Opinion
No. 63478-0-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-1-07967-6, Regina S. Cahan, J., entered May 6, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Schindler, JJ.
A jury convicted Daniel Johnson of two counts of first degree rape of a child, one count of first degree child molestation, and four counts of possessing depictions of minors engaged in sexually explicit conduct. At trial, the court admitted Johnson's sex offense convictions under RCW 10.58.090. On appeal, Johnson challenges the statute's constitutionality and the trial court's failure to consider the statute's necessity factor. Because our recent precedent forecloses Johnson's constitutional claims and the failure to consider the necessity factor constitutes harmless error, we affirm Johnson's convictions.
FACTS
At trial, witnesses testified to the following facts. MB was born on July 23, 2000, and lived with her father, great-uncle, grandmother, and great-grandmother. Daniel Johnson, who was in his late 50s, lived next door and soon befriended MB and her great-uncle.
In late 2004 or early 2005, Johnson was evicted from his home. He moved into MB's family garage, which he converted into a room. MB frequently visited Johnson in his room. He gave her ice cream, invited her to watch cartoons and play video games, and took her to the movies. At Johnson's request, MB called him "grandpa."
Johnson sexually abused MB during visits to his room. He showed her pornographic videos and forced her to sit on his stomach and anally penetrated her. He also forced MB to engage in oral sex. Johnson also took MB to the movies and touched her chest under her shirt.
MB disclosed the abuse to her father, who reported it to the police. Police searched Johnson's room and discovered a large quantity of child pornography on hard drives, laptops, and CDs. Child interview specialist Carolyn Webster interviewed MB. MB described the abuse to her. Pediatric nurse Joanne Mettler examined MB but saw no evidence of genital or anal trauma. Mettler explained that it is common to find no indication of injuries because those areas heal quickly.
The State charged Johnson with two counts of first degree rape of a child, one count of first degree child molestation, and four counts of possessing depictions of minors engaged in sexually explicit conduct. Before trial, the State moved to admit evidence of Johnson's prior sex offenses pursuant to RCW 10.58.090 and ER 404(b). Johnson moved to exclude this evidence and challenged the constitutionality of RCW 10.58.090. The court found the statute constitutional and admitted the evidence after analyzing seven of the eight required statutory factors. The court declined, however, to consider the "necessity of the evidence" factor, stating, "I'm not going to analyze that factor `cause I don't — I just don't know — I'm not sure which way it's supposed to be analyzed." Verbatim Report of Proceedings (VRP) (Feb. 18, 2009) at 500.
The State amended the information to add the possessing depictions of minors engaged in sexually explicit conduct charges.
The court gave an oral cautionary instruction to the jury before the State presented the prior sex offense testimony:
Evidence regarding any prior offenses, standing alone, is not sufficient to prove the defendant guilty beyond a reasonable doubt of the crimes charged in this case. As you consider this evidence, bear in mind that the state has the burden of proving each and every element of the crimes charged beyond a reasonable doubt and this evidence does not reduce the state's burden.
The defendant is not on trial for any prior offenses testified to in this case. Whether the defendant was charged with a crime, convicted of, or served a sentence concerning the prior offenses testified to, is not to be considered.
Three of Johnson's prior sex offense victims testified. SM and Renee (Johnson's daughter) were close friends. When SM was 11 and 12 years old, she spent time with Renee and Johnson. She testified that Johnson "became like a second father to [her]." VRP (Feb. 26, 2009) at 1012. Johnson gave her gifts like candy and soda. On at least one occasion, Johnson showed her pornographic videos. During sleepovers with Renee, SM slept in Johnson's room with Renee. On one occasion, he fondled SM's breasts and her vaginal area. Another time, he pressed his penis against her buttocks. Johnson told SM not to tell anyone.
Johnson pleaded guilty to indecent liberties involving SM, indecent liberties involving AH, and first degree and second degree statutory rape involving JW.
AH was also Renee's friend and spent time with her and Johnson when she was about 12. Like SM, Johnson gave her gifts such as Madonna accessories. AH described him as "not necessarily a father figure . . .," but a trusted male figure. RP (Feb. 26, 2009) at 1060. He showed her pornographic videos and talked to her about sex and masturbation. During sleepovers, AH slept in the same bed with Johnson and Renee. One night, Johnson pressed his penis against her buttocks and tried to put her hand on it. Johnson told her not to tell anyone about their sexual conversations.
JW was also Renee's friend and spent time with her and Johnson when she was between five and seven years old. Pornographic magazines were on display in the bathroom when she visited Johnson's home. He played pornographic movies where she could see them. During sleepovers, JW slept in the same bed as Johnson. On several occasions, Johnson digitally penetrated JW's vagina.
On direct-examination, Johnson denied that he raped or molested MB or improperly touched SM, AH, and JW. The jury convicted Johnson as charged. Based on his sex offense convictions, the court sentenced Johnson under the Persistent Offender Accountability Act (POAA) to life in prison without the possibility of parole for the first degree rape of a child and first degree child molestation convictions. The court imposed 102 months — within the standard range — on one count of possessing depictions of minors engaged in sexually explicit conduct. Johnson appeals his judgment and sentence.
STANDARD OF REVIEW
We review a trial court's admission of evidence for abuse of discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). Questions of statutory interpretation and constitutional challenges are reviewed de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007);State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004).
ANALYSIS
RCW 10.58.090 Factors
Johnson first argues that the trial court abused its discretion by failing to consider the necessity factor as expressly required under RCW 10.58.090. The State counters that the trial court implicitly considered necessity and any error is harmless because the evidence was nevertheless admissible under RCW 10.58.090 and ER 404(b).
Under RCW 10.58.090(1), "[i]n a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403." The statute requires the trial court to evaluate eight nonexclusive factors when conducting its ER 403 analysis.
When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:
(a) The similarity of the prior acts to the acts charged;
(b) The closeness in time of the prior acts to the acts charged;
(c) The frequency of the prior acts;
(d) The presence or lack of intervening circumstances;
(e) The necessity of the evidence beyond the testimonies already offered at trial;
(f) Whether the prior act was a criminal conviction;
(g) Whether the 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 needless presentation of cumulative evidence; and
(h) Other facts and circumstances.
RCW 10.58.090(6) (emphasis added). "RCW 10.58.090 does not instruct the court on how to weigh the articulated factors."Scherner, 153 Wn. App. 621, 658, 225 P.3d 248 (2009). But it does "state[] the trial court must consider all of the factors when conducting its ER 403 balancing test."Scherner, 153 Wn. App. at 658 (emphasis added). And as Johnson correctly notes, "`It is well settled that the word "shall" in a statute is presumptively imperative and operates to create a duty. . . . The word "shall" in a statute thus imposes a mandatory requirement unless a contrary legislative intent is apparent.'" State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994) (quoting Erection Co. v. Dep't of Labor Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993)). The State does not dispute that the statute requires a trial court to weigh all the statutory factors.
Here, the trial court unequivocally declined to consider the "necessity of the evidence beyond the testimonies already offered at trial." RCW 10.58.090(6)(e). In conducting its RCW 10.58.090(6) analysis, the court stated:
E, the necessity of the evidence beyond the testimony already offered at trial. This factor — this factor I — I must confess gives me some pause. I'm not quite sure what a court is supposed to do with it. The — the actual wording already offered at trial, some courts have made this analysis after the evidence is admitted; others haven't. I find it odd that a court is supposed to analyze whether the prosecutor needs the evidence or not. I mean, I'm not sure how this is supposed to play. If it's a very strong case, you let it in because it's not prejudicial. If it's a very weak case, you let it in because they need it. I mean, I don't know how this is supposed to play so I — I put that on the record for guidance in the future for help someone will tell the trial court how it is. And I'm not going to analyze that factor `cause I don't — I just don't know — I'm not sure which way it's supposed to be analyzed. I will say just from reading the cases, some cases have looked at — they — they have analyzed it as in cases such as this when you have a child victim and there isn't scientific definitive medical evidence, some cases have permitted the evidence, saying it's bolstering the child victim. And cases that they said that's exactly why this statute is present — these are — this — these are cases under the 413 and 414 analysis — I don't know how — I'm not — I'm not going to use this factor, and I'm just going to put it out there. I don't know which way it's supposed to be used.
RP (Feb. 18, 2009) at 500-01 (emphasis added).
A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable reasons or grounds. State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006). A discretionary decision "`is based on "untenable grounds" or made "for untenable reasons" if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.'" State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). And a court abuses its discretion if it takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236 (2009); see State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). We conclude the trial court abused its discretion when it failed to consider a mandatory statutory factor — "necessity of the evidence." RCW 10.58.090(6)(e).
But the trial court's failure to consider the necessity factor does not necessarily warrant reversal. When a trial court fails to properly weigh evidence on the record, its admission may be upheld as harmless error where a sufficient record exists for the reviewing court to determine that had the trial court properly weighed the evidence, it would have admitted it.See State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996) (analyzing trial court's failure to properly "weigh prejudice on the record under ER 404(b)" and noting that such failure is harmless error if "the record is sufficient for the reviewing court to determine that the trial court, if it had considered the relative weight of probative value and prejudice, would still have admitted the evidence") (citing State v. Gogolin, 45 Wn. App. 640, 645-46, 727 P.2d 683 (1986)). While trial courts are encouraged to conduct ER 404(b) balancing on the record as an aid to a reviewing court, "[t]he trial court's failure [to do so] does not make admissible evidence inadmissible." Gogolin, 45 Wn. App. at 645. Rather, "in those cases where, from the record as a whole, the reviewing court can decide issues of admissibility without the aid of an articulated balancing process on the record, the court should do so." Gogolin, 45 Wn. App. at 645;see also State v. Donald, 68 Wn. App. 543, 547, 844 P.2d 447 (1993) ("If the trial court fails to articulate its balancing process on the record, an appellate court will review the matter only if the record as a whole is sufficient to allow effective appellate review.").
ER 404(b) provides: " Other Crimes, Wrongs, or Acts. 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."
For example, in Donald, the defendant was convicted of attempting to obtain a controlled substance, oxycodone, by fraud from an emergency room. The trial court admitted evidence of Donald's previous visits to the hospital to obtain controlled drugs but failed to indicate the purpose of the evidence or analyze whether it was relevant. On appeal, the court held, "[A]lthough the trial court did not specifically articulate how it balanced probative value versus prejudicial effect, the record as a whole is sufficient to permit meaningful review."Donald, 68 Wn. App. at 547. The court reasoned that the prior acts were relevant and probative because they "tended to show the name used by defendant was false, and were probative as to guilty knowledge, intent and fraud." Donald, 68 Wn. App. at 547.
Likewise, in State v. Avila, 78 Wn. App. 731, 899 P.2d 11 (1995), in assessing child competency under RCW 5.60.050, the trial court "neither discussed the individual factors [under State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)] nor made any specific findings."Avila, 78 Wn. App. at 735. While "the better practice is for the trial court to state its analysis of theAllen factors on the record," we held the error harmless because "the record [was] sufficient for us to conduct an independent review. . . ." Avila, 78 Wn. App. at 735-36.
The five factors described in State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967) consist of "(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence . . . to receive an accurate impression of [his testimony]; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words [his] memory of the occurrence; and (5) the capacity to understand simple questions about [the occurrence]."
And in the ER 609 context, we applied a similar harmless error analysis. In State v. Bond, 52 Wn. App. 326, 759 P.2d 1220 (1988), the record demonstrated "no articulation by the trial court of the factors to be considered in weighing probative value against prejudice." Bond, 52 Wn. App. at 333. We reasoned, "[T]he trial court's failure to articulate its balancing process on the record does not make admissible evidence inadmissible." Bond, 52 Wn. App. at 333 (citing Gogolin, 45 Wn. App. at 645). We held,
ER 609 provides: "(a) General Rule. For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment."
[E]ven without the aid of an articulated balancing process, we can decide from the record as a whole whether or not the evidence was admissible in the present case. Accordingly, the trial court's failure to state its reasons for its ruling on the record is harmless error because it does not affect the admissibility of the evidence in question or impede effective appellate review of the trial court's decision. To send this case back for retrial under such circumstances would be pointless.
Bond, 52 Wn. App. at 333.
We conclude that the court's failure to weigh the necessity factor constitutes harmless error where, as here, the record is sufficient to determine that the trial court would have admitted the evidence if it had considered all the factors.
First, the trial court noted the evidence established Johnson's prior molestation of three victims and his rape and molestation of MB were "strikingly similar." RCW 10.58.090(6)(a). Johnson's victims were all young girls of similar age. He fostered a relationship of trust with them and then sexually abused each girl at his home. He used pornography to desensitize each girl. The court commented, "This is probably the strongest factor for the prosecution." VRP (Feb. 18, 2009) at 497.
On the timing between the prior acts and the present offenses, the court noted that this factor weighed most strongly in favor of Johnson. RCW 10.58.090(6)(b). Almost 16 years passed between Johnson's release from prison on the molestation convictions and the sexual abuse involving MB. But like the corresponding federal rules, RCW 10.58.090 prescribes no time limitation. Indeed, federal courts have consistently allowed for the admission of prior sex offenses committed decades earlier. In State v. DeVincentis, 150 Wn.2d 11, 74 P.3d 119 (2003), our Supreme Court held that a sex offense committed by defendant 15 years earlier was admissible under ER 404(b) in defendant's rape trial. The court reasoned that the prior sex offense was relevant to show the defendant had previously abused another girl in a markedly similar way under similar circumstances. DeVincentis, 150 Wn.2d at 13. Consistent with these authorities, the trial court here properly found this factor not dispositive.
See United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007) (rejecting argument that prior sex offense was inadmissible because it occurred more than 20 years earlier); United States v. Benally, 500 F.3d 1085 (10th Cir. 2007) (affirming admission of testimony of two victims sexually assaulted 40 years earlier and a third victim sexually assaulted 21 years earlier); United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir. 2001) (upholding district court's admission of evidence of sexual molestation committed 20 years earlier).
The frequency of the prior sex abuse weighed in favor of their admission. RCW 10.58.090(6)(c). The evidence showed Johnson had molested three young girls on multiple occasions.
As to any intervening circumstances between the prior sex abuse and the rape of MB, the court found "this factor doesn't really play into this case" because there was no evidence of intervening circumstances such as seeking counseling or treatment. RCW 10.58.090(6)(d); VRP (Feb. 18, 2009) at 499.
Noting that Johnson pleaded guilty to multiple child molestation and child rape charges involving SM, AH, and JW, the court found the criminal conviction factor favored admission. RCW 10.58.090(6)(f).
[T]his was not only a conviction, it was a plea . . . and the Defendant in the factual statement admitted to the conduct. And interestingly, in the real facts statement there were other uncharged victims that [were] taken into the plea. So, there were other victims that were agreed to be analyzed and to be considered for the sentencing under real facts.
RP (Feb. 18, 2009) at 501.
And the court weighed the probative value of the prior sex abuse evidence against the danger of unfair prejudice. RCW 10.58.090(6)(g). Given the similarity of the offenses and the central issue of credibility, the court found this factor favored admission.
Johnson challenges only the necessity factor. RCW 10.58.090(6)(e). He specifically asserts that this factor weighed against admission, given the other evidence of guilt offered at trial. In essence, he claims the prior sex abuse evidence is not necessary. We disagree. The primary evidence was eight-year-old MB's testimony and her prior statements to other witnesses. There were no witnesses to the crimes and no physical or medical evidence corrobative of the molestation or rapes. Johnson denied raping or molesting MB.
Johnson also notes that the jury watched a video of MB's interview with Webster, heard Webster's testimony about the interview, heard her father's testimony about MB's disclosure, and the responding officer's testimony about MB's statements. But all of this testimony hinges on MB's credibility.
Johnson also relies on witness testimony that "if others in the home couldn't find M.B., the first place to look was in Mr. Johnson's room." Br. of Appellant at 10 (citing VRP (Feb. 23, 2009) at 575). But this evidence, when viewed in context, is consistent with the undisputed evidence that MB frequently visited Johnson in his room after Johnson befriended family members who then permitted him to live in the converted garage of the family home.
We previously reasoned that the need for prior sex abuse evidence under ER 404(b) is crucial in cases alleging child sex abuse.
The need for such proof is unusually great in child sex abuse cases, given the secrecy in which such acts take place, the vulnerability of the victims, the absence of physical proof of the crime, the degree of public opprobrium associated with the accusation, the unwillingness of some victims to testify, and a general lack of confidence in the ability of the jury to assess the credibility of child witnesses.
State v. Krause, 82 Wn. App. 688, 696, 919 P.2d 123 (1996) (quoting State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993)); see also State v. Sexsmith, 138 Wn. App. 497, 506, 157 P.3d 901 (2007) (discussing ER 404(b) balancing and observing that "[g]enerally, courts will find that probative value is substantial in cases where there is very little proof that sexual abuse has occurred, particularly where the only other evidence is the testimony of the child victim."). The record here is sufficient to permit an independent review. It shows that had the trial court properly weighed all the statutory factors, it would have admitted the prior sex offense evidence. The trial court's failure to do so here constitutes harmless error.
Admission Under ER 404(b)
In the alternative, the State contends any error is harmless because Johnson's child sex offense convictions were also properly admissible under ER 404(b) to show a common scheme or plan.
At trial, the State argued, as an alternative to RCW 10.58.090, Johnson's prior sex offenses were admissible under ER 404(b) to show common scheme or plan.
The State specifically asserts:
Johnson employed a common scheme in satisfying his sexual desire for young girls by befriending them, exposing them to pornographic material and then molesting them. Because the evidence of his prior sex offenses would have been admissible under ER 404(b), any error in admitting the evidence under RCW 10.58.090 was harmless.
Br. of Resp't at 36. Johnson's reply brief does not respond to the State's ER 404(b) contention. A trial court's ruling on the admissibility of evidence will not be disturbed on appeal if it is sustainable on alternative grounds. State v. St. Pierre, 111 Wn.2d 105, 119, 759 P.2d 383 (1988) (noting general rule).
At oral argument, Johnson cited to State v. Robtoy, 98 Wn.2d 30, 653 P.3d 284 (1982), but that case involved prior bad act evidence admitted to show motive and premeditation, not as part of a common scheme or plan.Robtoy is inapposite.
Generally, evidence of prior bad acts is inadmissible.State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119. "Evidence of other crimes, wrongs, or acts . . . may, however, be admissible for other purposes [other than proving character], such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b). The trial court may also admit evidence of a common scheme or plan to prove that the charged conduct actually occurred. State v. Lough, 125 Wn.2d 847, 862, 889 P.2d 487 (1995). Evidence of a common scheme or plan is admissible only if (1) the State can show the prior acts by a preponderance of the evidence, (2) the evidence shows a common plan or scheme, (3) the evidence is relevant to prove an element of the crime charged, and (4) the evidence is more probative than prejudicial. DeVincentis, 150 Wn.2d at 17 (quotingLough, 125 Wn.2d at 852).
Here, only relevance and whether the acts constituted a common scheme or plan are at issue. Under the common scheme exception, "[s]uch evidence is admissible when it shows that a person committed `markedly similar acts of misconduct against similar victims under similar circumstances.'" State v. Baker, 89 Wn. App. 726, 733, 950 P.2d 486 (1997) (quotingLough, 125 Wn.2d at 856). "Conduct is sufficiently similar when the similarity indicates design, not merely coincidence." Baker, 89 Wn. App. at 733.
There is no dispute that the prior acts were proved by a preponderance of the evidence and the trial court conducted a balancing of the probative value and prejudice under its ER 403 and RCW 10.25.090(6)(g) analysis.
In DeVincentis, our Supreme Court held that evidence of defendant's prior molestation of another child was admissible to show a common scheme or plan. DeVincentis, 150 Wn.2d at 22-24. There, the defendant fostered a relationship of trust with his daughter's 10-year-old friend, secluded her from others, desensitized her to nudity by wearing only underwear, and asked her to massage his back and penis.DeVincentis, 150 Wn.2d at 15. The court found this evidence substantially similar to the victim's testimony that DeVincentis had worn only underwear around her and asked her to massage his back and penis when she was alone cleaning his home.DeVincentis, 150 Wn.2d at 13-14.
In Baker, the defendant was convicted of first degree child molestation of an eight-year-old victim. The victim testified that she slept in a bed with the defendant, he rubbed her back until she went to sleep, and awoke when she felt him massaging her vagina with his hand through her clothes.Baker, 89 Wn. App. at 733. The trial court permitted a witness to testify to similar conduct when she was between the ages of 7 and 11. We held the prior molestation showed a common scheme or plan. We relied on the substantial similarities in the relationships, ages, and the touching described by the victim and witness. We reached a similar result in Krause, 82 Wn. App. at 694 ("systematic scheme" indicated design to sexually abuse where defendant would gain access to young boys by befriending their parents and working to gain the boys' affections).
Like in DeVincentis, Baker, and Krause, the prior sex abuse evidence here bore substantial similarity to the charged crime. The victims were all pubescent or adolescent girls between the ages of 5 and 12. AH, SM, and JW, like MB, all spent significant time in Johnson's home. All the victims viewed Johnson as a trusted friend. SM and AH described Johnson as father-like or a trusted male figure. MB referred to Johnson as "grandpa." He befriended the girls by giving them ice cream or gifts. He exposed them to pornography in order to desensitize them to the sexual abuse. After he molested the girls or showed them pornography, he told them not to tell anyone or he would get in trouble. He molested the girls when they visited him in his house or room. While the elapsed time weighed against admission, the "lapse of time is not a determinative factor in this analysis." Sexsmith, 138 Wn. App at 505.
JW did not, however, testify that Johnson told her not to tell anyone about the abuse or exposure to pornography.
In addition, the evidence was also relevant to prove an element of the crimes charged. Because Johnson denied he raped or molested MB, the existence of a design to commit abuse, evidenced by a similar pattern of past behavior, was relevant to prove the crimes of child rape and molestation. See DeVincentis, 150 Wn.2d at 17-18 (where issue is whether the crime occurred, the evidence of past behavior is probative to show a design to fulfill sexual compulsions); see also Lough, 125 Wn.2d at 862 (past act evidence was relevant to show whether the charged conduct occurred or if it was a fabrication by the victim). We conclude Johnson's prior sex offenses would have been properly admissible under ER 404(b). Any error, therefore, in admitting the evidence under RCW 10.58.090 was harmless.
Given our resolution here, we decline to address the State's argument that under Scherner, the necessity element "is akin to a weighing of the need for the evidence under ER 403." Br. of Resp't at 16-17.
Constitutional Challenges
Johnson next argues that RCW 10.58.090 is an ex post facto law that violates the federal and state constitutions and the separation of powers doctrine. We recently considered and rejected similar challenges to RCW 10.58.090.
In State v. Gresham, 153 Wn. App. 659, 673, 223 P.3d 1194 (2009), review granted, 168 Wn.2d 1036 (2010), we stated that where an appellant challenges an evidentiary rule on ex post facto grounds, the test is whether the new rule alters the quantum of evidence required to prove an element of the charged crime. Applying this test, we reasoned, "RCW 10.58.090 does not alter the facts necessary to establish guilt, and it leaves unaltered the degree of proof required for a sex offense conviction. It only makes admissible evidence that might otherwise be inadmissible." Gresham, 153 Wn. App. at 673. Accordingly, we held, "Because RCW 10.58.090 does not alter the quantum of evidence necessary to convict, it does not violate the constitutional prohibitions against ex post facto laws." Gresham, 153 Wn. App. at 673. InScherner, 153 Wn. App. at 636-37, we reached a similar conclusion. We held, "RCW 10.58.090 does not subvert the presumption of innocence because it does not concern whether the admitted evidence is sufficient to overcome the presumption of innocence. . . . There is no constitutional violation."
As for Johnson's contentions that RCW 10.58.090 violates the broader protections against ex post facto laws in the Washington Constitution, we also rejected that argument.See Gresham, 153 Wn. App. at 670 ("Since Washington courts have applied the federal ex post facto analysis to the state analogue, the two provisions are coextensive, and we look to federal constitutional law for guidance when we evaluate Gresham's claim.");Scherner, 153 Wn. App. at 635 (stating that the United States and Washington constitutions contain "nearly identical" ex post facto clauses and that the United States and Washington Supreme courts apply the same analytical framework to ex post facto challenges).
In Gresham and Scherner, we also rejected a separation of powers challenge to RCW 10.58.090. InGresham, we stated that where an appellant challenges a statute that affects the admissibility of evidence on separation of powers grounds, courts examine whether "`the statute is permissive, not mandatory, and can be harmonized with the rules of evidence.'" Gresham, 153 Wn. App. at 669 (quoting City of Fircrest v. Jensen, 158 Wn.2d 384, 389, 143 P.3d 776 (2006)). Applying that test, we held:
[S]ince RCW 10.58.090 is permissive, preserving to the court authority to exclude evidence of past sex offenses under ER 403, Gresham's challenge to the statute fails. RCW 10.58.090(1) states, "In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403." (Emphasis added.) With this language the legislature recognized the court's ultimate authority to determine what evidence will be considered by the fact finder in any individual case. Since the statute permits, but does not mandate, the admission of evidence of past sex offenses, it does not circumscribe a core function of the courts.
Gresham, 153 Wn. App. at 669-70.
Johnson offers no persuasive reason to depart fromGresham and Scherner. And we note Johnson makes no argument in reply to the State's discussion of these cases. His constitutional challenges fail.
Persistent Offender Sentence
Johnson challenges his sentencing as a persistent offender on his first degree child rape and first degree child molestation convictions. He argues that a finding by the trial court, rather than a jury, of his prior convictions violates his federal due process and jury trial rights. The State replies that our courts have uniformly rejected "the claim that the State is required to submit a defendant's prior convictions to a jury and prove them beyond a reasonable doubt." Br. of Resp't at 38. We agree. And Johnson's reply brief fails to respond to the State's arguments on this point.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Emphasis added.) This "prior conviction" exception originated from an earlier decision inAlmendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
In State v. Wheeler, 145 Wn.2d 116, 119, 34 P.3d 799 (2001), Wheeler argued that Apprendi conferred a right to a jury trial in persistent offender sentencings. Our Supreme Court rejected that argument.
Unless and until the federal courts extend Apprendi to require such a result, we hold these additional protections [charging prior "strike convictions in an information and proving them to a jury beyond a reasonable doubt] are not required under the United States Constitution or by the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.
Wheeler, 145 Wn.2d at 117. See also In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 P.3d 837 (2005) ("In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt."); State v. Smith, 150 Wn.2d 135, 139-56, 75 P.3d 934 (2003) (rejecting claim that federal and state constitutions required a jury trial for determining prior convictions at sentencing).
While Johnson implies that in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court modified this law to apply to prior convictions that elevate a sentence above the standard range, our Supreme Court rejected this argument. In State v. Thiefault, 160 Wn.2d 409, 418, 158 P.3d 580 (2007), a POAA case, Thiefault relied on Blakely and Apprendi to argue he had a right to a jury determination on his prior convictions. The court reasoned, "This court has repeatedly rejected similar arguments and held that Apprendi and its progeny do not require the State to submit a defendant's prior convictions to a jury and prove them beyond a reasonable doubt."Thiefault, 160 Wn.2d at 418.
And we decline Johnson's argument to reconsider the "prior conviction" exception based on Justice Thomas's concurring opinion in Apprendi. Our Supreme Court has previously considered and rejected that argument in State v. Jones, 159 Wn.2d 231, 240 n. 7, 149 P.3d 636 (2006) (observing that it is bound to follow the United States Supreme Court's established precedent on this issue).
In State v. Langstead, 155 Wn. App. 448, 228 P.3d 799, 801 (2010), we recently rejected an argument identical to Johnson's.
Consistent with Blakely and Apprendi, the Washington Supreme Court "has repeatedly rejected" the argument that due process requires the fact of a prior conviction to be submitted to a jury and proved beyond reasonable doubt for sentencing purposes. State v. Thiefault, 160 Wash.2d 409, 418, 158 P.3d 580 (2007).
Because of the exception for "the fact of a prior conviction," there is no violation of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment when a judge determines by a preponderance of the evidence that a defendant has two prior "strikes" for purposes of the Persistent Offender Accountability Act.
Langstead, 155 Wn. App. at 453.
We conclude the trial court properly sentenced Johnson as a persistent offender.
Statement of Additional Grounds (SAG)
Johnson raises additional arguments in his SAG. He maintains that (1) the trial court should have suppressed physical evidence seized at his home, (2) the trial court's admission of statements made to police officers violated his Fifth Amendment right against self-incrimination, (3) the jury pool was tainted by a juror's comment that he worked at Harborview hospital where victims of sexual assault are frequently treated, and (4) the trial court erred by allowing the State to amend the information to broaden the charging dates.
These arguments fail. Regarding the suppression issue, Johnson did not challenge the search warrant's validity below but acknowledged the items were "seized pursuant to a search warrant issued to and executed by Detective Jess Pitts . . . on December 7, 2007. . . ." As to his Fifth Amendment arguments, Johnson does not dispute police officers properly advised him of hisMiranda rights. The record indicates that his statements were either noncustodial statements or custodial statements made after Miranda warnings. Regarding the alleged tainted jury pool, the record does not indicate that the Harborview comment inflamed or prejudiced the jury. And because Johnson failed to request a curative jury instruction, he waived any alleged error. See State v. Crawford, 21 Wn. App. 146, 151, 584 P.2d 442 (1978) (judge's remark in presence of jury stating that defendant was bound and gagged because of his previous attempt to escape from courtroom was waived where defendant failed to request curative instruction.) Finally, Johnson fails to explain how the amended information enlarging the charging period unfairly prejudiced him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
Johnson asserts that the juror said, "Like I said, I work in Harborview and I was there when they brought his victim in. I know he did it. I know he's guilty." Statement of Additional Grounds at 2. But the verbatim report of proceedings does not contain this statement.
For the reasons discussed above, we affirm Johnson's convictions.
WE CONCUR: