(concurring) — I agree with the dissent that inadmissible evidence which was objected to and overruled should not be subject to the Miles exception, if relevant and relied upon by the judge to make a finding of guilt. State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970) (finding presumption that judge in a bench trial did not consider inadmissible evidence).
However, much of the testimony objected to in the dissent was not opinion evidence, it was reporting observations or what was heard or not heard. This kind of evidence is required to be elicited by the state because our case law places upon the state the burden of proving absence of self-defense beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 491-96, 656 P.2d 1064 (1983). Some of the state’s questions could have been more artfully posed to elicit fact rather than conclusion.
Nonetheless, under either an abuse of discretion standard or a de novo review, the testimony complained about *247was irrelevant. Taking Read’s testimony unrebutted by any other testimony, it does not meet the requirements either on an objective or subjective basis for self-defense. Read offered no evidence that he was in reasonable apprehension of great bodily harm and imminent danger. RCW 9A. 16.050; State v. Walker, 136 Wn.2d 767, 966 P.2d 883 (1998). Under these circumstances, any opinion evidence was irrelevant and any error by the judge in admitting or relying on such evidence was harmless.