            IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 77111-6-1
                     Respondent,
       V.                                       DIVISION ONE

                                                UNPUBLISHED OPINION
RANDALL H. ROGERS,

                    Appellant.                  FILED: June 3, 2019


       LEACH, J. — Randall Rogers appeals his convictions for two counts of child

molestation. He claims testimony elicited by the State "opened the door" to excluded

"other suspect evidence."1     Because this testimony did not unfairly touch on the

excluded evidence, the trial court did not abuse its discretion by concluding that this

testimony did not open the door. We affirm.




        1 In addition to alleging the trial court abused its discretion by denying admission
of "other suspect evidence," Rogers's pro se notice of appeal alleges that the trial court
abused its discretion by denying his request for a special sex offender sentencing
alternative (SSOSA) and claims that the State engaged in prosecutorial misconduct.
After filing the notice, Rogers retained counsel. In his opening brief, Rogers raises only
the issue of "other suspect evidence." Because Rogers's brief does not address the
denial of the SSOSA or the allegation of prosecutorial misconduct, the panel need not
review these issues.
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                                    BACKGROUND

       In July 2014, E.R. told her father, Lance Rogers, that her grandfather, Randall

Rogers, had touched her inappropriately.2        After this disclosure, Lance and E.R.'s

mother and Lance's ex-wife, Kendra Etzkorn, decided to take E.R. to a therapist.

       Etzkorn took ER. to talk to Katherine Doyle, a marriage and family therapist.

After meeting with E.R., Doyle, as a mandatory reporter, reported E.R.'s description of

Rogers's two years of inappropriate touching to Child Protective Services (CPS). CPS

referred the case to law enforcement. Sergeant Christine Elias took statements from

Etzkorn and Lance. After Shana MacLeod, a King County child interview specialist,

interviewed E.R., the State charged Rogers with two counts of child molestation in the

first degree.

       Before trial, Rogers asked the trial court to admit evidence of Lance's 20-year-old

alleged assault of his stepsister, Annie, and her friend when Lance was a teenager and

they were preteens. The trial court granted the State's request to exclude this evidence

because no evidence linked Lance to E.R.'s allegations.

       E.R. testified at trial. She stated that Rogers touched her inappropriately on a

number of occasions when they were watching TV together and she was positioned on

his lap with her back to his chest. She described instances when Rogers put his hands

under her pants and rubbed her vagina. At least once, he tried to insert his finger into




       For purposes of clarity, we refer to Lance Rogers as Lance and Randall Rogers
       2
as Rogers. Following the information charging Rogers, we refer to the child victim as
E.R.
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No. 77111-6-1/3



her vagina. He stopped when she squeezed her legs together because it hurt. E.R.'s

testimony was consistent with what she told Lance, Etzkorn, Doyle, and Macleod.

      Lance testified about E.R.'s initial conversation with him disclosing Rogers's

inappropriate touching. After E.R. asked him if she could sleep in his bed,' Lance

reminded her that some kinds of touching were inappropriate. And he told her that this

type of touching was not okay even if by a family member. E.R. then stopped talking,

turned away from him, and curled into a fetal position. After Lance asked a few more

questions, she said that Rogers had given her "massages.. . where [her] panties are."

      Etzkorn testified that E.R. told her that Rogers had rubbed her over her panties

more than five times over at least a twelve-month period. Both Etzkorn and Doyle

reported that E.R. said that Rogers had tried to insert his finger into her vagina at least

once but stopped when she said "ouch." Doyle testified that E.R. "said her grandfather

had touched her over her panties when either they would be at his house watching W"

or, one time, when he came into the bedroom.

      Rogers testified that he never touched E.R. inappropriately. Rogers and Lisa

Rogers, his wife, testified that he was not interested in spending time alone with his

children or grandchildren until they were adults.3 They admitted that E.R. had been to

their house numerous times but denied that Rogers was ever alone with E.R. except

when tucking her in, briefly, at night. Rogers also testified that E.R. was clingy and not

getting enough attention from her parents. He claimed that E.R. acted normally toward

him when he saw her immediately after she told her father about the touching. But he

      3   For purposes of clarity, we refer to Lisa Rogers as Lisa.
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No. 77111-6-1 / 4



stated that Lance exhibited conflicting behavior toward him after E.R. told him about the

touching.

      On cross-examination, the prosecutor asked Rogers about E.R.'s and Lance's

behavior.   She asked Rogers, "[C]ouldn't you understand that [for Lance, E.R.'s

statements] would lead to a lot of conflicted feelings about how to interact with someone

you love in that situation?" Rogers responded, "No, I don't understand that." Then the

following exchange occurred:

            Q:     And in talking about [E.R.'s] own interactions with you and
      then not seeing anything abnormal, what's your expertise on children who
      have been victims or have alleged sexual abuse? Are you an expert?

             [Defense Counsel]: Go ahead and answer the question.

             A:     Just the experience I had with my daughter when she was
       younger.

             Q:     And have you received any formal training?

             A:     No.

             Q:     Are you a child forensic interviewer?

             A:     I'm not.

       When defense counsel then objected, the court excused the jury. Rogers's trial

counsel claimed that the State's line of questioning was inappropriate because Rogers

did not need to be an expert to describe his observations of E.R.'s behavior. The court

agreed that the line of questioning should be limited but concluded that Rogers's

testimony that E.R. "was starved for attention [was] something that one often hears

about from an expert counselor."      The court expressed concern that striking the



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exchange might bring more attention to the issue than allowing the State to ask one

more clearly worded question and moving on.

       Rogers's counsel responded that the State had opened the door to the evidence

about Lance's alleged acts of abuse by asking whether Rogers had any expertise in

child-victims behavior. The court disagreed because this was "not a case in which other

suspect evidence [was] being presented."        The State proposed asking one final

question, and Rogers's counsel responded, "Fair enough." When the jury returned, the

State asked Rogers, "[Y]ou are not an expert on child psychology, is that correct?"

Rogers answered, "That's correct."

       When the prosecutor cross-examined Lisa, she asked whether Lisa thought

Lance "had a good relationship with Annie and Tom," his siblings. Lisa answered, "He

picked on Tom a lot when he was little, and I—I don't know how to answer the Annie

question." She stated that there was sibling rivalry but confirmed that they "were all a

relatively close family."

       The jury found Rogers guilty as charged. Rogers appeals.

                                      ANALYSIS

       Rogers claims that the trial court should have admitted the excluded evidence

about Lance because the State opened the door with its cross-examination of Rogers

and Lisa.

       A trial court has discretion to admit otherwise inadmissible evidence when a

witness "opens the door" to this evidence during testimony "and the evidence is relevant



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No. 77111-6-1 /6



to some issue at trial."4 This rule preserves fairness.6 In particular, it allows courts to

guard against one party gaining an unfair advantage by introducing evidence about an

excluded subject while the other party remains barred from doing so.6 "But a passing

reference to a prohibited topic during direct does not open the door for cross-

examination about prior misconduct."7

       We review a trial court's application of the "open-door" rule for an abuse of

discretion.8 A trial court abuses its discretion when it makes a manifestly unreasonable

decision or exercises its discretion on untenable grounds or for untenable reasons.9

The party claiming abuse has the burden of proving abuse of discretion.19

       Rogers cites to State v. Waffordll to support his assertion that testimony here

opened the door. But Wafford does not help Rogers. There, the trial court admitted a

previously excluded video of the child-victim's statement because defense counsel

referred to it during opening statements, which risked misleading the jury as to its

contents.12 Here, in contrast, neither Rogers, nor Lisa, nor any other witness referred to

        4 State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998) (citing State v.
Tarman, 27 Wn. App. 645, 650-52, 621 P.2d 737 (1980)).
        5 State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).
        6 Gefeller, 76 Wn.2d at 455.
        7 Stockton, 91 Wn. App. at 40 (defendant's testimony that he thought men were
trying to sell him drugs did not "open the door" to evidence of his prior drug convictions);
State v. Avendano-Lopez, 79 Wn. App. 706, 714-15, 904 P.2d 324 (1995)(defendant's
"passing reference to his release from jail did not open the floodgates to questions
about prior heroin sales").
        8 State v. Wilson, 20 Wn. App. 592, 594, 581 P.2d 592 (1978).
        9 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
        19 State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other
grounds, 99 Wn.2d 538, 663 P.2d 476 (1983).
        11 199 Wn. App. 32, 35-36, 397 P.3d 926, review denied, 189 Wn.2d 1014
(2017).
        12 Wafford, 199 Wn. App. at 40.

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No. 77111-6-1 / 7



the excluded testimony directly or indirectly. So their testimony does not include even a

"passing reference" to the excluded evidence.13

      Rogers contends that the State violated the trial court's pretrial exclusion of

testimony about Lance's alleged molestation of his stepsister and her friend, by asking

him if he was an expert "on children who have been victims or have alleged sexual

abuse." He asserts this questioning produced his response that his experience was

limited to that "with [his] daughter when she was younger." He maintains this answer

"created a false impression" in the minds of the jurors, so "fairness required the trial

court to allow" the excluded testimony about Lance.

       But the State asked its questions in the context of Rogers's statements that E.R.

was clingy after her parents' divorce and that she had acted normally around him after

she had told her father that Rogers had touched her inappropriately. And the State

credibly explained that its questions impeached Rogers's testimony about E.R.'s

behavior. In addition, the State's final clarifying question and Rogers's answer that he

was not an expert focused the purpose of these questions.

       Rogers also points to Lisa's answer to the State's question about how Lance

treated Annie and Tom. He claims Lisa's statement that Lance "picked on Tom a lot

when he was little, and I—I don't know how to answer the Annie question" opened the

door to the excluded evidence because it shows that Lance molested Annie when they

were young. But Lisa's testimony is not sufficiently related to the excluded evidence to




       13 See   Avendano-Lopez, 79 Wn. App. at 714-15.
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No. 77111-6-1 / 8



have opened the door. And no other testimony supports an inference that Lance

molested E.R.

      We conclude that the identified testimony did not "open the door" to the excluded

evidence.

      If the trial court did err in applying the "open the door" rule, the error was

harmless.

       If a trial court abuses its discretion by excluding evidence, we provide relief only if

the error caused harm.14 An error is not harmless if "within reasonable probabilities, the

outcome of the trial would have been materially affected had the error not occurred."15

       Rogers contends that the State's line of questioning prejudiced him.               He

suggests that the jury could have interpreted his statement that his experience

observing the behavior of children who had been abused was "fflust the experience 1

had with my daughter when she was younger" as meaning that he molested his

daughter. Also, he claims that his "hesitation, [his] looking toward defense counsel

helplessly. . . , and his answer impacted his credibility in the eyes of the jury."16

       But E.R.'s testimony and her admitted interview support the jury's verdict. In

addition, Lance, Etzkorn, and Doyle testified that E.R. reported consistent descriptions

of Rogers's molestations. Given the strength of the State's case against Rogers, he

does not show that the outcome of the trial would have been different if he had not



       14State v. Korum, 157 Wn.2d 614, 647, 141 P.3d 13(2006).
      15 State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
      16 This description of Rogers's hesitancy and his look "toward defense counsel"
does not appear in the record of proceedings.
                                             -8-
No. 77111-6-1 / 9



stated that his only experience with child abuse was his daughter's experience when

she was younger.17 So any error by the trial court was harmless.

                                   CONCLUSION

       We affirm. Because Rogers fails to show that testimony during trial "opened the

door" to excluded evidence, the trial court did not abuse its discretion by refusing to

admit it.




WE CONCUR:




    QA-1\f—EQ-Q2n cl




       17Rogers does not identify as prejudicial Lisa's statement that she did not know
how to answer "the Annie question."
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