Jonathon L. Taylor v. Dept. Of L & I

Filed
Washington State
Court of Appeals
Division Two
July 11, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JONATHON L. TAYLOR, No. 51360-9-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
LEE, J. — Jonathon L. Taylor appeals from a jury verdict affirming an order of the Board
of Industrial Appeals, which denied Taylor’s request to reopen his industrial injury insurance claim
related to his lower back injury. Taylor argues that the superior court improperly admitted
evidence related to his third degree child molestation conviction and sentence, and as a result, he
is entitled to a new jury trial in superior court. We disagree and affirm.
FACTS
A. PROCEEDINGS BEFORE THE DEPARTMENT OF LABOR AND INDUSTRIES
Taylor injured his lower back while working at a lumber mill in June 2008. He filed a
claim for permanent partial disability with the Department of Labor and Industries on June 19.
The Department allowed the claim on June 25, but closed Taylor’s claim a month later.
In October, Taylor was convicted of third degree child molestation. Taylor was sentenced
to nine months incarceration and placed on 12 months of community custody supervision
No. 51360-9-II
following his release. As a condition of his supervision, Taylor was prohibited from having any
contact with minors unless another adult was present. Taylor was also required to register as a sex
offender.
In March 2012, Taylor applied to reopen his claim with the Department. The Department
denied this request and issued an order affirming its decision to close Taylor’s claim in May 2013.
Taylor filed a request for reconsideration. The Department denied Taylor’s request and issued an
order affirming its decision to close Taylor’s claim.
B. PROCEEDINGS BEFORE THE BOARD OF INDUSTRIAL INSURANCE APPEALS
Taylor appealed the Department’s order affirming its decision to close Taylor’s claim to
the Board of Industrial Insurance Appeals. Taylor argued that he was entitled to benefits because
his June 2008 injury had prevented him from working. The Board heard testimony from several
witnesses, including Taylor and two vocational rehabilitation counselors, Carl Gann and Barbara
Berndt, who had worked with Taylor following his injury.
Taylor testified that he had not applied for another job since his June 2008 injury because
his recurring back pain significantly limited the types of job tasks he could perform. On cross-
examination, the Department questioned Taylor about his child molestation conviction, including
the conditions of his community custody supervision that he register as a sex offender and have
no contact with minors without another adult present. Taylor objected to this line of questioning
“as more prejudicial than probative.” Clerk’s Papers (CP) at 94. The Board overruled Taylor’s
objection.
The Department also questioned Gann and Berndt on the details of Taylor’s child
molestation conviction. Gann testified that a person’s criminal history was a factor in a typical
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vocational assessment. Taylor objected and argued that Gann’s testimony related to the details of
his criminal conviction was more prejudicial than probative. Again, Taylor’s objection was
overruled.
Berndt similarly testified that a person’s criminal history is a factor when assessing his or
her employability. Berndt stated that Taylor had a felony conviction for sexual misconduct and as
a result of that conviction, Taylor could not obtain work in environments where children were
present. Berndt concluded that there were jobs that Taylor was physically capable of performing
but could not obtain because he was not allowed to work around children without another adult
present as a condition of his sentence. For example, Berndt explained that Taylor’s injury did not
prevent him from working as a cashier or school bus driver, but his restriction on having contact
with minors precluded these employment possibilities. Again, Taylor objected, arguing that
Berndt’s testimony regarding Taylor’s criminal conviction was more prejudicial than probative.
The Board again overruled Taylor’s objection.
The Board concluded that Taylor’s June 2008 injury was not the proximate cause of his
lower back condition. It also found that Taylor did not have a permanent partial disability
proximately caused by his industrial injury. The Board ruled that Taylor was not a temporarily or
permanently totally disabled worker. The Board issued a proposed order affirming the
Department’s order closing Taylor’s claim.
Taylor filed a petition for review of the Board’s proposed order, which the Board denied.
As a result, the proposed order affirming the Department’s decision to close Taylor’s claim became
the decision and order of the Board.
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C. PROCEEDINGS BEFORE SUPERIOR COURT
Taylor appealed the Board’s decision to superior court. There, he renewed his objections
and argued that “the nature of Mr. Taylor’s conviction” was more prejudicial than probative.
Verbatim Report of Proceedings (VRP) (Oct. 17, 2017) at 5. Taylor told the superior court:
I concede that the time frame for the conviction and the sentence is relevant to his
ability to treat or not treat, but I would argue that the—the nature of the conviction
is—has no bearing on the industrial injury or the subsequent that condition that he
develops or his disability.
VRP (Oct. 17, 2017) at 5.
As to Taylor’s community custody supervision, Taylor informed the superior court:
I’m concerned that leaving in that he cannot work around children, that will allow
the jury to draw an improper inference if the nature of the conviction is excluded,
however, I would be willing to concede that if the nature of the conviction and all
references to the child molestation are excluded. And again, I would argue, I
don’t—I can’t think of another crime that’s going to be more prejudicial to a jury.
VRP (Oct. 17, 2017) at 9.
The superior court ruled that references to the specific crime of third degree child
molestation was extremely prejudicial and asked each party “to propose a sanitized version of the
description of this conviction.” VRP (Oct. 17, 2017) at 13. Taylor proposed the term “sexual
misconduct.” VRP (Oct. 17, 2017) at 16. The superior court responded, “Court was thinking more
along the lines of just a felony.” VRP (Oct. 17, 2017) at 16. Taylor replied, “I would be very open
to that.” VRP (Oct. 17, 2017) at 16. The superior court also excluded references to Taylor’s status
as a registered sex offender, but ruled that his restriction on working around children as a result of
his felony conviction was relevant and admissible.
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The jury found that the Board correctly decided that Taylor’s industrial injury was not the
proximate cause of his lower back condition.1 Taylor appeals.
ANALYSIS
Taylor argues that the superior court erred by admitting evidence that he had a felony
conviction and that he was prohibited from being around minors without the presence of another
adult. We disagree.
A. STANDARD OF REVIEW
The Washington Industrial Insurance Act (IIA), Title 51 RCW, governs judicial review of
workers’ compensation determinations. Rogers v. Dep’t of Labor & Indus., 151 Wash. App. 174,
179, 210 P.3d 355, review denied, 167 Wash. 2d 1015 (2009). Our review of the superior court
decision is governed by RCW 51.52.140, which states that an “[a]ppeal shall lie from the judgment
of the superior court as in other civil cases.” This statutory scheme dictates a different role for this
court than is typical for appeals from administrative decisions governed by the Administrative
Procedure Act, chapter 34.05 RCW. Rogers, 151 Wash. App. at 180.
In a typical appeal governed by the Administrative Procedures Act, we sit in the same
position as the superior court and review a Board’s determination de novo. Id. In contrast, in an
appeal governed by the IIA, we “ ‘review whether substantial evidence supports the trial court’s
factual findings and then review, de novo, whether the trial court’s conclusions of law flow from
1
The special verdict form instructed the jury to not make any additional findings if it found that
the Board correctly decided that Taylor’s industrial injury did not proximately his lower back
condition.
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No. 51360-9-II
the findings.’ ” Id. (quoting Watson v. Dep’t of Labor & Indus., 133 Wash. App. 903, 909, 138 P.3d
177 (2006)).
B. INVITED ERROR DOCTRINE
Taylor argues that the superior court abused its discretion in admitting evidence that he had
been convicted of a felony and, as a result of that conviction, was unable to be around children
without another adult present. We hold that Taylor invited the evidentiary error that he now
complains of on appeal.
“Under the invited error doctrine, a party may not set up an error at trial and then complain
of it on appeal.” Grange Ins. Ass’n v. Roberts, 179 Wash. App. 739, 774, 320 P.3d 77 (2013), review
denied, 180 Wash. 2d 1026 (2014). “The doctrine applies when a party takes affirmative and
voluntary action that induces the trial court to take an action that party later challenges on appeal.”
Id.
Here, Taylor objected to testimony related to “the nature of [his] conviction.” VRP (Oct.
17, 2017) at 5. He asked the court to limit references to his third degree child molestation
conviction, and he proposed the term “sexual misconduct” to refer to his conviction. VRP (Oct.
17, 2017) at 16. When the superior court suggested use of the term “felony,” Taylor responded,
“I would be very open to that.” VRP (Oct. 17, 2017) at 16. Because Taylor voluntarily and
affirmatively agreed with the superior court’s suggestion to refer to his conviction as a felony,
Taylor may not now argue on appeal that the superior court erred in allowing testimony referring
to his conviction as a felony.
Similarly, Taylor conceded that the conditions of his sentence were relevant to his ability
to seek treatment. And he represented to the superior court that his concerns regarding testimony
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No. 51360-9-II
that he cannot work around children would be alleviated if the superior court excluded evidence
as to the nature of his conviction and all references to child molestation. Thus, Taylor took
voluntary and affirmative action that induced the superior court to admit this evidence if it
excluded all references to Taylor’s child molestation conviction. Taylor invited this error and he
may not now complain of it on appeal.2
C. EVIDENTIARY RULING
Even if the invited error doctrine does not preclude Taylor’s claim, his challenge to the
superior court’s evidentiary ruling fails. Taylor argues that the superior court abused its discretion
in admitting evidence that he had a felony conviction and was prohibited from working around
children because such evidence is inherently prejudicial. We disagree that the superior court
abused its discretion.
1. Standard of Review
We review the trial court’s evidentiary rulings for an abuse of discretion. Gilmore v.
Jefferson County Pub. Transp. Benefit Area, 190 Wash. 2d 483, 494, 415 P.3d 212 (2018). However,
“‘[b]ecause of the trial court’s considerable discretion in administering ER 403, reversible error is
found only in the exceptional circumstance of a manifest abuse of discretion.’” Lodis v. Corbis
Holdings, Inc., 192 Wash. App. 30, 48, 366 P.3d 1246 (2015) (quoting Carson v. Fine, 123 Wash. 2d
206, 226, 867 P.2d 610 (1994)), review denied, 185 Wash. 2d 1038 (2016).
2
Taylor does not dispute that he invited this error through his actions below. Instead, he argues
that we should still consider his assignment of error because the invited error doctrine is not a
complete bar to review. However, the only support Taylor provides for this argument is the dissent
in City of Seattle v. Patu, 147 Wash. 2d 717, 722, 58 P.3d 273 (2002) (Johnson, J., dissenting).
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No. 51360-9-II
A court abuses its discretion when its ruling is manifestly unreasonable or based on
untenable grounds. Gilmore, 190 Wash. 2d at 494. A ruling is manifestly unreasonable or based on
untenable grounds when it is unsupported by the record or results from applying the wrong legal
standard. Id. We will not find an abuse of discretion simply because we would have decided the
case differently. Id. Rather, we must be convinced that no reasonable person would have adopted
the view of the trial court. Id.
2. The Superior Court did not Manifestly Abuse its Discretion
Only relevant evidence is admissible. ER 402. Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” ER 401. However, even relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” ER 403. “Trial courts enjoy ‘wide discretion in balancing the probative value
of evidence against its potentially prejudicial impact.’” Salas v. Hi-Tech Erectors, 168 Wash. 2d
664, 671, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wash. 2d 668, 702, 940 P.2d 1239
(1997), cert. denied, 523 U.S. 1008 (1998)). “‘Evidence may be unfairly prejudicial under ER 403
if it is evidence dragged in for the sake of its prejudicial effect or is likely to trigger an emotional
response rather than a rational decision among the jurors.’” Lodis, 192 Wash. App. at 48 (internal
citation omitted) (quoting Hayes v. Wieber Enters., Inc., 105 Wash. App. 611, 618, 20 P.3d 496
(2001)).
Here, the evidence related to Taylor’s criminal conviction was not introduced for the sake
of its prejudicial effect. This evidence rebutted Taylor’s claim that he was unable to find work
solely because of his industrial injury. And the superior court’s ruling, which excluded references
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No. 51360-9-II
to the specific crime of child molestation and the requirement that Taylor register as a sex offender,
obviated the potential emotional response that this evidence might have triggered. It cannot be
said that the superior court’s ruling, including the limitations it placed on this evidence, was a view
that no reasonable person would have adopted. Thus, the superior court’s ruling was not a manifest
abuse of discretion, and Taylor’s challenge on this basis fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Maxa, C.J.
Cruser, J.
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