No. 28659-9-II.The Court of Appeals of Washington, Division Two.
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-04764-9. Judgment or order under review. Date filed: 03/22/2002.
Counsel for Appellant(s), Brett Andrews Purtzer, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
SEINFELD, P.J.
At Louis Armijo’s trial on charges of child rape and child molestation in the first and second degrees against his stepgranddaughter, the trial court admitted testimony from Armijo’s stepdaughter about his molestation of her when she was the same age as the stepgranddaughter. Because the prior misconduct was substantially similar to the charged misconduct, the trial court did not err in admitting the stepdaughter’s testimony under ER 404(b) to show Armijo’s course of conduct. Finding no other error, we affirm.
FACTS
The State charged Armijo with rape of a child and child molestation in the first and second degrees for improper sexual conduct with J.H., his stepgranddaughter. Before trial, the court heard extensive argument about the admissibility of testimony from B.P., Armijo’s stepdaughter, about abuse that started when B.P. was nine years old. The conduct followed a similar grooming progression to Armijo’s conduct with J.H., which also started when J.H. was nine years old.
The State explained that Armijo’s conduct with B.P. had started nearly 20 years earlier but had continued for 7 years. B.P.’s eventual disclosures led to Armijo pleading guilty to a felony offense. He received a 10 year deferred sentence conditioned on his compliance with, among other requirements, counseling. The trial court ruled B.P.’s testimony admissible under ER 404(b) as proof that Armijo employed a common scheme or plan in molesting both his stepdaughter and his stepgranddaughter.
J.H. testified at trial that Armijo started sexually molesting her when she was nine years old and came to visit. J.H. turned nine about a year after Armijo’s ten year deferred sentence expired. J.H. said that Armijo described the molestation as a form of punishment. Armijo initially limited the punishment to making J.H. rub his inner thigh. Over time, he had her move his hand to touch his `private area’ over clothing. 4 Report of Proceedings (RP) at 157. The conduct then intensified to touching his `private area’ under clothing with instructions to move her hand `up and down.’ 4 RP at 157. Finally Armijo had J.H. touch her `mouth to his private,’ which he showed her how to do. 4 RP at 162. J.H. described this conduct as occurring upstairs at Armijo’s house, in his garage, and in his hot tub. Although her stepgrandmother, Rosa, had a rule that Armijo not be alone with J.H. in the Armijo’s hot tub, Armijo sometimes ignored this rule.
On at least one occasion, Armijo made J.H. touch him in the hot tub when her brother was nearby. According to J.H., she told Rosa about the molestations after Rosa repeatedly asked her `if anything was going on.’ 4 RP at 164. But Armijo’s molestations continued after J.H. told Rosa. Rosa also testified. She denied asking J.H. about Armijo’s conduct and denied that J.H. and Armijo were ever alone in the hot tub. She was equivocal about the hot tub rule, at first insisting that its purpose was water safety but later acknowledging under defense questioning that it was to protect Armijo from false accusations because of his earlier conviction. B.P. testified that Armijo had sexually molested her starting when she was nine years old and she described a similar progression of abuse, starting with Armijo making her rub his thigh, then making her touch his private area over clothing, then having her touch him unclothed. Finally, he made B.P. touch his private part with her mouth. B.P. also had a brother who was sometimes nearby when the misconduct was occurring. B.P. testified that some incidents occurred at Armijo’s house and others in the car. On one occasion, sexual misconduct occurred in the front seat of the car while her brother was in the back seat; on another occasion it occurred in the house while Armijo’s second wife was nearby. According to B.P., she never spoke to J.H. about these events.
The court instructed the jury to consider B.P.s testimony only for the limited purpose of proof of a common scheme or plan and not as proof of Armijo’s character or that he acted in conformity therewith.
The jury found Armijo guilty as charged. The trial court then sentenced him to a 400 month exceptional sentence, finding an abuse of a position of trust.
On appeal, Armijo argues the trial court erred in (1) admitting evidence that he sexually molested B.P. as proof of a common scheme or plan; (2) increasing his bail to $600,000; and (3) sentencing him to a 400 month exceptional sentence.
DISCUSSION I. Evidence of Prior Sexual Misconduct
Evidence of prior acts of sexual misconduct is generally inadmissible to show a person’s character or to prove the person acted in conformity therewith on a particular occasion. State v. Carver, 37 Wn. App. 122, 125-26, 678 P.2d 842 (1984); ER 404(a). But such evidence may be admitted for other purposes under ER 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
A trial court may admit evidence of other crimes or wrongs to prove a common scheme or plan under ER 404(b). But before doing so, the trial court must (1) determine whether the evidence shows a common scheme or plan; (2) determine whether the evidence is relevant to prove an element of the charged crime; and (3) weigh on the record the probative value of the evidence against its prejudicial effect. State v. Lough, 125 Wn.2d 847, 852-53, 889 P.2d 487 (1995); State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997).
`The decision to admit evidence of other crimes or misconduct lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.’ Brown, 132 Wn.2d at 571-72 (footnote omitted). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. Brown, 132 Wn.2d at 572.
A. Evidence of a Common Scheme or Plan
Armijo cites State v. Dewey, 93 Wn. App. 50, 966 P.2d 414 (1998), a decision from this Division, to support his argument that the evidence regarding his sexual abuse of B.P. does not prove a common scheme or plan. He contends that although there are similarities between the prior sexual misconduct and the charged crime, those similarities are typical of many instances of child abuse and not sufficiently unique to prove anything more than propensity. But the Supreme Court recently rejected the Dewey court’s requirement that the similarities between the prior bad acts and the charged crime be unique or uncommon to the way the crime is typically committed. State v. DeVincentis, Wn.2d 74 P.3d 119, 121, 125
(2003).
One purpose of using prior misconduct evidence under ER 404(b) to prove a common scheme or plan is to show that the defendant used a single plan repeatedly to `commit separate but very similar crimes.’ DeVincentis, 74 P.3d at 124. This use of prior misconduct evidence is appropriate where the evidence is of `markedly similar acts of misconduct against similar victims under similar circumstances.’ Lough, 125 Wn.2d at 852. But the court needs to be cautious in applying the common scheme or plan exception; random similarities are insufficient. DeVincentis, 74 P.3d at 124.
In Lough, the defendant was a paramedic who raped his victim after giving her drugs that rendered her unconscious. 125 Wn.2d at 849. The trial court admitted the testimony of four other women who said that the defendant had raped them in a similar manner. Lough, 125 Wn.2d at 850-51.
The Supreme Court affirmed Lough’s conviction, ruling that his `history of drugging women, with whom he had a personal relationship, in order to rape them while they were unconscious or confused and disoriented evidences a larger design to use his special expertise with drugs to render them unable to refuse consent to sexual intercourse.’ Lough, 125 Wn.2d at 861. The court explained:
To establish common design or plan, for the purposes of ER 404(b), the evidence of prior conduct must demonstrate not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations.
Lough, 125 Wn.2d at 860 (footnote omitted).
Here, Armijo’s conduct with J.H. was substantially similar to his conduct with B.P. In both instances, Armijo targeted nine-year-old females who were relatives by marriage and with whom he held a position of trust.
In both cases, he used the same method of escalating touching to obtain the child’s cooperation with more severe sexual acts. He started by having both girls touch his thigh; he then had them proceed to his genital region first over and then under his clothing; and finally he induced them to engage in penile/oral contact. In neither case did he engage in penile/vaginal intercourse. And in both cases, he increased the risk by engaging in misconduct while another person was close by.
The assemblage of similar features present in the situations involving both J.H. and B.P., from Armijo’s relationship to the girls, their ages, the location of the abuse, the presence of a brother nearby, and finally the specific details of the escalation of touching `are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations.’ DeVincentis, 74 P.3d at 124. Thus, the trial court did not err in admitting B.P.’s testimony. See Lough, 125 Wn.2d at 861 (`A rational trier of fact could find that the Defendant was the mastermind of an overarching plan.’).
B. Prejudice
Armijo argues that the trial court failed to balance on the record the probative value of the evidence against its prejudicial effect. See State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997). But, as the State argues, even if the trial court did not explicitly balance these factors on the record, where the record as a whole reflects a proper weighing, we will not find error. See State v. Powell, 126 Wn.2d 244, 264-65, 893 P.2d 615 (1995); State v. Carleton, 82 Wn. App. 680, 685, 919 P.2d 128 (1996). In this case, the record as a whole is sufficient to show that the probative value of evidence about Armijo’s sexual molestation of B.P. outweighed its prejudicial effect.
The trial court indicated its recognition of the need to balance the probative value of the evidence against its prejudicial effect. In considering the probative value of Armijo’s prior misconduct, the trial court considered the obstacles the State would encounter in presenting its case without the disputed evidence.
The trial court noted that this evidence was very significant to the State’s case because (1) this kind of molestation did not produce physical evidence, (2) J.H.’s young age made her testimony `very vulnerable to attack in the absence of’ some sort of corroboration, and (3) without evidence of Armijo’s pattern of engaging in misconduct in the presence of others, the evidence here that `another person was in close proximity’ might make a jury less likely to believe that the charged conduct occurred. 2 RP at 59, 61.
Further, the defense planned to call Rosa to testify that she did not ask J.H. `if anything was going on’ between Armijo and J.H. and to deny that J.H. eventually told Rosa about the molestations. 4 RP at 164. Absent any evidence about Armijo’s history, it would be easy to reject J.H.’s claim that Rosa had repeatedly asked her about Armijo’s activities and that she had disclosed Armijo’s molestations to Rosa. Of course, this would severely undermine J.H.’s credibility.
The State faced a similar dilemma regarding evidence about the family rule that Armijo was not to be alone with J.H. in the hot tub. Again, a trier of fact might have difficulty understanding why a grandfather could not be alone with his nine year old stepgranddaughter absent evidence that the grandfather’s family was concerned that he might again be accused of molesting a nine year old family member.
The past misconduct in this case is unique in that although it occurred almost 20 years earlier, it was intimately connected to the current incident. Armijo had been released from the conditions of his 10 year deferred sentence just the preceding year and, because of the conviction, Rosa had attempted to establish rules that would prevent Armijo from being alone with J.H. The defense planned to use these rules to support its claim that Armijo did not have an opportunity to molest J.H.
Given the interconnectedness between the past misconduct and the charged misconduct, and the defense plan to discredit the State’s only eye witness by using evidence that the State could fully explain only by reference to the past misconduct, it would be unfair and misleading to the jury to deny the State the opportunity to present the full story. See ER 102 (construe evidence rules `to the end that the truth may be ascertained and proceedings justly determined.’). Thus, the trial court did not err in ruling that the highly probative nature of Armijo’s conduct with B.P. was not `substantially outweighed by the danger of unfair prejudice.’ ER 403.
II. Bail
The court initially released Armijo on his personal recognizance but it later set bail at $250,000 and then increased the amount to $600,000. Armijo argues that the trial court’s bail amount of $600,000 was excessive. He requests that if we remand for a new trial, we order that bail be set in a manner that does not violate the federal and state constitution and CrR. 3.2. Br. of Appellant at 28. This issue is moot; we cannot provide his requested relief on appeal so we do not address this argument further.
III. Exceptional Sentence
Finally, Armijo claims that the trial court erred by sentencing him to an exceptional sentence of 400 months based on the `abuse of trust’ aggravating factor. Br. of Appellant at 30.
Armijo first argues that because child rape and child molestation anticipate an adult/child relationship, which usually involves a trust aspect, `the Legislature clearly considered `trust’ as a factor’ in the commission of those crimes. Br. of Appellant at 30. Thus, he argues, abuse of trust cannot be an aggravating factor.
The abuse of a position of trust `has been recognized as justifying an exceptional sentence in the context of sexual abuse of children.’ State v. Brown, 55 Wn. App. 738, 754, 780 P.2d 880 (1989) (citing State v. Fisher, 108 Wn.2d 419, 427-28, 739 P.2d 683 (1987)). But the mere existence of an adult/child relationship does not always create a position of trust. State v. Jennings, 106 Wn. App. 532, 548, 24 P.3d 430, review denied, 144 Wn.2d 1020 (2001) (`not every crime committed by a parent against a child involves an abuse of a position of trust’) (quoting State v. Grewe, 117 Wn.2d 211, 219-20, 813 P.2d 1238
(1991)). Finally, because either strangers or persons in positions of trust can commit child rape and molestation, the trust relationship is not a factor the Legislature considered in setting the standard range. Grewe, 117 Wn.2d at 216; see RCW 9A.44.073; RCW 9A.44.076; RCW 9A.44.083; RCW 9A.44.086. Armijo also argues that sentencing a fifty-three year old man to 400 months is the equivalent of a life sentence and thus clearly excessive. The standard range sentence was 240-318 months; the maximum sentence allowable was life imprisonment.
A sentence is clearly excessive if it is clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken. RCW 9.94A.585(4); State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995). In other words, the sentence is excessive if its length, in light of the record, `shocks the conscience.’ State v. Ross, 71 Wn. App. 556, 571, 861 P.2d 473 (1993).
In imposing an exceptional sentence, the trial court stated: `This was your grandchild who looked up to you, who wanted to spend time with you.’ 6 RP at 364. The trial court’s reasons for imposing the exceptional sentence were substantial and compelling. The 400 month sentence does not shock the conscience and is not clearly excessive. Accordingly, 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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and ARMSTRONG, J., concur.