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UNPUBLISHED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

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Cox, J. - William Rowland appeals his judgment and sentence, arguing

that the trial court abused its discretion by admitting evidence of his prior bad

acts. Because defense counsel opened the door and explicitly assented to the

admission of this 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 at the hospital, Rowland made numerous threats toward Deputy Heimann.

The State filed several charges against Rowland stemming from the

altercation, including a charge of felony harassment due to these threats. As an

element of this charge, the State had to prove beyond a reasonable doubt that

Rowland "placed Deputy Heimann in reasonable fear that the threat to kill would

be carried out."
No. 76021-1-1/2

Before trial, the State moved in limine to admit evidence of Rowland's

prior bad acts that were 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, it was unduly

prejudicial under ER 403.

During defense counsel's cross-examination of Deputy Heimann, counsel

asked the deputy about the number of threats he received in his line of work.

The State objected, and the parties discussed the issue with the 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 of the offer of proof.

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

defense counsel continued asking him about other threats. The court concluded

that defense counsel "opened the door for [the deputy] to be able to indicate

that."

The jury returned to the courtroom and the trial continued. During the

State's redirect examination of Deputy Heimann in the jury's presence, Deputy

Heimann testified similarlyto how he testified during the offer of proof. Defense

counsel did not object to this testimony.

A jury found Rowland guilty of felony harassment of Deputy Heimann.

The trial court entered its judgment and sentence on the jury verdict.

Rowland appeals.
No. 76021-1-1/3

ER 404(b)

Rowland argues that the trial court abused its discretion by admitting

evidence of his prior acts. We disagree.

ER 404(b) prohibits the admission of evidence of a person's other crimes,

wrongs, or acts to show that he acted in conformity with those other acts. 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 trial court abuses 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 of Rowland's prior bad acts. Defense counsel's

cross-examination of Deputy Heimann opened the door to this testimony.

Additionally, counsel did not object to the offer of proof on this point when the trial

continued after the jury'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, it was unduly prejudicial under ER

403.

1 State v. Olsen, 187 Wn. App. 149,1J27, 348 P.3d 816 (2015) (quoting

State v. Jones. 144 Wn. App. 284, 298, 183 P.3d 307 (2008)).

2 State 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

After the State raised a relevancy objection during defense counsel's

cross-examination of Deputy Heimann, the State made its offer of proof about the

testimony it wished 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 proof cross-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 threat that he would make one phone call. . . and it would be

all over."

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

"the way he just testified" ifdefense counsel continued to ask the deputy

questions about the 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]f what came out is what came out, I'm fine

with that. I don't think that's any different than what has already come out to this

point anyway."

During the State's redirect examination of Deputy Heimann in the jury's

presence, Deputy Heimann testified similarly to how he testified during the offer

of proof. The State asked if he was familiar with 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

I live, made it pretty viable for those threats to be carried out." Defense counsel

did not object to this testimony.

The choice not to object was consistent with defense counsel's statement

during the offer of proof that he was "fine" with the 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 its probative value.4

This argument is inconsistent with his position at trial. He agreed that the

offer of proof was not objectionable. The absence of an objection to the

evidence at trial, that he agreed was "fine," strongly suggests to this court that

the admission of the evidence "'did not appear critically prejudicial to [Rowland] in

the context of the 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.

5 State 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 court found Rowland indigent and entered an order of

indigency. Nothing in this record overcomes the presumption of Rowland's

indigence. Thus, an award to the State for appellate costs is inappropriate under

these circumstances.

We affirm the judgment and sentence and deny any award of appellate

costs to the State. /\

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WE CONCUR:

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6 State 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).