State Of Washington, V William M. Helkenn, Iii

• Court: Court of Appeals of Washington
• Decided: August 12, 2024
• Docket: 86166-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86166-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION WILLIAM MATTHEW HELKENN III,

Appellant.

HAZELRIGG, A.C.J. — A jury convicted William Helkenn of one count of child

molestation in the first degree and one count of child molestation in the third

degree. He assigns error to several rulings of the trial court, largely regarding

evidentiary issues. Although we conclude that the trial court committed two errors,

both were harmless and the cumulative error doctrine does not entitle Helkenn to

relief. We affirm the conviction, but remand for correction of the judgment and

sentence.

FACTS

William Helkenn is the biological father of C. C was born in Minnesota in

2000. Helkenn married C’s mother Tricia Anderson on January 6, 2001 in

Minnesota, and shortly thereafter, the family moved to Arizona. Helkenn and

Anderson separated in 2002 and C moved back to Minnesota with Anderson. In

2011, when C was 10 years old, Helkenn gained custody of C after Anderson was

admitted into treatment for chemical dependency. Helkenn and C subsequently No. 86166-2-I/2

resided in Vancouver, Washington. Through the years, the two lived with

Helkenn’s romantic partners, including Sarah Rockwell who was married to him

from 2012 to 2014.

In September 2018, on the night of her 18th birthday, C moved into an

apartment with Kai Childers. Shortly thereafter, Childers confronted C about an

entry in C’s diary where she had written that Helkenn had touched her “down there”

and that she had a general dislike for him. Following the confrontation, C went to

Rockwell’s house and asked if she had known about the abuse. Rockwell stated

that she had not been aware and encouraged C to contact the police. That

November, C met with Deedee Pegler, a forensic interviewer with the Arthur D.

Curtis Children’s Justice Center. C was also examined by Karis Kerbs, a pediatric

nurse practitioner.

On March 14, 2019, the State charged Helkenn with one count each of child

molestation in the first degree and child molestation in the third degree. The

arresting officer’s declaration of probable cause included the description of events

that C had relayed to Pegler. On September 20, 2021, the State filed an amended

information and added two aggravating factors for each count: that the offenses

were part of an ongoing pattern of abuse and Helkenn used his position of trust to

facilitate the commission of the crimes.

On March 15, 2022, the court made the following rulings on motions in

limine: testimony about prior acts proffered by the State was admissible under ER

404(b) to establish Helkenn’s motive, intent, opportunity, absence of mistake, and

-2- No. 86166-2-I/3

res gestae; 1 testimony from several State’s witnesses about C’s disclosures was

admissible under the fact of complaint doctrine; and many topics the defense

sought to introduce through its expert were excluded, specifically grooming or the

absence of any discussion of grooming, false accusations and child suggestibility,

any opinion on the forensic interview, Anderson’s alcoholism, opinions about

“believed-in imaginings,” and the lack of corroboration in this case or in child sexual

abuse cases generally.

The court determined the jury instructions on March 17. Jury instruction 14

provided that “[i]n order to convict a person of the crimes of child molestation in the

first degree or child molestation in the third degree, as defined in these instructions,

it is not necessary that the testimony of the alleged victim be corroborated.”

Helkenn later objected to this instruction and argued that it was an improper judicial

comment on the evidence. While his exception was noted, the court ruled that the

instruction would be given to the jury.

Trial began on March 15, 2022. C testified about multiple instances of

sexual abuse by Helkenn, which started when she was in the fifth grade. She

described one instance that occurred on a train ride to Minnesota for a custody

hearing when she was approximately 12 years old. She explained that the

encounter made her feel scared and anxious. C then testified about two episodes

1 The court initially admitted the prior act evidence to establish “lustful disposition,” a

previously recognized exception under ER 404(b). However, later, on the order on motions in limine, “lustful disposition” was crossed out and “motive, intent, opportunity, absence of mistake and res gestae” was handwritten in its place. This change to the basis of admissibility is discussed in detail in Section III, infra.

-3- No. 86166-2-I/4

of abuse in her shared home with Helkenn that occurred sometime after the

incident on the train.

C further testified that, while she did not comprehend that Helkenn was

abusing her at first, when she started dating her first boyfriend at approximately 16

years old, she realized that what she was experiencing with Helkenn was “not a

normal relationship to have with your dad.” She did not tell that boyfriend about

the molestation because she was embarrassed. C testified that she did have one

conversation with Helkenn about his abuse when she was a freshman in high

school where Helkenn told her “he didn’t mean to and he felt disgusting,” and that

he could get in trouble if C told anyone what had happened. Both of Helkenn’s

parents also testified, along with various treatment providers, the investigating

officer, and other friends or close associates of C and Helkenn. Helkenn presented

expert testimony of Dr. Charles Heller, a psychologist who specialized in family

forensics.

Helkenn exercised his right to testify in his own defense. He stated that, to

his later regret, he had prioritized previous romantic relationships to the detriment

of his relationship with C. He expressed that he did have a conversation with C

wherein he apologized to her, but asserted that the apology pertained to spending

more time with a previous girlfriend than her. Helkenn denied sexually abusing C

in any manner.

The jury convicted Helkenn as charged. It also returned special verdict

findings that the State had proved the aggravating factors beyond a reasonable

doubt on both counts. On May 6, 2022, the trial court sentenced Helkenn to 180

-4- No. 86166-2-I/5

months in prison, followed by 36 months on community custody supervision by the

Department of Corrections (DOC). The court imposed a $500 victim penalty

assessment (VPA) and DNA collection fee.

Helkenn timely appealed.

ANALYSIS

Helkenn raises several issues on appeal and in a pro se statement of

additional grounds for review (SAG), primarily focusing on a number of evidentiary

rulings by the trial court and a purported instructional error. We address each in

turn.

I. Noncorroboration Jury Instruction

Helkenn asserts that the trial court’s “no corroboration necessary”

instruction was an improper judicial comment on the evidence. The Washington

Constitution directs that “[j]udges shall not charge juries with respect to matters of

fact, nor comment thereon, but shall declare the law.” W ASH. CONST. art. IV, § 16.

This provision prohibits a judge from expressing to the jury their personal opinions

about the merits of the case or directing that a factual issue has been established

as a matter of law. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). A

jury instruction can be a comment on the evidence if it demonstrates that the court

has a particular attitude toward the merits of the case. State v. Hermann, 138 Wn.

App. 596, 606, 158 P.3d 96 (2007). However, it is well established that a jury

instruction that simply and accurately sets out the law on a particular matter is not

an improper judicial comment on the evidence. See, e.g., State v. Woods, 143

-5- No. 86166-2-I/6

Wn.2d 561, 591, 23 P.3d 1046 (2001); State v. Brush, 183 Wn.2d 550, 557, 353

P.3d 213 (2015); State v. Sinrud, 200 Wn. App. 643, 649, 403 P.3d 96 (2017);

State v. Yishmael, 6 Wn. App. 2d 203, 213, 430 P.3d 279 (2018), aff’d, 195 Wn.2d

155, 456 P.3d 1172 (2020).

First and most critically, Helkenn’s challenge on this issue fails because the

noncorroboration jury instruction reflects the applicable statute nearly verbatim.

RCW 9A.44.020(1), a pertinent provision relating to the chapter 9A.44 offenses

with which Helkenn was charged, provides that “[i]n order to convict a person of

any crime defined in this chapter it shall not be necessary that the testimony of the

alleged victim be corroborated.” Jury instruction 14 states that for the jury to

convict Helkenn of child molestation in the first or third degree, the charges he

faced at trial, “it is not necessary that the testimony of the alleged victim be

corroborated.” The only difference in language between the challenged instruction

and the RCW is that the former states “it is not necessary” and the latter states “it

shall not be necessary.” The jury instruction is an accurate reflection of the

relevant law, and case law clearly provides that such an instruction does not

constitute an impermissible judicial comment. See Woods, 143 Wn.2d at 591.

Additionally, State v. Clayton is binding on this court with regard to

noncorroboration jury instructions in the circumstances presented here. 32 Wn.2d

571, 202 P.2d 922 (1949). In Clayton, our state Supreme Court considered a

challenge to an instruction that the jury “‘may’” convict a defendant of statutory

rape “‘if [they] believe from the evidence and are satisfied beyond a reasonable

doubt as to the guilt of the defendant . . . notwithstanding that there be no direct

-6- No. 86166-2-I/7

corroboration of [the victim’s] testimony as to the commission of the act.’” Id. at

572. Our Supreme Court concluded that the trial judge had “expressed no opinion

as to the truth or falsity of the testimony” of the victim by issuing the challenged

instruction and had appropriately reserved all questions of credibility to the jury.

Id. at 573-74.

Helkenn asserts in his opening brief that Clayton is distinguishable from the

instant case for two reasons. First, he cites the portion of Clayton that explains the

instruction used in that trial included the phrase “may be convicted,” 2 and avers

that language preserved the fact-finding function of the jury while the language of

the instruction issued in Helkenn’s case—that it was “not necessary that the

testimony of the alleged victim be corroborated”—implied to the jury “that a lack of

corroborative evidence could not create a reasonable doubt.” (Emphasis added.)

Second, he notes that the instruction in Clayton also included language that “‘the

question is distinctly one for the jury.’” Id. at 572. However, we review jury

instructions as a whole to ensure that, when read together, they correctly advise

the jury of the controlling law, do not mislead the jury, and allow the accused to

present their theory of the defense. State v. Weaver, 198 Wn.2d 459, 465-66, 496

P.3d 1183 (2021) (quoting State v. O’Hara, 167 Wn.2d 91, 105, 217 P.3d 756

(2009)). Jury instruction 1 from Helkenn’s trial states, “[i]t is your duty to decide

the facts in this case based upon the evidence presented to you” and establishes

that jurors are “the sole judges of the credibility of each witness.” Although the jury

in Clayton was informed of its role in determining facts and credibility in the same

2 Clayton, 32 Wn.2d at 572 (emphasis added).

-7- No. 86166-2-I/8

instruction as the no corroboration necessary language, our review does not

distinguish between the inclusion of those directives in the same or separate

instructions within the whole set of jury instructions. The jury instructions in this

case, read as a whole, properly direct the jury that it is the exclusive decider of

credibility. 3

Helkenn also alleges that the noncorroboration instruction violated the due

process guarantees of the state and federal constitutions by alleviating the State’s

burden to prove the charged crime beyond a reasonable doubt. Under the

Fourteenth Amendment to the United States Constitution, the State bears the

burden of proving every element of a crime beyond a reasonable doubt. State v.

Chacon, 192 Wn.2d 545, 549-50, 431 P.3d 477 (2018). In the context of jury

instructions, “due process is primarily concerned that the jury understands the

State’s burden of proof.” Id. at 550.

Although Helkenn presents this challenge as a separate argument, due

process interests are already incorporated into appellate review of judicial

comments on the evidence. Again, we evaluate a challenged jury instruction in

the context of the instructions as a whole. State v. Henderson, 192 Wn.2d 508,

512, 430 P.3d 637 (2018). Jury instruction 4 states that the “State is the plaintiff

and has the burden of proving each element of each crime beyond a reasonable

doubt.” Jury instructions 10 and 12, the “to convict” instructions for each of the

charged crimes, list and describe the elements of each crime, reiterate that the

3 Helkenn also argues that Clayton is no longer good law in light of Brush. However, Brush

involved different circumstances than those presented here. In Brush, the trial court misapplied the holding of a previous case to define “prolonged period of time,” 183 Wn.2d at 557, whereas in Clayton, the instruction was a correct statement of an applicable statute, 32 Wn.2d at 572-73.

-8- No. 86166-2-I/9

State carries the burden of proof, and direct that “each of the following elements

of the crime must be proved beyond a reasonable doubt.” The court also provided

jury instruction 16, which specified that the “State has the burden of proving the

existence of each aggravating circumstance beyond a reasonable doubt.” These

instructions, alone and collectively, clearly informed the jury that it had to conclude

that the State proved each element of each charge beyond a reasonable doubt

before it could convict Helkenn, therefore satisfying due process.

Because jury instruction 14 accurately reflects the content of RCW

9A.44.020(1) and Clayton controls in these circumstances, Helkenn’s assertion

that the instruction constituted an improper judicial comment is without merit. His

due process challenge to the jury instructions also fails.

II. Admission of Diary Entry

Helkenn avers that the trial court erred when it allowed C to read an entry

from her diary to the jury, violating the evidentiary prohibition on hearsay. Prior to

trial, the State agreed with Helkenn that the diary was inadmissible hearsay and

affirmatively asserted that it did not intend to use the contents of the diary entry

unless they were needed to refresh C’s memory or to be used for impeachment.

The prosecutor specified that they could not “find a hearsay exception” that applied

to the diary. At trial, Helkenn’s counsel referenced the diary entry during his

opening statement: “[T]he cats knocked the diary off a shelf, and the diary opened

to the one page in the entire diary that contained the allegation that . . . Helkenn

touched or tickled her down there.” Subsequently, the State called C as a witness

and, during direct examination, asked her whether she kept a diary as a child and

-9- No. 86166-2-I/10

whether she recalled being confronted in October 2018 about a particular entry.

The contents of that entry were not discussed during direct examination. However,

on cross-examination, defense counsel asked C about the contents of the entry in

the following exchange:

Q. [Defense Counsel] The diary entry you talk about, your dad touched or tickled you; is that correct? A. Yes. Q. When you talked to [Pegler], and you described some incidents today, did you ever talk about your dad tickling you? A. No. Q. I’m sorry. Did you answer? A. No. Q. Okay. And is that how this all came about, the entry that you were touched or tickled? A. Um, yes.

Later, the defense referenced the diary again, asking C, “Do you recall

writing about cutting yourself in the diary?” to which C replied, “I don’t recall.” On

redirect, at the prompting of the State, C reviewed a diary entry dated April 7, 2015,

and confirmed that it had refreshed her recollection. The State then asked C to

read the entry aloud and Helkenn objected on the basis of hearsay. The court took

argument on the objection outside the presence of the jury.

The State asserted that the evidence was admissible as a past recorded

recollection, to demonstrate C’s then-existing state of mind, to rebut a recent claim

of fabrication, and because defense counsel had opened the door to its admission

during cross-examination. The judge overruled the objection based on two

exceptions to the hearsay rule: ER 803(a)(5), recorded recollection, and ER

801(d)(1), prior consistent statement. On appeal, the State concedes that the diary

entry was not admissible under either evidentiary rule identified by the trial court.

- 10 - No. 86166-2-I/11

However, it argues that the diary entry was nonetheless admissible under ER 106

and because Helkenn “opened the door” to its admission.

A. Ruling on Admissibility

We review evidentiary rulings under an abuse of discretion standard.

Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017). A trial court abuses

its discretion if its decision is manifestly unreasonable, unsupported by the record,

or based on an incorrect legal standard. State v. Burns, 193 Wn.2d 190, 202, 438

P.3d 1183 (2019). Although the argument for admissibility under ER 106 is raised

for the first time on appeal, we are authorized to assess any argument supported

by the record. See State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007)

(“We may uphold a trial court’s evidentiary ruling on the grounds the trial court used

or on other proper grounds the record supports.” (emphasis added)).

As the rules of evidence are intended to assist in establishing the truth,

limiting the admission of particular evidence after receiving only part of it has the

potential to “‘limit the proof to half-truths.’” Ang v. Martin, 118 Wn. App. 553, 562,

76 P.3d 787 (2003) (quoting State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17

(1969)), aff’d, 154 Wn.2d 477, 114 P.3d 637 (2005). A party “opens the door” to

explanation or contradiction of evidence by introducing evidence that would

otherwise be inadmissible if offered by the opposing party. State v. Ortega, 134

Wn. App. 617, 626, 142 P.3d 175 (2006). Opening statements can open the door

to otherwise inadmissible evidence. State v. Wafford, 199 Wn. App 32, 39, 397

P.3d 926 (2017). The central question before the trial judge when considering

whether a party opened the door to otherwise inadmissible evidence is “to what

- 11 - No. 86166-2-I/12

extent, if any, has the statement compromised the fairness of the trial and what, if

any, response is appropriate.” Id. at 39. “The appropriate response is that which,

in the discretion of the trial judge, best restores fairness to the proceeding.” Id.

Here, the defense opened the door by referencing the diary entry three

times before the State sought to introduce it by having C read it into the record

verbatim: once during its opening statement and twice during its redirect

examination of C, each time triggering ER 106, which is commonly referred to as

the rule of completeness. ER 106 provides the following:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.

“However, ‘the trial judge need only admit the remaining portions of the statement

which are needed to clarify or explain the portion already received.’” State v.

Simms, 151 Wn. App. 677, 692, 214 P.3d 919 (2009) (internal quotation marks

omitted) (quoting State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001)). The

evidence offered under the rule of completeness must be relevant, explain and

contextualize the admitted portions, avoid misleading the jury, and “ensure fair and

impartial understanding of the evidence.” Larry, 108 Wn. App. at 910 (quoting

United States v. Haddad, 10 F.3d 1252, 1258-59 (7th Cir. 1993)).

When defense counsel referenced the diary, they said that the entry

described that Helkenn “touched or tickled” C. Without more, that description could

mislead the jury into believing that was all that C wrote in the diary entry about the

contact, minimizing her actual characterization of events or suggesting that the

- 12 - No. 86166-2-I/13

contact was harmless or otherwise appropriate. The trial court acted reasonably

when it allowed the State to correct that potential misinterpretation by admitting the

surrounding language of the diary entry, including that C did not like when Helkenn

“touches” or “tickles” her and that Helkenn “used to touch [her], like, down there.”

However, it was not necessary for the jury to hear the portions of the diary entry

regarding C’s mental health, her general impressions of Helkenn, or her

confrontation with her father about his abuse in order to correct or clarify evidence

that could potentially have misled the jury. Thus, the trial court misapplied the rule

and erred when it admitted the entirety of the entry.

B. Harmless Error

Because the erroneous admission of evidence is not a constitutional error,

we review it under the nonconstitutional harmless error standard. State v. Gower,

179 Wn.2d 851, 854, 321 P.3d 1178 (2014). “Under this standard, an ‘error is not

prejudicial unless, within reasonable probabilities, had the error not occurred, the

outcome of the trial would have been materially affected.’” State v. Booth, 22 Wn.

App. 2d 565, 584, 510 P.3d 1025 (2022) (internal quotation marks omitted)

(quoting State v. Aljaffar, 198 Wn. App. 75, 86, 392 P.3d 1070 (2017)). Prejudice

is not presumed with nonconstitutional errors. State v. Lupastean, 200 Wn.2d 26,

50, 513 P.3d 781 (2022).

Helkenn argues that the diary entry was very prejudicial because C referred

to him as “creepy” and expressed suicidal ideation. While this may be true, the

material related to C’s mental health was also present in other evidence, such as

her live testimony, which included an express admission to having engaged in self-

- 13 - No. 86166-2-I/14

harming behavior. Kerbs testified that C reported anxiety, panic attacks, and self-

injury. The description of Helkenn in the diary entry as “creepy” is not found in

other evidence, but that one word did not likely have a material impact on the jury,

particularly in light of the other evidence it heard, like C’s testimony regarding the

specifics of the sexual abuse. Therefore, although the trial court erred when it

admitted the diary entry, the other evidence admitted at trial, and the singular

descriptor of Helkenn, renders the error harmless.

III. Admission of Prior Acts under ER 404(b)

Helkenn challenges the admission of evidence regarding several instances

of past misconduct under ER 404(b), often referred to as evidence of “prior bad

acts.” This included C’s testimony about an incident when Helkenn molested her

on a train and that of Rockwell describing a time when Helkenn watched C bathe

when she was 11 or 12 years old. In 2021, the trial court admitted this evidence

as satisfying the “lustful disposition” 4 basis under ER 404(b). In 2022, our

Supreme Court announced that “the term ‘lustful disposition’ must be rejected and

that it may no longer be cited as a distinct purpose for admitting evidence under

ER 404(b).” State v. Crossguns, 199 Wn.2d 282, 290, 505 P.3d 529 (2022). The

State properly concedes that “lustful disposition” is no longer a basis for admission

4 In State v. Gresham, our Supreme Court explained that “there is one improper purpose

and an undefined number of proper purposes” for admitting “other act” evidence under ER 404(b). 173 Wn.2d 405, 421, 269 P.3d 207 (2012). While “lustful disposition” was never an enumerated exception to the prohibition set out in ER 404(b), it is one of a handful of judicially-created exceptions to the evidentiary rule. As detailed in the Crossguns opinion, “Washington first held that such evidence may be admissible over 100 years ago, early in our state’s jurisprudence, though we did not then use the term ‘lustful disposition.’ We later adopted the label ‘lustful disposition.’” 199 Wn.2d 282, 290-91, 505 P.3d 529 (2022) (citation omitted) (quoting State v. Crowder, 119 Wash. 450, 452, 205 P. 850 (1922)).

- 14 - No. 86166-2-I/15

of evidence but argues that admission here was nonetheless proper under ER

404(b) to demonstrate motive, intent, opportunity, absence of mistake, and as res

gestae. ER 404(b) allows for admission of evidence of “other crimes, wrongs, or

acts” that would otherwise “not [be] admissible to prove the character of a person,”

if the evidence shows “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake.”

Ruling on Admissibility

As the interpretation of an evidentiary rule is a question of law, we review it

de novo. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). According

to our Supreme Court, in order to properly admit evidence of prior misconduct

under ER 404(b):

“the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative values against the prejudicial effect.”

State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. Vy

Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). There is a presumption that

evidence of prior misconduct is inadmissible, and it is the burden of the party

seeking to introduce such evidence to satisfy the first three factors. Id. at 420. The

fourth factor ensures that the proffered evidence does not run afoul of ER 403. 5

5 ER 403 states, “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needles presentation of cumulative evidence.”

- 15 - No. 86166-2-I/16

Id. at 421. “This analysis must be conducted on the record.” State v. Arredondo,

188 Wn.2d 244, 257, 394 P.3d 348 (2017).

The evidence in question here was originally admitted as relevant to

establish Helkenn’s “lustful disposition” toward C and an analysis of the rule’s four

factors was conducted on the record during the hearing addressing motions in

limine. Before the trial in this case, however, our Supreme Court issued its opinion

in Crossguns that disallowed “lustful disposition” as a basis for admission and also

explained that the “rejection of the label ‘lustful disposition’ does not modify our

established doctrine of allowing ‘[e]vidence of other crimes, wrongs, or acts’ to be

admitted as ‘proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident’ pursuant to ER 404(b).” 199 Wn.2d at

285-286 (alteration in original).

In Helkenn’s case, the trial court noted that Crossguns “made a fairly big

change in the law on lustful disposition evidence.” The State responded that it was

“offering the same evidence under the motive, intent . . . absence of mistake, or

common scheme or plan” bases for admission. Neither the State nor the court

articulated any reasoning as to why admission of the evidence was warranted

under any of these alternate grounds. Defense counsel later renewed their

objection to exclude the evidence in light of Crossguns. The court again ordered

it admitted, but failed to conduct any analysis on the record under the newly

proffered bases. It stated the following:

[T]he Crossguns case is a little bit confusing because it talks about an outmoded doctrine, but it clearly does not do away with [ER] 404(b). And . . . the analysis is the same as to the phrase “lustful disposition.” I don’t know that I’ve ever actually heard anybody use it

- 16 - No. 86166-2-I/17

in a trial. It’s a basis for—was a basis for admission of testimony. It no longer is on its own. But my ruling stands under [ER] 404(b).

The court simply crossed out “lustful disposition” on its order on motions in limine

and handwrote “motive, intent, opportunity, absence of mistake, and res gestae”

in its place.

As the State concedes in its brief, the analysis of whether certain evidence

is admissible under ER 404(b) must be conducted on the record, and the party

attempting to introduce the evidence must identify its intended purpose. While the

court in Crossguns affirmed the trial court’s admission of evidence of prior sexual

misconduct for other permissible purposes that included “intent, plan, motive,

opportunity, [and] absence of mistake or accident,” Id. at 287, the trial court here

failed to conduct any legal analysis on the record as to the other permissible

purposes presented by the prosecutor, including whether the probative value

outweighed any prejudicial effect. Accordingly, the trial court abused its discretion

by misapplying the controlling law and admitting the challenged evidence under

ER 404(b) without first performing the required analysis on the record.

Such an evidentiary error is harmless when the evidence is admissible for

a proper purpose. State v. Sublett, 156 Wn. App. 160, 196, 231 P.3d 231 (2010),

aff'd, 176 Wn.2d 58, 292 P.3d 715 (2012). We may uphold the admission of ER

404(b) evidence on any ground that the record supports, “consider[ing] bases

mentioned by the trial court as well as other proper bases on which the trial court's

admission of evidence may be sustained.” Williams, 137 Wn. App. at 743; State

v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995).

- 17 - No. 86166-2-I/18

The State argues that the evidence regarding the train and bathing incidents

is admissible to show the permissible purposes of motive, intent, opportunity,

absence of mistake, and as res gestae to show C’s state of mind as to her delayed

disclosure. It also contends that the challenged evidence was admissible to prove

the aggravating factors on each count. Helkenn avers the evidence was only

relevant to show propensity and that, even if it was logically relevant to other

permissible purposes, its probative value was substantially outweighed by the risk

of unfair prejudice.

Crossguns is instructive here. The State charged Crossguns with one count

of both rape of a child and child molestation against his daughter, R, and alleged

two aggravators on each count—that Crossguns abused a position of trust and

that the crimes were part of an ongoing pattern of sexual abuse. Crossguns, 199

Wn.2d at 286. When the State moved to admit evidence concerning his prior

uncharged sexual abuse of R under ER 404(b), Crossguns opposed and argued it

was improper propensity evidence. Id. at 286-87. Although the trial court erred

when it admitted the evidence to show “lustful disposition,” our Supreme Court

explained that the error was harmless as the evidence was admissible to show

intent, plan, motive, opportunity, absence of mistake, and to prove the aggravating

factors for each count. Id. at 296.

The Crossguns court was clear that its holding did “not disturb our

precedent permitting evidence of collateral misconduct relating to a specific victim

for appropriate purposes under ER 404(b).” Id. at 290. The court noted that

evidence admitted to show the lustful disposition of the accused “has generally

- 18 - No. 86166-2-I/19

been admissible for some other, proper purpose, such as intent, motive,

opportunity, common scheme or plan, preparation, and absence of accident or

mistake.” Id. at 294. In cases concerning the sexual assault of children, such

evidence may be admissible because it is “necessary to demonstrate the dynamics

between the offender and their victim” and the manipulation of the child’s trust. Id.

at 295. “Evidence of such manipulation,” the court explained, “shows the planning

and intent involved in building a relationship with the child victim in order to obtain

the access and opportunity to commit the acts of sexual assault.” Id. Thus, the

court concluded, “evidence of prior sexual misconduct may be relevant and

admissible in cases such as this that involve sexual abuse in the context of a

relationship with unequal power dynamics.” Id.

Here, like in Crossguns, the ER 404(b) evidence at issue is other uncharged

sexual misconduct between the defendant and the victim. Just as the evidence in

Crossguns was key to show the dynamics of the relationship and the manipulation

of the victim, the same is true here. The evidence regarding the bathing and train

incidents demonstrate that Helkenn developed and manipulated C’s trust from a

position of power, which “shows the planning and intent involved in building a

relationship with the child victim in order to obtain the access and opportunity to

commit the acts of sexual assault.” Id. Here, the State charged the same

aggravating circumstances as it did in Crossguns and alleged that Helkenn

engaged in a pattern of sexual abuse and that he abused a position of trust to

facilitate commission of the crimes against C. The evidence was plainly relevant

and admissible to prove both aggravating factors. And, for the same reasons as

- 19 - No. 86166-2-I/20

in Crossguns, the evidence here was also relevant and necessary “as res gestae

in the case to show [C’s] state of mind for her delayed disclosure.” Id. at 296.

Because we conclude that the evidence was admissible for these purposes, “we

need not address the trial court's other reasons for admissibility.” State v. Wilson,

60 Wn. App. 887, 890, 808 P.2d 754 (1991).

Regarding the trial court’s failure to balance the probative value of the

evidence against any undue prejudice on the record, such an evidentiary error

requires reversal only “if the error, within reasonable probability, materially affected

the outcome of trial.” State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).

Though “the potential for prejudice from admitting prior acts is ‘at its highest’ in sex

offense cases,” the prior misconduct here was admissible for permissible purposes

and highly probative to show res gestae and prove the aggravating factors. Gower,

179 Wn.2d at 857 (internal quotation marks omitted) (quoting Gresham, 173 Wn.2d

at 433); see State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995) (“[T]he true

test of admissibility of unrelated crimes is not only whether they fall into a specific

exception, but whether the evidence is relevant and necessary to prove an

essential ingredient of the crime charged.”). Under these circumstances, the trial

court’s failure to balance on the record whether the probative value of the evidence

was substantially outweighed by the danger of undue prejudice had no reasonable

probability of materially affecting the outcome of this trial. Because the evidence

was admissible on appropriate grounds and it is clear from the record that it was

not substantially more prejudicial than probative, the error is harmless. See

Halstien, 122 Wn.2d at 127.

- 20 - No. 86166-2-I/21

Helkenn also claims the trial court erred in failing to provide a limiting

instruction for the jury’s consideration of the ER 404(b) evidence. Pursuant to ER

105, when evidence is admissible for one purpose but not another, “the court, upon

request, shall restrict the evidence to its proper scope and instruct the jury

accordingly.” When neither party requests such an instruction, a “trial court is not

required to sua sponte give a limiting instruction for ER 404(b) evidence.” State v.

Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011). As our Supreme Court has

emphasized:

Under the plain language of ER 105, the trial court has a duty to issue a limiting instruction only upon request for such an instruction. Nothing in ER 105 creates an affirmative duty on the part of the trial court to sua sponte give a limiting instruction in the context of ER 404(b) evidence. This holding is consistent with over 40 years of Washington case law expressly addressing this issue.

Id. at 123. Because Helkenn did not request a limiting instruction for the ER 404(b)

evidence and the trial court had no duty to provide the instruction sua sponte, his

claim fails. Id.; see State v. Noyes, 69 Wn.2d 441, 447, 418 P.2d 471 (1966) (“[A]

request for a limiting instruction is a prerequisite to a successful claim of error on

appeal.”).

IV. Fact of Complaint Doctrine

Helkenn avers that the trial court erred when it admitted testimony from

witnesses through an improper application of the fact of complaint doctrine. The

doctrine is a case law exception to the prohibition on hearsay that permits the

introduction of evidence that the alleged victim made a complaint to someone after

the assault. State v. DeBolt, 61 Wn. App. 58, 63, 808 P.2d 794 (1991). The

- 21 - No. 86166-2-I/22

admission of evidence under this doctrine is limited; such evidence is only

admissible to demonstrate that the victim reported the crime to someone in a timely

manner and is not admissible for the truth of the matter asserted. State v. Martinez,

196 Wn.2d 605, 611, 476 P.3d 189 (2020). We review the trial court’s admission

of evidence pursuant to the fact of complaint doctrine under an abuse of discretion

standard. Id. at 614.

Helkenn concedes that the trial court did not err when it admitted the

testimony of C’s disclosure of abuse to a friend when they were in the eighth grade

because it was contemporaneous to the molestation, but asserts that her reports

to Pegler, Rockwell, and Childers were “plainly untimely,” as they occurred roughly

two years after C stated the abuse stopped. The State argues that Helkenn did

not preserve the issue of timeliness on appeal because his objection was a vague

statement that the history of the case and the “way the complaints came out after”

was not a challenge to timeliness. While it is true that Helkenn did not use the

word “timely” or anything similar, the phrasing of his argument on objection, “the

way the complaints came out after,” indicates a challenge to the timing of the

complaints. (Emphasis added.) This claim was preserved and is properly before

us.

“A complaint is timely if it is made when there is an ‘opportunity to

complain.’” Id. (internal quotation marks omitted) (quoting State v. Griffin, 43

Wash. 591, 597, 86 P. 951 (1906)). Reviewing courts generally “leave it in the

able hands of the trial court to determine what constitutes a timely complaint based

on the surrounding circumstances.” Id. at 615. Because child abuse is typically

- 22 - No. 86166-2-I/23

an ongoing pattern of behaviors, trial judges have the authority to admit evidence

to help the jury understand why a victim waited to report sexual abuse. Id. Helkenn

points to the holding in State v. Chenoweth that reporting abuse one year after its

occurrence was untimely. 188 Wn. App. 521, 533, 354 P.3d 13 (2015). He argues

that C alleged the last instance of abuse occurred when she was 16, a full two

years before she reported it. Although Chenoweth is similar in that it also involved

an allegation of sexual assault by a child against their father, the factual distinctions

are significant in the consideration of timeliness. The victim in Chenoweth was an

adult at the time of the abuse, lived with both parents, and Chenoweth had moved

out of the house over a year before the victim reported the abuse. Id. at 524. Here,

although various romantic partners lived with C and Helkenn at different times, C

depended on Helkenn as her primary parent and caregiver from the point she

moved in with him at age 11. She testified that she was afraid she would “get in

trouble” if she revealed that her father had been the one abusing her. On C’s 18th

birthday, she moved out of Helkenn’s house and reported the abuse approximately

one month later. It is reasonable that C felt that her earliest opportunity to complain

was after she no longer lived with Helkenn, and she reported the abuse shortly

after she moved out. Particularly in light of the significant discretion conferred on

the trial court in considering the circumstances and admitting evidence under the

fact of complaint doctrine, we conclude that C’s complaints were timely and that

the trial court did not err in admitting this evidence.

- 23 - No. 86166-2-I/24

V. Right To Present a Defense

Helkenn contends that his constitutional “right to present a defense” was

violated when the trial court improperly excluded photographs of the home where

he and C had resided. The concept of the right to present a defense is not an

enumerated constitutional entitlement. Rather, the United States Supreme Court

has identified the Sixth Amendment rights to confrontation of adverse witnesses

and to testify in one’s defense as “essential to due process,” Chambers v.

Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 1019 (1973),

and “described the right to present such testimony as the ‘right to present a

defense.’” State v. Broussard, 25 Wn. App. 2d 781, 785, 525 P.3d 615 (2023)

(quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct 1920, 1923, 18 L. Ed. 2d

1019 (1967)). Chambers sought to admit evidence that another individual

confessed to the murder for which Chambers had been charged (though the

confession was later repudiated). Chambers, 410 U.S. at 287-88. Although the

trial court allowed the witness to testify, a Mississippi common law rule prevented

Chambers from treating the witness as hostile in order to impeach his testimony.

Id. at 294. The Court held that, because Mississippi law prevented Chambers from

calling witnesses whose testimony was essential to the determination of guilt or

innocence, the law violated the Sixth Amendment right to present witnesses in his

favor. Id. at 295, 302.

One year after Chambers, the Court again explored the Sixth Amendment

right to confront witnesses in Davis v. Alaska. 415 U.S. 308, 94 S. Ct. 1105, 39 L.

Ed. 2d 347 (1974). Davis sought to establish through cross-examination the

- 24 - No. 86166-2-I/25

possibility that the State’s primary witness testified out of fear that his probation for

a prior juvenile offense would be revoked. Id. at 310-11. However, relying on a

statute that barred the introduction of juvenile adjudications, the trial court excluded

evidence of the offense, effectively preventing Davis from discrediting the witness’s

testimony. Id. at 311. The Supreme Court reversed the conviction and ruled that

it violated “the right of effective cross-examination.” Id. at 318. The Court held the

application of the statute prohibited Davis from making a record that showed why

the witness might have been biased and that, in order for such impeachment to be

effective, the accused must be able to present facts to a jury from which it could

“draw inferences relating to the reliability of the witness.” Id.

Washington jurisprudence also focuses on newly promulgated or

infrequently cited rules of evidence in outlining what is entailed in the right to

present a defense. For example, in State v. Hudlow, our state Supreme Court

considered the prejudicial and probative value of evidence that was potentially

inadmissible under the then-newly created rape shield law. 99 Wn.2d 1, 659 P.2d

514 (1983). It held that proffered evidence is not precluded by the rape shield law

when it is of high probative value. Id. at 16. In State v. Chicas Carballo, this court

considered evidence that had been excluded pursuant to an evidentiary rule, ER

413, that had gone into effect just prior to trial and prohibited the introduction of

evidence pertaining to an individual’s immigration status, absent satisfaction of

particular procedural requirements. 17 Wn. App. 2d 337, 345, 486 P.3d 142

(2021). The trial court’s application of the rule prevented Chicas Carballo from

impeaching the only witness to the crime by questioning her about a possible

- 25 - No. 86166-2-I/26

motive to lie that was supported by the record. Id. at 347. This court reversed

because the excluded evidence was highly probative and, in fact, key to the

defense theory of the case. Id. at 350-51.

The central consideration in all of these cases is whether both parties

receive a fair trial. State v. Ritchie, 24 Wn. App. 2d 618, 634, 520 P.3d 1105

(2022). “[T]hat concern is heightened when a new or antiquated rule appears to

threaten the defendant’s right to a fair trial.” Id. The concern is lessened when the

applied rule is well-established like ER 403, which requires that even relevant

evidence must not be unfairly prejudicial in order to be admissible. Id. at 634-35.

The right to present a defense is not absolute; evidence that is otherwise irrelevant

or inadmissible does not become admissible through the right to present a

defense. Broussard, 25 Wn. App. 2d at 786. “Evidence is relevant if it tends to

prove or disprove the existence of a fact of consequence to the outcome of the

case.” Ritchie, 24 Wn. App. 2d at 627 (emphasis added). However, even if the

evidence is relevant, the court may properly exclude it if it is only minimally

relevant, repetitive, or poses an undue risk of harassment, prejudice, or confusion

of the issues. Broussard, 25 Wn. App. 2d at 786. In short, if the defendant is

afforded the opportunity to present their theory of the case, “the exclusion of some

aspects of the defendant’s proffered evidence will not amount to a violation of the

defendant’s constitutional rights.” Ritchie, 24 Wn. App. 2d at 635.

We conduct a two-step analysis when considering whether an evidentiary

ruling violated the right to a fair trial through the presentation of a defense. State

v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). The first step is to review the

- 26 - No. 86166-2-I/27

evidentiary ruling under an abuse of discretion standard. State v. Jennings, 199

Wn.2d 53, 58, 502 P.3d 1255 (2022). “‘A trial court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or for

untenable reasons.’” Arndt, 194 Wn.2d at 799 (quoting State v. Lord, 161 Wn.2d

276, 283-84, 165 P.3d 1251 (2007)). If the ruling amounts to an abuse of discretion

and results in prejudice, the analysis ends. Jennings, 199 Wn.2d at 59. If the trial

court did not abuse its discretion or the abuse of discretion results in harmless

error, we consider de novo whether the exclusion of evidence violated the

defendant’s right to present a defense. Id. at 58.

Helkenn sought to introduce photographs of every room in his home. He

acknowledged that the pictures did not accurately reflect the house at the time C

lived there because the rooms had been reconfigured, but he maintained that the

layout of the home was relevant to the jury’s overall analysis of where the alleged

abuse occurred and to challenge C’s testimony that she had been unable to hear

Helkenn and a prior live-in girlfriend arguing. The court heard from both parties

and recognized that photographs could be relevant if they portrayed the home at

the time C was living there, but noted that the rooms had since been “changed

around,” and ultimately stated, “I’m not seeing a lot of relevance.” Further, the

court reasoned, there was no allegation that anyone was in a different room at the

time of the abuse, and whether C could have heard Helkenn arguing with his

girlfriend was a collateral issue. The exchange between the judge and counsel for

both parties demonstrates reasonable consideration of the arguments for and

against admission of the photographs. The trial court did not abuse its discretion

- 27 - No. 86166-2-I/28

in making this evidentiary ruling as the photographs were not relevant and

potentially confusing for the jury.

Having concluded that the trial court did not abuse its discretion in its

evidentiary ruling, the second step in the analysis is to assess whether the

defendant’s right to present a defense was violated under the guarantees of

constitutional due process. Jennings, 199 Wn.2d at 58. In previous cases, this

phase of the analysis has been performed under two distinct frameworks. In Arndt

and Jones, 168 Wn.2d 713, 230 P.3d 576 (2010), the focus was on whether the

relevant evidence in question constituted the entirety of the defendant’s defense

and was highly probative. Jennings, 199 Wn.2d at 64. In Hudlow, the court

“balance[d] the defendant’s right to produce relevant evidence versus the state’s

interest in limiting the prejudicial effects of that evidence.” 99 Wn.2d at 16. These

two frameworks overlap, as the courts in Arndt and Jones also applied the

balancing test in their respective analyses. Jennings, 199 Wn.2d at 64.

Nevertheless, any distinction between the methods of analysis is immaterial in

these circumstances as the information Helkenn seeks to introduce is not relevant

and there is “no constitutional right to present irrelevant evidence.” Jones, 168

Wn.2d at 720. Because Helkenn’s proffered photographs had no potential to make

any fact of consequence to the outcome of this action any more or less probable,

the evidence was properly excluded and his “right to present a defense” was not

infringed.

- 28 - No. 86166-2-I/29

VI. Cumulative Error

Helkenn argues that the cumulative effect of the errors he presents on

appeal deprived him of a fair trial. “Under the cumulative error doctrine, a

defendant may be entitled to a new trial when cumulative errors produce a trial that

is fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653

(2012). Even if any individual error standing alone would otherwise be harmless,

the doctrine may warrant reversal when the errors are taken in total. State v.

Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). “The doctrine does not apply

where the errors are few and have little or no effect on the outcome of the trial.”

Id.

Helkenn argues that any combination of the errors he has presented

materially affected the outcome of the trial and reversal is required. However, only

two errors actually occurred: the admission of the diary entry in its entirety and the

admission of the testimony about the prior acts of watching C bathe and the train

incident. More critically, each error was harmless. The court’s admission of the

whole diary entry presented information to the jury that was largely repetitive of

other evidence, with the exception of one adjective used to describe Helkenn,

“creepy.” Accordingly, we deemed that error harmless as there is no reasonable

probability, in light of the totality of the properly admitted evidence, that this single

word materially affected the verdict. Further, while the court also erred when it

admitted the prior bad acts evidence without conducting its analysis on the record

as required by the rule, there was ample evidence on which a reasonable jury

could have relied to convict Helkenn without the ER 404(b) evidence. Even

- 29 - No. 86166-2-I/30

considered together, these two errors did not result in a fundamentally unfair trial

and therefore do not require reversal under the cumulative error doctrine.

VII. DOC Supervision Fees

Finally, Helkenn asserts that the DOC community custody supervision fees

imposed in his judgment and sentence are no longer required as the result of a

legislative amendment that became effective after sentencing. LAWS OF 2022, ch.

29, § 8; RCW 9.94A.703. This court has previously held that this amendment

applies to cases on direct appeal. State v. Wemhoff, 24 Wn. App. 2d 198, 202,

519 P.3d 297 (2022). The State also properly concedes that the supervision fees

should be removed from the judgment and sentence pursuant to the change in

RCW 9.94A.703. Accordingly, we remand for the trial court to strike the

supervision fees.

VIII. Statement of Additional Grounds for Review

In his pro se SAG, Helkenn asserts a number of additional challenges also

require reversal, however none are availing.

A. Judicial Bias

Helkenn first asserts that the trial judge made an improper comment on the

evidence which “revealed unconscious bias that existed throughout the majority of

the trial.” The comment at issue occurred during sentencing, days after the jury

had reached a verdict and been released. Immediately before imposing Helkenn’s

sentence, the judge stated, “[p]robably 20 seconds after she opened her mouth, I

believed everything that happened,” in regard to C’s testimony on the first day of

- 30 - No. 86166-2-I/31

trial. Helkenn argues that “several rulings by the [c]ourt appear to be influenced

by this bias,” in violation of the Washington State Constitution and “the defendant’s

right to a fair trial.” However, the jury unanimously convicted Helkenn well before

the statement at issue here was made. Helkenn offers no authority that a judicial

remark outside the presence of the jury could constitute a prejudicial comment on

the evidence and we decline to further consider this argument.

Helkenn also asserts that the judge’s adverse rulings on objections during

the trial, rulings on the State’s motions in limine to exclude portions of Heller’s

testimony, and, “the sense that the jury was rushed to reach a verdict and

comments made by the [c]ourt in the presence of the jury” demonstrate bias in this

case. Judicial rulings alone generally do not constitute a valid demonstration of

bias. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). The

bare assertions that Helkenn presents on this issue are not sufficient to support a

conclusion of judicial bias without argument that is supported by the record. “[An]

appellate court is not obligated to search the record in support of claims made in

a[n] [appellant]’s statement of additional grounds for review.” RAP 10.10(c).

Helkenn also highlights several objections made by the defense and the

State in order to demonstrate the purported judicial bias. Alone, rulings adverse

to Helkenn do not establish bias. Helkenn only generally references comments

made by the court and the “sense” that the jury was rushed to support this aspect

of his claim of judicial bias. He fails to point to specific evidence of this “sense” in

the record, thus his claim is not sufficiently supported to warrant review. Again,

- 31 - No. 86166-2-I/32

under RAP 10.10(c), we are not obligated to search the record for support of such

claims and Helkenn has failed to establish judicial bias.

B. Hastening the Verdict

Helkenn next appears to argue that the judge made comments that

inappropriately rushed the jury to render a verdict. Helkenn points to comments

the judge made during voir dire about the potential length of the trial as support for

this theory and notes in particular that the judge stated that it may take the jury

extra time to deliberate.

Manifest errors affecting constitutional rights may be raised for the first time

on appeal. RAP 2.5(a)(3). The defendant must show an error actually prejudiced

their rights at trial in order to demonstrate a manifest error effecting a constitutional

right. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). “A claim of

judicial coercion affecting a jury verdict is such an error that we will review.” State

v. Ford, 171 Wn.2d 185, 188, 250 P.3d 97 (2011). To prevail on this claim, Helkenn

“must establish a reasonably substantial possibility that the verdict was improperly

influenced by the trial court’s intervention.” State v. Watkins, 99 Wn.2d 166, 178,

660 P.2d 1117 (1983). However, the defendant must first demonstrate that the

jury was within its deliberative process when the allegedly coercive statements

were made. Ford, 171 Wn.2d at 189.

As in Ford, Helkenn fails at this threshold showing. None of the comments

cited in the SAG in support of this claim were made during the deliberative process.

In fact, there is no evidence that the trial judge had any contact with the jurors

- 32 - No. 86166-2-I/33

during deliberation. Helkenn has failed to carry his burden on appeal to establish

entitlement to relief on this basis.

C. Exclusion of Expert Testimony

Helkenn also challenges the exclusion of six portions of Heller’s intended

testimony, specifically those regarding false allegations. 6 ER 702 establishes, “If

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise.” As with other evidentiary rulings, this court

reviews the admissibility of expert testimony under an abuse of discretion

standard. State v. Aguirre, 168 Wn.2d 350, 359, 229 P.3d 669 (2010). “The trial

court necessarily has broad discretion in determining whether expert testimony

should be admitted under ER 702, and we will reverse the trial court’s evidentiary

ruling only if it is based on unreasonable or untenable grounds.” State v. Rafay,

168 Wn. App. 734, 783-84, 285 P.3d 83 (2012).

i. False Accusations

Helkenn avers that the general testimony Heller would have given about

issues related to false confessions, such as suggestibility and recantation, should

have been permitted because the State was allowed to present expert testimony

6 The State sought to exclude the following six aspects of Heller’s anticipated testimony

on: false accusations, grooming or the absence of grooming, the forensic interview process, the potential psychological impacts of a parent’s alcoholism on a child, believed or imagined fantasies, and the lack of corroboration in this case and child sex cases generally. Helkenn’s challenge in his SAG focuses primarily on the first topic, although he briefly addresses others. As he does not provide argument regarding the forensic interview or the concept of believed fantasies, we decline to consider those topics. RAP 10.10(c) (“[T]he appellate court is not obligated to search the record in support of claims made in a[n] [appellant’s] statement of additional grounds for review.”).

- 33 - No. 86166-2-I/34

on general topics such as the demeanor of the subject during forensic interviews

and appropriate emotional responses. The court heard argument from both parties

regarding the admissibility of the proffered testimony from Heller on false

accusations and child suggestibility and, in considering the parties’ respective

contentions, commented that Helkenn could make the case that the witnesses’

testimony was contrived through cross-examination. The court ultimately granted

the State’s motion to exclude, finding the testimony to be “speculative and [a]

comment on the witness credibility in this case.” Helkenn fails to demonstrate how

this ruling was an abuse of discretion.

ii. Grooming

Helkenn next argues that the trial court erred when it permitted the State to

introduce evidence implying grooming behavior but excluded Heller’s testimony

presenting an opposing view. The court ruled that the portion of Heller’s testimony

that pertained to the absence of grooming would confuse the jury, particularly

because it had already prohibited the State from introducing testimony from C that

Helkenn had groomed her. The judge also stated that the “absence of grooming

is really not relevant or helpful to the jury” because “the lack of it doesn’t mean that

the abuse didn’t happen.” The trial court did not err when it excluded testimony

from Heller regarding grooming.

iii. Alcoholism

Helkenn also challenges the exclusion of Heller’s testimony about

Anderson’s alcoholism and argues that the State presented incorrect facts

regarding the time period when C lived with Anderson. The court granted the

- 34 - No. 86166-2-I/35

motion to exclude based on relevance and speculation, as Anderson was not part

of the household at the time C claims she was abused by Helkenn. Regardless of

C’s age when she went from living with Anderson to live in Helkenn’s home, it was

reasonable for the trial court to rule that the behavioral health condition of someone

who did not reside with C during the period of the purported sexual abuse was

irrelevant and speculative. While Helkenn notes that C was still visiting her mother

after the abuse allegedly began, in contrast to the State’s assertion about the

timeline of C’s contact with Anderson, that argument is also irrelevant because

Helkenn did not claim that Anderson committed the charged acts instead of him.

Further, although Helkenn contends that the State acknowledged Heller’s

testimony should have been allowed, he provides no citation to the record to

support this particular claim. Again, he has failed to carry his burden on this

challenge.

iv. Lack of Corroboration

Helkenn next asserts that the trial court erred when it excluded testimony

from Heller about the lack of corroboration in this case and in child sex abuse

cases generally. When it granted the motion to exclude this particular evidence,

the trial court noted that any such testimony would be in violation of RCW

9A.44.020(1), which, as established in Section I, supra, states, “In order to convict

a person of any crime defined in this chapter it shall not be necessary that the

testimony of the alleged victim be corroborated.” The court also reasoned that

such testimony would confuse the jury. As the jury would later be given jury

instruction 14 on noncorroboration, it was reasonable for the court to find that

- 35 - No. 86166-2-I/36

expert testimony that contradicted the court’s explicit directive would be confusing.

The crux of this particular challenge seems to be C’s credibility, which is nearly

identical to Helkenn’s attack on the exclusion of testimony regarding false

accusations. As with that particular challenge, Helkenn was free to explore this

area of the defense theory of the case through cross-examination and the

presentation of other witnesses.

Finally, Helkenn contends that the exclusion of Heller’s testimony interfered

with his “right to a fair defense.” There is no express right to a “fair defense” and,

again, the right to present a defense is not unlimited; it does not override the rules

of evidence, specifically those pertaining to relevance and confusion of the jury.

See ER 401, 402, 403; Broussard, 25 Wn. App. 2d at 786. Helkenn was not

prevented from developing his case by utilizing cross examination of C and other

witnesses for the State in order to call their credibility into question. Helkenn’s right

to present a defense was not violated by the exclusion of the identified portions of

Heller’s intended testimony.

Helkenn fails to establish entitlement to relief on his various evidentiary

challenges. Accordingly, we affirm the conviction, but remand for the trial court to

strike the DOC supervision fees.

WE CONCUR:

- 36 -