State Of Washington v. David D. Ogden ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 68613-5-1
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Respondent, No. 68614-3-1
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DAVID D. OGDEN, UNPUBLISHED OPINION
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Appellant. FILED: September 23, 2013
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Verellen, J. — David Ogden appeals his convictions on charges of first degree
robbery, attempted first degree robbery, and attempted second degree robbery. First,
Ogden contends that the trial court erred by precluding him from introducing evidence
necessary to rebut the prosecution theory that he had a financial motivation for the
offenses. Because Ogden's trial counsel made no offer of proof as to the matter he
intended to prove, this issue was not preserved for appellate review. Second, Ogden
asserts, and the State concedes, that his sentence contains errors. We affirm the
convictions, but remand for resentencing to correct the miscalculated offender score,
incorrect community custody term, and sentence in excess of the statutory maximum.
No. 68613-5-1/2
FACTS
The State charged Ogden with first degree robbery for an October 9, 2010
incident in which he robbed a Seattle bank of$250,1 attempted first degree robbery for
an incident later that day in which he demanded money from a teller at a different
Seattle bank, but left without taking money,2 and attempted second degree robbery for
an October 12, 2010 incident in which he attempted to rob a Seattle restaurant by telling
a cashier he had a gun, but fled before obtaining money.3 At trial, the State presented
the testimony of the bank tellers and restaurant employees who observed the incidents,
and the police officers and detectives who investigated the offenses. The jury was also
shown extensive physical evidence that Ogden committed the offenses, including his
clothing seen in video from the bank robberies which was later found by police in his
apartment.
Ogden's defense to each incident was diminished capacity due to a combination
of pharmacological and psychological factors. He presented the expert testimony of
Dr. Anthony Eusanio, who diagnosed him with posttraumatic stress disorder and other
medical disorders. Dr. Eusanio opined that a combination of medications prescribed to
Ogden may have interacted and, in combination with his medical and psychological
1This incident was recorded to video by the bank's video system; a copy of the
video was played to the jury.
2This incident was also recorded and the recording was played for the jury.
3Ogden was pursued and apprehended by an employee ofthe restaurant, then
taken into custody by police officers.
No. 68613-5-1/3
conditions, caused a "delirium."4 Defense expert Dr. Robert Julien, who specialized in
pharmacology, also testified that Ogden had been prescribed medications that could
have caused drug-induced dementia or amnesia. Dr. Julien opined that Ogden was
likely in a state of diminished capacity when he committed the offenses, but noted that
his opinion depended on unknown factors, including which medications Ogden had
actually taken.
To address the diminished capacity defense, the State presented the testimony
of psychologist Dr. Ray Hendrickson and neuropsychologist Dr. Brett Parmenter.
Dr. Hendrickson testified that Ogden was likely not in a substance-induced delirium at
the time of the offenses based on his clinical observations of Ogden and review of the
video recordings and witness accounts of the incidents. Dr. Parmenter testified that
Ogden was likely exaggerating his symptoms based on his forensic mental health
evaluation of Ogden.
The jury convicted Ogden as charged. The trial court imposed standard range
sentences for each count.
Ogden appeals.
ANALYSIS
Dr. Julien's Testimony
Ogden contends that the trial court denied his right to present a defense by
excluding evidence needed to rebut the State's theory that his indigency was the motive
4 Report of Proceedings (RP) (Dec. 15, 2011) at 418. Dr. Eusanio also testified
that Ogden scored in "the top one percent" on a scale indicating likely malingering or
exaggerating his symptoms. ]d. at 463.
No. 68613-5-1/4
for the offenses. Specifically, he contends that the trial court erred by excluding
evidence that he was eligible for disability benefits. But the record demonstrates that
Ogden's statement of the issue does not accurately describe the nature of the testimony
offered at trial. Moreover, the record reveals that he failed to preserve the issue for
appellate review by making an adequate offer of proof to the trial court.
Ogden's argument relies on a single trial court ruling sustaining the prosecutor's
objection to testimony Ogden sought to elicit from pharmacology expert Dr. Julien. On
redirect examination, Ogden's counsel asked Dr. Julien whether, based upon the
medical records, "Mr. Ogden [is] disabled."5 The prosecutor objected, arguing that the
testimony was beyond the scope of the State's cross-examination. In response,
Ogden's counsel argued that the evidence concerned only a potential source of income
to Ogden, based on his indigency: "Your Honor the question was, based upon the
doctor's review of the medical records, whether or not Mr. Ogden was disabled. It goes
to the question ofsource of income, to the indigency issue raised by the State.6
The trial court sustained the objection. Ogden made no further argument.
Ogden poses the issue as a violation of his state and federal constitutional rights
to present a defense and due process protections,7 as well as his right underthe rules
5RP(Dec. 19, 2011) at 628.
6 IcL (emphasis added).
7 The Sixth and Fourteenth Amendment of the United States Constitution and
article I, section 22 of the Washington Constitution guarantee an accused the right to
defend against the State's allegations. This right is also recognized as a fundamental
element of state and federal due process protections. Chambers v. Mississippi, 410
U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed.2d 297 (1973); State v. Burri. 87 Wn.2d 175,
181, 550 P.2d 507 (1976).
No. 68613-5-1/5
ofevidence to present relevant evidence.8 These constitutional rights have limitations,
however, including the requirement that the evidence sought to be admitted must be
relevant.9 But Ogden failed to persuasively present any basis for a determination that
the evidence of whether or not Dr. Julien considered him disabled was relevant to the
question of his indigency or to establish that he received income as a result of any
disability.
Although Ogden argued that Dr. Julien's testimony that he was "disabled" was
relevant to the question ofwhether he had a "source of income,"10 he failed to make an
adequate, timely offer of proof, as ER 103(a)(2) requires.11 When error is predicated on
a ruling that excludes evidence, it is the duty of a party offering evidence "to make clear
to the trial court what it is that he offers in proof, and the reason why he deems the offer
admissible over the objections of his opponent, so that the court may make an informed
ruling."12
8Ogden cites ER 401, which provides that evidence is relevant if it makes "the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
9 State v. Hudlow. 99Wn.2d 1, 14-15. 659 P.2d 514 (1983): State v. Galleqos, 65
Wn. App. 230, 236-37, 828 P.2d 37 (1992).
10RP(Dec. 19, 2011) at 628.
11 State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1260 (1991) ("An offer of proof
serves three purposes: it informs the court of the legal theory under which the offered
evidence is admissible; it informs the judge of the specific nature of the offered evidence
so that the court can assess its admissibility; and it creates a record adequate for
review.").
12 Id. at 539 (emphasis added).
No. 68613-5-1/6
Although an offer of proof is not required "ifthe substance of the excluded
evidence is apparent from the record,"13 here, the substance ofthe testimony is not
apparent. Unlike Ray, here there was no "extended colloquy" between the trial court
and counsel, that "revealed the substance of the evidence . . . and the theory under
which it was offered."14 Ogden's counsel did not explain why Dr. Julien's potential
testimony that Ogden was either disabled or not was relevant to the issue of his
indigency, or how Dr. Julien could make such a determination "based upon the doctor's
review ofthe medical records."15 Even assuming that Dr. Julien could opine that Ogden
was disabled, it was never explained to the trial court if, or how, Dr. Julien would know
whether Ogden received income due to his disability.16
This issue was not adequately preserved for review.
Sentencing
Ogden identifies three errors relevant to his sentence. The State concedes the
errors occurred. The record demonstrates that the State's concessions are well taken.
First, Ogden's offender score included a prior Colorado burglary conviction.
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a foreign conviction is
included in a defendant's offender score if it is comparable to a Washington felony.17
13 Id
14 Id,
15RP(Dec. 19, 2011) at 628.
16 Ogden also did not explain that the "indigency issue" he referenced in
argument concerned the State's theory of a financial motive.
17 RCW 9.94A.030(11), .525(3); State v. Ford. 137 Wn.2d 472, 479, 973 P.2d
452(1999).
No. 68613-5-1/7
Because no comparability analysis occurred, the conviction was erroneously included in
Ogden's criminal history.
Second, Ogden's 36-month term of community custody on the first degree
robbery conviction was based on the classification of his first degree robbery as a
"serious violent offense." First degree robbery is a violent offense," but not a "serious
violent offense."18 The term ofcommunity custody imposed was in excess ofthat
allowed by statute.19
Third, the 18-month term of community custody imposed on the attempted
second degree robbery conviction was based on the classification of attempted second
degree robbery as a "violent offense." Attempted second degree robbery is not a
"violent offense."20 On remand, the community custody term must be stricken.
The sentence for attempted first degree robbery,21 128 months of confinement
and 18 months of community custody, was in excess of the statutory maximum 120
months.22 On remand, the sentence must not exceed 120 months.
18
Compare RCW 9.94A.030(45), with RCW 9.94A.030(54).
19RCW9.94A.701(2).
20 State v. Becker. 59 Wn. App. 848, 851-55, 801 P.2d 1015 (1990).
21 RCW 9.94A.701(9). Attempted first degree robbery is a class Bfelony.
RCW 9A.28.020(3)(b). The standard range sentence for attempted first degree robbery
is 96.75 to 128.25 months. RCW 9.94A.510; RCW 9.94A.515 (first degree robbery has
a seriousness level of IX);RCW 9.94A.533(2) (standard range for criminal attempt is 75
percent of the standard range).
22RCW9A.20.021(1)(b).
No. 68613-5-1/8
Statement of Additional Grounds for Review
Finally, Ogden submitted a statement of additional grounds for review.23
However, he does not present any reasoned argument or analysis to identify any
specific claim of error. This statement is inadequate to inform us of the nature and
occurrence of alleged errors and is, accordingly, unreviewable under RAP 10.10(c).24
We affirm the convictions and remand to correct the sentence.
WE CONCUR:
^S)"^Sj)y .
23 The statement of additional grounds consists of a chart with three columns
headed "prosecutor misconduct," "ineffective [counsel]," and "judge misconduct," page
citations to the verbatim report of proceedings in each column, and a list of authorities.
24 While a defendant is not required to cite to the record or authority in a pro se
statement of additional grounds, he must still inform the court of the nature and
occurrence of alleged errors. State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d 996(2012).
8