                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 11, 2019




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 JONATHON L. TAYLOR,                                                 No. 51360-9-II

                                Appellant,

        v.

 WASHINGTON STATE DEPARTMENT OF                               UNPUBLISHED OPINION
 LABOR AND INDUSTRIES,

                                Respondent.

       LEE, J. — Jonathon L. Taylor appeals from a jury verdict affirming an order of the Board

of Industrial Appeals, which denied Taylor’s request to reopen his industrial injury insurance claim

related to his lower back injury. Taylor argues that the superior court improperly admitted

evidence related to his third degree child molestation conviction and sentence, and as a result, he

is entitled to a new jury trial in superior court. We disagree and affirm.

                                              FACTS

A.     PROCEEDINGS BEFORE THE DEPARTMENT OF LABOR AND INDUSTRIES

       Taylor injured his lower back while working at a lumber mill in June 2008. He filed a

claim for permanent partial disability with the Department of Labor and Industries on June 19.

The Department allowed the claim on June 25, but closed Taylor’s claim a month later.

       In October, Taylor was convicted of third degree child molestation. Taylor was sentenced

to nine months incarceration and placed on 12 months of community custody supervision
No. 51360-9-II


following his release. As a condition of his supervision, Taylor was prohibited from having any

contact with minors unless another adult was present. Taylor was also required to register as a sex

offender.

       In March 2012, Taylor applied to reopen his claim with the Department. The Department

denied this request and issued an order affirming its decision to close Taylor’s claim in May 2013.

Taylor filed a request for reconsideration. The Department denied Taylor’s request and issued an

order affirming its decision to close Taylor’s claim.

B.     PROCEEDINGS BEFORE THE BOARD OF INDUSTRIAL INSURANCE APPEALS

       Taylor appealed the Department’s order affirming its decision to close Taylor’s claim to

the Board of Industrial Insurance Appeals. Taylor argued that he was entitled to benefits because

his June 2008 injury had prevented him from working. The Board heard testimony from several

witnesses, including Taylor and two vocational rehabilitation counselors, Carl Gann and Barbara

Berndt, who had worked with Taylor following his injury.

       Taylor testified that he had not applied for another job since his June 2008 injury because

his recurring back pain significantly limited the types of job tasks he could perform. On cross-

examination, the Department questioned Taylor about his child molestation conviction, including

the conditions of his community custody supervision that he register as a sex offender and have

no contact with minors without another adult present. Taylor objected to this line of questioning

“as more prejudicial than probative.” Clerk’s Papers (CP) at 94. The Board overruled Taylor’s

objection.

       The Department also questioned Gann and Berndt on the details of Taylor’s child

molestation conviction. Gann testified that a person’s criminal history was a factor in a typical



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No. 51360-9-II


vocational assessment. Taylor objected and argued that Gann’s testimony related to the details of

his criminal conviction was more prejudicial than probative. Again, Taylor’s objection was

overruled.

       Berndt similarly testified that a person’s criminal history is a factor when assessing his or

her employability. Berndt stated that Taylor had a felony conviction for sexual misconduct and as

a result of that conviction, Taylor could not obtain work in environments where children were

present. Berndt concluded that there were jobs that Taylor was physically capable of performing

but could not obtain because he was not allowed to work around children without another adult

present as a condition of his sentence. For example, Berndt explained that Taylor’s injury did not

prevent him from working as a cashier or school bus driver, but his restriction on having contact

with minors precluded these employment possibilities. Again, Taylor objected, arguing that

Berndt’s testimony regarding Taylor’s criminal conviction was more prejudicial than probative.

The Board again overruled Taylor’s objection.

       The Board concluded that Taylor’s June 2008 injury was not the proximate cause of his

lower back condition. It also found that Taylor did not have a permanent partial disability

proximately caused by his industrial injury. The Board ruled that Taylor was not a temporarily or

permanently totally disabled worker.       The Board issued a proposed order affirming the

Department’s order closing Taylor’s claim.

       Taylor filed a petition for review of the Board’s proposed order, which the Board denied.

As a result, the proposed order affirming the Department’s decision to close Taylor’s claim became

the decision and order of the Board.




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No. 51360-9-II


C.     PROCEEDINGS BEFORE SUPERIOR COURT

       Taylor appealed the Board’s decision to superior court. There, he renewed his objections

and argued that “the nature of Mr. Taylor’s conviction” was more prejudicial than probative.

Verbatim Report of Proceedings (VRP) (Oct. 17, 2017) at 5. Taylor told the superior court:

       I concede that the time frame for the conviction and the sentence is relevant to his
       ability to treat or not treat, but I would argue that the—the nature of the conviction
       is—has no bearing on the industrial injury or the subsequent that condition that he
       develops or his disability.

VRP (Oct. 17, 2017) at 5.

       As to Taylor’s community custody supervision, Taylor informed the superior court:

       I’m concerned that leaving in that he cannot work around children, that will allow
       the jury to draw an improper inference if the nature of the conviction is excluded,
       however, I would be willing to concede that if the nature of the conviction and all
       references to the child molestation are excluded. And again, I would argue, I
       don’t—I can’t think of another crime that’s going to be more prejudicial to a jury.

VRP (Oct. 17, 2017) at 9.

       The superior court ruled that references to the specific crime of third degree child

molestation was extremely prejudicial and asked each party “to propose a sanitized version of the

description of this conviction.” VRP (Oct. 17, 2017) at 13. Taylor proposed the term “sexual

misconduct.” VRP (Oct. 17, 2017) at 16. The superior court responded, “Court was thinking more

along the lines of just a felony.” VRP (Oct. 17, 2017) at 16. Taylor replied, “I would be very open

to that.” VRP (Oct. 17, 2017) at 16. The superior court also excluded references to Taylor’s status

as a registered sex offender, but ruled that his restriction on working around children as a result of

his felony conviction was relevant and admissible.




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No. 51360-9-II


        The jury found that the Board correctly decided that Taylor’s industrial injury was not the

proximate cause of his lower back condition.1 Taylor appeals.

                                             ANALYSIS

        Taylor argues that the superior court erred by admitting evidence that he had a felony

conviction and that he was prohibited from being around minors without the presence of another

adult. We disagree.

A.      STANDARD OF REVIEW

        The Washington Industrial Insurance Act (IIA), Title 51 RCW, governs judicial review of

workers’ compensation determinations. Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174,

179, 210 P.3d 355, review denied, 167 Wn.2d 1015 (2009). Our review of the superior court

decision is governed by RCW 51.52.140, which states that an “[a]ppeal shall lie from the judgment

of the superior court as in other civil cases.” This statutory scheme dictates a different role for this

court than is typical for appeals from administrative decisions governed by the Administrative

Procedure Act, chapter 34.05 RCW. Rogers, 151 Wn. App. at 180.

        In a typical appeal governed by the Administrative Procedures Act, we sit in the same

position as the superior court and review a Board’s determination de novo. Id. In contrast, in an

appeal governed by the IIA, we “ ‘review whether substantial evidence supports the trial court’s

factual findings and then review, de novo, whether the trial court’s conclusions of law flow from




1
   The special verdict form instructed the jury to not make any additional findings if it found that
the Board correctly decided that Taylor’s industrial injury did not proximately his lower back
condition.


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No. 51360-9-II


the findings.’ ” Id. (quoting Watson v. Dep’t of Labor & Indus., 133 Wn. App. 903, 909, 138 P.3d

177 (2006)).

B.     INVITED ERROR DOCTRINE

       Taylor argues that the superior court abused its discretion in admitting evidence that he had

been convicted of a felony and, as a result of that conviction, was unable to be around children

without another adult present. We hold that Taylor invited the evidentiary error that he now

complains of on appeal.

       “Under the invited error doctrine, a party may not set up an error at trial and then complain

of it on appeal.” Grange Ins. Ass’n v. Roberts, 179 Wn. App. 739, 774, 320 P.3d 77 (2013), review

denied, 180 Wn.2d 1026 (2014). “The doctrine applies when a party takes affirmative and

voluntary action that induces the trial court to take an action that party later challenges on appeal.”

Id.

       Here, Taylor objected to testimony related to “the nature of [his] conviction.” VRP (Oct.

17, 2017) at 5. He asked the court to limit references to his third degree child molestation

conviction, and he proposed the term “sexual misconduct” to refer to his conviction. VRP (Oct.

17, 2017) at 16. When the superior court suggested use of the term “felony,” Taylor responded,

“I would be very open to that.” VRP (Oct. 17, 2017) at 16. Because Taylor voluntarily and

affirmatively agreed with the superior court’s suggestion to refer to his conviction as a felony,

Taylor may not now argue on appeal that the superior court erred in allowing testimony referring

to his conviction as a felony.

       Similarly, Taylor conceded that the conditions of his sentence were relevant to his ability

to seek treatment. And he represented to the superior court that his concerns regarding testimony



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No. 51360-9-II


that he cannot work around children would be alleviated if the superior court excluded evidence

as to the nature of his conviction and all references to child molestation. Thus, Taylor took

voluntary and affirmative action that induced the superior court to admit this evidence if it

excluded all references to Taylor’s child molestation conviction. Taylor invited this error and he

may not now complain of it on appeal.2

C.     EVIDENTIARY RULING

       Even if the invited error doctrine does not preclude Taylor’s claim, his challenge to the

superior court’s evidentiary ruling fails. Taylor argues that the superior court abused its discretion

in admitting evidence that he had a felony conviction and was prohibited from working around

children because such evidence is inherently prejudicial. We disagree that the superior court

abused its discretion.

       1.      Standard of Review

       We review the trial court’s evidentiary rulings for an abuse of discretion. Gilmore v.

Jefferson County Pub. Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018). However,

“‘[b]ecause of the trial court’s considerable discretion in administering ER 403, reversible error is

found only in the exceptional circumstance of a manifest abuse of discretion.’” Lodis v. Corbis

Holdings, Inc., 192 Wn. App. 30, 48, 366 P.3d 1246 (2015) (quoting Carson v. Fine, 123 Wn.2d

206, 226, 867 P.2d 610 (1994)), review denied, 185 Wn.2d 1038 (2016).




2
  Taylor does not dispute that he invited this error through his actions below. Instead, he argues
that we should still consider his assignment of error because the invited error doctrine is not a
complete bar to review. However, the only support Taylor provides for this argument is the dissent
in City of Seattle v. Patu, 147 Wn.2d 717, 722, 58 P.3d 273 (2002) (Johnson, J., dissenting).


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No. 51360-9-II


        A court abuses its discretion when its ruling is manifestly unreasonable or based on

untenable grounds. Gilmore, 190 Wn.2d at 494. A ruling is manifestly unreasonable or based on

untenable grounds when it is unsupported by the record or results from applying the wrong legal

standard. Id. We will not find an abuse of discretion simply because we would have decided the

case differently. Id. Rather, we must be convinced that no reasonable person would have adopted

the view of the trial court. Id.

        2.      The Superior Court did not Manifestly Abuse its Discretion

        Only relevant evidence is admissible. ER 402. 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. However, even relevant

evidence “may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice.” ER 403. “Trial courts enjoy ‘wide discretion in balancing the probative value

of evidence against its potentially prejudicial impact.’” Salas v. Hi-Tech Erectors, 168 Wn.2d

664, 671, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239

(1997), cert. denied, 523 U.S. 1008 (1998)). “‘Evidence may be unfairly prejudicial under ER 403

if it is evidence dragged in for the sake of its prejudicial effect or is likely to trigger an emotional

response rather than a rational decision among the jurors.’” Lodis, 192 Wn. App. at 48 (internal

citation omitted) (quoting Hayes v. Wieber Enters., Inc., 105 Wn. App. 611, 618, 20 P.3d 496

(2001)).

        Here, the evidence related to Taylor’s criminal conviction was not introduced for the sake

of its prejudicial effect. This evidence rebutted Taylor’s claim that he was unable to find work

solely because of his industrial injury. And the superior court’s ruling, which excluded references



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No. 51360-9-II


to the specific crime of child molestation and the requirement that Taylor register as a sex offender,

obviated the potential emotional response that this evidence might have triggered. It cannot be

said that the superior court’s ruling, including the limitations it placed on this evidence, was a view

that no reasonable person would have adopted. Thus, the superior court’s ruling was not a manifest

abuse of discretion, and Taylor’s challenge on this basis fails.

        We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      Lee, J.
 We concur:



 Maxa, C.J.




 Cruser, J.




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