Filed Washington State Court of Appeals Division Two
November 26, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51698-5-II
Respondent, UNPUBLISHED OPINION
v.
KENNETH S. HART,
Appellant.
GLASGOW, J. — Kenneth Hart was convicted of two counts of domestic violence second
degree assault and one count of felony harassment stemming from a single incident where he
strangled his wife, hit her, and threatened to kill her.
Hart appeals, arguing that the trial court erred when it held that the victim’s medical records
containing evidence of her bipolar diagnosis were inadmissible. He also contends that he received
ineffective assistance of counsel because his attorney failed to ask him about the harassment charge
during his testimony. He asserts that the trial court erred in delegating the imposition of his
conditions of community custody to the Department of Corrections. Finally, Hart argues that the
trial court violated his right against double jeopardy by dismissing one of his second degree assault
convictions without prejudice, rather than vacating it. No. 51698-5-II
We hold that the trial court did not err in excluding the medical records containing evidence
of the victim’s bipolar disorder because it correctly concluded that the risk of prejudice
substantially outweighed their minimal probative value. Thus, Hart was not deprived of his
constitutional rights to confrontation and to present a defense. We hold that Hart was not
prejudiced by his counsel’s failure to ask him about the harassment charge. The trial court did not
err in delegating conditions of community custody to the Department because the delegation was
authorized by statute. Finally, Hart’s second conviction for domestic violence second degree
assault should be vacated, rather than dismissed without prejudice.
We remand for correction of Hart’s judgment and sentence but affirm in all other respects.
FACTS
I. BACKGROUND
At the time of the relevant incident, Hart and the victim were married and had two sons
together.
On the night of October 22, 2016, the couple argued. According to the victim, Hart told
her to kill herself and then started punching her in the face. Later, after she said she would never
kill herself, Hart told her that he would “have to do it for [her]” and began strangling her. Verbatim
Report of Proceedings (VRP) (Vol. III) at 468. He strangled her a second time about 20 minutes
later, this time pushing down on her throat with his forearm. The victim testified that during both
strangling incidents she experienced tunnel vision, could not breathe or talk, and believed Hart
was going to kill her. Hart had taken her phone so that she could not call the police. This went on
all night, until sometime in the morning when Hart went into another room, leaving his wife in the
bedroom. She escaped from the house with their sons, and ran to the neighbor’s house to call the
police. The police arrived, interviewed the victim, photographed her injuries, and arrested Hart.
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Hart was charged with two counts of domestic violence second degree assault for the two instances
of strangling and one count of felony harassment for threatening to kill the victim.
II. THE VICTIM’S MEDICAL RECORDS
Several weeks before the incident, the victim had been diagnosed with bipolar disorder and
was undergoing mental health therapy and taking prescribed medications. Her medical records
listed her symptoms, which included poor memory, aggression, irritability, mood swings,
impulsivity, and hypersexual behavior, among others. There were also physician’s notes
describing increased irrational and impulsive behavior. But those symptoms improved markedly
with a change in medication in early October, about three weeks before the incident described
above. The records did not say that the victim could not accurately perceive, remember, and report
events, other than one comment about her efforts to “piece together what happened during periods
of risky behavior” before her medication was adjusted. VRP (Vol. I) at 138-39.
The State moved to exclude “any evidence of [the victim’s] past or present mental health
condition or medications” under ER 402 and ER 403. Clerk’s Papers (CP) at 68 (emphasis
omitted). Specifically, the State sought to exclude “any reference to the victim’s mental health,
including any supposed diagnoses, treatments, counseling sessions, or reasons for counseling.”
CP at 68.
The court granted the State’s motion, reasoning that there was no basis in the records or
evidence presented to conclude that either her bipolar disorder or her medications had prevented
her from accurately perceiving, remembering, or reporting events. The court found the diagnosis
and other health information “at best” “minimally probative” and “highly prejudicial.” VRP (Vol.
I) at 146.
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Hart moved for a continuance so that an expert could review the victim’s records and testify
as to whether her mental health or medications at the time may have had an impact on her
perceptions of the assault. The court granted the motion to continue.
At a subsequent hearing to again address the admissibility of the records, Hart’s expert
stated that the victim’s medical records “strongly suggest[ed]” that she was suffering from
“destructive and provocative interpersonal behavior” resulting from a manic phase of her bipolar
disorder during the assault. VRP (Vol. II) at 205-06. According to the expert, this “indicated an
altered state of mind . . . at the time of the alleged assault.” VRP (Vol. II) at 205-06. The expert
opined that it “would therefore seem appropriate for the trier of fact to consider [this] in the
deliberation regarding her credibility as a witness.” VRP (Vol. II) at 205-06. The medical records
reflect that as of October 1, 2016, about three weeks before the relevant incident, the victim was
suffering from “hypo-manic symptoms,” including poor memory. CP at 190-91, 194. Hart argued
that given the expert opinion and the content of the medical records, if the victim testified about
the alleged assaults, he should be permitted to impeach her using the records. The court confirmed
with defense counsel that he was seeking only to use the medical records for impeachment.
After considering the expert’s opinion, the trial court again ruled that Hart could not
introduce the medical records. The court reasoned that although the records supported the bipolar
diagnosis and contained a reference to poor memory upon intake, they did not adequately support
the conclusion that the victim was suffering from manic symptoms at the time of the assault, nor
did they establish that her perception of the assault or her ability to report it would have been
affected.
The court disagreed with the expert’s reading of the records as to the timing of her manic
episode. Because her manic episode occurred in August and perhaps early September, with
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consistent improvement thereafter, the court found that “the probative value of the records and the
information contained . . . as a basis to question [the victim’s] ability to properly perceive or
remember events in October of 2016 is very, very limited.” VRP (Vol. II) at 263.
The court explained that “at best, there’s some potential small relevancy of that one record
of memory, although there is no indication of how that would impact these particular events
either.” VRP (Vol. II) at 262. The court noted that the expert did not indicate that someone with
bipolar disorder would be unable to properly perceive events or would have memory deficits that
would prevent them from recalling events. Nor was there any indication that the prescription drugs
the victim was taking would have impacted her ability to perceive events.
The trial court concluded that the records were minimally relevant but carried a high risk
of prejudice because of the stigma associated with mental health issues. The prejudicial effect
substantially outweighed the probative value of using the medical records as a basis for
impeachment. The expert’s opinion therefore did not alter the court’s original ruling granting the
State’s motion in limine “exclud[ing] reference to the information contained in the medical
records.” VRP (Vol. II) at 267-68.
III. TESTIMONY AT TRIAL
At trial, the victim testified consistent with the facts described above. The court admitted
pictures of her injuries and bruising. Witnesses who saw her on the morning after the incident also
testified about her injuries, including black eyes.
During his testimony, Hart denied that he caused his wife’s injuries, claiming that they
were instead the result of consensual rough sex and deep tissue massage. Defense counsel did not
elicit testimony from Hart about the alleged threat to kill his wife that was the basis for the
harassment charge. But Hart did testify to an entirely different version of events, including
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testimony that he told his wife he wanted a divorce that night, and she responded that she was
going to take the kids and make sure he never saw them again.
During closing argument, defense counsel acknowledged that he had “neglected” to ask
Hart about the alleged threats related to the harassment charge, and argued to the jury that Hart’s
testimony should imply Hart’s denial of that charge by virtue of his testimony describing a
different version of events. VRP (Vol. V) at 898-99. Counsel explained that he had not wanted
to interrupt the flow of Hart’s testimony and wanted to keep the focus on the more serious charges
facing him. Counsel further argued that Hart’s general portrayal of the events in question, along
with his denials of the other charges, sufficiently contradicted the State’s version of events to serve
as an implicit denial of the harassment charge.
The jury found Hart guilty on all three charges. At sentencing, the State acknowledged
that the two assaults occurred during a continuing course of conduct, so one of the two assault
convictions had to be vacated to avoid a double jeopardy violation. The court agreed to vacate the
second count of assault, and on the judgment and sentence the court “dismiss[ed] Count 02 without
prejudice . . . due to double jeopardy.” CP at 166.
Upon sentencing, the court ordered Hart to “participate in the following crime-related
treatment or counseling services: as directed by [the Department of Corrections]” and to “comply
with the following crime-related prohibitions: as directed by [the Department].” CP at 167-68.
The court also ordered Hart to have no contact with the victim during the period of community
custody.
Hart appeals, arguing that the victim’s medical records should have been admissible for
impeachment purposes, and their exclusion deprived him of his constitutional rights to
confrontation and to present a defense. He also contends that he received ineffective assistance of
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counsel, and that the trial court erred when it delegated conditions of community custody to the
Department and when it dismissed his second degree assault conviction without prejudice.
ANALYSIS
I. RIGHTS TO CROSS EXAMINE AND TO PRESENT A DEFENSE
Hart argues his confrontation right and right to present a defense were violated when the
trial court declined to allow him to cross examine the victim regarding her medical records. We
disagree.
A. Burden and Standard of Review
A defendant’s rights to confrontation and to present a defense are not absolute: the
evidence that a defendant desires to introduce “‘must be of at least minimal relevance’” because a
defendant has no right to present irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230
P.3d 576 (2010) (quoting State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002)). “Evidence
is relevant if it has any tendency to make the existence of any consequential fact more probable or
less probable. However, relevant evidence is inadmissible if the danger of unfair prejudice,
confusion of the issues, or misleading the jury substantially outweighs its probative value.” State
v. Farnsworth, 185 Wn.2d 768, 782-83, 374 P.3d 1152 (2016) (citations omitted), review denied,
189 Wn.2d 1028 (2017). Thus,
[i]n order for a cross-examination limitation to violate the confrontation clause, the testimony sought by the defendant, but excluded by the trial court, must (1) be minimally relevant, (2) not be so prejudicial as to disrupt the fairness of the fact- finding process at trial, and (3) the defendant’s need for relevant but prejudicial information must outweigh the State’s interest in withholding that information from the finder of fact.
State v. Arredondo, 188 Wn.2d 244, 266, 394 P.3d 348 (2017). All three of these requirements
must be met. Id.
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In evaluating whether a witness can be cross examined on past mental health issues, trial
courts should consider the nature of the condition, whether the witness suffered from the condition
at the time of the event in question, and the temporal recency or remoteness of the condition. Id.
at 267. These factors “provide trial courts an effective means to consider the relevancy, probative
value, and prejudicial effect from the disclosure of a witness’ mental health limitations.” Id.
We review a limitation on the scope of cross examination for a manifest abuse of discretion.
Id. at 265. A trial court abuses its discretion when its decision is manifestly unreasonable or based
on untenable grounds or reasons. State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017).
B. The Court Did Not Abuse Its Discretion
Here, the trial court prevented Hart from cross-examining the victim using her medical
records, which he claims suggested that she struggled with poor memory and confusion around
the time of the incident. Hart argues that this evidence was highly relevant because it would have
called her credibility into question. He reasons that she was the State’s primary witness and her
account of the incident differed significantly from Hart’s.
However, Hart was not actually prohibited from cross-examining the victim about her
memory issues, but rather was prohibited from introducing evidence of her specific mental health
conditions and prescribed medications through her medical records. In other words, although Hart
could not impeach the victim using her medical records, he still could ask her general questions
about her ability to recall events.
The trial court concluded that the records were minimally relevant but were highly
prejudicial, and so properly excluded them. The trial court noted that there was “some potential
small relevancy” with respect to the isolated references to the victim’s memory issues in the
medical records, but ultimately concluded that their probative value was “very, very limited.” VRP
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(Vol. II) at 262-63. The court reasoned that the symptoms related to the victim’s bipolar disorder
did not implicate memory or perception impairment, and the references to potential memory issues
in the medical records were isolated and inconsistent. Although one reference to the victim’s
memory issues took place around August or early September 2016, there was “consistent
improvement from there on.” VRP (Vol. II) at 262-63.
The court took note of Hart’s expert’s report that the victim had a bipolar event at the time
of the incident, but concluded that this contradicted what was in the records, and Hart’s expert
could not “make that evaluation independently, because he didn’t evaluate her.” VRP (Vol. II) at
265-66. The court also reasoned that it can be challenging for a finder of fact to interpret medical
records, but the lack of a consistent concern about the victim’s memory suggested that the records
could not be relied on to support a conclusion about her mental state on October 22 when the
incident in question occurred.
With respect to the records’ potential prejudicial effect, the trial court noted that there was
a high risk that the jury would misunderstand the significance and meaning of a diagnosis of
bipolar disorder, particularly given the stigma often attached to mental health disorders, without
the benefit of an expert witness to explain it. The court accordingly concluded that this risk of
prejudice substantially outweighed the minimal probative value of the records.
We hold that the trial court did not err in excluding evidence related to mental health
information in the victim’s medical records. It engaged in a reasonable assessment of the
evidence’s relevancy and a reasonable comparison of its probative value versus its prejudicial
effect. See Arredondo, 188 Wn.2d at 268. The court considered the factors from Arredondo,
found that the records did not establish perception or memory problems at the time of the incident,
and correctly concluded that the minimal probative value of the records was substantially
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outweighed by the risk of prejudice. This conclusion was consistent with the court’s reasoning
that any evidence of memory impairment in the victim’s records was isolated and inconsistent, and
so was not sufficiently reliable or probative to outweigh the likely prejudice that would result from
the jury learning of her bipolar disorder. The trial court’s ruling was neither manifestly
unreasonable nor based on untenable grounds or reasons. See id. at 269. Because the trial court
did not abuse its discretion, we need not reach the issue of prejudice.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Hart argues that his harassment conviction must be reversed because he received
ineffective assistance of counsel with respect to his defense of that charge. We disagree.
Both the Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right of a criminal defendant to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). To prevail on a claim of
ineffective assistance, the defendant must show both that counsel’s performance was deficient and
the deficient performance prejudiced the defense. State v. Cienfuegos, 144 Wn.2d 222, 226-27,
25 P.3d 1011 (2001). A failure to show either deficiency or prejudice defeats the claim of
ineffective assistance.
To show prejudice, the defendant must establish that counsel’s errors “were so serious as
to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687. In other words, the defendant
must show “‘a reasonable probability that, but for counsel’s deficient performance, the outcome
of the proceedings would have been different.’” State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260
(2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). “A reasonable
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probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
Even if Hart’s counsel’s performance was deficient, an issue we need not decide, Hart was
not prejudiced. Hart argues that his counsel’s failure to ask him about the alleged threats to kill
the victim prejudiced him because as a result, he did not have an opportunity to address the
harassment charge. Hart claims that had he denied making the threat when testifying, the denial
“may” have created a reasonable doubt in the minds of some jurors. Br. of Appellant at 21.
This is not enough to show prejudice; Hart must show a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceedings would have been different.
Grier, 171 Wn.2d at 34. Counsel argued during closing why, despite the lack of an explicit denial
from Hart, the jury should still find a reasonable doubt with respect to the harassment charge.
Counsel reasoned that Hart’s version of events was different from the victim’s, so if the jury
believed his version of events, it should also conclude he did not make the threats that were the
basis of the harassment charge. Defense counsel’s closing argument negated any potential
prejudice.
In sum, Hart has not shown a reasonable probability that the outcome of the trial would
have been different had his attorney specifically asked him about the harassment charge. Defense
counsel was still able to argue his theory of the case to the jury on why it should acquit Hart of
that charge without his testimony. Hart does not explain what he would have testified to or how
his testimony would have done more to refute the State’s evidence against him. For these reasons,
we hold Hart was not prejudiced.
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III. CONDITIONS OF COMMUNITY CUSTODY
Hart argues the sentencing court improperly delegated certain aspects of his sentence to the
Department. We disagree.
A trial court can only impose community custody conditions authorized by statute. State
v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). If the trial court had statutory authority
to impose a condition, we review the trial court’s decision to impose the condition for an abuse of
discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). An abuse of discretion
occurs when the trial court’s imposition of a condition is manifestly unreasonable. State v. Hai
Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).
Although it is the role of the courts to determine guilt and impose sentences, the execution
of the sentence is administrative in character and is properly exercised by an administrative body,
consistent with the manner prescribed by the legislature. State v. Sansone, 127 Wn. App. 630,
642, 111 P.3d 1251 (2005). A sentencing court “may not delegate excessively” or abdicate its
judicial responsibility for setting the conditions of release. Id.
Under RCW 9.94A.703,1 courts “shall impose” certain conditions of community custody,
including a requirement that the offender “‘comply with any conditions imposed by the
[D]epartment under RCW 9.94A.704.’” State v. Petterson, 190 Wn.2d 92, 100, 409 P.3d 187
(2018) (interpreting this language as mandatory so long as the person is under community custody)
(quoting RCW 9.94A.703(1)(b)) (emphasis added). Under RCW 9.94A.704, the Department must
determine conditions on the basis of risk to the community safety. RCW 9.94A.704(2)(a). “The
[D]epartment may require the offender to participate in rehabilitative programs, or otherwise
1 The legislature amended RCW 9.94A.703 in 2018. Because the relevant language has not changed, we cite to the current version of this statute. 12 No. 51698-5-II
perform affirmative conduct.” RCW 9.94A.704(4). And the offender has a right to administrative
review to ensure that Department-imposed conditions are “reasonably related to the crime of
conviction, the offender’s risk of reoffending, or the safety of the community.” RCW
9.94A.704(7)(b). Thus, there is a mechanism to challenge a Department-imposed condition of
community custody if an offender believes the condition is not sufficiently crime related.
Here, the court imposed conditions requiring Hart to participate in crime related treatment
or counseling services “as directed by [the Department]” and to “comply with the following crime-
related prohibitions: as directed by [the Department].” CP at 167-68. This type of delegation is
consistent with RCW 9.94A.703 and RCW 9.94A.704, and any requirements that the Department
imposes are subject to administrative review. The trial court did not abuse its discretion when it
imposed these conditions and we accordingly reject Hart’s argument.
IV. DOUBLE JEOPARDY
Hart argues the trial court violated his rights against double jeopardy by dismissing one of
his second degree assault convictions without prejudice, rather than vacating it. We agree that this
count should be vacated.
The remedy for a double jeopardy violation is to vacate one of the underlying convictions.
State v. Womac, 160 Wn.2d 643, 660, 160 P.3d 40 (2007). A court violates double jeopardy if it
vacates an offending conviction “while directing, in some form or another, that the conviction
nonetheless remains valid.” State v. Turner, 169 Wn.2d 448, 464, 238 P.3d 461 (2010). This is
true “even when the lesser convictions are not actually reduced to judgment and do not appear on
the defendants’ criminal records.” Id. at 465. “To assure that double jeopardy proscriptions are
carefully observed, a judgment and sentence must not include any reference to the vacated
conviction.” Id. at 464 (emphasis added).
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The jury found Hart guilty of both counts of second degree assault (counts 1 and 2). The
trial court dismissed count 2 without prejudice due to double jeopardy, and did not include it
among Hart’s convictions. However, the court did reference count 2 on the judgment and sentence
by noting that it had dismissed it without prejudice. Hart argues that the court’s use of the term
“‘without prejudice’” suggests that his conviction on that count can still be reinstated. Br. of
Appellant at 24 (quoting CP at 166).
Because the proper formal remedy for a double jeopardy violation is to vacate the less
serious conviction without any mention of the vacated conviction in the judgment and sentence,
we remand for correction of Hart’s judgment and sentence. Count 2 should be vacated, rather than
dismissed without prejudice, and no reference to it should appear in Hart’s judgment and sentence.
CONCLUSION
We remand for correction of Hart’s judgment and sentence but affirm in all other respects.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J. We concur:
Maxa, C.J.
Melnick, J.