 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )      No. 67667-9-1
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                     Respondent,          )      DIVISION ONE
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              v.                          )      UNPUBLISHED OPINION
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CURTIS LEE HAMILTON,                      )                                                ~'.,.'o
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                     Appellant.           )      FILED: March 11, 2013
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       GROSSE, J.    -   When a party introduces evidence that would be

inadmissible if offered by the opposing party, that party opens the door to the

explanation or contradiction of that evidence. Here, Curtis Hamilton repeatedly

testified as to the potential prison term he faced if convicted of the crime with

which he was charged, despite the trial court's ruling that such evidence is

inadmissible. By his testimony, Hamilton opened the door to the admission of

evidence of his prior convictions. Hamilton also put his character at issue by his

own testimony, again opening the door to the admission of evidence of his prior

convictions. The trial court did not abuse its discretion in allowing this evidence.

We affirm Hamilton's conviction.

                                      FACTS

       Curtis Hamilton (Hamilton) was convicted of felony violation of a no-

contact order prohibiting him from contacting his former wife, Amber Hamilton

(Amber).   The conviction arose out of an incident that occurred in November

2010. At that time, Amber's friend Dena Carter was living in Amber's house.

According to Hamilton, he previously discovered that Carter was using
No. 67667-9-1/2


methamphetamine and selling drugs out of Amber's house.               He became

concerned about his and Amber's children who lived in Amber's house and told

Carter to leave. Because he ordered her out of the house, Hamilton testified,

Carter was angry with him.

       Early on November 6, 2010, Carter heard Hamilton "ranting and raving"

and calling Amber "every name in the book." Amber ran into the bathroom and

locked the door. Carter saw Hamilton go to the bathroom door and heard him

either hit or kick the door. Carter told Hamilton to get out of the house. Hamilton

called Carter names. The two were "chest to chest," and Hamilton hit Carter on

the chin with his forearm and threw a glass full of water at her, jamming her

finger. Carter again told Hamilton to get out of the house, and this time, Hamilton

shoved Carter aside and left.

      Amber and Carter locked the door to the house after Hamilton left, and

Carter called 911. At trial, Carter testified that Hamilton was living in Amber's

house at the time of the incident.     Rather than telling the 911 operator that

Hamilton lived in the house, however, Carter told the operator that Hamilton "just

showed up." She testified that she lied because she was afraid Child Protective

Services would remove Amber's children if it became known that Hamilton was

living in Amber's house in violation of the protective order. Police responded to

the 911 call and took statements from Amber and Carter.

      The State charged Hamilton with one count of first degree burglary and

two counts of domestic violence felony violation of a court order.      The State

discovered that Hamilton was actually living at Amber's house, and at the




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No. 67667-9-1/3


beginning of trial, dismissed the first degree burglary count and added a count of

fourth degree assault. The State subsequently amended the charge to include

only two counts-domestic violence felony violation of a court order and fourth

degree assault.

       At trial, Hamilton testified, contrary to Carter's testimony, that he did not

live in Amber's house at the time of the incident.        The State introduced a

recording of a jail phone conversation in which Hamilton told his sister that he did

live in Amber's house.    Hamilton explained that he knew that jail phone calls

were recorded and that the prosecutor would listen to the recording, so he lied

and said he lived at Amber's house to avoid a burglary charge. He testified that

he would rather be found guilty of violating a protective order than of first degree

burglary.

       The State played a recording of another jail phone conversation in which

Hamilton told Amber's mother to tell Amber's sister that he needed an alibi for

November 6 and that he intended to say he was helping the sister babysit a child

named Haley.

       The trial court allowed the State to introduce evidence of Hamilton's prior

convictions, including evidence of convictions the court had earlier ruled

inadmissible, because the court determined that Hamilton opened the door to the

introduction of that evidence.

       The jury found Hamilton guilty of felony violation of a court order and not

guilty of fourth degree assault. Hamilton appeals.




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No. 67667-9-1/4


                                   ANALYSIS

      The sole issue on appeal is whether the trial court erred in concluding that

Hamilton opened the door to the admission of evidence of his prior convictions.

When a party introduces evidence that would be inadmissible if offered by the

opposing party, that party opens the door to the explanation or contradiction of

that evidence. 1   "[A] trial court has discretion to admit evidence that might

otherwise be inadmissible if the defendant opens the door to [that] evidence."2

We review a trial court's determination that a party has opened the door for

abuse of discretion. 3 Here, we find no abuse of discretion in the trial court's

decision to admit evidence of Hamilton's prior convictions.

       Prior to trial, the court granted the State's motion to prohibit the

introduction of evidence of the penalty Hamilton faced if convicted as charged.

The court also allowed the State to introduce Hamilton's prior conviction of

second degree robbery. The parties also stipulated that Hamilton had at least

two prior convictions for violating the terms of the protective order. Hamilton has

a number of other prior convictions as well that, under the court's order on

motions in limine, were not admissible.

      After the trial was underway and before Hamilton took the stand, the State

renoted its motion in limine "for disclosure of any 404(b), 609, 608, and any kind

of character evidence which defense may be offering through the defendant

about any other parties, particularly Dena potentially, Dena Carter, or Amber



1
  State v. Ortega, 134 Wn. App. 617,626, 142 P.3d 175 (2006).
2
  State v. Warren, 134 Wn. App. 44, 65, 138 P.3d 1081 (2006).
3
  Ortega, 134 Wn. App. at 626.

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No. 67667-9-1/ 5


Hamilton." The court noted that evidence of Carter's drug use had already been

introduced, but that, as to other matters, the order on the motions in limine was

still in place.

        Notwithstanding the court's evidentiary rulings, Hamilton repeatedly

referred to the punishment he would receive if convicted of first degree burglary

or violation of the no-contact order.    On direct examination, defense counsel

asked Hamilton, "What can you tell us about the telephone call that we listened

to yesterday?" He responded, "That was stupid on my part. I was desperate. I

was terrified of possibly doing 19 years, which is equivalent to second degree

murder charge." The State objected, and the trial court stated:

        Hold on just a second. The jury is not concerned, should not be
        concerned with any punishment that may follow conviction. There
        is an order that the length of incarceration from any crime is not to
        be mentioned. You will disregard it.

        On cross-examination, the State asked Hamilton, "So again, when you

made the phone call that the jury all listened to the other day, what had you

personally read about this case? What evidence had you had an opportunity to

review?" Hamilton responded, "I researched the first degree burglary with the

two counts of violation of no contact order and assault and I added up the time,

which is equivalent to a second degree murder charge."

        Also, when asked on cross-examination what he meant by saying during

his telephone call that he was living at Amber's house, Hamilton testified:

               A        As I said before, that was a mistake on my part. I was
        scared to death about you trying to give me 200 something months
        based on all the lies, and you knew they were lies and yet you still -
        - you're still trying to put me in prison, and you know this woman
        [Carter] lied five times before she even took the stand, and you still



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      put her on the stand against me. You want me to go to prison that
      bad, you're going to put a girl on the stand that lied to three police
      officers, 911 call, an investigator in an interview; you know she
      perjured herself all those times, yet you still want to put her on the
      stand. And the reason why she told that lie, because she didn't
      want my kids to get taken away, yet she's doing meth out of the
      house; she's got needles in the house; they're selling drugs in the
      presence--

      The State asked Hamilton why he did not simply tell his sister during the

jail telephone call that he was not at Amber's house on the night of the incident.

Hamilton responded:

              A. Like I said before, on the phone call, I did that because I
      was scared to death of you convicting me of first degree burglary,
      that I didn't do it.

              Q. But--

            A. I didn't want -- hold on. You're asking me a question.
      Let me answer that. I did that, I said I lived there so you couldn't
      charge me with first degree burglary. I didn't live there. I was
      scared. You know what, I'm not quite sure you wouldn't have done
      the same thing you're trying to give me [sic].

              THE COURT: Hold on just a second.

              [HAMIL TON]: 19 years.

              THE COURT: Stop. You've answered the question.

             [HAMILTON]: I did that because I was scared. I said that
       because I was scared to death of going to prison. I'm 47 years old.
       By the time I got out, I'd be almost 70 based on lies. I was
       desperate ....

               What's happening to me right now is [Carter's) so mad at me
       for throwing her out, even the police testified that her demeanor she
       was angry, not emotionally disturbed, not crying, I mean she was
       mad. I told her to get out of the pad.

       Hamilton again mentioned the prison term he faced if convicted when

asked again to explain his jail telephone call:



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No. 67667-9-1/7


             A. . . . My bad on my part. I apologize. But hey, man, you
      guys swear by them phone calls, and I was desperate, and I knew
      you were going to listen to that phone call. I knew you were going
      to listen to it. That's why I said, hey, I was living there, man. But I
      wasn't living there. I would rather face a charge of a no contact
      order violation than pertaining, you know, for 60 months, but then
      instead of 200 and something months. Wouldn't you, honestly? I'm
      asking you a question now. If you were in my shoes and someone
      was trying to put you in prison for damn near the rest of your life
      based on lies --

             Q. What is that based on? You keep talking about so much
      prison time. Why are you facing so much time?

            A. If you research, I'm sure you know the law, any time first
      degree burglary is involved in a crime, everything is run
      consecutive. I did a lot of research on it.

             [DEFENSE COUNSEL):          Your Honor, I'm going to object.
      This is nonresponsive.

             THE COURT: It is nonresponsive, but he is going way
      beyond the court orders. And he is introducing items that he should
      well know are not admissible by my orders, and I told him that that
      can open up other things. So him having opened up a lot of things
      that were inadmissible, I don't think, your objections are well taken.

      Hamilton continued:

      I don't know if I'm correct or not, but I'm not an attorney, but I mean
      my chances of looking at 60 months compared to what you were
      trying to give me is hey, man, I made a mistake; you know, like I
      said, I was scared. You know, you're trying to send me to prison
      for a ungodly amount of time for a lady that clearly lied to not only
      to 911 call but to three officers, and I mean the investigator and
      detective.

      At this point in cross-examination, the State questioned Hamilton about

the number of points he would receive for sentencing purposes due to his prior

convictions. Defense counsel objected, but the court stated: "Counsel, it would

be an improper question, had your client not given improper answers, but he

gave improper answers, which opens the door to otherwise improper questions."



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No. 67667-9-1/8


The court decided that because of Hamilton's testimony as to evidence

previously ruled inadmissible, all of his prior felony convictions were admissible. 4

         The court also determined that by suggesting that he was the "good guy"

compared to Carter, whom he claimed was a drug user, and Amber, whom he

claimed allowed drug use and drug dealing around the children, Hamilton also

put his character at issue. 5         Accordingly, the court determined that,

notwithstanding ER 404(b), Hamilton's prior bad acts were admissible.

         We find no abuse of discretion in the trial court's determination that

Hamilton opened the door to the introduction of all of his prior convictions.

Hamilton repeatedly brought up the prison term he would face if convicted of first

degree burglary and/or felony violation of a no-contact order. He did so after

numerous warnings from the trial court not do to so. He repeatedly accused the



4
    The court stated:
                 THE COURT: Counsel, he has taken it way beyond crimes
         of dishonesty. His testimony to the jury is that the State is being
         unfair to him and draconian by suggesting that he could serve a lot
         of time unfairly. I've told him over and over again that the amount
         of time is not admissible and nevertheless, he keeps talking about
         it.
               [DEFENSE COUNSEL]: I understand.
               THE COURT: So all his crimes, all his felony crimes, are
       now admissible, all of them.
               [DEFENSE COUNSEL]: Your Honor--
              THE COURT: The issue --the issue of punishment is not for
       the jury. His crimes would not be admissible but for the fact that he
       keeps telling the jury that the prosecutor is on some kind of
       vendetta to give him an enormous amount of time in prison.
5
  The court stated: "[H]e's placed his own character into issue. He has
repeatedly suggested that he was the one keeping that family together, that
people tearing the family apart was his ex-wife and Dena [Carter], and that he
was some type of person on the outskirts trying to be the good guy with the good
character holding it together and they're the ones with the bad character. I think
by inference he has squarely put his character at issue."

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No. 67667-9-1/9


State of trying to unfairly punish him based on Carter's lies. He accused Carter

of using methamphetamine, selling drugs out of Amber's house with Amber's

knowledge and consent, and lying in retaliation for his ordering her out of the

house, and claimed he acted out of concern for his children.              Hamilton's

testimony opened the door to the introduction of his prior convictions.

      Affirmed.




WE CONCUR:




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