### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent, No. 68613-5-1 consolidated with No. 68614-3-1 -> (/> a C=3 -sc.

v. DAVID D. OGDEN, Appellant. UNPUBLISHED OPINION FILED: September 23, 2013 -o ro

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### Verellen, J. —David Ogden appeals hisconvictions on charges offirst degree robbery, attempted firstdegree robbery, and attempted second degree robbery. First, 

### Ogden contends that the trial court erred byprecluding 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 proofas to the matter he 

### intended to prove, this issue was notpreserved forappellate 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 inexcess ofthe statutory maximum. CONo. 68613-5-1/2

FACTS 

### The State charged Ogden with firstdegree robbery for an October 9, 2010 

### incident in which herobbed a Seattlebankof$250,1 attempted first degreerobbery for
an incident later that day in which he demanded money from a teller at a different 

### Seattle bank, but leftwithouttaking 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 hehad a gun, butfled before obtaining money.3 Attrial, the Statepresented the testimony ofthe bank tellers and restaurant employees who observed the incidents, and the police officers and detectives who investigated the offenses. Thejury 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 incidentwas recorded tovideo bythe bank's video system; a copy ofthe video was played to thejury. 

### 2Thisincident was also recorded and the recording was played for thejury. 

### 3Ogden was pursued andapprehended by anemployee ofthe restaurant, then taken into custody by police officers.No. 68613-5-1/3 

## conditions, caused a "delirium."4 Defense expert Dr. RobertJulien, 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 ofdiminished capacity when he committed the offenses, but noted that 

### hisopinion depended on unknown factors, including which medications Ogden had actually taken. 

### Toaddress the diminished capacity defense, the State presented the testimony ofpsychologist 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 ofOgden and review of the video recordings and witness accounts ofthe incidents. Dr. Parmentertestified 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


### 4Report ofProceedings (RP) (Dec. 15, 2011) at418. Dr. Eusanio alsotestified that Ogden scored in "the top one percent" on a scale indicating likelymalingering or exaggerating his symptoms. ]d. at 463.No. 68613-5-1/4


### forthe 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 ofthe issue does not accurately describe the nature ofthe testimony offered at trial. Moreover, the record reveals that he failed to preserve the issue for appellate review by making an adequate offer of proofto 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 Theprosecutorobjected, arguing thatthe testimony was beyond the scope ofthe 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 ofthe medical records, whether or not Mr. Ogden was disabled. It goes 

### to the question ofsource ofincome, to theindigency issueraised 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 processprotections,7 as well as his right undertherules
5RP(Dec. 19,2011) at 628. 6IcL (emphasis added). 7The 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 presentrelevant evidence.8 Theseconstitutional rights have limitations, however, including the requirement that the evidence sought to be admitted must be 

### relevant.9 But Ogden failed topersuasively present any basisfor adetermination that
the evidence ofwhether 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 

### relevantto thequestion ofwhether he had a "source ofincome,"10 hefailed tomake an 

### adequate, timely offerofproof, as ER 103(a)(2) requires.11 When errorispredicated 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 citesER 401, which provides thatevidence isrelevant ifit makes"the existence ofany fact that is ofconsequence to the determination ofthe action more 

### probable or less probable than itwould be without the evidence." 

### 9State 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) at628. 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 ofthe legal theory underwhich the offered evidence is admissible; it informs thejudge ofthe specific nature ofthe offered evidence so that the court can assess its admissibility; and itcreates a record adequate for review."). 

### 12 Id. at 539 (emphasis added).No. 68613-5-1/6 

### Although an offer ofproofis not required "ifthe substance ofthe excluded 

### evidence is apparentfrom therecord,"13 here, thesubstance ofthetestimony is not apparent. Unlike Ray, here there was no "extended colloquy" between the trial court 

### and counsel, that "revealed the substance ofthe evidence
. . . and the theory under 

### which itwasoffered."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 ofthemedical records."15 Even assuming thatDr. Julien could opine that Ogden
was disabled, itwas never explained to the trial court if, or how, Dr. Julien would know 

### whether Ogdenreceived income due to hisdisability.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 ifit iscomparable to aWashington felony.17

13 Id 

### 14Id, 

### 15RP(Dec. 19, 2011) at 628. 16 Ogden alsodid notexplain 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. 137Wn.2d 472,479, 973 P.2d 452(1999).No. 68613-5-1/7


### Because no comparabilityanalysis occurred, the conviction was erroneously included in Ogden's criminal history. 

### Second, Ogden's 36-month term of community custody on the firstdegree 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 Theterm ofcommunity custody imposed wasin excess ofthat allowed by statute.19 Third, the 18-month term ofcommunity 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, thecommunity custody term must be stricken. The sentence for attempted first degree robbery,21 128months ofconfinement and 18 months of community custody, was in excess ofthe 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. 59Wn. 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 ofthe standard range). 

### 22RCW9A.20.021(1)(b).No. 68613-5-1/8

Statement ofAdditional Grounds for Review 

### Finally, Ogden submitted a statement ofadditional grounds forreview.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 ofalleged errors and is, accordingly, unreviewable underRAP 10.10(c).24 We affirm the convictions and remand to correct the sentence.

WE CONCUR: 

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23 The statement ofadditional grounds consists ofa chartwith threecolumns headed "prosecutor misconduct," "ineffective [counsel]," and "judge misconduct," page citations to the verbatim report of proceedings in each column, and a list of authorities. 

### 24While a defendant isnot required tocite to the record orauthority in a pro se statement of additional grounds, he must still inform the court ofthe nature and occurrence of alleged errors. State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012).

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