The State of Washington, Respondent, v. Jeremy Mark Read, Petitioner, 147 Wash. 2d 238

Johnson, J. — This case involves a challenge to an evidentiary ruling by the trial court in a criminal prosecution where the defendant claimed self-defense. The trial court admitted lay opinion testimony on whether it was reasonable for the defendant, Jeremy M. Read, to use deadly force in self-defense. We are asked to determine whether Read’s second degree murder conviction should be reversed based on the admission of that testimony. The Court of Appeals affirmed the conviction, holding Read was not prejudiced by the testimony. State v. Read, 100 Wn.

App. 776, 998 P.2d 897, review granted, case remanded, 142 Wn.2d 1007 (2000), adhered to on remand, 106 Wn. App. 138, 22 P.3d 300 (2001). We affirm. FACTS Read shot and killed Bruce Larson, Jr., at the Orchard Inn in Wenatchee, Washington on May 3, 1998. Read had traveled to Wenatchee to attend the Apple Blossom Festival. Upon arriving, Read met his underage girl friend at a gas station, where she gave him her gun while she attempted to purchase beer. Read put the gun in the waistband of his shorts and concealed it with the athletic pants he was wearing over his shorts.

While his girl friend was gone, Read left with friends to go to a party. He walked past a motel room rented by another Apple Blossom reveler, where approximately 12 people were having a party. Read recognized a young woman with whom he had attended high school. She invited Read into the motel room and the two sat at the foot of the bed talking. While the two talked, Chad Larson, Bruce’s brother, repeatedly told Read to leave.

When Read did not respond, Bruce, who was unarmed and also sitting on the bed, stood up and said something approximating, “don’t get smart with my brother, man.” Report of Proceedings at 286. Read pulled the gun from his waistband and shot and killed Bruce. At trial, Read and one other witness testified Bruce “jumped” or “hopped” off the bed and stepped toward Read. Several other witnesses testified Bruce did not “jump” up and did not “rush” Read, but simply approached him. Witnesses also testified Bruce raised his arms at his sides.

Every witness except Read testified Bruce did not verbally threaten Read or do anything that appeared threatening. Many witnesses testified Read had no reason to defend himself and no reason to pull out the gun. This is the challenged testimony. Read was charged with second degree murder, first degree assault, and unlawful possession of a firearm. Read claimed he killed Bruce in self-defense. The trial court rejected his self-defense claim, and Read was convicted as charged.

The Court of Appeals vacated Read’s assault conviction on double jeopardy grounds, but affirmed his second degree murder and wrongful possession convictions. Read, 100 Wn. App. 776. The court concluded the trial court violated Read’s constitutional right to an impartial trial by allowing witnesses to opine as to the reasonableness of Read’s actions. Assuming Read was entitled to raise a self-defense claim, the court concluded the opinion testimony went to the ultimate issue of whether Read killed Bruce without justification. Nonetheless, the court held the error was not prejudicial.

In so holding, the Court of Appeals presumed the trial judge did not consider inadmissible evidence in reaching his decision. Read, 100 Wn. App. at 787-88 (citing State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970); State v. Ryan, 48 Wn.2d 304, 293 P.2d 399 (1956)). On review, we remanded the case to the Court of Appeals for reconsideration in light of our decision in State v. Palomo, 113 Wn.2d 789, 783 P.2d 575 (1989). On remand, the Court of Appeals held Palomo did not mandate a more rigorous standard of review and reaffirmed Read’s convictions.

The court held Read had failed to rebut the Miles presumption that judges in bench trials do not consider inadmissible evidence when rendering decisions. Read, 106 Wn. App. at 147-48. The court noted, however, it would have affirmed Read’s convictions under a harmless error standard of review. Read contends the Court of Appeals erred by applying the Miles presumption. We hold Read was not entitled to raise a self-defense claim and admitting the opinion testimony was not constitutional error.

Therefore, this case does not present the question of whether Miles applies to evidentiary errors of constitutional magnitude. We affirm Read’s conviction because, in the absence of evidence to the contrary, we presume the judge in a bench trial does not consider inadmissible evidence in rendering a verdict. ANALYSIS To raise a self-defense claim in a murder prosecution, a defendant must produce some evidence to establish the killing occurred in circumstances amounting to defense of life and produce some evidence he or she had a reasonable apprehension of great bodily harm and imminent danger.

RCW 9A. 16.050; State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). To determine whether a defendant is entitled to an instruction on self-defense or entitled to have a judge consider it in a bench trial, the trial court must view the evidence from the standpoint of a reasonably prudent person who knows all the defendant knows and sees all the defendant sees. Walker, 136 Wn.2d at 772. Accordingly, when assessing a self-defense claim, the trial court applies both a subjective and objective test. Walker, 136 Wn.2d at 772.

When subjectively assessing a defendant’s self-defense claim, the trial court must place itself in the defendant’s shoes and view the defendant’s acts in light of all the facts and circumstances the defendant knew when the act occurred. Walker, 136 Wn.2d at 772. When objectively assessing a defendant’s claim, the trial court must determine what a reasonable person would have done if placed in the defendant’s situation. Walker, 136 Wn.2d at 772.

Considering both the subjective and objective inquiries, the trial court must determine whether the defendant produced any evidence to support the claim he or she subjectively believed in good faith that he or she was in imminent danger of great bodily harm and whether this belief, viewed objectively, was reasonable. Walker, 136 Wn.2d at 773. The standard of review when the trial court has refused to instruct the jury on self-defense depends on why the court refused the instruction. Walker, 136 Wn.2d at 771-72.

If the trial court refused to give a self-defense instruction because it found no evidence supporting the defendant’s subjective belief of imminent danger of great bodily harm, an issue of fact, the standard of review is abuse of discretion. If the trial court refused to give a self-defense instruction because it found no reasonable person in the defendant’s shoes would have acted as the defendant acted, an issue of law, the standard of review is de novo. Walker, 136 Wn.2d at 771-72. In this case, the trial court refused to consider Read’s self-defense claim for both objective and subjective reasons.

We will first address whether the trial court abused its discretion in finding Read did not produce sufficient evidence to support his claim he subjectively believed in good faith he was in imminent danger of great bodily harm. A person is justified in using deadly force in self-defense only if the person reasonably believes he or she is in imminent danger of death or great personal injury. RCW 9A.16.050(1). Great personal injury is that which would result in “severe pain and suffering.” State v. Walden, 131 Wn.2d 469, 477, 932 P.2d 1237 (1997).

Read testified only that he believed Bruce was angry, that Bruce stepped toward him. and moved his arms, and that Read did not have a clear path to the door. Read testified he thought he was going to get hurt and “panicked.” Report of Proceedings at 346. But even if Read reasonably believed he could get hurt, that does not excuse the use of deadly force. Read falls far short of producing evidence demonstrating he reasonably believed he was in imminent danger of death or great personal injury.

Because Read failed to satisfy the subjective element of self-defense, we hold the trial court did not abuse its discretion by refusing to consider self-defense. Because Read failed to satisfy the subjective element of self-defense, we need not review the trial court’s finding regarding the objective element of self-defense. Because we hold Read was not entitled to raise a self-defense claim, the challenged testimony was not an impermissible opinion of his guilt or innocence. Evidence is relevant only if it tends to make the existence of any fact of consequence more or less probable. ER 401.

Whether a reasonable person would have acted as Read acted was not a fact of consequence at trial. Therefore, the opinion testimony in this case was irrelevant. Admitting the challenged testimony may have been error, but it was not error of a constitutional magnitude. The admission of the irrelevant testimony does not warrant reversing Read’s convictions because we presume the trial judge did not consider inadmissible evidence in rendering the verdict, and the remaining evidence supports Read’s convictions. State v. Miles, 77 Wn.2d 593, 464 P.2d 723 (1970).

In Miles, a bench trial, the defendant claimed the court erroneously admitted a toy pistol into evidence. We held the admission of the toy pistol was error, but presumed the trial judge did not consider the toy pistol in rendering the verdict. Miles, 77 Wn.2d at 602. Accordingly, we held the admission of the toy pistol was not reversible error because there was sufficient admissible evidence to sustain the conviction. Miles, 77 Wn.2d at 602. Bench trials place unique demands on judges, requiring them to sit as both arbiters of law and as finders of fact.

For example, judges in bench trials may be asked to exclude probative evidence on the ground it is unfairly prejudicial. No judge could rule on such a request without considering the challenged evidence. And yet, in a bench trial, it is the consideration of such evidence by the judge that the objecting party seeks to prevent. The same is true of all challenged evidence in a bench trial. Like our decision in Miles, other courts acknowledge the unique demands of bench trials: It must be recognized that the very nature of the duties of a judge often require him to have knowledge of inadmissible evidence.

Every time he makes a ruling determining evidence inadmissible, he has to know what the inadmissible evidence consists of, and if he is the fact finder, he must eliminate [this evidence] from his consideration in determining the facts. Hawkins v. Marion Corr. Inst., 62 Ohio App. 3d 863, 869, 577 N.E.2d 720, overruled on other grounds by 55 Ohio 3d 705, 562 N.E.2d 898 (1990). Nonetheless, virtually no United States court has held this process to be unfair. “In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v.

Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). In the trial of a nonjury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not. An appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is sufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. Builders Steel Co. v.

Comm’r of Internal Revenue, 179 F.2d 377, 379 (8th Cir. 1950). The Miles presumption is rebuttable. A defendant can rebut the presumption by showing the verdict is not supported by sufficient admissible evidence, or the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made. Greater Kan. City Laborers Pension Fund v. Superior Gen. Contractors, 104 F.3d 1050, 1057 (8th Cir. 1997).

Sufficient admissible evidence supports Read’s conviction for second degree murder, and Read has not shown the trial judge relied on the inadmissible evidence to make essential findings that it otherwise would not have made. CONCLUSION We hold Read did not make a sufficient threshold showing to support his claim of self-defense, and the trial judge’s admission of irrelevant testimony was not reversible error. We affirm the Court of Appeals. Smith, Bridge, Chambers, and Owens, JJ., concur. Madsen, J., concurs in the result.