Appeal from Benton Superior Court. Docket No: 11-1-00977-1. Judge signing: Honorable Vic L Vanderschoor. Judgment or order under review, Date filed: 11/01/2012.
Kristina M. Nichols (of Nichols Law Firm PLLC ), for appellant.
Andrew K. Miller, Prosecuting Attorney, and Anita I. Petra, Deputy, for respondent.
Authored by Laurel H. Siddoway. Concurring: George B. Fearing, John Michael Antosz.
[183 Wn.App. 442] ¶ 1 Evidence of a criminal defendant's prior bad acts " is objectionable not because it has no appreciable probative value but because it has too much." 1A John Henry Wigmore, Evidence in Trials at Common Law § 58.2, at 1212 (Peter Tillers rev. ed. 1983). It presents a danger tat the defendant will be found guilty not on the strength of evidence supporting the current charge, but because of the jury's overreliance on past acts as evidence of his character and propensities. This potential for prejudice from admitting
prior acts is " 'at its highest'" in sex offense cases. State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d 207 (2012) (quoting State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982)).
¶ 2 Charles Slocum was convicted of the first degree child molestation and third degree child rape of his step-granddaughter based in part on the testimony of the girl's mother and her paternal aunt that Mr. Slocum had molested them decades earlier, when they were adolescents. Yet the evidence demonstrated that Mr. Slocum's prior acts were mostly opportunistic; the only common " plan" that could possibly be ascribed to all of them was a plan that, if presented the opportunity, Mr. Slocum would molest girls. Something that amorphous is not a plan within the meaning of ER 404(b); it is a criminal propensity. Because the error in admitting evidence of two prior acts of opportunistic molestation was not harmless, a new trial is required.
[183 Wn.App. 443] ¶ 3 We reverse the judgment and sentence and remand for a new trial consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
¶ 4 In August 2011, Charles Slocum was accused by his 15-year-old step-granddaughter, W.N., of inappropriate touching. W.N. alleged that beginning at the age of 3 or 4, during visits to her grandparents' home, Mr. Slocum rubbed her vagina and breasts, both over and under her clothing. Initially, W.N. told her parents and investigators that the molestation stopped when she was 11 years old.
¶ 5 Mr. Slocum was charged with child molestation in the first degree. He originally pleaded not guilty but later agreed to enter a plea of guilty. According to his trial lawyer, this was with the encouragement of Mr. Slocum's wife, who did not want W.N. to have to testify, and was based upon W.N.'s family's reported support of Mr. Slocum's request that, if eligible, he be sentenced under the special sex offender sentencing alternative (SSOSA), RCW 9.94A.670(2).
¶ 6 After entry of Mr. Slocum's guilty plea, W.N.'s family learned from her that the touching continued beyond her 12th birthday and that as recently as April 2011, when she was 14 years old, Mr. Slocum molested her in a family travel trailer. On this last occasion, he had inserted his fingers into her vagina.
¶ 7 Following that revelation, W.N.'s family withdrew its support for a SSOSA sentence, which the State reported to the defense. Mr. Slocum moved to withdraw his guilty plea, his motion was granted, and the State then amended its information to enlarge the period covered by the child molestation charge and add a charge of rape of a child in the third degree. Mr. Slocum proceeded to trial on both charges.
¶ 8 Before trial, the court conducted a hearing on the State's motions in limine, which included a motion that the court admit evidence that Mr. Slocum had sexually abused [183 Wn.App. 444] W.N.'s mother and paternal aunt many years earlier. The State argued that the evidence was admissible under ER 404(b) as evidence of a common scheme or plan, and specifically,
a plan to molest children. The defendant would find victims he had access to and would abuse them in his home. He would perform the same type of abuse on similar aged children. Lastly, he was in the same position of authority over each child.
Clerk's Papers (CP) at 96.
¶ 9 The State did not call W.N. as a live witness at the hearing on its motion; instead, it offered police reports of interviews indicating what her anticipated testimony would be. The police report indicated that W.N. told detectives that up until the time she was 11 or 12 years old, Mr. Slocum would frequently rub her vaginal area anytime her grandmother was not around. The police report indicated that when asked how Mr. Slocum would touch her, W.N. told them,
[H]e would call her over to sit in his lap so he could talk to her. He always sits in his recliner. He would always rub her while he talked to her. He acted like it wasn't a big deal. ... She demonstrated how he would rub by placing her hand between her legs and rubbing up and down with her
fingers in the vaginal area. He would do this for about 5 minutes each time.
CP at 100.
¶ 10 Her subsequent revelation was that sometime in December 2010, when she was 14, Mr. Slocum touched her clothed crotch and breast area; she believed that once again, she had been sitting on his lap. Nothing else happened until Sunday, April 3, 2011, when he entered while she was cleaning her grandparents' travel trailer, locked the door, pushed her down on the couch, and touched her vagina and breasts, both outside and inside her clothing, inserting his fingers in her vagina.
[183 Wn.App. 445] ¶ 11 The State called W.N.'s mother and aunt to testify at the hearing on its motion to admit evidence of the prior acts.
¶ 12 W.N.'s mother testified that her parents divorced when she was 7 years old and her mother married Charles Slocum a year or two later, when W.N.'s mother was about 8 or 9. She testified to two incidents of sexual molestation by her stepfather, both of which occurred when she was about 12 years old. According to dates ...