(dissenting) — The issue is whether evidence of brain damage is relevant to establish diminished capacity to form criminal intent. We are not speaking of psychobabble about an alleged mental illness, sometimes more in the mind of the witness than the defendant, but rather a demonstrable physical assault upon brain tissue. I posit: If this isn’t relevant to diminished capacity, what is?
The trial court and the majority entirely miss the point of this case when they premise their analysis of diminished capacity upon a search for mere intent to physically deliver. Majority at 921-22. Of course the defendant “intended” to hand the drugs over to the policeman in the sense his physical actions were volitional. But that doesn’t end the inquiry, nor hardly even begin it.
Rather the question here is whether the defendant so acted “with the objective or purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(l)(a). If his mental capacity was so diminished he thought he was *923making the delivery as an agent for law enforcement, then his act, intended and volitional in a physical sense, was not “intended” to commit a crime. Therefore competent evidence relevant to prove the asserted diminution of mental capacity to form that criminal intent is admissible.
This is more than merely an evidentiary question. Included within the right to present a defense is the right to offer the testimony of witnesses. As this court observed in State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996), “ ‘The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense .... This right is a fundamental element of due process of law.’ ” (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)).
Naturally this right does not extend so far as to permit a criminal defendant to introduce evidence irrelevant to his defense. See Maupin, 128 Wn.2d at 924-25 (“ ‘[A] criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.’ ” (quoting State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983))). And the Court of Appeals was correct when it noted “the only issue is whether Dr. Rose’s testimony was material and relevant to the question of whether ‘a mental disorder . . . impaired the defendant’s ability to form the specific intent to commit the crime charged.’ ” State v. Atsbeha, 96 Wn. App. 654, 660, 981 P.2d 883 (1999) (quoting State v. Ellis, 136 Wn.2d 498, 521, 963 P.2d 843 (1998)). Thus pursuant to Ellis the only remaining inquiry is whether Dr. Rose’s testimony was admissible under ER 702, 401, and 402. If it was, it was reversible error to exclude it.
ER 702 provides “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The trial court here determined Dr. Rose, based upon her training, experience, and contact with the defendant, was qualified to testify as an expert. Report of Proceedings (RP) at 44. Nor did the state challenge her qualifications as an *924expert. Therefore Dr. Rose should have been permitted to testify in the form of opinion or otherwise, so long as her testimony was relevant. State v. Greene, 139 Wn.2d 64, 73, 984 P.2d 1024 (1999); Ellis, 136 Wn.2d at 523.
The majoritys factual recitation highlights nearly every instance in which Dr. Rose made some statement seemingly damaging to the defendant’s theory. But conspicuously absent from the majority opinion is Dr. Rose’s response to a query posed by defense counsel which incorporated all of the legal niceties associated with the definition of intent. When asked directly whether Mr. Atsbeha had a diminished ability to form the intent as described in Jury Instruction 6, Dr. Rose replied in the affirmative:
Q. Okay. The particular instructions [sic] that we are addressing here is, “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.” Based on your treatment of Mr. Atsbeha and your knowledge of his physical and mental state in March of 1996, can you state with a reasonable degree of medical certainty that his ability to form this intent was impaired, was diminished in March of 1996?
A. Yes, I believe it was.
2 RP (Feb. 18, 1998) at 28-29.
“All relevant evidence is admissible . . . .” ER 402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable ....” ER 401 (emphasis added). Mr. Atsbeha’s ability, or lack thereof, to form the requisite criminal intent is obviously a matter of consequence to the determination of the action. See State v. Gough, 53 Wn. App. 619, 622, 768 P.2d 1028 (1989) (“Diminished capacity arises out of a mental disorder . . . that is demonstrated to have a specific effect on one’s capacity to achieve the level of culpability required for a given crime.”).
Dr. Rose had been the defendant’s physician since 1986.1 RP (Feb. 17, 1998) at 3. She had intimate knowledge of his *925brain damage and his “profound” impairment. 1 RP (Feb. 17, 1998) at 48. She testified to his organic brain damage resulting from syphilitic encephalopathy. 1 RP (Feb. 17, 1998) at 10-11. While under her care he was impaired to the point he could not care for himself or engage in simple life-sustaining behavior such as feeding himself or seeking medical attention when necessary. 1 RP (Feb. 17, 1998) at 23. Further, Dr. Rose responded in the affirmative when queried: “[D]o you have a reasonable medical certainty that Mr. Atsbeha’s capacity to form the intent to deliver cocaine to another person would have been significantly adversely affected by his medical condition?” 1 RP (Feb. 17, 1998) at 46-47.
Dr. Rose’s testimony supported the defendant’s theory if believed. 1 RP (Feb. 17, 1998) at 47; 2 RP (Feb. 18, 1998) at 28-29. “This court has long recognized that it is the function and province of the jury to weigh the evidence and determine the credibility of the witnesses and decide disputed questions of fact.” State v. Dietrich, 75 Wn.2d 676, 677-78, 453 P.2d 654 (1969).
“To maintain a diminished capacity defense, a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired the defendant’s ability to form the specific intent to commit the crime charged.” Ellis, 136 Wn.2d at 521. The proffered testimony here was the defendant’s mental condition impaired his ability to form the criminal intent to commit the crime. The trial judge erred as a matter of law when she found the testimony of Dr. Rose irrelevant.
In State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983) we held “the ‘compelling state interest’ requirement is the proper method of balancing the defendant’s right to produce relevant evidence versus the state’s interest in limiting the prejudicial effects of that evidence.” Thus minimally relevant evidence may be excluded in the face of a compelling state interest; but where the evidence has high probative value “no state interest can be compelling enough to preclude its introduction consistent with the Sixth Amendment *926and Const, art. 1, § 22.” Hudlow, 99 Wn.2d at 16 (citing Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); People v. Redmon, 112 Mich. App. 246, 255, 315 N.W.2d 909, 914 (1982)).
Dr. Rose’s testimony went to the very heart of Atsbeha’s defense: whether he had diminished capacity to form the requisite intent to commit the crime with which he was charged. To exclude such evidence is an abuse of discretion under Hudlow.
The majority also contends the Court of Appeals erred when it concluded Mr. Atsbeha’s belief that he was acting as an agent for the police negated the intent element of the crime with which he is charged. Majority at 919-20. Both the majority and the Court of Appeals correctly note expert testimony regarding a defendant’s mental state may no longer be admitted or excluded based upon the common law distinctions of intent, those distinctions being replaced by RCW 9A.08.010. Majority at 919; Atsbeha, 96 Wn. App. at 660-61. However RCW 9A.08.010 enumerates four degrees of criminal culpability: intent, knowledge, recklessness, and criminal negligence. A defendant acts with intent “when he acts with the objective or purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(l)(a).
When a criminal defendant attacks the intent element he must show he did not act with the objective or purpose to accomplish a result which constitutes a crime. If Mr. Atsbeha believed he was an agent of the police at the time of delivery, he did not act with the objective or purpose to accomplish a result which constitutes a crime. Rather he acted with the objective or purpose to accomplish a result which is specifically NOT a crime. Further, Dr. Rose’s testimony regarding the defendant’s profoundly impaired perception of reality would clearly have aided the trier of fact to determine whether Atsbeha’s capacity to understand his role in these events was diminished. The Court of Appeals was clearly correct in its finding that Mr. Atsbeha’s belief that he was an agent of the police negated the intent element of the crime.
*927Nor do I agree with the majority’s assertion that any belief by Mr. Atsbeha concerning his relationship with the police would be relevant and admissible to an insanity defense but not to a diminished capacity defense. Majority at 920.
This claim is problematic for two reasons. First, as previously discussed, when directly asked if Mr. Atsbeha’s ability to form the requisite intent was diminished by his mental condition Dr. Rose responded in the affirmative. Second, while diminished capacity is not a lesser included form of insanity, the two are not necessarily mutually exclusive either. In Gough Division One noted: “[Djiminished capacity does not ipso facto follow from insanity.” Gough, 53 Wn. App. at 622. However, “[i]t is apparent that a mental disorder may amount to insanity and also have a specific effect on the afflicted’s capacity to achieve a culpable mental state.” Id. (emphasis added).
The same evidence which is admitted to support an insanity defense may also be admitted to establish diminished capacity if the mental disorder also affected “the afflicted’s capacity to achieve a culpable mental state.” Id. Even if the trial judge were entirely correct that the testimony tended to establish insanity, such conclusion does not necessarily exclude the possibility that the testimony may demonstrate diminished capacity as well. In light of Dr. Rose’s testimony, resolution of the matter was for the jury, and Atsbeha’s right to trial by jury was abridged when the court took that question from the jury. And this was equally an obvious denial of this man’s right to defend against a serious criminal charge when his right to present witnesses on his own behalf was abrogated.
I therefore dissent, and would affirm the Court of Appeals for the reasons set forth.
Alexander, C.J., and Johnson, J., concur with Sanders, J.