State Of Washington, V William M. Helkenn, Iii ( 2024 )

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UNPUBLISHED OPINION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
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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
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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.
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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
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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
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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
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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).
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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.
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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
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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.
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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
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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
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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-
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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)).
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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.”
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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
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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).
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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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
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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
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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.
v. Right To Present a Defense
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:
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