(dissenting) — I respectfully dissent from the majority's conclusion that the battered woman syndrome testimony was irrelevant. Evidence that a criminal defendant suffers from the battered woman syndrome may be crucial even when self-defense is not an issue. See, e.g., People v. Minnis, 455 N.E.2d 209 (Ill. Ct. App. 1983) (reversible error to exclude testimony; innocent explanation as to why battered woman would dismember decedent was vital, implicating her constitutional right to present a defense, especially when prosecutor argued that dismemberment proved consciousness of guilt).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Whether the gun *510discharged accidentally or intentionally is a fact that is of crucial consequence to the determination of this action. Evidence that Hanson retrieved the gun out of fear and not anger tends strongly to make the theory that the gun discharged accidentally more probable.
Experience teaches that when a person points a gun at another and pulls the trigger, the person probably intends to make the gun discharge and to harm the other. This is particularly true if anger motivated the person to retrieve the gun just before the shooting. If the person retrieved the gun out of fear, not intending to harm but only to repel the other with threatened force, a better case can be made that any subsequent shooting was unintended or accidental, particularly if the gun discharged during a struggle. One's retrieval of a gun demonstrates malice and aggression when coupled with anger, whereas it suggests defensiveness alone when coupled with fear. A subsequent shooting is consistent with the motivation of a malicious and aggressive person but not the desire of a fearful person hoping only to scare away a perceived aggressor with a threat of deadly force.
In this case, the State argued that Hanson retrieved the gun out of anger. She said she did so out of fear. She also testified that she wanted to scare the decedent out of her house, as she had done before, but not to harm him. It was undisputed that she fired the fatal shot. From the shooting and the retrieval of the gun (which the State contended was an act of aggression and malice) the jury concluded that Hanson intended to kill the decedent. In other words, they rejected her testimony.
Would they have disbelieved an expert's opinion, based on the battered woman syndrome and Hanson's background, that she probably retrieved the gun out of fear? Only the jury knows. The proffered testimony was not only relevant, it might have succeeded where Hanson's failed. It might have persuaded the jury that she was credible. Expert testimony that she retrieved the gun out of fear and not anger was not only relevant in the sense that it made *511the State's theory less probable and the defense's theory more probable, it was objective in a way that Hanson's testimony was not.
Assuming Hanson's relevancy argument is properly before us, as the majority alternatively implies, I would reverse and remand for a new trial.
Reconsideration denied August 31, 1990.
Review denied at 115 Wn.2d 1033 (1990).