IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. WILLIAM TRAVIS ROWLAND, Appellant. No. 76021-1- DIVISION ONE

UNPUBLISHED FILED: January 9. 2017 w> c:
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Cox, J. - William Rowland appeals his judgmentand sentence, arguing 

### thatthe trial court abused its discretion by admitting evidence of his priorbad acts. Because defense counsel opened the door and explicitly assented to the admission ofthis evidence, the trial court did not abuse its discretion. We affirm. Following a report of a physical altercation, Deputy Brian Heimann 

### responded to a 911 call at Rowland's residence. Deputy Heimann arrested and transported Rowland to a hospital for treatment of a hand injury. During this time and atthe hospital, Rowland made numerous threats toward Deputy Heimann. The State filed several charges against Rowland stemming from the altercation, including a charge offelony harassment due to these threats. As an element of this charge, the State had to prove beyond a reasonable doubtthat 

### Rowland "placed Deputy Heimann inreasonable fear thatthe threatto kill would be carried out."No. 76021-1-1/2
Before trial, the State moved in limine to admit evidence of Rowland's 

### priorbad acts thatwere known to Deputy Heimann to show his fear. Rowland moved in limine to exclude the evidence. The trial court granted Rowland's 

### motion, concluding that while the evidence was probative, itwas unduly prejudicial under ER 403. 

### Duringdefense counsel's cross-examination of Deputy Heimann, counsel asked the deputy aboutthe numberofthreats he received in his line of work. 

### The State objected, and the parties discussed the issue withthe court outside the jury's presence. During this session, the State made an offer of proof of how Deputy Heimann would testify. Both the State and defense counsel examined the deputy as part ofthe offer of proof. 

### The trial court determined that it would allow Deputy Heimann to testify if 

### defense counsel continued asking himaboutotherthreats. The court concluded that defense counsel "opened the doorfor [the deputy] to be able to indicate that." 

### Thejury returned to the courtroom and the trialcontinued. Duringthe State's redirect examination ofDeputy Heimann inthejury's presence, Deputy 

### Heimann testified similarlyto how he testified during the offer of proof. Defense counsel did not objectto this testimony. 

### A jury found Rowland guilty of felony harassment ofDeputy Heimann. The trial courtentered itsjudgment and sentence on thejury verdict. Rowland appeals.No. 76021-1-1/3
ER 404(b) 

### Rowland argues thatthe trial court abused its discretion by admitting evidence of his prior acts. We disagree. 

### ER 404(b) prohibits the admission ofevidence of a person's othercrimes, 

### wrongs, or acts to showthat he acted in conformity withthose otheracts. But under the "'opening the door'" doctrine, otherwise inadmissible evidence can 

### become admissible due to a party's questioning.1 We review for abuse of discretion a trial court's determination that a party 

### has opened the door.2 A trialcourtabuses its discretion if its decision is 

### exercised on untenable grounds.3 Here, the trial court did not abuse its discretion by admitting evidence of 

### Deputy Heimann's knowledge ofRowland's prior bad acts. Defense counsel's cross-examination of Deputy Heimann opened the doorto this testimony. 

### Additionally, counsel did not objectto the offer of proof on this pointwhen the trial continued afterthejury's return to the courtroom. The trial court had ruled in limine to exclude certain testimony by Deputy Heimann on the basis that, while probative, itwas unduly prejudicial under ER 403.

1 State v. Olsen, 187 Wn. App. 149,1J27, 348 P.3d 816 (2015) (quoting State v. Jones. 144Wn. App. 284, 298, 183 P.3d 307 (2008)). 2State v. Warren. 134 Wn. App. 44, 65, 138 P.3d 1081 (2006), affd, 165 Wn.2d 17, 195 P.3d 940 (2008). 3 State v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015).No. 76021-1-1/4 

### Afterthe State raised a relevancy objection during defense counsel's 

### cross-examination of Deputy Heimann, the State made its offer of proofaboutthe testimony itwished to elicit from Deputy Heimann. 

### Deputy Heimann testified that he is "extremely" familiar with Rowland 

### having often responded to Rowland's residence due to criminal activity. Deputy Heimann also knew that Rowland was "well-connected with the drugs and drug cartel area." 

### During the offer of proofcross-examination, defense counsel asked 

### Deputy Heimann about "any specific thing that would lead [him] to believe that Mr. Rowland was capable of carrying out the threats." The deputy responded: "Due to the fact that he has connections where he's getting those drugs and he 

### made the specific threatthat he would make one phone call. . . and it would be all over." The trial courtdetermined that itwould allow Deputy Heimann to testify 

### "the way hejusttestified" ifdefense counsel continued to askthe deputy questions aboutthe threats. The court concluded that defense counsel "opened the door for [the deputy] to be able to indicate that." Defense counsel then stated: "That's fine, Your Honor. . . . [I]fwhat came out is what came out, I'm fine with that. Idon'tthinkthat's any different than what has already come out to this point anyway." 

### Duringthe State's redirect examination of Deputy Heimann in the jury's 

### presence, Deputy Heimann testifiedsimilarly to how he testifiedduring the offer ofproof. The State asked ifhe was familiarwith Rowland prior to the incident.No. 76021-1-1/5 

### Deputy Heimann responded that Rowland "is an avid drug user" and has connections to the "drug world"—specifically, organized crime organizations. 

### Deputy Heimann also explained why this concerned him, stating: "[Rowland] could make one phone call and my name, as unique as it is and he knows where Ilive, made itpretty viable for those threats to be carried out." Defense counsel did not object to this testimony. The choice not to objectwas consistentwith defense counsel's statement 

### during the offer of proofthat he was "fine" withthe State's offer of proof. Thus, the trial court did not abuse its discretion by admitting Deputy Heimann's testimony of his knowledge of Rowland's prior bad acts. 

### Rowland argues that he had no history of violent acts or threats. Thus, he 

### argues that the prejudicial effect of the evidence outweighed itsprobative value.4 This argument is inconsistentwith his position at trial. He agreed thatthe offer of proofwas not objectionable. The absence of an objection to the evidence at trial, that he agreed was "fine," strongly suggests to this courtthat the admission ofthe evidence "'did not appearcriticallyprejudicial to [Rowland] in the context ofthe trial.'"5 COSTS 

### Rowland argues that we should decline to award the State appellate costs should the State prevail on appeal. We agree.

4 See ER 403. 5State v. McKenzie. 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).No. 76021-1-1/6
RCW 10.73.160(1) gives appellate courts discretion to decline to impose 

### appellate costs on appeal.6 Under State v. Sinclair, there is a presumption that indigency continues unless the record shows otherwise.7 Here, the trial courtfound Rowland indigent and entered an orderof indigency. Nothing inthis record overcomes the presumption of Rowland's indigence. Thus, an award to the State for appellate costs is inappropriate under these circumstances. We affirm thejudgment and sentence and deny any award of appellate 

### costs to the State. /\ 

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WE CONCUR: 

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6State v. Nolan. 141 Wn.2d 620, 629, 8 P.3d 300 (2000). 7192 Wn. App. 380, 393, 367 P.3d 612, review denied. 185 Wn.2d 1034 (2016).