Superior Court County: King. Superior Court Cause No: 94-1-00643-2. Date filed in Superior Court: 9/19/94. Superior Court Judge Signing: Leroy McCullough.
Written By: Becker, J., Concurred by: Baker, CJ, Webster, J.
BECKER, J. -- Christopher Carleton was convicted of third degree rape of a teenage boy (A) he had befriended. Carleton had also engaged in sexual conduct with two other teenage boys (B and C). Under the common scheme exception to ER 404(b), the trial court admitted evidence of sexual contact between Carleton and one of the other boys. We affirm. The court erred in failing to balance probative value against prejudice on the record, but the error was harmless.
Carleton initially became friends with A, the boy involved in the charged conduct, when Carleton was 18 and A was slightly more than four years younger. They were both members of a youth music group. In a conversation with A early in their friendship, Carleton claimed to have a homosexual alternate personality. Some months later, according to A, Carleton molested A on two separate occasions when Carleton was staying overnight in A's home and A was ostensibly asleep. On both occasions, Carleton approached A and sucked on his penis. The younger boy testified that he feigned sleep because he did not want to recognize what was happening, and that he thrashed about to try to get Carleton to stop.
A and Carleton remained friends. With A's encouragement Carleton became a member of a youth service organization in which A was a member. Carleton then befriended B, another member of that same youth organization, and eventually had sex with him. B was 16.
Eventually, upon learning that Carleton had applied to become an adult advisor to the youth organization, A disclosed what had happened between them. These disclosures were the basis for two charged counts of third degree rape.
The State announced its intention to introduce evidence that Carleton had a scheme to "groom" younger teenage boys for sex. According to the State, Carleton's scheme involved meeting and befriending younger boys within youth organizations, talking with the boys about his supposed alternate homosexual personality by way of introducing sexual topics, and then initiating sexual contact with each boy when the boy was asleep.
Carleton moved in limine under ER 404(b) to exclude evidence of these prior sexual acts. The court held a hearing. The State outlined the anticipated testimony. B's testimony would show that he consented to having oral and anal sex with Carleton after Carleton told him it would help to bring the two personalities together and prevent the "bad" personality from taking over. The State also wanted to present the testimony of C, another young member of the youth organization. C would describe how Carleton, who was spending the night at C's home, attempted to initiate sexual contact while C was asleep.
The court excluded evidence of the attempted molestation of C because it did not involve the ruse of the alternative personality and, in the court's judgment, would merely tend to prove propensity. The court ruled that B's testimony could be presented as evidence of a common scheme.
The trial proceeded. Cross-examination of A established certain distinctions between Carleton's sexual conduct with A and B. With B, intercourse was consensual; with A it was not. Carleton had specifically induced B to have sex with him by explaining it would help to reunite his two personalities. With A he had merely discussed the alternate personality's existence some months before.
After A finished testifying, Carleton renewed his objection to the imminent testimony of B, arguing that there was insufficient evidence that Carleton had employed a common scheme with both boys. The court held to its earlier ruling and allowed B to testify. The jury convicted Carleton on one count and acquitted him on the other.
Carleton appeals, assigning error to the admission of B's testimony.
A defendant's other acts are admissible for the purpose of showing a "plan"--a purpose permitted by ER 404(b)--when evidence shows that the person "committed markedly similar acts of misconduct against similar victims under similar circumstances."*fn1 The trial court does not itself make a factual finding of a common scheme or plan. The court decides whether the evidence is sufficient to allow a jury to conclude there was a common scheme or plan.*fn2 The "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 ...