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The Court of Appeals of Washington, Division OneJul 26, 2004
122 Wn. App. 1038 (Wash. Ct. App. 2004)

No. 51848-8-I.

Filed: July 26, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-1-01666-5. Judgment or order under review. Date filed: 01/31/2003. Judge signing: Hon. Ronald Kessler.

Counsel for Appellant(s), Corey Marika Endo, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.

Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave, Seattle, WA 98104-2390.

Fredrick Pepper appeals his conviction for third degree child molestation, contending that the trial court erroneously admitted evidence, that the State failed to present sufficient evidence that he touched the victim for the purpose of sexual gratification, that the prosecutor committed misconduct and that the trial court gave an erroneous `to convict' instruction. We affirm.


On September 29, 2001, Lindsay Pepper spent the day with her friend, 14-year old J.T., who lived next door to Lindsay's father, Fredrick Pepper. The girls often spent time together when Lindsay stayed with her father on alternating weekends. J.T. considered 51-year old Pepper a friend; she had gone on family vacations and outings with Lindsay and Pepper, and would feed Pepper's dogs while he was away. Although Pepper was home during the evening of September 29, 2001, he went out later that night. The girls stayed at his house, watching television until they fell asleep on the couches in the living room, where they intended to spend the night.

Sometime during the night, J.T. began to believe she was dreaming that she was being touched by a hand moving on her `crotch.' She pushed the hand away. When the hand came back, again moving in a circular motion against her `vaginal area' over her clothing, J.T. woke up completely and opened her eyes to see Pepper kneeling down by the couch and touching her. Pepper's mouth was opened, his face was red, he smelled of alcohol, and his eyes widened as she looked at him. She pushed his hand away again, and he put it back. When she pushed his hand away a third time, he held onto her hand for a moment and then let it go. J.T. then rolled over to face the couch.

Pepper stayed by the couch for a short while and then J.T. heard him get up and go into the bathroom. When he came out of the bathroom and went into his bedroom, J.T. rolled over and saw that the clock read 2:45 a.m. After 10 to 15 minutes, when J.T. heard Pepper snoring, she got up and went home. Finding none of her family awake, J.T. took her dog and went to her cousin's house and told him what happened.

The next day, J.T. told her mother, Patricia Clyde, about the incident. Clyde and her boyfriend Ed Rogers then confronted Pepper. Pepper claimed that he did not remember touching J.T., but begged them on his knees to hit him to `make it even.' Clyde and Rogers told Pepper to get some treatment or they would call the police.

A few days later, J.T. told the school nurse, who reported the incident to the police. Following an investigation by police, the State charged Pepper with one count of child molestation in the third degree. A jury found him guilty as charged and the trial court sentenced Pepper within the standard range. Pepper appeals.


Prior to trial, the State sought to admit evidence under ER 404(b) that Pepper told J.T. that he wanted to marry her when she was older and to have eight children with her, as evidence of his motive, intent, lustful disposition toward J.T., and to rebut any potential claim of accident or mistake. The trial court stated,

As a general rule, I think the better practice is for 404(b) evidence, that the Court should actually hear the evidence in making . . . a determination whether it has been established by a preponderance. I'm inclined, having read the brief, the State's brief, to believe that the defendant's alleged statements to the complainant prior to the incident is hardly 404(b) evidence.

Report of Proceedings 12/10/02 at 6-7.

The following exchange then took place:

[STATE]: And so I take it Your Honor will not need to hear from the victim regarding the prior statements made by the defendant, since you don't find that those come under prior misconduct?

THE COURT: I'll hear from you as to how you think they do, if they do, if you do, of the defendant's statements to the complainant in this case, how that would be characterized as 404(b) evidence.

[DEFENSE]: I think what [the prosecutor] is talking about is about the alleged statement that Mr. Pepper at some point told her that he wanted to marry her when she grew older.

THE COURT: Right. And have eight kids or something. Yeah.

[DEFENSE]: Yeah, exactly. And I know that [the prosecutor] is trying to perhaps bring this in under a lustful disposition type of situation. Your Honor, lustful disposition indeed has been recognized as prior evidence that could be presented to the jurors. However, lustful disposition requires sexual misconduct.

And then, in this case, if someone goes and says, even jokingly, perhaps, saying, `When you grow older, when you are above the age of 18, I am going to marry you and have children with you,' I believe, Your Honor, that that would not come within that sexual misconduct type of situation. If he had indeed approached her and told her, `I'm going to marry you,' and tried to kiss her or fondle her in any way, then that arguably could fall within the lustful disposition exception.

In this case, we have only a young woman who indicates that that's what he told her, and which it could be either joking, if it indeed happened, or — I mean, the basic notion is that there has to be some kind of sexual misconduct, if he had said, `I'm going to make love with you today,' when she's under the age of 18, or under the age of 15, or something like that —

THE COURT: Sexual conduct, not sexual misconduct.

[DEFENSE]: Well, sexual conduct, I apologize, yes, Your Honor. I'm sorry.

THE COURT: I guess if you said, `I'm going to marry you, and we're going to adopt eight children,' perhaps that would cross out the possibility of sex, but that seems unlikely.

[DEFENSE]: Yes, Your Honor. However, the indication is that she says, `when you grow older,' meaning, you know, an adult, so that puts her outside of having any type of — well, in one way, to put it —

THE COURT: Misconduct. It takes it outside of misconduct, but it's still clearly within the realm of a lustful disposition, arguably.

[DEFENSE]: Arguably, of course. And then perhaps what Your Honor may be thinking is, you know, there still has to be a balancing, and whether or not it's unfairly prejudicial, and, I mean, assuming that it is relevant. I think that the relevance is questionable, and whether or not —

THE COURT: What's the defense? Alibi?

[DEFENSE]: Yeah, it's alibi.

THE COURT: Yeah? `I didn't do it?'

[DEFENSE]: Exactly. `I was somewhere else,' yes.


[DEFENSE]: And then having this relationship perhaps of marriage in the future, that certainly, when one balances, you know, the prejudicial effect, it would be unfairly prejudicial to Mr. Pepper, because he's being accused of actually molesting this young woman.

THE COURT: Oh, it's certainly prejudicial. The question is it's unfairly prejudicial. You're using the right word.

[DEFENSE]: Yeah. That's correct. Any evidence could be extremely prejudicial.

THE COURT: It's not prejudicial if it's probably irrelevant.

[DEFENSE]: Especially in this case, Your Honor. There's other evidence besides the alleged victim, and we have one potential witness that was asleep next to her.

THE COURT: She's also the only witness who is going to testify about this alleged statement; correct?

[DEFENSE]: Exactly.

THE COURT: Is that right? `Yeah, I want to marry you and have children with you?'

[STATE]: Other than the fact that the State — I mean, I can indicate to the Court the victim relayed these comments to her mother.

THE COURT: Well, okay. But she's still the only witness?[STATE]: That's correct.

THE COURT: All right. Well, this case turns on her credibility anyway, but —

[STATE]: Right.

[DEFENSE]: Exactly.

THE COURT: — I just don't see how this fits within the realm of 404(b). It has a great deal of probative value, and I don't see what's unfairly prejudicial about it. I mean, certainly it does not have to be misconduct to come — evidence does not have to be misconduct to come within Evidence Rule 404(b). And, by itself, the defendant's alleged statement is not misconduct in any sense, by itself.

But I just don't see how it is — I mean, it's just plain, old, relevant evidence. So I don't need a hearing on that. I'm going to allow that evidence to come in[.]

Report of Proceedings 12/10/02 at 12-16.

Under ER 404(b):

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's rulings on ER 404(b) evidence are reviewed for abuse of discretion. State v. Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050 (1995). Because evidentiary errors under ER 404 are not of constitutional magnitude, any error here is harmless unless the outcome of the trial would have differed had the error not occurred. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999).

Washington courts recognize an exception to ER 404(b) for evidence of `collateral sexual misconduct of a defendant which establishes a lustful disposition toward the offended female." State v. Carver, 37 Wn. App. 122, 126, 678 P.2d 842, (1984) (victim allowed to testify that the defendant had previously engaged in, among other things, anal intercourse with her). The key inquiry is whether the evidence demonstrates a sexual desire for the particular victim. State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991) (victim allowed to testify that the defendant, 10 years before the charged incident, had rubbed her breasts and buttocks, touched her `up top,' pulled her onto his lap, and placed his hand under her shirt and touched her vagina); State v. Medcalf, 58 Wn. App. 817, 822-23, 795 P.2d 158 (1990) (video tapes with children's films and X-rated movies were not properly admitted in statutory rape prosecution where the tapes had absolutely no connection with the victim). "`The kind of conduct receivable to prove this desire at such prior or subsequent time is whatever would naturally be interpretable as the expression of sexual desire. Sexual intercourse is the typical sort of such conduct, but indecent or otherwise improper familiarities are equally significant.'" State v. Thorne, 43 Wn.2d 47, 60-61, 260 P.2d 33 (1953) (quoting 2 John Henry Wigmore on Evidence (3d ed.) 367, sec. 399).

Pepper contends that the trial court failed to properly analyze the offered evidence under ER 404(b), by failing to determine by a preponderance of the evidence whether Pepper made the statements, by failing to identify the purpose for admission, by failing to find whether the evidence was materially relevant to that purpose, and by failing to balance its probative value against potential prejudice. See, State v. Saltarelli, 98 Wn.2d 358, 655 P.2d 697 (1982). Based on the record as quoted above as well as the context of the arguments and briefing, the State argues that the trial court admitted the evidence for the purpose of demonstrating Pepper's lustful disposition toward J.T., after properly determining that the probative value outweighed any prejudice and concluding by the statement that the evidence did not fit `within the realm of 404(b)' that it need not be excluded under that rule.

Pepper does not appear to argue that the trial court erred by failing to hold an evidentiary hearing to determine whether the statements were actually made, just that the trial court failed to make such a finding on the record based on the State's offer of proof. See, State v. Kilgore, 147 Wn.2d 288, 295, 53 P.3d 974 (2002) (decision whether or not to conduct an evidentiary hearing or rely on offer of proof to determine whether prior bad act occurred should be left to sound discretion of trial court).

We agree with Pepper that the trial court erred by failing to recognize that it was dealing with ER 404(b) evidence. Nevertheless, the court's failure to conduct the full ER 404(b) analysis on the record is harmless error if the appellate court can effectively review the trial court's decision on the record. See, e.g., State v. Gogolin, 45 Wn. App. 640, 645, 727 P.2d 683 (1986). Here, the record is sufficient to permit such review. At trial J.T. testified that Pepper `would tell me that he wanted to marry me and have kids with me, and that I deserved nothing worse, nothing better than him,' and `[h]e said . . . `You are so beautiful,' and stuff like that.' Report of Proceedings 12/17/02 at 264-65 J.T.'s sister testified that she heard Pepper say that he wanted to marry J.T. and have children with her. J.T.'s mother testified that J.T. told her that Pepper said he wanted to marry her and have children with her.

The witnesses testified that Pepper made these comments over time, as long as two years before the charged incident, and there was no allegation that he made any such statement on the day of the charged incident.

Pepper argues that these statements do not show a lustful disposition toward J.T. because he did not touch her when he made the statements, the statements were not `naturally . . . interpretable as the expression of sexual desire,' and he made at least one such statement in front of J.T.'s sister and while he was making lunch. But the exception under ER 404(b) is not limited solely to evidence of physical contact. See, e.g., State v. Bernson, 40 Wn. App. 729, 737-38, 700 P.2d 758 (1985) (co-worker's testimony that defendant stated, `I'd really like to get her,' referring to murder victim, properly admitted under ER 404(b) to show lustful disposition where condition of victim's remains indicated sexual motivation). And, as the State points out, the fact that the statements did not involve sexual contact lessens the potential for unfair prejudice. Moreover, as the trial court recognized, such statements regarding marriage and having children naturally suggest the possibility of sex, and therefore could rationally be interpreted to express sexual desire. The State's stated purpose in offering the statements was to show that Pepper had a sexual desire for J.T. that made it more likely that he actually touched her as charged, and that he did so to gratify his sexual desire. This is clearly evidence of the type admitted under the lustful disposition exception to ER 404(b).

Pepper relies on State v. Dawkins, 71 Wn. App. 902, 863 P.2d 124 (1993), to support his argument that the lustful disposition exception should not apply here. After a jury trial where Dawkins' attorney failed to object to testimony of one victim regarding prior incidents of touching and the jury found Dawkins guilty of the charge relating to that victim and acquitted him of a second charge with a different victim alleged to have occurred at the same time, the trial court invited Dawkins to obtain new counsel and move for a new trial based on ineffective assistance of counsel. Id. at 904-06. The trial court then granted the motion for a new trial finding that it would have excluded the evidence if the defense had timely objected and that trial counsel was ineffective for failing to object. Id. at 906. On the State's appeal, this court affirmed, holding that the trial court would not have abused its discretion by excluding the evidence as unfairly prejudicial, had the objection been made, and therefore did not abuse its discretion in holding that trial counsel's failure to object constituted deficient performance. Id. at 910.

But here, even though the trial court failed to fully explain its decision on the record, it actually balanced the probative value of the evidence against the potential for unfair prejudice and admitted the testimony. Dawkins does not compel reversal here.

Finally, Pepper contends that the trial court erred by failing to give a limiting instruction. Because Pepper did not request one, the trial court did not abuse its discretion by failing to give such an instruction. See, State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997).

In sum, we cannot conclude that the trial court abused its discretion in admitting the evidence, notwithstanding its failure to recognize that a full ER 404(b) analysis was warranted.

Pepper next contends that the Stated failed to present sufficient evidence to prove that sexual gratification was the purpose of the sexual contact. Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Theroff, 95 Wn.2d 385, 388, 622 P.2d 1240 (1980), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 So. Ct. 2781, 61 L.Ed.2d 560 (1979). To prove a charge of child molestation, the State must prove that the defendant had `sexual contact' with the victim. RCW 9A.44.010(2) defines `sexual contact' as `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.'

As the State points out, `Proof that an unrelated adult with no caretaking function has touched the intimate parts of a child supports the inference the touching was for the purpose of sexual gratification.' State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991). However, the Powell court went on to state that when the evidence shows touching through clothing, courts have required some additional evidence of sexual gratification. Id., citing State v. Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990) (defendant rubbed zipper area of boy's pants for 5 to 10 minutes); State v. Wilson, 56 Wn. App. 63, 68, 782 P.2d 224 (1989) (both incidents occurred where they would not be easily observed, and defendant was only partially clothed; victim of second incident was disrobed). Pepper argues that because he was so intoxicated he was `in a blackout' during the incident, this court cannot draw any inference about his purpose in touching J.T. Viewed in the light most favorable to the State, the evidence established that Pepper touched J.T.'s crotch or vaginal area an undisputed intimate part over her clothing, although her jeans were unbuttoned and unzipped. Additional evidence supporting an inference that Pepper's purpose in touching J.T. was sexual gratification includes: the fact that he was crouching by the couch where she slept and began rubbing her crotch in a circular motion while she slept; the fact that he repeatedly put his hand back on her and continued rubbing the area after she moved his hand off of her; and the fact that his face was flushed red, his eyes widened, and he gasped when he realized that J.T. was awake and looking at him. This evidence is sufficient to support an inference that Pepper's purpose was sexual gratification. Additionally, there was no evidence that the touching was fleeting or accidental and there was no innocent explanation for the touching. See, e.g., State v. Whisenhunt, 96 Wn. App. 18, 24, 980 P.2d 232 (1999) (sufficient evidence of sexual gratification as purpose where bus driver touched genital area of 5-year old under her skirt but over her bodysuit on three occasions and contact `was not equivocal or fleeting in the sense the purpose of the contact was not open to innocent explanation'). Based on this record, a rational trier of fact could have rejected Pepper's blackout claim and found that his purpose in touching J.T. was sexual gratification.

J.T. had unfastened her jeans for comfort before going to sleep.

Pepper also argues that the prosecutor committed misconduct by stating in closing, that Pepper `went home, and for reasons I don't have to explain, the State only has to prove what happened, not necessarily why, I can't explain why a 50 year-old man would want to touch a 14 year-old girl.' Report of Proceedings 12/19/02 at 434-35. Defense counsel objected, stating, `Your Honor, I am going to object, I think it has to be proven for the purpose of sexual gratification.' Id. at 435. The trial court did not rule on the objection.

On a claim of prosecutorial misconduct, the defendant bears the burden of establishing the impropriety of the prosecutor's comments, as well as their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To establish prejudice, the defendant must demonstrate that there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). A prosecutor's allegedly improper remarks are reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Id.

Relying by analogy on State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984) Pepper argues that the prosecutor's argument improperly attempted to explain the lack of independent evidence tending to show that Pepper touched J.T. for the purpose of sexual gratification by arguing that the State was not obligated to prove `why' the incident happened. In Davenport, a second degree burglary case, the prosecutor argued in rebuttal that `it doesn't make any difference' whether the defendant or the driver of the car actually went into the house, because `they are accomplices.' Id. at 759. But the prosecutor had not charged the defendant as an accomplice, and had not requested an accomplice liability instruction or a `to convict' instruction including the word `accomplice.' Id. at 758. The comment in rebuttal was improper because it introduced a legal theory of criminal liability that was neither charged nor contained in the jury instructions. Id. at 760.

Here, the prosecutor reviewed the `to convict' instruction and the definition of sexual contact with the jury, and then stated, First, the sexual or intimate parts. Is her crotch, as she described it, her vaginal area, her vagina, an intimate part? Is that an intimate part of a 14 year-old girl? Yes, it clearly is.

Was it done for the purpose of gratifying sexual desires of either party or a third party? That's in there to prevent against people from being charged from something that is an accident, when they touch someone on an accident. This was no accident, he put his hand on her vagina and rubbed it. She moved it, he put it back, rubbed again. She moved it, he put it back again, she moved it again. Clearly, this is no accident.

And we are not talking about him striking her here, we are not talking about him rubbing her arm, he is rubbing, this 50 year-old man, this 51 year-old man is rubbing a 14 year-old girl's vagina. What other purpose is there other than sexual gratification? Report of Proceedings 12/19/02 at 432-33.

Then the prosecutor reviewed the testimony regarding Pepper's statements to J.T. about marriage and children, arguing that it was weird, and that it implied sexual motivation and lack of mistake. Viewed in the context of the whole argument, the comments identified by Pepper did not propose a new legal theory or imply that the State need not prove the purpose of sexual gratification or that the jury should disregard the evidence that the prosecutor had just indicated would support a finding of a purpose of gratifying sexual desire; rather, the prosecutor was indicating that he need not prove why Pepper decided on this particular night, after he had been drinking, to gratify his sexual desire by touching a 14 year-old girl. Although it was not particularly artful, the comment was not improper. Moreover, because the prosecutor argued that he had proved the proper definition of sexual contact, and the jury was properly instructed, Pepper cannot demonstrate prejudice.

Pepper next contends that the trial court erred by failing to include the definition of sexual conduct in the `to convict' instruction. In particular, he contends that the purpose of sexual gratification is an essential element of the crime of child molestation that must be included in the `to convict' instruction.

But `sexual gratification' is not an essential element of the charge of child molestation. Rather, it is a definitional term clarifying the meaning of `sexual contact,' which is an essential element of the crime. See, State v. T.E.H., 91 Wn. App. 908, 915, 960 P.2d 441 (1998) (statute defining the crime of first degree child molestation, RCW 9A.44.083, contains term `sexual contact,' which is defined in separate statute, RCW 9A.44.010(2)). Pepper's reliance on State v. Jones, 71 Wn. App. 798, 863 P.2d 85 (1993), is misplaced, as that case involved a merger analysis and did not address completeness of jury instructions.


Pepper first appears to allege prosecutorial misconduct during discovery. On November 1, 2002, Judge Catherine Shaffer held a hearing on Pepper's motion to dismiss or for a deposition based on the prosecutor's actions during the defense interview of J.T. In particular, the prosecutor advised J.T. that she did not have to answer certain questions about prior alcohol or drug use because he believed they were irrelevant and wanted to protect J.T. when she seemed uncomfortable. After hearing both parties, Judge Shaffer told the prosecutor that he did not represent J.T. and had no right to intervene or interrupt the interview, stated that she would consider further similar actions to be egregious misconduct, and ordered another defense interview specifically providing that the defense could cover the particular issues into which the prosecutor had prevented inquiry. Because the trial court properly addressed this concern and because he does not identify any prejudice, Pepper fails to identify any basis for relief. Pepper next contends the trial court erred by allowing J.T.'s sister and mother to testify, over defense objections, about his statements regarding marriage when the prosecutor stated at the pretrial hearing that only J.T. would be testifying about it. The admission of evidence by a trial court is reviewed for abuse of discretion. State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003). Here, following several objections from the defense when the prosecutor inquired into the defendant's statements, the trial court held a side bar and then overruled the objections. Pepper fails to identify any abuse of discretion or any prejudice from the admission of the testimony that would justify relief.

Third, Pepper challenges the trial court's decision to exclude evidence of the criminal record and supervision violations of prosecution witness Clarence `Ed' Rogers, J.T.'s mother's boyfriend. The record establishes that the trial court properly excluded these matters under ER 609. Pepper next complains that Detective Dahlin testified differently at the pretrial hearing than she did at trial, in particular by giving different spellings of Pepper's name, different birthdates for Pepper, and different descriptions of his occupation. Although the record supports his claim that the testimony differed, Pepper fails to establish prejudice or any other basis for relief.

Fifth, Pepper contends that Detective Dahlin failed to testify regarding certain statements in violation of a pretrial 3.5 ruling. In particular, the trial court ruled that if the State wanted to introduce a certain paragraph from Dahlin's report, the rule of completeness required admission of the statement, `Pepper swears to God he doesn't remember touching [J.T.].' Report of Proceedings 12/10/02 at 174. While it is true that Detective Dahlin did not testify regarding this statement at trial, the record does not include a copy of her report and it is not clear whether the State actually elicited testimony at trial about the paragraph identified at the pretrial hearing. Despite the inadequacy of the record for review of this matter, Pepper also fails to establish prejudice, especially because Detective Dahlin actually testified at trial that Pepper stated that he did not remember touching J.T.

Finally, Pepper contends the prosecutor's `fingerprints' are `all over the testimony throughout this trial[.]' Pepper's `Statement of Additional Facts' at 2. He appears to be complaining that the prosecutor somehow engineered various parts of the testimony, a conclusion that is not supported by the record on appeal. Pepper also highlights inconsistencies in the testimony of various witnesses. But these are matters for the trier of fact, not the appellate court. Pepper also complains that his attorney was intimidated by Judge Kessler, and demonstrated short-term memory loss, indecision, and lack of preparation. However, Pepper fails to demonstrate ineffective assistance of counsel.


We see no reversible error in this record. Affirmed.