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State v. Wafford

Court of Appeals of Washington, Division 1

May 15, 2017

STATE OF WASHINGTON, Respondent,
v.
RONALD WAFFORD, Appellant.

          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 evidence a portion of the video recording it had previously excluded. We affirm Watford's conviction.

         FACTS

         Several times over the course of her childhood, T.H. accused Watford, her stepfather, of inappropriate sexual contact. In 2005, T.H.'s mother, Mariyah Watford, heard that eight-year-old T.H. had told a friend that something inappropriate happened with Watford. 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 Watford, 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 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, "[i]t 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.

         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 ...


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