The opinion of the court was delivered by: Kulik, J.
Robert A. Sexsmith appeals his convictions for first degree child molestation, three counts of second degree child rape, first degree incest, and two counts of possession of depictions of a minor engaged in sexually explicit conduct, with sexual motivation. Mr. Sexsmith asserts that the trial court improperly admitted evidence of prior uncharged acts against a different victim. He also argues that the evidence was insufficient to support the charge of first degree incest. And, Mr. Sexsmith presents this court with a statement of additional grounds for review.
We conclude that the cumulative similarity between Mr. Sexsmith's abuse of two minor girls suggests a common plan and that the evidence of prior abuse of another victim was more probative than prejudicial. The trial court did not err in admitting the evidence of prior acts. The State concedes the evidence was insufficient to convict Mr. Sexsmith on first degree incest because the minor was unrelated to Mr. Sexsmith. Therefore, we reverse the first degree incest conviction and affirm the remaining convictions.
Robert Sexsmith lived with his girlfriend and her daughter, C.H., for several years. C.H. was 7 years old when Mr. Sexsmith began living with her mother.
Mr. Sexsmith first began touching C.H. when she was 11. Mr. Sexsmith would have C.H. watch pornographic videos with him. Mr. Sexsmith began touching C.H. when she came out of the shower. He would also force C.H. to touch his penis. During this time, Mr. Sexsmith also took numerous nude photographs of C.H. When C.H. was 12, Mr. Sexsmith began making her perform oral sex on him when C.H.'s mother was away from the home.
Mr. Sexsmith routinely sodomized C.H. from the time she was 13 to when she left the home at age 18. He also performed oral sex on her. Many of these sexual encounters occurred in the basement of Mr. Sexsmith's mother's home.
If C.H. was in trouble with her parents, Mr. Sexsmith would sometimes offer to forego punishment if C.H. would agree to perform sex acts on him. In addition to the nude photographs of C.H., Mr. Sexsmith also made numerous videotapes of C.H. and him having sex.
Mr. Sexsmith threatened C.H. that if she ever told anyone what he did to her, she would be separated from her family and put into foster care. When C.H. was older, Mr. Sexsmith would tell her that "he would rather go to jail for murder than go to jail for what he did to [C.H.]." Report of Proceedings (RP) at 459.
Mr. Sexsmith and C.H.'s mother eventually married when C.H. was 19. C.H. had a difficult time coping physically and mentally with the abuse she had suffered for years. She visited a doctor and tried several medications to deal with her physical symptoms. On the advice of a friend, C.H. sought counseling at the age of 20. During the counseling, C.H. revealed that she had been sexually abused by Mr. Sexsmith.
The counselor contacted law enforcement because C.H.'s younger brother was still living with Mr. Sexsmith and C.H.'s mother. C.H. called her step-sister, A.S., and told her about the abuse. A.S. is 6 years older than C.H. A.S. stated that Mr. Sexsmith, her biological father, had molested her as well.
C.H. cooperated with law enforcement and allowed them to tape telephone conversations with Mr. Sexsmith. C.H. also wore a recording device that allowed police to record another conversation with Mr. Sexsmith in a restaurant. Apparently, during at least some of the recorded conversation, Mr. Sexsmith made clear references to having anal intercourse with C.H.
Mr. Sexsmith was charged with first degree child molestation, three counts of second degree child rape, first degree incest, and two counts of possession of depictions of a minor engaged in sexually explicit conduct, with sexual motivation.
At trial, the State presented testimony from A.S. regarding similar instances of abuse that she alleged were committed by her father. The court admitted this testimony under the "common scheme or plan" exception to ER 404(b). C.H. and A.S. stated that these acts occurred in the basement of Mr. Sexsmith's mother's home. Mr. Sexsmith forced A.S. to watch a pornographic video with him and to touch his penis. A.S. was 13 years old at the time. Mr. Sexsmith would reveal explicit details to A.S. regarding his sexual partners and activities. Similar to C.H., Mr. Sexsmith also forced A.S. to pose for nude pictures.
At trial, C.H. testified that she reviewed some of the pornographic videos that police recovered from Mr. Sexsmith's home. She identified herself as the person being fondled by Mr. Sexsmith on one of the tapes and testified that she was 15 years old at the time the video was made. A.S. was also able to identify the person on the videotapes as C.H.
Mr. Sexsmith was convicted of all charges at trial. He was sentenced to a term of incarceration of 280 months.
A trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Griswold, 98 Wn. App. 817, 823, 991 P.2d 657 (2000).
Evidence of prior bad acts is generally inadmissible to prove the character of a person and his propensity in conformity therewith. But such evidence may be admissible for other purposes. ER 404(b). Evidence of prior bad acts may be admitted to show a common scheme or plan. See, e.g., State v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995).
A trial court must initially presume that any evidence of prior bad acts is inadmissible. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). In order to admit evidence of prior bad acts under the common plan or scheme exception, the prior acts must be (1) proved by a preponderance of the evidence; (2) admitted for the purpose of showing a common plan or scheme; (3) relevant to prove an element of the crime charged; and (4) more probative than prejudicial. Id. (quoting Lough, 125 Wn.2d at 852).
Here, there is no dispute that the alleged acts against A.S. were proved by a preponderance of the evidence or that the evidence was admitted by the trial court in order to prove a common plan or scheme. This court must determine whether the evidence was relevant to prove an element of any of the crimes charged and was more probative than prejudicial.
Relevance of the Evidence
Where a defendant is charged with child rape or child molestation, the existence of "a design to fulfill sexual compulsions evidenced by a pattern of past behavior" is probative of the defendant's guilt. DeVincentis, 150 Wn.2d at 17-18. Evidence of past acts may be admissible to show a common scheme or plan where the prior acts demonstrate a single plan used repeatedly to commit separate but very similar crimes. Id. at 19.
The past act and charged act must be substantially similar to be relevant and, therefore, admissible under this exception. Id. at 20. This means that the similarity must be clearly more than coincidental; it must indicate conduct created by design. Lough, 125 Wn.2d at 860. This court reviews the trial court's determination of the relevance of prior acts for abuse of discretion. State v. Krause, 82 Wn. App. 688, 695, 919 P.2d 123 (1996).
Here, there was a substantial similarity between the abuse of A.S. and C.H. Mr. Sexsmith was in a position of authority over both girls. He was A.S.'s biological father and appears to have been the primary father figure for C.H. beginning at age 7 until C.H. moved out at age 18. Both girls were about the same ages when they were molested by Mr. Sexsmith.
In both cases, Mr. Sexsmith would isolate the girls when he abused them. While he resided at his mother's home, he molested both of the girls in the basement. In both cases, he forced the girls to take ...