## Facts

- Police responded to several 911 hang-up calls at Sayiden Hussein Mohamed’s residence and found him intoxicated.
- Officers later returned to arrest Mohamed after learning of an outstanding warrant.
- During the arrest, Mohamed resisted and repeatedly spit in two officers’ faces, including after a spit mask was applied.
- Mohamed was charged with two counts of third degree assault based on spitting on the officers.
- The defense theory was that Mohamed was in an alcohol-induced blackout and lacked the required mental state for assault.
- The defense called an expert (psychiatric/toxicological) who opined Mohamed experienced an alcohol-induced blackout; the opinion relied in part on Mohamed’s out-of-court statements about how much he drank.
- The trial court offered to give a limiting instruction restricting the jury’s use of Mohamed’s statements to explaining the basis of the expert’s opinion, but defense counsel expressly declined any limiting instruction.
- The State cross-examined the expert and sought to impeach Mohamed’s out-of-court statements by referencing Mohamed’s prior theft convictions under ER 806.
- The jury convicted Mohamed on both assault counts; the Court of Appeals reversed; the State obtained review.

## Issues

1. Whether a defendant’s out-of-court statements introduced through a defense expert as a basis for the expert’s opinion may be treated as admitted for their truth when the defense declines a limiting instruction.
2. Whether, under those circumstances, the State may impeach the defendant as a hearsay declarant under ER 806 by using prior convictions for crimes of dishonesty, even though the defendant did not testify.

## Decision

- The Washington Supreme Court reversed the Court of Appeals and reinstated the convictions.
- Because the defense declined a limiting instruction, the jury was permitted to consider Mohamed’s statements about his drinking for their truth as well as for the expert-basis purpose.
- Treating the statements as hearsay made Mohamed a hearsay declarant subject to impeachment under ER 806.
- The State was therefore permitted to impeach Mohamed’s credibility, via cross-examination of the defense expert, with Mohamed’s prior theft convictions.

## Legal Principles

- A hearsay declarant’s credibility may be attacked under ER 806 as if the declarant testified as a witness.
- Statements offered solely for a non-hearsay purpose (such as explaining an expert’s opinion) are not impeachable under ER 806 as hearsay; however, when no limiting instruction is given after one is offered, the evidence may be treated as admitted for its truth.
- When evidence is admissible for a limited purpose, a limiting instruction under ER 105 is the mechanism to restrict the jury’s use; declining such an instruction can allow broader substantive use and trigger impeachment consequences.

## Conclusion

When a defendant’s self-reported facts are presented to the jury through a defense expert and the defense rejects a limiting instruction, the statements may be treated as admitted for their truth, making the defendant a hearsay declarant whose credibility can be impeached under ER 806, including with prior convictions for dishonesty.


State v. Mohamed, 186 Wash. 2d 235, 375 P.3d 1068 (Wash. 2016)