      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


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RONALD WAFFORD,                                   PUBLISHED OPINION            ,,...... mts3
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                     Appellant.                   FILED: May 15, 2017


       SPEARMAN, J. — It is well settled in Washington that a party that introduces

evidence of questionable admissibility runs the risk of opening the door to the

admission of otherwise inadmissible evidence by an opposing party. It is less

clear whether the rule is triggered only by the introduction of questionable

evidence or whether a statement by counsel regarding such evidence is

sufficient. In this case, appellant Ronald Wafford contends the trial court erred

when it found the door was opened by a comment made by his counsel during

her opening statement and admitted evidence it had previously ruled

inadmissible. We conclude that it is within the trial court's discretion whether the

door has been opened to otherwise inadmissible evidence by statements of

counsel and, if so, what, if any, remedy is appropriate. Here, the trial court did not

abuse its discretion when it found the door had been opened and admitted into
No. 75164-6-1/2

evidence a portion of the video recording it had previously excluded. We affirm

Wafford's conviction.

                                      FACTS

       Several times over the course of her childhood, T.H. accused Wafford, her

stepfather, of inappropriate sexual contact. In 2005, T.H.'s mother, Mariyah

Wafford, heard that eight-year-old T.H. had told a friend that something

inappropriate happened with Wafford. After reporting to police,.Mariyah took T.H.

to be interviewed at Dawson Place, the Snohomish County Center for Child

Advocacy. There, a child forensic interview specialist talked with T.H., and their

conversation was video-recorded. T.H. did not make a specific disclosure of

sexual abuse by Wafford, though she did appear to nod affirmatively in response

to one question about inappropriate sexual contact. The State did not investigate

further or charge Wafford.

      Seven years later, in 2012, T.H. again told a friend that Wafford sexually

abused her. The friend then passed along the allegations to police, who

interviewed her at school. Upset about the investigation, T.H. told investigators

that there was nothing going on. No charges were filed.

      Two years later, in 2014, T.H. was seventeen years old. She was having

problems at home and at school, where she failed to regularly attend classes.

T.H. started seeing a counselor at school to talk about her anger. Eventually,

T.H. disclosed to her counselor that Wafford sexually abused her. The matter

was reported to police. T.H. was removed from her home and began living with




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her biological father in Mount Vernon. During the investigation, T.H.'s older sister,

H.F., also made allegations that she had been sexually abused by Wafford.

       The State charged Wafford with crimes against both T.H. and H.F. As to

T.H., Wafford was charged with first degree rape of a child, first degree child

molestation, and first degree incest. As to H.F., Wafford was charged with first

degree rape of a child, first degree child molestation, and third degree child

molestation.

       Before trial, the court conducted a child hearsay hearing at which it

concluded that the 2005 recorded interview of T.H. was inadmissible. The court

reasoned that because T.H. never actually described an act of sexual contact,

her statements were not admissible under the child hearsay statute.

       In opening statements, the State began by telling the jury, "[it was a close

call, but he got away with it the first time. At age eight,[T.H.] was confused,

anxious, uncertain, and either unable or unwilling to articulate what it was that

her stepfather had been doing to her." Verbatim Report of Proceedings(VRP)at

426. The prosecutor went on to say that "[e]ventually [T.H.] ended up talking to a

police officer, talking to an interviewer, asking her questions about what was

happening." VRP at 428. He told the jury that it would hear testimony from two

people involved in that initial investigation. During defense counsel's opening

statement, she referred explicitly to the video of T.H.'s interview: "[Mariyah]

brought both [H.F.] and [T.H.]to Dawson Place in 2005. Nova Robinson

interviewed on video [T.H.]    [b]ut[T.H.] denied that anything was happening to

her." VRP at 444. The State did not object.


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       After opening remarks, the State requested that the court admit the

interview video that had been previously excluded. The State argued that when

defense counsel mentioned the video, she opened the door to its admission. The

State contended that the jury must see the video to rebut the characterization

that T.H. denied abuse in her interview. The court found that defense counsel

opened the door and admitted a portion of the video.

       At trial, Wafford successfully moved for a directed verdict on counts five

(first degree molestation of H.F.) and six (third degree molestation of H.F.)for

insufficient evidence. The jury found Wafford guilty of first degree child

molestation of T.H., but was unable to reach a verdict on the remaining counts.

The court sentenced Wafford to 68 months in prison. Wafford appeals.

                                   DISCUSSION

Opening the Door to Recorded Interview

       Wafford argues that the trial court erred when it found that his attorney's

opening statements opened the door to the admission of T.H.'s 2005 recorded

interview. He primarily contends that, as a matter of law, comments made by

counsel during opening statements cannot open the door to otherwise

inadmissible evidence.

       The decision to admit evidence lies within the sound discretion of the trial

court and should not be overturned absent a manifest abuse of discretion. State

v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). An abuse of discretion

exists "[w]hen a trial court's exercise of its discretion is manifestly unreasonable

or based upon untenable grounds or reasons... ." State v. Stenson, 132 Wn.2d


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668, 701, 940 P.2d 1239(1997). The range of discretionary choices is a question

of law and the judge abuses his or her discretion if the discretionary decision is

contrary to law. State v. Neal, 144 Wn.2d 600,609, 30 P.3d 1255 (2001).

       A party may open the door to otherwise inadmissible evidence by

introducing evidence that must be rebutted in order to preserve fairness and

determine the truth. State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17(1969).

      (1) [A] party who introduces evidence of questionable
      admissibility may open the door to rebuttal with evidence
      that would otherwise be inadmissible, and (2) a party who
      is the first to raise a particular subject at trial may open the
      door to evidence offered to explain, clarify, or contradict the
      party's evidence.

State v. Jones, 144 Wn. App. 284, 298, 183 P.3d 307(2008)(citing 5 KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67

(5th ed.2007).

       Wafford argues that only the introduction of evidence can open the door to

otherwise inadmissible evidence. He contends that because a comment made             •

during an opening statement is not evidence, it cannot open the door. Wafford

relies on State v. Whelchel, 115 Wn.2d 708, 801 P.2d 948(1990) to support his

argument, but the case is not helpful. In Whelchel, the trial court found a

recording admissible prior to trial. The State did not discuss the recording in

opening statements, but defense counsel did. When the recording was ruled

inadmissible on appeal, the supreme court rejected the State's argument that

defense counsel opened the door by discussing the recording in opening

statements. Id. at 728. Given that the evidence in question was admissible when



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the parties made opening statements, Whelchel does not stand for the broad

proposition that opening statements cannot open the door.

       Wafford also relies on Corson v. Corson, 46 Wn.2d 611, 283 P.2d 673

(1955), but to the extent the case is relevant, it does not support his argument. In

Corson, the trial court held a show cause hearing to determine whether a father

should be held in contempt for failure to pay child support as previously ordered.

In the course of the hearing, the trial court admitted evidence of the mother's pre-

divorce conduct. On appeal, the supreme court concluded that the trial court

erred in admitting the evidence. It rejected the father's argument that the

evidence was necessary to rebut remarks made by the mother in opening

statements. The court found that even if the mother had introduced the subject of

pre-divorce conduct in her opening statement, it did not justify receiving further

testimony on the issue because the trial court had other more appropriate means

of addressing the matter. The court stated:

       In making inadmissible and prejudicial remarks in the opening
       statement for [the mother], counsel should have been stopped by
       the court, advised to desist, and told that such matters would be
       disregarded by the court. The same disposition should have been
       made of the efforts at rebuttal by counsel for [the father].

Corson, 46 Wn.2d at 616-17.

       Our reading of Corson is that in the context of a bench proceeding, a trial

court abuses its discretion by admitting irrelevant and prejudicial evidence in

response to an improper opening statement when other more effective means of

ensuring a fair proceeding are available. The case does not hold, as Wafford




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suggests, that opening statements can never open the door to otherwise

inadmissible evidence.

       To resolve whether opening statements can open the door, we find State

y. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984)to be more on point and thus

more persuasive. In Rupe, defense counsel suggested in opening statement that

the victim's husband, rather than the defendant, was responsible for her murder

and that of one other person. As a result of those remarks, the State moved to

admit an emotional recording of the victim's husband calling 911. The trial court

admitted the recording to rebut the inference that the victim's husband was

culpable. Id. at 687.

       On appeal, Rupe contended that the trial court erred in admitting the

evidence because the probative value of the recording was far outweighed by its

prejudicial effect. The supreme court acknowledged the recording's prejudicial

effect, noting that it was "without a doubt, an extremely emotional experience to

listen to th[e] tape." Id. at 686. But it held that the trial court did not abuse its

discretion in admitting the tape. Id. at 688. The court agreed with the State that

because the defense theory, as asserted in opening statement, was that the

husband was responsible for the murders, the recording was relevant and

admissible to rebut that assertion. While the supreme court did not expressly rely

on the open door doctrine in reaching this result, Rupe supports the conclusion

that a trial court does not abuse its discretion by admitting otherwise irrelevant

evidence in response to remarks made during opening statement.




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No. 75164-6-1/8

       We decline to adopt Wafford's suggested rule that as a matter of law,

comments made during opening statements cannot open the door. First, such a

rule would be contrary to the general rule permitting trial courts the discretion to

determine the admissibility of evidence. Second, whether the issue arises from

the statement of counsel or the testimony of a witness is immaterial to the

question faced by the trial judge: to what extent, if any, has the statement

compromised the fairness of the trial and what, if any, response is appropriate. In

answering this question, the trial judge should have a range of options at his or

her disposal. A judge may admonish the jury to disregard certain statements or

reiterate its instruction that opening statements are not evidence. The judge may

allow testimony about otherwise inadmissible evidence, while continuing to

exclude the exhibit or document which contains the evidence. Or the judge may

find that a party has opened the door to otherwise inadmissible evidence. The

appropriate response is that, which in the discretion of the trial judge, best

restores fairness to the proceeding.

       Wafford next argues that even if comments made during opening

statement can open the door, the trial court abused its discretion in finding that

counsel did so in this case. He contends that counsel merely previewed the

testimony of two witnesses, which he argues, did not make the video recording of

T.H.'s interview relevant. But the trial court reasoned that counsel opened the

door because she

       referred to the video that was made from the interview, and
       you said that (T.H.] denied anything was happening to her,
       and you said that twice.


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No. 75164-6-1/9

           It would be fundamentally unfair to leave it like that. I said
       the State could not use this item of evidence, and then you
       told the jury what was inside the evidence. So things have
       changed, and the door is now open.

VRP at 452. We agree. Prior to trial, Wafford successfully excluded the

recording. In its opening, the State discussed the interview, but did not reference

a video. Then in her opening, Wafford's counsel told the jury that there was a

video, and that in it T.H. denied the abuse. Thus, Wafford was the first to identify

the existence of the recording, which he went on to characterize as containing a

denial of the abuse. Because these statements made continued exclusion of the

recording unfair to the State, the trial court did not abuse its discretion in finding

that counsel's opening statements opened the door to its admission.

       Next, Wafford argues that the trial court erred by admitting the recording

because it was inadmissible hearsay and therefore incompetent evidence. The

State contends that the recording was not hearsay because it rebutted a claim of

recent fabrication. The State is correct. A statement is not hearsay if "[t]he

declarant testifies at the trial or hearing and is subject to cross examination

concerning the statement, and the statement is...consistent with the declarant's

testimony and is offered to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or motive. . . ." ER

801(d)(1)(ii). In opening, Wafford theorized that T.H. recently fabricated the

sexual abuse in order to live with her boyfriend. The interview recorded almost

ten years earlier tends to rebut this theory. In it, T.H. indicated that Wafford acted

sexually toward her by slightly nodding her head in response to the question:

"Has anybody ever shown you any parts of their body that it's not okay for kids to

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No. 75164-6-1/10

see?" Exhibit 3 at 17. An affirmation of sexual conduct is consistent with her

testimony and is thus not hearsay under ER 801(d)(1).

        The trial court did not err by admitting the video of T.H.'s 2005 interview.'

Ineffective Assistance of Counsel

        Wafford argues that his attorney provided ineffective assistance of counsel

because she failed to request a limiting instruction for the video of T.H.'s 2005

interview. He contends that his counsel should have sought a jury instruction that

would limit consideration of the recording as evidence rebutting her

characterization of the video as a denial of sexual abuse. The State argues that

this was a legitimate trial tactic because in closing statements, counsel uses the

videos to argue for the truth of the matter asserted: whether Wafford abused T.H.

        We review an ineffective assistance of counsel claim de novo. State v.

White, 80 Wn. App. 406, 410, 907 P.2d 310(1995). The defendant has the

burden of establishing ineffective assistance of counsel. State v. Humphries, 181

Wn.2d 708, 719-720, 336 P.3d 1121 (2014). The performance of an attorney "is

not deficient if it can be considered a legitimate trial tactic." Id. at 720 (citing State

v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563(1996)).

        Here, defense counsel's failure to request a limiting instruction can be

considered a legitimate trial tactic. During closing arguments, counsel used the

2005 recording in defense of her client. She argued that T.H.'s responses to the


         1 We also disagree with Wafford's contention that hearsay cannot be admitted even when
a party opens the door to it. A party may open the door to evidence that is otherwise inadmissible,
subject to the trial court's discretion. Havsom v. Coleman Lantern Co. Inc., 89 Wn.2d 474, 485-
86, 573 P.2d 785(1978)(superseded on other grounds by statute as stated in Braaten v.
Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493(2008)); State v. Tarman, 27 Wn. App. 645,
651, 621 P.2d 737(1980).

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No. 75164-6-1/11

interviewer's questions about molestation "were emphatically no." VRP at 1636.

A limiting instruction would have prevented counsel from arguing that the

recording proved that there was no molestation. Thus, the failure to request a

limiting instruction was not deficient performance by Wafford's attorney.

      Affirmed.




WE CONCUR:




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