Court of Appeals Division II 

State of Washington

Opinion Information Sheet

Docket Number: 41131-8
Title of Case: State Of Washington, Respondent V Jonathan M. Lucas, Appellant
File Date: 03/06/2012

Appeal from Clark Superior Court
Docket No: 09-1-01509-1
Judgment or order under review
Date filed: 03/17/2010
Judge signing: Honorable Robert a Lewis, Robert Harris, Diane Woolard

Authored by Marywave Van Deren
Concurring: Lisa Worswick
Jill M Johanson


Counsel for Appellant(s)
Maureen Marie Cyr
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Petitioner(s)
Jonathan Mark Lucas (Appearing Pro Se)
#977864 / Unit A, Tier C, Cell 107
Washington State Penitentiary
1313 N. 13th Ave.
Walla Walla, WA, 99362

Counsel for Respondent(s)
Anne Mowry Cruser
Clark County Prosecuting Attorney
Po Box 5000
Vancouver, WA, 98666-5000



Respondent, No. 41131-8-II
Consolidated with No. 41751-1-II

Personal Restraint Petition of:



Van Deren, J. -- Jonathan Mark Lucas appeals his conviction for second degree and

fourth degree assault. In his direct appeal, he contends that the trial court (1) abused its

discretion in admitting evidence of his prior conviction when he did not testify and (2) violated his

speedy trial rights when it granted a continuance over his objection to allow his counsel more time

to prepare a diminished capacity defense. In his personal restraint petition (PRP), he contends

that the trial court failed to timely file necessary documents related to his appeal. We hold that

the trial court abused its discretion in admitting evidence of Lucas's prior conviction and that the

error was not harmless. We reverse Lucas's conviction and remand for further proceedings. We

also deny his PRP.


On September 4, 2009, while walking down the street in Vancouver, Washington, around

No. 41131-8-II, consolidated with No. 41751-1-II

6:00 p.m., Terry Taylor heard "[a] bunch of yelling." Report of Proceedings (RP) at 219. While

Taylor waited to cross the street, Lucas, the source of the yelling, came into view and continued

walking toward Taylor. Taylor felt that Lucas's behavior was "erratic" because Lucas was

unintelligibly cursing, "yelling," and "ranting." RP at 220, 229-30. Lucas followed Taylor across

the street and overtook him. Taylor, who felt fearful, turned to face Lucas, and Lucas stepped

within arm's length. Taylor told Lucas to stop and to get away from him, and Lucas, who was

still ranting and yelling unintelligibly, cursed and punched Taylor in the side of his face and ear.

As Taylor backed away, Lucas advanced, so Taylor fled down the street and called 911.

Boulder County, Colorado, Deputy Sheriff Jeffrey Caton, who was off-duty and pulling

into a nearby restaurant parking lot, observed Taylor running down the street with Lucas in

pursuit. A man emerged from the restaurant and told Caton that Lucas had just assaulted Taylor.

Caton identified himself to Taylor, Taylor told him what had happened, and Lucas walked around

the corner and began approaching them. Caton ordered Lucas to go away and to leave the area

but Lucas continued approaching. Caton displayed his firearm and badge, identified himself as a

deputy sheriff, and again ordered Lucas to back away and to leave, but Lucas continued


When Caton tried to push Lucas away, Lucas reached over Caton's arms and punched him

in the nose. Caton drew his firearm and ordered Lucas to get down. Lucas, who was yelling,

screaming, and cursing, refused to comply, said "'I don't care'" and "'I'm not going to do what

you say,'" and began walking away. RP at 245-46.

Vancouver Police Department Officer Franklin Gomez, who had arrived at the scene,

repeatedly ordered Lucas to get on the ground. When Lucas turned, stared at Gomez, and


No. 41131-8-II, consolidated with No. 41751-1-II

refused to comply, Gomez drew his stun gun and warned Lucas that he would deploy it if Lucas

did not comply. Eventually, Lucas complied and was handcuffed and placed in the back of

Gomez's patrol car.

Another responding police officer read Lucas his Miranda1 rights and asked Lucas what

had happened. Lucas said that Taylor had "disrespected" him, so he "slapped" Taylor. RP at

308. Lucas denied hitting Caton and repeatedly stated, "'Why am I under arrest? Just let me go

home. I won't cause any more problems.'" RP at 308.

Gomez also spoke with Lucas. Lucas also told him that he "slapped" Taylor because

Taylor had disrespected him, denied hitting Caton, and said "'I don't know what you are talking

about and take me to jail.'" RP at 287. Although Lucas was responsive to Gomez's questions,

Lucas had a strong odor of alcohol on his breath, his speech was slurred, and when he vomited in

Gomez's patrol car, his vomit also smelled of alcohol.

The State charged Lucas with second degree assault, count one, and fourth degree assault,

count two. At his arraignment, Lucas's counsel stated that after reviewing the police report and

Lucas's mental health treatment history, he believed that Lucas should pursue a diminished

capacity defense. But Lucas's counsel indicated that he needed Lucas to waive his speedy trial

rights to effectively prepare this defense because he needed to obtain more of Lucas's mental

health records and to retain an expert to evaluate Lucas. Lucas's counsel stated, "'[Lucas] has

indicated he may not want to do that. No, I don't think -- I think he indicated he wants to rely on

his speedy trial rights . . . I think I should waive speedy trial for him. He may not want to. He

may want to have an objection to it.'" RP at 3-4. Later, Lucas's counsel stated, "'[Lucas] is not

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 41131-8-II, consolidated with No. 41751-1-II

apparently waiving.'" RP at 4-5. The trial court found that Lucas's counsel needed additional

time to prepare a possible diminished capacity defense, set a new commencement date of

November 28, 2009, and set trial for January 27, 2010. The trial court entered a written speedy

trial waiver that Lucas refused to sign.

Lucas's trial began on March 8, 2010.2 Doctor Jerry Larsen, a psychiatrist, testified as an

expert for Lucas on his diminished capacity defense. According to Larsen, a review of Lucas's

mental health treatment history demonstrated a history of paranoid schizophrenia "going back

many years," "characterized by hallucinations, by delusions, [and] by behavioral excesses such as

bizarre behaviors." RP at 326. He stated that alcohol consumption would exacerbate those


Larsen also interviewed and examined Lucas. Lucas told him that on the morning of

September 4, 2009, he had consumed a large amount of alcohol and that he remembered little else

other than vomiting and waking up in jail. Lucas also said that he had not taken his psychotropic

medication for 10 days. Larsen stated that Lucas's assault on Taylor and Caton was consistent

with acting out on a paranoid schizophrenic delusion. He opined that at the time of the assaults,

Lucas was incapable of forming the necessary intent to commit a crime or of calculating the risk

of his actions.

Outside the presence of the jury, the State moved to cross-examine Larsen with evidence

2 The record does not indicate why trial began on March 8, 2010, instead of the January 27, 2010,
trial date set by the trial court at Lucas's arraignment. On February 5, 2010, the trial court held a
hearing on the State's motion to appoint experts to evaluate Lucas based on his diminished
capacity defense. Defense counsel observed that "[t]here is no issue of competency so trial time is
not tolling, as I understand the rule," and the trial court's order appointing experts did not
mention continuing the trial date. RP at 11. It appears from the record that Lucas remained in
custody pending trial.

No. 41131-8-II, consolidated with No. 41751-1-II

of Lucas's 2001 first degree robbery conviction, arguing that Lucas was "essentially testifying

through [Larsen] about the events in question" and, because Larsen partially based his evaluation

on Lucas's statements, Lucas's "credibility and truthfulness" was at issue. RP at 340. Over

Lucas's objection, the trial court allowed the State to cross-examine Larsen about Lucas's

conviction, reasoning:

[I]n general, the hearsay statements that experts testify to are subject to a curative
instruction; that the hearsay is only introduced for the purpose of explaining how
the individual formed their opinion. It is not offered for the truth of the matters
asserted and only to allow the set up to their opinion. However, to the extent that
credibility is an issue with regard to the doctor's opinion, [ER] 806 would appear
to apply. It does say that a hearsay statement, once it has been admitted,
credibility of the declarant may be attacked and may be supported by any evidence
that would be admissible for those purposes, if the declarant had testified as a
witness [sic]. So, it is permissible for the State to bring in [Lucas's robbery

RP at 341-42.

During cross-examination, Larsen stated that he was aware of Lucas's 2001 first degree

robbery conviction. Larsen also testified on cross-examination that (1) he evaluated Lucas four

months after the assaults; (2) Larsen could not verify Lucas's statements and took them at "face

value"; (3) Lucas was very specific in stating the number of drinks and number of days without

taking his medication despite his claim of memory loss on the day of the assaults; (4) Larsen did

not know what symptoms Lucas experienced while not taking his medication, paranoid

schizophrenics usually avoid people instead of confronting them; (5) someone who has "blacked

out" from excessive alcohol consumption can still engage in a series of intentional acts; and (6)

Lucas demonstrated cognitive ability after the assaults by complying with law enforcement's

commands and by conversing with them. RP at 350, 355.


No. 41131-8-II, consolidated with No. 41751-1-II

Doctor Gregory Kramer, a psychologist, testified as the State's expert. He also diagnosed

Lucas with paranoid schizophrenia based on Lucas's mental health treatment history. But Kramer

stated that during the assaults there was evidence of only Lucas's intoxication, not symptoms of

paranoid schizophrenia. He testified that Lucas's statement that he slapped Taylor because he

"felt disrespected" and his conversation with law enforcement and eventual compliance with their

commands demonstrated his capacity to form intent at the time of the assaults. RP at 402.

Kramer opined that the evidence showed that Lucas was capable of both forming intent and of

making risk calculations at the time of the assaults.

The jury found Lucas guilty as charged. Lucas unsuccessfully moved for arrest of

judgment or for a new trial. Lucas filed his direct appeal and then he filed a motion to dismiss the

entire case because appellate counsel, due to the trial court's untimely filing of documents with

this court, was never appointed. We converted his motion to dismiss into a PRP and consolidated

it with his direct appeal.


ER 806 and Expert Testimony Based on Out-of-Court Statements

Lucas first argues that the trial court abused its discretion in allowing the State to cross-

examine Larsen about Lucas's prior conviction. The State counters that the trial court did not

abuse its discretion because Lucas's statements, to which Larsen testified as part of the basis of

his expert opinion, were offered for the truth of the matter asserted and, thus, impeachment under

ER 806 was proper. We agree with Lucas.


No. 41131-8-II, consolidated with No. 41751-1-II

A. Standard of Review

We review the trial court's admission of evidence for abuse of discretion. State v.

Bashaw, 169 Wn.2d 133, 140, 234 P.3d 195 (2010). A trial court abuses its discretion when it

bases its decision on unreasonable or untenable grounds. State v. Rafay, 167 Wn.2d 644, 655,

222 P.3d 86 (2009). We review the interpretation of evidentiary rules de novo. State v.

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).

B. Basis of Expert's Opinion Was Not Hearsay

ER 806 provides, "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."

ER 801(c) defines "[h]earsay" as "a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." (Emphasis added.) Thus, "ER 806 authorizes impeachment of a declarant only when

the declarant's statement has been offered to prove the truth of the matter asserted. If the

statement is offered for some other nonhearsay purpose, ER 806 does not apply." State v. Fish,

99 Wn. App. 86, 95, 992 P.2d 505 (1999).

ER 703 allows expert witnesses to base their opinions on facts otherwise inadmissible as

long as the facts are "of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject." ER 705 provides, "The expert may testify in terms of

opinion or inference and give reasons therefor without prior disclosure of the underlying facts or

data." Thus, as our Supreme Court has observed:

The trial court may allow the admission of otherwise hearsay evidence and
inadmissible facts for the purpose of showing the basis of the expert's opinion[.]


No. 41131-8-II, consolidated with No. 41751-1-II

The admission of these facts, however, is not proof of them.
"[I]f an expert states the ground upon which his opinion is based, his
explanation is not proof of the facts which he says he took into consideration[.]
His explanation merely discloses the basis of his opinion in substantially the same
manner as if he had answered a hypothetical question. It is an illustration of the
kind of evidence which can serve multiple purposes and is admitted for a single,
limited purpose only."

Group Health Coop. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 399-400, 722

P.2d 787 (1986) (first alteration in original) (citations omitted) (internal quotation marks omitted)

(quoting State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d 787 (1968)).

In other words, out-of-court statements on which experts base their opinions are not

hearsay under ER 801(c) because they are not offered as substantive proof, i.e., "the truth of the

matter asserted." Rather, they are offered "only for the limited purpose of explaining the expert's

opinion." 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington

Evidence author's cmts. at 387, 400 (2011 -- 2012 ed.); see also State v. Lui, 153 Wn. App. 304,

322-23, 221 P.3d 948 (2009), review granted, 168 Wn.2d 1018 (2010) (stating that admission of

out-of-court statements did not implicate the confrontation clause because they were admitted to

explain the bases for experts' opinions, not for the truth of the matter asserted); State v.

Anderson, 44 Wn. App. 644, 652-53, 723 P.2d 464 (1986) (stating that trial court did not abuse

its discretion in allowing the State's experts to testify about Anderson's out-of-court statements

to them because the statements were not offered to prove the truth of the matter asserted); State

v. Fullen, 7 Wn. App. 369, 379, 499 P.2d 893 (1972) (quoting Dutton v. Evans, 400 U.S. 74, 88,

91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)) ("'The hearsay rule does not prevent a witness from

testifying as to what he has heard; it is rather a restriction on the proof of fact through

extrajudicial statements.'").3 Accordingly, out-of-court statements offered at trial as the basis of


No. 41131-8-II, consolidated with No. 41751-1-II

an expert's opinion are not hearsay and, thus, do not expose the declarant to impeachment under

ER 806.

The State argues that such an interpretation of ER 806, ER 703, and ER 705 would allow

a defendant to "place his version of the events before the jury without any adversarial testing."

Br. of Resp't. at 4. But we rejected a similar argument in State v. Eaton, 30 Wn. App. 288, 291-

93, 633 P.2d 921 (1981), concluding that "the proper way to test the reliability of the [expert's]

opinion [i]s through cross-examination of the [expert], not by requiring the defendant to testify"

and impeaching the defendant with a prior conviction. We observed:

[T]he probative value of expert medical testimony may be lessened when it is
based on subjective symptoms and narrative statements given by a defendant after
he has been charged with a crime. The assumption underlying ER 703, however,
is that opposing counsel will forcefully bring that point to the jury's attention
during cross -- examination of the expert. Jurors are quite aware that a criminal
defendant may be motivated to fabricate a defense and are unlikely to be influenced
unduly by an expert opinion that is shown to rest on questionable sources of
information. Moreover, experienced forensic psychiatrists are equally aware of the
danger of fabrication and are trained to detect untruthful answers to their

Eaton, 30 Wn. App. at 294-95 (citations omitted). Here, the State extensively and effectively

cross-examined Larsen, including casting doubt on the credibility of Lucas's statements by

3 We note that the United States Supreme Court recently heard oral argument in People v.
Williams, 238 Ill.2d 125, 939 N.E.2d 268, 345 Ill.Dec. 425 (2010), cert. granted, ___ US ___,
131 S. Ct. 3090 (2011). In Williams, the Illinois Supreme Court held that an expert's testimony
about the facts and out-of-court statements in another laboratory's report not admitted into
evidence was offered to explain the basis of the expert's opinion, not for the truth of the matter
asserted, and, thus, did not implicate the confrontation clause. 238 Ill.2d at 132-33, 141, 143-45,
We also note that the Washington State Supreme Court granted review in Lui, 168 Wn.2d
1018, and on September 19, 2011, stayed review pending the United States Supreme Court's
decision in Williams. Although we continue to rely on existing case law about the purpose for
which trial courts admit facts and out-of-court statements forming the basis of expert opinions,
we note the uncertainty currently surrounding this area of law.

No. 41131-8-II, consolidated with No. 41751-1-II

adducing Larsen's testimony that he took such statements at "face value" with no means to verify

them, thus rendering any reference to Lucas's prior conviction unnecessary. RP at 350. Under

these circumstances, we hold that the trial court abused its discretion in allowing the State to

cross-examine Larsen with evidence of Lucas's prior conviction.

C. Error Was Not Harmless

Lucas argues that the trial court's admission of his prior conviction burdened his

constitutional right to present a defense and, thus, we should review the issue under the

constitutional harmless error standard. He also argues that the error was not harmless under the

nonconstitutional standard of review.

But if the error was not harmless under the less stringent nonconstitutional standard, we

need not decide whether the trial court's error was constitutional in magnitude,. Accord Eaton,

30 Wn. App. at 297. An error of nonconstitutional magnitude is harmless unless we can conclude

that, within reasonable probabilities, the error materially affected the trial's outcome. Eaton, 30

Wn. App. at 295-96.

For example, in Eaton, Eaton did not deny at trial that he broke into a liquor store, but he

contended that he was too intoxicated to form the necessary intent to commit a crime. 30 Wn.

App. at 290. He intended to call a psychiatrist to opine, based largely on two interviews with

Eaton in which he gave his recollection of the events of the date in question, that Eaton was

incapable of forming the required intent to commit a crime when entering the store. Eaton, 30

Wn. App. at 290. Concerned about the potential introduction of Eaton's out-of-court statements

through the expert's testimony, the trial court erroneously required Eaton to testify at trial and

allowed the State to impeach him with evidence of a prior robbery conviction. Eaton, 30 Wn.


No. 41131-8-II, consolidated with No. 41751-1-II

App. at 290-91, 295. We noted based on empirical studies of the time that "[t]here is a significant

danger that jurors will consider prior convictions admitted for impeachment purposes as

substantive evidence of guilt, regardless of instructions to the contrary." Eaton, 30 Wn. App. at

291 n.4. In holding the error was not harmless, we reasoned:

[Eaton']s prior robbery conviction was revealed to the jury as a result of his taking
the stand. . . . In all likelihood, the jurors' verdict depended greatly on their
assessment of defendant's credibility. A negative assessment of his credibility
conceivably would have influenced the weight the jury gave to the opinion of Dr.
Maletzky, defendant's key witness. In these circumstances, we must conclude that
the additional evidence placed before the jury as a result of the court's error
probably had an effect on the verdict.

Eaton, 30 Wn. App. at 297.

We observe that, generally, cases finding that the erroneous admission of defendants' prior

criminal convictions was harmless "have turned on the fact that the defendant had other prior

convictions that were properly admissible." State v. Calegar, 133 Wn.2d 718, 728, 947 P.2d 235

(1997). That factor is not present in Lucas's case.

Further, the State admits that, like the credibility contest in Eaton, "[t]his case came down

to a disagreement between experts." Br. of Resp't. at 11. The jury's possibly negative

assessment of Lucas's credibility -- arising from the erroneous admission of his prior

conviction -- conceivably and negatively influenced the weight they gave to Larsen's testimony,

and Lucas's key witness for his only viable defense of diminished capacity. Accordingly, we hold

that the error was not harmless and reverse and remand for further proceedings.

A majorityof the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record pursuant to RCW 2.06.040, it is so ordered.