his diminished capacity defense in the factual context of his case. His previously peaceful behavior in the face of his stepfather’s repeated abuse provides no information as to his mental state before the abuse began or during the episode in which he killed his father, nor does it make the diagnosis of "battered child syndrome” more or less likely. Janes’ character evidence is inadmissible because it is not relevant in that specific factual context, not because it was offered on the element of intent.

The Court of Appeals in Eakins explicitly noted its disagreement with Janes. Eakins, 73 Wn. App. at 279 n.9. The court reasoned as follows:

An accused in a criminal case is entitled to introduce reputation evidence of a character trait pertinent to rebut the nature of the charge against him. ER 404(a)(1), 405(a); State v. Arine, 182 Wash. 697, 48 P.2d 249 (1935). Character evidence may be used circumstantially to show that the accused acted consistently with that character, State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984), and is as much a part of the evidence as any other evidence. State v. Allen, 89 Wn.2d 651, 657, 574 P.2d 1182 (1978).

Eakins, 73 Wn. App. at 278. Relying on a standard evidence treatise, the Court of Appeals held Eakins’ character evidence should have been admitted:

Where the doing of the act charged is not in dispute, because conceded, it has been said that character no longer has any probative function, and should not be received, since character certainly cannot be set up merely in excuse. But, after all, so far as in criminal cases the criminal intent remains in issue, the good character of the defendant may be regarded as always relevant to disprove it, and the better way seems to admit it.

Eakins, 73 Wn. App. at 279 (quoting 1A Wigmore § 56, at 1173-74).

The statement from Wigmore is consistent with at least one other evidence treatise:

[Evidence of pertinent traits of character] are relevant and admissible if the traits support inferences that the defendant probably did not do the acts charged to him or did not have the necessary mental state to make him guilty of the charged offense. Such evidence is also relevant and admissible if it supports any defense against the charged crime, including such affirmative defenses as coercion or self-defense.

(Italics ours.) 1 Mueller & Kirkpatrick § 101, at 549. Our review of the available evidence treatises has uncovered no other discussion of this issue.

While not directly on point, cases from other jurisdictions support the reasoning of the Court of Appeals in Eakins. In United States v. Angelini, 678 F.2d 380 (1st Cir. 1982), for example, the defendant was convicted of possession with intent to distribute a controlled substance. He appealed the trial court’s refusal to admit evidence through three character witnesses that he was law abiding and truthful. The First Circuit upheld the exclusion of evidence concerning truthfulness as not pertinent to the crime charged, but held the evidence the defendant was law abiding should have been admitted:

Federal Rule of Evidence 404(a) states that an accused may introduce "[ejvidence of a pertinent trait of his character.” The word "pertinent” is read as synonymous with "relevant.” United States v. Staggs, 553 F.2d 1073, 1075 (7th Cir. 1977); 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5236, at 383 (1978). Thus, the basic issue is whether the character trait in question would make any fact "of consequence to the determination” of the case more or less probable than it would be without evidence of the trait. See Fed.R.Evid. 401; United States v. Staggs, 553 F.2d 1073.

Under this analysis, evidence of law-abidingness should have been admitted. Evidence that Angelini was a law-abiding person would tend to make it less likely that he would knowingly break the law. Such evidence has long been recognized as relevant. See 1 Wigmore, Evidence § 55 (Chadbourne rev. 1972).

Angelini, 678 F.2d at 381. Applying the same logic to this case, Eakins’ proffered evidence of peacefulness, if believed by the jury, would make it less probable he would intentionally threaten another person with a deadly weapon if he were in full control of his faculties. Such evidence would be relevant to the element of intent, on which the State bears the burden of proof, Byrd, 125 Wn.2d at 713-16, and would bolster Eakins’ claim of diminished capacity.

The potential relevance of such evidence to criminal intent also is apparent in State v. Aplaca, 74 Haw. 54, 837 P.2d 1298 (1992). In Aplaca, the defendant appealed her conviction for third degree assault arising from a confrontation between two corrections officers. Her sole defense at trial was that she lacked any criminal intent to assault. She claimed ineffective assistance of counsel on the ground her attorney failed to call witnesses, at least one of whom would testify she was truthful and peaceable. The Hawaii Supreme Court reversed her conviction, holding that testimony could have had a direct bearing on the ultimate outcome of the case:

We have stated that "[a]n accused has the right to give evidence of personal character traits associated with the basic nature of the offense with which he [or she] is charged as circumstantial evidence of his [or her] innocence.” Character evidence demonstrating that Aplaca was a peaceful and nonviolent person at the time or prior to the incident would have bolstered her credibility and related directly to whether she would have intentionally or recklessly hit another person.

(Citations omitted.) Aplaca, 74 Haw. at 72-73.

In State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989), the Nebraska Supreme Court impliedly allowed such character evidence on the issue of intent. The defendant was convicted of three counts of assault and one count of resisting arrest, arising from his attack on two persons in a bar. The defendant asserted he was too intoxicated to form the requisite intent and produced testimony that he had a character for peacefulness. The trial court admitted this character evidence and also evidence of specific acts offered by the State to rebut the character evidence. The Nebraska Supreme Court, rejecting the defendant’s challenge to the State’s evidence, implicitly assumed the trial court properly admitted the defendant’s character evidence. Donhauser, 231 Neb. at 117-18.

Apart from State v. Janes, supra, and one older case cited by Wigmore,⁵ we find no authority for excluding the defendant’s character evidence of peacefulness where specific intent to cause apprehension of bodily harm or to cause bodily harm is an essential element of the crime charged that must be proved by the State. The treatises and cases cited above support the Court of Appeals decision that Eakins’ character evidence should have been admitted.

Conclusion

To show diminished capacity, a criminal defendant must produce expert testimony demonstrating the defendant suffered from a mental condition that impaired his or her ability to form the requisite specific intent. Davis, 64 Wn. App. at 515-17. Once this expert evidence has been received, the defendant’s evidence of a pertinent character trait is admissible under ER 404(a)(1) to show circumstantially that the expert was correct. A pertinent character trait is one that is relevant to an essential element of the crime charged. Once the defendant has produced the appropriate expert testimony supporting a claim of diminished capacity, relevant character evidence is admissible even when specific intent is the only element at issue in the case.

Eakins submitted expert testimony in support of his diminished capacity defense, stating he suffered from a delirium on the night of the assaults which would have made him incapable of forming the specific intent to assault. His proffered character evidence is relevant under ER 401 to his claim of diminished capacity: it tends to make the existence of his specific intent to threaten Ms. Lindal and Mr. Hansen more or less probable than it would be without the evidence. Whether that evidence, together with its predicate expert testimony, is sufficient to create a reasonable doubt as to Eakins’ specific intent is a question for a jury.

There is no basis under ER 403 to exclude this evidence. The State is not unfairly prejudiced by this evidence, nor is it likely to confuse the issues or mislead the jury so long as a proper limiting instruction is given. The evidence is not intrinsically wasteful of time or causing undue delay, and any tendency in that direction by the parties can be dealt with by the trial court.

It was error for the trial court to refuse to admit Eakins’ evidence as to his reputation for peacefulness. Although he conceded the act, he claimed diminished capacity, thereby contesting and placing at issue the essential element of his specific intent. The jury reasonably may have concluded a defendant with a good reputation for peacefulness would be unlikely to intend to cause either bodily harm or the apprehension of bodily harm to another person, giving credence to Eakins’ claim of diminished capacity. Had the evidence been admitted, it is reasonably possible Eakins might have been convicted of the lesser included offense of displaying a weapon, in violation of RCW 9.41.270. Because the outcome of the trial could have been materially affected had this evidence been admitted, Eakins’ conviction should be reversed. State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984).

We therefore affirm the Court of Appeals decision. Mr. Eakins’ convictions for second degree assault are reversed and this case is remanded to the trial court for proceedings consistent with this opinion.

Madsen and Smith, JJ., and Utter, J. Pro Tern., concur.

1 ER 404(a)(1) was taken, from and is identical to Fed. R. Evid. 404(a)(1). See Robert H. Aronson, Evidence in Washington Rule 404 cmt., at 404-1 (2d ed. 1993); 5 Karl B. Tegland, Wash. Prac., Evidence, at vii-xi, 364 (3d ed. 1989).

2 Some state courts have defined "pertinent” using other language, but their application of the rule is substantially indistinguishable in practice. See People v. Miller, 890 P.2d 84, 91-92 (Colo. 1995) (citing cases).

3 RCW 9A.36.021d) reads as follows, in pertinent part:

"Assault in the second degree. (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

"(c) Assaults another with a deadly weapon!.]”

4 It is not clear the testimony in Lewis involved character evidence. Eakins maintains the testimony in Lewis was opinion, not reputation evidence as required by ER 405. The Court of Appeals considered the testimony in Lewis to have regarded specific acts rather than reputation. Eakins, 73 Wn. App. at 279. In Meyers v. Meyers, 81 Wn.2d 533, 539, 503 P.2d 59, 59 A.L.R.3d 1318 (1972), we characterized Lewis as dealing with habit rather than a character trait. To decide Eakins’ case, we need not determine whether the testimony in Lewis was character evidence. Because specific intent was not at issue in Lewis, that case does not control here.

5 Wigmore cites only one case that involves character evidence introduced on the issue of specific intent: People v. Green, 217 Cal. 176, 17 P.2d 730 (1932) (in a murder case, the trial court did not abuse its discretion by excluding the defendant’s character evidence as too remote from the charged act and because the defendant had conceded the act). Green did not hold the proffered evidence was irrelevant to the issue of intent because it was character evidence; the court noted with apparent approval that the testimony of several character witnesses had been admitted on the defendant’s behalf. Green, 217 Cal. at 183. Rather, the court held the evidence was irrelevant because the defendant had admitted the charge against him so that the "only question raised in his behalf is the application of the law to his situation.” Green, 217 Cal. at 183. The only other cases cited by Wigmore that involve intent are readily distinguishable from the case before this court; each of those cases involves a defendant’s refusal to submit to a military induction examination. See Springer v. United States, 148 F.2d 411 (9th Cir. 1945); United, States v. Garland, 364 F.2d 487 (2d Cir.), cert. denied, 385 U.S. 978 (1966); Harris v. United States, 412 F.2d 384 (9th Cir. 1969). In each of the remaining cases cited by Wigmore, specific intent was not at issue. See 1A John H. Wigmore, Evidence § 56, at 1173 n.5 (1983).