       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

 THE STATE OF WASHINGTON,                   No. 78692-0-I

                             Respondent,

                  v.                        UNPUBLISHED OPINION

 THEPHAXAY PANYANOUVONG,

                             Appellant.     FILED: March 2, 2020

       BOWMAN, J.      —   Thephaxay Panyanouvong appeals his conviction for

domestic violence assault in the second degree. First, Panyanouvong

challenges the trial court’s admission of part of a 911 call that he claims was

hearsay and improperly bolstered the victim’s credibility. He also challenges the

court’s admission of prior bad act evidence admitted to show the victim’s fear of

intimidation and asserts the court erred by excluding evidence of the victim’s

history of domestic violence. Finally, he claims that cumulative error deprived

him of a fair trial. Finding no error or abuse of discretion, we affirm.

                                          FACTS

       In July 2017, Panyanouvong and M.H. began a romantic but turbulent

three-month-long relationship. Shortly thereafter, Panyanouvong and his five

year-old son moved into M.H.’s residence.
No. 78692-0-1/2

            M.H. testified that in August 2017, Panyanouvong became jealous and

“punched me in the face approximately 12 times.” M.H. did not report this

incident to the police.

            In September 2017, M.H. attempted to end the relationship and told

Panyanouvong, “I can’t do this and I don’t feel safe.” Afterward, Panyanouvong

“became extremely enraged,” kicked her in the head, and punched her “so hard”

that “it just split open my face like a piñata” and ‘[b]lood gushed everywhere.”

            M.H. stated that she did not leave her apartment for the next several days

because the “implied threat” that she was not allowed to leave “was very clear.”

She also felt that Panyanouvong’s son would be placed in danger if she left.

Approximately four days after the incident on September 17, M.H. called a former

boyfriend and business partner Jeffrey Vigil, who encouraged her to call 911.1

M.H. then called 911 and told the dispatch operator that her emergency was

“[u]mm, domestic violence”; she had “really bad bruising around my eye”; and

“[t]his guy,” who has “been living at my apartment for three months,” has

“basically been holding me hostage.”

        Panyanouvong told a different version of the events. He described a

relationship in which M.H. attempted to control him through threats, fear, and

intimidation. Panyanouvong acknowledged that he and M.H. verbally abused

each other but denied ever threatening or physically hurting her. He denied that

he ever tried to control M.H.’s actions. Panyanouvong claimed that M.H. came




        1 In approximately June 2017, M.H. ended a four-year relationship with Vigil. The couple
lived together with Vigil’s young daughter.


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No. 78692-0-1/3

home one evening with bruises and refused to tell him how she had received

them.

        The State charged Panyanouvong with second degree assault (count 1),

unlawful imprisonment (count 2), and fourth degree assault (count 3). The State

alleged all of the offenses were crimes of domestic violence and that the second

degree assault occurred within sight or sound of Panyanouvong’s minor son.

Panyanouvong pleaded not guilty.

        During pretrial motions, the court granted the State’s request to admit

portions of M.H.’s 911 call and evidence of Panyanouvong’s alleged verbal

abuse of his son at trial. The court denied Panyanouvong’s request to introduce

evidence of M.H.’s history of domestic violence.

        The jury convicted Panyanouvong of domestic violence assault in the

second degree committed within the sight or sound of his minor son but acquitted

him of the remaining charges. Panyanouvong appeals.

                                    ANALYSIS

        Panyanouvong challenges several of the trial court’s evidentiary rulings. A

trial court’s decision on the admissibility of evidence is reviewed for abuse of

discretion. Statev. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014). Atrial court

abuses its discretion when a decision is manifestly unreasonable or based on

untenable grounds or reasons. Dobbs, 180 Wn.2d at 10.

                           Admission of 911 Recording

        Panyanouvong challenges the trial court’s admission of part of the 911 call

that he argues is hearsay. “Hearsay” is “a statement, other than one made by



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No. 78692-0-1/4

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” ER 801(c). “Hearsay is not admissible except

as provided by these rules, by other court rules, or by statute.” ER 802. Specific

exceptions to the hearsay rule include an excited utterance or a statement of the

declarant’s then existing mental, emotional, or physical condition. ER 803(a).

“[U]nder the excited utterance exception, ‘[a] statement relating to a startling

event or condition made while the declarant was under the stress of excitement

caused by the event or condition’ is not excluded as hearsay.” State v. Brush,

183 Wn.2d 550, 560, 353 P.3d 213 (201 5)2 (quoting ER 803(a)(2)). ER 803(a)(3)

defines “then existing mental, emotional, or physical conditions” as follows:

       A statement of the declarant’s then existing state of mind, emotion,
       sensation, or physical condition (such as intent, plan, motive,
       design, mental feeling, pain, and bodily health), but not including a
       statement of memory or belief to prove the fact remembered or
       believed unless it relates to the execution, revocation, identification,
       or terms of declarant’s will.

       Before trial, the State sought to admit as “excited utterances” portions of

M.H.’s 911 call relating to being held hostage as well as descriptions of her

injuries as statements of “then existing   .   .   .   physical conditions.” The court

agreed such portions were admissible. However, the court ruled that other

portions of the 911 call were inadmissible and should be redacted. In particular,

the court granted Panyanouvong’s objection to M.H.’s description of the alleged

assault, ruling that such statements were made several days after the incident

and did not meet the “excited utterance” exception to the hearsay rule. The State

then redacted the inadmissible portions from the 911 call.

      2   Alteration in original.


                                               4
No. 78692-0-1/5

       The next day, the State played an audio recording of the redacted 911 call

for the court’s and Panyanouvong’s consideration. In the redacted recording, the

911 operator asks M.H., “[Y]ou said your ex said there’s people on the way. Is

he the one that assaulted you or is it someone else?” Panyanouvong objected

and argued the 911 operator’s “reference to the assault.                         .   .   starts to get into

territory that the Court specifically excluded because the allegations of the

assault were too far back in time to   .       .       .       meet the criteria for a hearsay exception.”

Panyanouvong asked that the comment from the 911 operator be redacted. The

State argued that the portion of the 911 call colloquy was not being offered for

the truth of the matter asserted but rather to provide context to the conversation.

       The court denied Panyanouvong’s motion. The court explained:

               The mere fact that the     operator is surmising there must
                                           .       .       .


       be some sort of an assault here because [M.H. is] describing
       injuries is.   not part of what the Court was trying to exclude as
                      .   .


       being an excited utterance that’s outside of the realm. It’s just an
       inquiry from the operator.

      The court concluded that since other inadmissible portions had been

redacted, the operator’s inquiry about an assault did not have any “independent

meaning” and did not need to be redacted from the 911 recording. When asked

if he had “any other objections” to admitting the 911 call, Panyanouvong

answered, “No, Your.Honor.”

      Based on this record, we conclude that the trial court appropriately

addressed and disposed of Panyanouvong’s sole objection to the 911 call on

hearsay grounds. The operator’s question was not an assertion of fact and was




                                                               5
 No. 78692-0-1/6

not offered to prove the truth of the matter asserted. State v. Modest, 88 Wn.

App. 239, 249, 944 P.2d 417 (1997).

         Panyanouvong now claims for the first time that the trial court abused its

discretion by refusing to redact more of the operator’s inquiry about an assault

from the 911 recording because it improperly “bolstered” M.H.’s credibility. The

State asserts that Panyanouvong failed to preserve this claim of error. We

agree.

         To preserve an evidentiary error for appeal, a party must timely object

below to give the trial court the opportunity to prevent or cure the error. ER

103(a)(1); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).

Panyanouvong did not raise the bolstering objection in the trial court and offers

no reason why we should review it now. See RAP 2.5(a);3 State v. Guloy, 104

Wn.2d 412, 422, 705 P.2d 1182 (1985) (“A party may only assign error in the

appellate court on the specific ground of the evidentiary objection made at trial.”);

State v. Mak, 105 Wn.2d 692, 718-19, 718 P.2d 407 (1986) (a party who objects

to the admissibility of evidence on one ground at trial generally may not raise a


         ~ RAP 2.5(a) states:
        The appellate court may refuse to review any claim of error which was not raised
         in the trial court. However, a party may raise the following claimed errors for the
        first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to
        establish facts upon which relief can be granted, and (3) manifest error affecting
        a constitutional right. A party or the court may raise at any time the question of
        appellate court jurisdiction. A party may present a ground for affirming a trial
        court decision which was not presented to the trial court if the record has been
        sufficiently developed to fairly consider the ground. A party may raise a claim of
        error which was not raised by the party in the trial court if another party on the
        same side of the case has raised the claim of error in the trial court.
        In his opening brief, Panyanouvong does not address RAP 2.5(a) and offers no basis to
review the “bolstering” claim for the first time on appeal. He did not file a reply brief. The limited
exceptions to the general rule set forth in RAP 2.5(a) do not apply here because Panyanouvong
makes no claim of a constitutional magnitude.



                                                   6
No. 78692-0-1/7

different ground on appeal). Accordingly, Panyanouvong has failed to preserve

his claim of error.

                                  Evidence of Verbal Abuse

        The State asked the trial court to admit evidence that Panyanouvong

verbally abused his son. The court granted the request but required that such

evidence be accompanied by an appropriate limiting instruction. Panyanouvong

contends the court abused its discretion when it admitted the evidence. He

argues that such evidence “served only to unfairly prejudice” him in light of the

evidence of other domestic violence incidents between him and M.H. We

disagree.

        ER 404(b) prohibits evidence of prior bad acts to show the defendant’s

character or propensity to commit crimes. State v. Lough, 125 Wn.2d 847, 862-

63, 889 P.2d 487 (1995). However, evidence of prior bad acts may be admitted

for other purposes. State v. Ragin, 94 Wn. App. 407, 410-11, 972 P.2d 519

(1999). To prove unlawful imprisonment, the State had to establish that

Panyanouvong knowingly restrained M.H.’s movement between September 10

and September 17, 2017. RCW 9A.40.040(1).4

        If a party wants to introduce a prior bad act for a purpose other than for

propensity, the trial court must (1) find by a preponderance of the evidence that

the misconduct occurred, (2) identify the purpose for admitting the evidence, (3)

determine whether the evidence is relevant to an element of the current charge,


         ~ “Restrain” means “to restrict a person’s movements without consent and without legal
authority in a manner which interferes substantially with his or her liberty.” RCW 9A.40.O1 0(6).
“Without consent” may be accomplished by “physical force, intimidation, or deception.” ROW
9A.40.01 0(6).


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No. 78692-0-1/8

and (4) find that the probative value of the evidence outweighs its prejudicial

effect. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007); State v.

Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982). The trial court must

conduct this tour-part ER 404(b) analysis on the record. State v. Smith, 106

Wn.2d 772, 776, 725 P.2d 951 (1986) (citing State v. Jackson, 102 Wn.2d 689,

694, 689 P.2d 76 (1984)). In doubtful cases, the court should exclude the

evidence. Smith, 106 Wn.2d at 776. If the court admits the evidence, it must

also give a limiting instruction to the jury. Foxhoven, 161 Wn.2d at 175. We

presume that jurors have followed that instruction absent evidence proving the

contrary. State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).

       Here, the State argued that evidence of Panyanouvong verbally abusing

his son was relevant because it helped explain why M.H. felt restrained. The

State posited M.H. feared that Panyanouvong would harm his son if she left the

apartment. Panyanouvong did not deny verbally abusing his son. Rather, he

argued the evidence should be excluded because it was unfairly prejudicial and

highly inflammatory.

      After carefully considering the parties’ arguments, the trial court conducted

the four-part ER 404(b) analysis on the record and ruled:

      I agree. that the threats related to [Panyanouvong’s son] are far
                     .       .


      more probative than they are prejudicial.
                    Certainly classic [domestic violence] things are                 .


      the perpetrator using threats to animals or to objects or whatever as
      a means of controlling     or children, obviously in this case, threats
                                                 —


      to .   loved ones. is a classic means of control.
             .   .                       .   .


                    And so it seems clear to me that. to the extent that
                                                                 .   .


      [M.H.] believed that Mr. Panyanouvong was. in fact, threatening
                                                         .   .


      [his son],    that’s very probative of the issue of the
                         .       .   .                            pattern of
                                                                         .   .   .




                                                     8
No. 78692-0-1/9

       control that he had over [M.H.] that would   .   .   .   support the unlawful
       imprisonment charge[].

The court then ruled that limiting instructions regarding this evidence are

appropriate and encouraged the parties to “work on reaching agreement on”

such instructions.

       The court gave jurors the following limiting instruction:

             Testimony of assaults other than the ones charged in Counts
       1 and 3 is only to be considered in your deliberations regarding
       Count 2: Unlawful Imprisonment. It is not to be considered in
       determining whether Counts 1 and 3 are proven beyond a
       reasonable doubt.

       While this limiting instruction did not directly mention verbal abuse, neither

side objected nor took any exception to the instruction. This unchallenged

instruction became the law of the case. State v. France, 180 Wn.2d 809, 815,

329 P.3d 864 (2014). The court’s decision to admit evidence of Panyanouvong’s

verbal abuse for the limited purpose specified here was not manifestly

unreasonable or based upon untenable grounds.

                         Victim’s Prior Domestic Violence

       Prior to trial, the court denied Panyanouvong’s request to admit evidence

of prior domestic violence between M.H. and Vigil. Panyanouvong claims that

the trial court should have admitted the evidence because the State opened the

door when it cross-examined him.

      A trial court may admit otherwise inadmissible evidence when a witness

“‘opens the door’ “to this evidence during testimony “and the evidence is

relevant to some issue at trial.” 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


                                         9
 No. 78692-0-1/10

(1980)). This rule preserves fairness. State v. Gefeller, 76 Wn.2d 449, 455, 458

P.2d 17 (1969). It allows courts to guard against one party obtaining an unfair

advantage by introducing evidence about an excluded subject while the other

party remains barred from doing so. Gefeller, 76 Wn.2d at 455. We review a

trial court’s application of the “open-door” rule for an abuse of discretion. State v.

Wilson, 20 Wn. App. 592, 594, 581 P.2d 592 (1978).

        Here, in its pretrial rulings, the court denied Panyanouvong’s motion to

admit evidence of M.H.’s domestic violence history because such evidence was

irrelevant. The court explained that Panyanouvong was not trying to introduce

“other suspect” evidence and he offered no other probative value.5

        At trial, the State asked Vigil if he assaulted M.H. during the months of

August and September 2017, the period during which M.H. was living with

Panyanouvong. Vigil responded, “No.” Outside of the jury’s presence,

Panyanouvong claimed that the State’s questioning opened the door to asking

Vigil whether there had been domestic violence in his prior relationship with M.H.

Although Panyanouvong “recognize[d] that this looks like propensity” evidence,

he argued that “I think in the context of the relationship it’s relevant and I think it

ought to be permitted.” The court denied Panyanouvong request, ruling, “I don’t

see how it is anything other than propensity.” This was not an abuse of

discretion.



        ~ “[l]f there is an adequate nexus between the alleged other suspect and the crime, such
evidence should be admitted.” State v. Franklin, 180 Wn.2d 371, 373, 325 P.3d 159 (2014).
Other than a general denial to the charges, Panyanouvong disclosed “no additional defense” and
admitted he had no “witnesses who can testify” that Vigil saw M.H. between July and September
2017.


                                               10
No. 78692-0-Ill 1

       Panyanouvong later testified that he was fearful of M.H. and was

intimidated by her. On cross-examination, the State questioned Panyanouvong

about jail telephone calls during which he said M.H. ‘was weak, especially

around her ex” Vigil. The State elicited testimony from Panyanouvong that he

wanted to “protect” M.H. from Vigil. Shortly thereafter, Panyanouvong claimed

that the State’s cross-examination opened the door to evidence of the domestic

violence history between Vigil and M.H., arguing that it would “provide context” to

why he wanted to protect M.H. from Vigil. The court again denied

Panyanouvong’s request, ruling that “[ut’s basically just propensity evidence” and

the prior relationship between Vigil and M.H. does not shed any light on the

assaults at issue.

       Because Panyanouvong did not establish a nexus between Vigil and the

assaults at issue, we agree with the trial court that propensity was the only

purpose for which he was offering the prior domestic violence evidence. The

court did not abuse its discretion.

                                  Cumulative Error

       Panyanouvong contends cumulative error denied him a fair trial. The

cumulative error doctrine applies “when there have been several trial errors that

standing alone may not be sufficient to justify reversal but when combined may

deny a defendant afairtrial.” Statev. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390




                                        11
No. 78692-0-1/12

(2000). Because Panyanouvong has not identified any errors, there cannot be

cumulative error.

      We affirm.




WE CONCUR:




         •1j




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