 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal Restraint
 of:                                                          DIVISION ONE

                                                              No. 79106-1-I
 RONALD DALE WAFFORD,
                                                              UNPUBLISHED OPINION

                            Petitioner.                       FILED: March 9, 2020

           DWYER, J.   —   Ronald Wafford filed this personal restraint petition

challenging his jury conviction for first degree child molestation. He contends

that his attorney was constitutionally ineffective for opening the door to the

admission of a portion of a video recording of the victim’s prior interview with law

enforcement, that the trial court erred in admitting testimony regarding Wafford’s

conduct towards the victim in a swimming pool, and that the cumulative effect of

these errors denied him a fair trial. He also argues that the attorney who

represented him in his direct appeal was ineffective for failing to raise these

claims. Because Wafford has not established an entitlement to relief, we deny

the petition.



       Wafford and his wife Mariyah married in 2002.1 Mariyah had two

daughters from former relationships, H.F. and T.H., who were approximately ten

years old and four years old, respectively.




       1   We refer to Mariyah Wafford by her first name for clarity.
No. 79106-1 -1/2

         In 2005, when T.H. was eight years old, she told a peer-aged friend that

Wafford had been making her touch his private parts while Mariyah was at the

store. H.F. heard about T.H.’s disclosure and told Mariyah. T.H. would not tell

Mariyah what had happened, but “kept insisting it’s Ron, it’s Ron.” When

Mariyah asked T.H. how many times it had happened, T.H. could not remember,

but said that it had happened sometime after the family took a cruise in June of

that year. Mariyah reported the disclosure to police and took T.H. to be

interviewed by Nova Robinson, a child forensic interview specialist at Dawson

Place.

         During the interview, T.H. identified areas on a drawing of a child’s body

that it was “not okay” to touch. She denied that anyone had touched her body

inappropriately or had shown her any part of their body. But when Robinson

asked T.H., “Has anybody ever asked you to do anything to any parts of their

body that it’s not okay to be doing things,” T.H. paused for a moment and gave a

“quite clear affirmative head nod.” T.H. said, “I’m not really what it, sure what it’s

called actually.” She then proceeded to disclose that something happened with

“Ron” in the garage. She stated that “it started” when she was eight and that it

happened approximately 10 times. But she did not identify exactly what had

happened. Each time Robinson probed about what had happened, T.H. refused

to elaborate further.

         I’m not sure what he made happen cause I don’t know what it’s
         called or what it is.


         I’m not sure how to explain it but um my sister and my mommy um
         they could explain it cause they know.


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No. 79106-1-1/3



       I just don’t want to talk about it cause sometimes I just don’t feel
       like talking about it.


       I keep forgetting cause um, well I don’t know why I keep forgetting
       but I just keep forgetting about what happened or how it started.

The State did not investigate further or charge Wafford with any crime.

       In 2012, when T.H. was 14 years old, she again told a friend that Wafford

had sexually abused her. The friend reported the allegations to police, who

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

that nothing had happened. No charges were filed.

       In 2014, T.H. was 17 years old. She was having problems at home with

both Wafford and Mariyah, and frequently skipping school. T.H. started seeing a

counselor at school to talk about her anger. Eventually, T.H. disclosed to her

counselor that Wafford had sexually abused her. During the ensuing police

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.

       Prior to trial, the court held a hearing on the admissibility of the video

recording of the 2005 interview with T.H. pursuant to RCW 9A.44.120, the child

hearsay statute. The court granted Wafford’s motion to exclude the video. It


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No. 79106-1-1/4

noted that RCW 9A.44.120 required a “statement” by a child “describing any act

of sexual contact.” The court concluded that because T.H. merely nodded her

head in response to Robinson’s question, she did not make a “statement”

describing any sexual contact, and the video was thus inadmissible.

       The State noted that it would asked the court to reconsider its ruling if

defense counsel sought to have Robinson testify that T.H. had not disclosed any

sexual abuse:

               But as it stands so [defense counsel’s] pleadings are
                                —


       replete with assertions that or well, assertions that in the initial
                                     —    —


       interview, the one we viewed in Exhibit I yesterday, there was no
       disclosure of there’s no disclosure of any kind. There was no
                     —


       disclosure of sexual abuse.

               I am anticipating, if that is, in fact, her position, questions of
       some of the State’s witnesses about that topic. So in other words,
       when Ms. Robinson is on the stand, asking her, “Isn’t it true that
       [T.H.] didn’t ever disclose any kind of sexual abuse?”

              I understand the Court’s ruling with respect to the
       admissibility of the hearsay evidence, but I want to ensure that the
       State has an adequate ability to counter that line of questioning with
       the evidence available to it. So I just want to raise that specter.

               I think that’s something we can deal with, should it arise, but
       I wanted the Court and counsel to kind of be aware of some
       concern, and I guess I’m flagging for you both the possibility that I
       might be making another run at some limited introduction of some
       of the evidence, should that line of questioning develop.

The court informed the parties: “If doors get opened, doors get opened.”

       During opening statement, defense counsel argued that T.H. falsified the

allegations against Wafford because she was angry and did not want to abide by

her parents’ rules for living in the home. Defense counsel referred explicitly to




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No. 79106-1-1/5

the video. She stated that H.F. had denied that Wafford had sexually abused

her:

               And [HF’s mother] brought both [HF.] and [T.H.] to Dawson
       Place in 2005. Nova Robinson interviewed on video [T.H.] and built
       rapport and made sure she was comfortable and made sure she
       knew she wasn’t in trouble and made all of the things that in her
       training she’s supposed to do to create an environment where, if a
       crime was happening to a child, that child would feel safe to
       disclose.

              But [T.H.] denied that anything was happening to her. She
       knew in third grade at age eight what was bad touch, good touch,
       and she denied that any of those things were happening to her.

       The State renewed its request that the court admit the video. The State

argued that when defense counsel mentioned the video, she opened the door to

its admission. The State contended that the jury was entitled to see the video in

order to rebut the characterization that T.H. denied any sexual abuse.

       Defense counsel denied that the door had been opened:

              Your Honor, I fully expect [T.H.] in cross-examination to
       admit, just like she did in my deposition, that she denied being
       abused in 2005 to Ms. Robinson, and that was the evidence I was
       alluding to when I was doing my opening statement, that I’m going
       to be cross-examining [T.H.] and that I expect her to respond to my
       questions with those facts.

               So I don’t believe I opened the door to that. This is what she
       said in her deposition, and this is what she said in 2014 at Dawson
       Place, and I fully expect her to testify consistently with what she
       said that, yes, she denied being abused in 2005. So I don’t believe
       any door has been opened.

The court disagreed:

              You referred to the interview. You 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. 79106-1-1/6

                     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.

 The court ruled that the portion of the video ‘where [T.H.] either denied or didn’t

 deny that something happened” was now admissible. The court stated that no

 other portion of the video would be admitted.

          At trial, the State played the portion of the video admitted by the court,

 lasting approximately two-and-a-half minutes.2 The video clip begins with T.H.

 identifying areas it was “not okay” to touch. In response to Robinson’s questions,

 T.H. denied that anyone had touched her or had showed her parts of their body.

 But she clearly paused and then nodded when asked if anyone had asked her to

 do anything to parts of their body. She identified the person as Ron and stated

that it happened in the garage. Robinson asked if anyone was ever with her

when it happened and T.H. said no. The video clip then ends.

          T.H. testified that Wafford began sexually abusing her when she was six

years old. She stated that on one occasion, Wafford was tucking her into bed

-when he laid down next to her and put his hand inside her underwear and

touched her vagina. T.H. testified that Wafford began having her perform oral

sex on him when she was eight years old. She stated that this happened in the

garage and in other locations in the house. T.H. testified that Wafford performed

oral sex on her on one occasion sometime after she was 13 or 14 years old, and

had sexual intercourse with her on one occasion when she was 17 years old.



          2   The parties provided both the full video and the portion shown to the jury for this courts
review.


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No. 79106-1-117

        During H.F.’s testimony, the State asked if H.F. ever saw anything

between Wafford and T.H. that caused her concern. HF. proceeded to discuss

an incident involving a pool in the family’s backyard. H.F. testified that she saw

T.H. swimming around and underneath Wafford in the pool, and that when

Wafford got out of the pool, he appeared to have an erection. H.F. stated that

Wafford typically dried off outside, but this time he hid behind a dining chair to dry

off. H.F. described Wafford as unusually flustered and talking much more quickly

than normal. Wafford objected, arguing the testimony was irrelevant and

inadmissible under ER 404(b). The court overruled the objection.

       Wafford successfully moved for a directed verdict as to the charges of first

degree child molestation and third degree child 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 jury returned a

special verdict stating that the conduct forming the basis for the first degree child

molestation conviction was “Ron’s hand touching in the area of [T.H.]’s vagina.”

       In his direct appeal, Wafford argued that the trial court erred in admitting

the video clip. He contended that, as a matter of law, comments made by

counsel during opening statements cannot open the door to otherwise

inadmissible evidence. Wafford also argued that his attorney was ineffective for

failing to request a limiting instruction that would allow the jury to consider the

video only for the purpose of rebutting defense counsel’s characterization of the

video in opening statement as a denial of sexual abuse.




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No. 79106-1-1/8

       This court affirmed Wafford’s conviction. Wafford filed a timely personal

restraint petition.



       As a preliminary matter, the State contends that Wafford is procedurally

barred from renewing a claim of ineffective assistance of counsel made in his direct

appeal.

       A personal restraint petition may not renew an issue raised and rejected

on direct appeal unless the interests of justice require relitigation of that issue. In

re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1(2004). Buta

petitioner who raises an ineffective assistance of counsel claim on direct appeal

is not barred from raising another ineffective assistance of counsel claim based

on different grounds in a personal restraint petition. In re Personal Restraint of

Khan, 184 Wn.2d 679, 689, 363 P.3d 577 (2015).

       The State argues that Wafford’s ineffective assistance claim is barred

because it involves the same issue raised on direct appeal—defense counsel’s

handling of the 2005 video. But Wafford argued on direct appeal that defense

counsel was ineffective for failing to limit how the jury could consider the video.

In contrast, Wafford now argues that defense counsel should not have opened

the door to the admission of the video in the first place. He additionally argues

that defense counsel should have sought the introduction of the entire video.

Neither of these issues were addressed in Wafford’s direct appeal, and Wafford

is not barred from raising them in a personal restraint petition

       Accordingly, we turn to the merits of Wafford’s petition.



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No. 79106-1-1/9

                                            III

       To successfully challenge a judgment by means of a personal restraint

petition, a petitioner must establish either (I) actual and substantial prejudice

arising from constitutional error, or (2) nonconstitutional error that inherently results

in a “complete miscarriage of justice.” In re Pers. Restraint of Cook, 114 Wn.2d

802, 813, 792 P.2d 506 (1990). If a personal restraint petitioner makes a

successful ineffective assistance of counsel claim, he or she has necessarily met

the burden to show actual and substantial prejudice. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

                                           IV

       Wafford first contends that his attorney was ineffective for opening the

door to admission of the video. In the alternative, Wafford argues, having

opened the door to its admission, defense counsel was ineffective for allowing

the State to play “only the most inculpatory portion of the video.” He contends

that defense counsel should have sought the admission of the entire video,

because it would show the jury that T.H. never described any sexual acts and the

only thing that T.H. described as occurring in the garage was playing with

playdough while Wafford played a video game.

       Under the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution, a defendant is guaranteed the

right to effective assistance of counsel in criminal proceedings. Strickland v.

Washington, 466 U.S. 668, 684-86, 104 5. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

establish ineffective assistance of trial counsel, a petitioner must demonstrate



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No. 79106-1-1/10

both (I) that his attorney’s representation was deficient, i.e., that it fell below an

objective standard of reasonableness, and (2) resulting prejudice, i.e., a

reasonable probability that, but for counsel’s deficient performance, the result of

the proceeding would have been different. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). Failing to satisfy either requirement ends the

inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). A

reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. The reasonableness of counsel’s

performance is to be evaluated from counsel’s perspective at the time of the

alleged error and in light of all the circumstances.” Davis, 152 Wn.2d at 673.

There is a strong presumption that a defendant received effective representation.

McFarland, 127 Wn.2d at 336.

       Here, to demonstrate prejudice, Wafford must show that there was a

“reasonable probability” that the jurors would have acquitted him of first degree

child molestation if they had not seen the video clip, or if they had seen the video

in its entirety. McFarland, 127 Wn.2d at 335. Wafford fails to do so. According

to the jury’s special verdict, the conduct forming the basis for the first degree

child molestation conviction was when Wafford put his hand inside T.H.’s

underwear and touched her vagina while tucking her into bed. The video clip

was immaterial to this conviction. In fact, in the video clip, T.H. explicitly denied

that anyone had ever touched the private areas of her body. Instead, the

conviction was supported by other, unrelated evidence, including Mariyah’s




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 No. 79106-I-I/li

 recollection of T.H.’s disclosures and T.H.’s own testimony. Wafford fails to

establish that he was prejudiced by the portion of the video admitted at trial.

                                               V

        Wafford next contends that the trial court erred in allowing H.F. to testify

regarding his conduct towards T.H. in the swimming pool. He argues that the

testimony should have been excluded as irrelevant.3

        Evidence is relevant when 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.” ER 401. Because of the trial court’s considerable discretion in

the admission of evidence, reversible error occurs only in the exceptional

circumstance of manifest abuse of discretion. Carson v. Fine, 123 Wn.2d 206,

226, 867 P.2d 610 (1994). A court abuses its discretion if the decision is

manifestly unreasonable or based on untenable grounds or reasons. State v.

Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012).

        Wafford admits that the testimony would have been relevant had it shown

he was “in a state of sexual excitement” around T.H. In fact, the testimony did

show this. H.F. testified that she saw Wafford with an erection immediately after

getting out of the swimming pool with T.H. H.F. also noticed that Wafford was

behaving unusually, including hiding behind a chair and talking quickly. The

testimony was relevant to show Wafford’s lustful disposition towards T.H.



        ~ Wafford also claims that the testimony was unduly prejudicial. But Wafford did not
object on that ground at trial, thus waiving the claim on appeal. RAP 2.5(a); see ~ State v.
Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (a party may assign error to the appellate
court on only the specific ground of evidentiary objection made at trial).



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No. 79106-1-1112

Wafford fails to show that the court abused its discretion by admitting the

evidence.

                                           VI

       Wafford argues that cumulative error violated his right to a fair trial.

Cumulative error may warrant reversal, even if each error standing alone would

otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149

P.3d 646 (2006). But where, as here, there are few or no errors and the errors, if

any, have little or no effect on the outcome of the trial, reversal is not required.

Weber, 159 Wn.2d at 279.

       Wafford also contends that appellate counsel was ineffective for failing to

raise the claims in this petition in his direct appeal. A petitioner claiming he

received ineffective assistance of appellate counsel must show that the legal

issue that counsel failed to raise had merit and must then show that he was

prejudiced by appellate counsel’s failure to raise the issue. In re Pers. Restraint

of Dalluqe, 152 Wn.2d 772, 777-78, 100 P.3d 279 (2004). Because none of the

above claims have merit, Wafford cannot demonstrate that his appellate counsel

acted ineffectively by not raising them.




WE CONCUR:




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