PER CURIAM.
Reynaldo Redmond appeals his conviction for second degree assault after a trial at which he claimed to have acted in self defense. He contends the trial court abused its discretion in admitting hearsay evidence and that the court erred in refusing to instruct the jury that he had `no duty to retreat' when acting in self defense. Because the challenged statements were either admitted for nonhearsay purposes or had no appreciable effect on the trial, and because retreat was not an issue for the jury, we affirm.
Facts
Bryan Johnson was in the parking lot of Lindbergh High School one day when he met Renaldo Redmond, a former Lindbergh student and one-time friend. Outside Johnson's car, the two argued briefly over statements Johnson allegedly made about Redmond to Redmond's former girlfriend. Redmond eventually struck Johnson in the face, fracturing his jaw.
The State charged Redmond with second degree assault of Johnson. At trial, Johnson testified that he was in his car with his sister leaving the school parking lot when he noticed in his review mirror that Redmond was approaching. Redmond pounded on the passenger side window of the car, then walked over to the driver's side, while taking off his shirt and demanding that Johnson get out of the car. Johnson stepped out of his car and met Redmond face-to-face. After a brief, heated argument in which Redmond accused Johnson of `messing up his game with his girl,' Johnson turned to get back into his car. As he did this, Redmond punched Johnson in the face, then grabbed him and smashed his head against the side of the car.
The two then wrestled to the ground with Johnson striking Redmond several times. The fight broke up when the school principal arrived. Redmond claimed self-defense and testified that he went to the school to pick up his friend's brother. As he was walking toward his car, he spotted Johnson and went over to talk to him about some things that Johnson had said about him to his ex-girlfriend. Johnson quickly grew belligerent and began making vulgar gestures and shouting profanities at Redmond. When Johnson stepped towards Redmond with his fists balled at chest level, Redmond feared he was about to be hit and `just reacted' by punching Johnson once in the face. Johnson then got Redmond in a headlock and wrestled him to the ground, punching his head several times.
The jury found Redmond guilty and he now appeals.
Analysis
Redmond first argues the trial court admitted improper hearsay evidence by allowing Johnson to testify that he knew why Redmond was approaching him because people at school had told him that Redmond would come to school looking for him. Hearsay is `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.' We review a trial court's ruling on the admissibility of evidence for manifest abuse of discretion. The State argues the testimony was admissible under ER 803(a)(3), which provides that a statement of the `declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health),' is an exception to the hearsay rule. But as Redmond points out, the declarants in this case were the people at school who spoke to Johnson. Their statements did not pertain to their then existing state of mind, nor was their state of mind relevant to this case. Thus, ER 803(a)(3) did not apply. Nonetheless, the statements were admissible because they did not constitute hearsay. A statement is not hearsay if it is not offered to prove the truth of what the declarant said. Statements offered only to explain why the listener acted a certain way are not hearsay because they are not offered to prove the truth of the matter asserted. The record here indicates the statements were not offered to prove that Redmond had in fact gone to the school in search of Johnson, but to show Johnson's frame of mind and to explain why he got out of his car when he saw Redmond approaching. Johnson's state of mind and motivation were relevant since the State needed to show that he was not the aggressor in order to meet its burden of disproving self defense. After describing what he had been told, Johnson ultimately testified that he got out of the car to try to talk to Redmond about the rumors and to prevent damage to his car. Because the statements were offered for a non-hearsay purpose, they were admissible. Redmond also contends the trial court abused its discretion in admitting unredacted hospital medical reports made during treatment of Johnson's injuries under ER 803(a)(4). Redmond focuses on statements in the report indicating that `apparently' an `ex-student' had accosted Johnson, dragged him from his car and smashed his head against the dashboard several times, `resulting in current injuries' to Johnson. Redmond asserts this statement attributed fault to him, an ex-student, and therefore, was inadmissible under the medical records exception to the hearsay rule set forth in ER 803(a)(4).
ER 801(c).
State v. Crowder, 103 Wn. App. 20, 25, 11 P.3d 828 (2000), review denied, 142 Wn.2d 1024 (2001).
State v. Collins, 76 Wn. App. 496, 498-99, 886 P.2d 243 (1995).
Crowder, 103 Wn. App. at 26.
Redmond argues that the State used the statements to prove the truth of the matter asserted when the prosecutor argued in closing that Redmond went to school looking for Johnson that day. But at least one other witness saw Redmond walking through the parking lot looking into cars, as if looking for someone. Additionally, Redmond admitted that he wanted to discuss rumors that Johnson allegedly had been spreading about him. Independent of the challenged statements, this would support the prosecutor's argument that Redmond was looking for Johnson.
ER 803(a)(4) provides that '[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment' are not excluded by the hearsay rule.
See State v. Huynh, 107 Wn. App. 68, 75, 26 P.3d 290 (2001) (statements in medical reports that attribute fault inadmissible under ER 803(a)(4) unless they are relevant to prevent recurrence) (citing 5B Karl B. Tegland, Washington Practice: Evidence sec. 803.23 at 469 (4th ed. 1999)).
We need not decide whether the trial court abused its discretion in refusing to redact the above-referenced language because any error was clearly harmless. The statement does not refer to Redmond by name, and is qualified by the word `apparently,' indicating the writer was not endorsing Johnson's statement. Moreover, other than implying that the ex-student was the aggressor, the report was inconsistent with every other account of the incident described at trial. No one saw Redmond drag Johnson from the car or smash his head into the dashboard, and Johnson himself stated that he exited his car before the assault occurred. Thus, the statement was not particularly supportive of the State's theory of how the assault occurred. If anything, this inconsistency could have impeached Johnson's story and raised doubt in the jury's mind about the truth of his claim. Thus, any error would be harmless because it is clear that the statement had no affect on the trial.
See State v. Greiff, 141 Wn.2d 910, 927-28, 10 P.3d 390 (2000) (error in admitting hearsay harmless unless, within reasonable probability, the statement materially affected the outcome of the trial.)
Greiff, 141 Wn.2d at 928.
Redmond finally argues that the trial court erred in refusing to give his proposed `no duty to retreat' jury instruction. Jury instructions are sufficient if, when read as a whole, they state the law correctly and allow the parties to argue their theories of the case. In Washington, persons lawfully present in a particular area have the right to stand their ground and defend themselves against unlawful force; there is no duty to retreat from the unlawful force of others. In self-defense cases, where a jury may conclude that retreat from an assault is a reasonable alternative to the use of force, and that therefore the use of force in self-defense is unreasonable, a `no duty to retreat' instruction should be given. On the other hand, such an instruction is not required where neither party raises retreat or where the evidence does not otherwise suggest that retreat was a reasonable alternative to the use of force.
The record indicates that Redmond proposed the WPIC `no duty to retreat' instruction, which provides: It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that [he] is being attacked to stand [his] ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat. Washington Pattern Jury Instructions: Criminal 17.05, at 205 (2d ed. 1994). There is no dispute that Redmond was lawfully present in Lindbergh High School parking lot.
State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980).
State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984).
State v. Wooten, 87 Wn. App. 821, 825, 945 P.2d 1144 (1997); State v. Williams, 81 Wn. App. 738, 742-44, 916 P.2d 445 (1996).
See State v. Frazier, 55 Wn. App. 204, 208-09, 777 P.2d 27 (1989); State v. Thompson, 47 Wn. App. 1, 5-6, 733 P.2d 584 (1987).
In this case, Redmond testified that shortly after he met Johnson, a heated argument ensued with Johnson gesticulating and screaming obscenities. When Johnson stepped forward with his fists balled, Redmond felt that `anything could happen' and that he `didn't think,' and he `just reacted' by punching Johnson. When asked to elaborate, Redmond stated he feared Johnson because he had seen him fight before, knew that Johnson was a fast runner, and believed that he could not run from Johnson. Redmond testified, `So I mean, I was between a rock and a hard place,' when he saw Johnson ready to fight, so he instinctively punched him.
Under the facts as presented, a `no duty to retreat' instruction was not necessary because retreat was not an issue for the jury. The State's theory was that Redmond was the aggressor at all points in the incident. Under Redmond's theory, his defensive response was instinctive and immediate, without time for time for reflection or consideration of retreat. This response was based on Redmond's fear and knowledge of Johnson's speed and fighting ability, which placed Redmond in a `Catch-22' where retreat was not an option. Although in closing, the State mentioned that Redmond had a better way of `getting out' of the situation, we do not read this as implying that Redmond had a duty to retreat. Rather, the context of this statement indicates that the prosecutor was challenging the credibility of Redmond's claim that he feared Johnson and that Johnson was the aggressor. Because retreat was not an issue, the trial court did not err in refusing to give a `no duty to retreat' instruction.