[No. 24657-4-III. Division Three. May 10, 2007.]
[1] Criminal Law — Evidence — Review — Standard of Review. A trial court's decision on whether to admit evidence in a criminal trial is reviewed for an abuse of discretion. [2] Criminal Law — Evidence — Other Offenses or Acts — Propensity. Evidence of a criminal defendant's prior bad acts generally is inadmissible under ER 404(b) to prove the defendant's character and propensity to act in conformity therewith. [3] Criminal Law — Evidence — Other Offenses or Acts — Presumption — In General. Under ER 404(b), evidence of a criminal defendant's prior bad acts is presumed to be inadmissible. [4] Criminal Law — Evidence — Other Offenses or Acts — Common Scheme or Plan — Test. Evidence of a criminal defendant's prior bad acts is admissible under ER 404(b) for the purpose of proving a common scheme or plan if the prior bad acts are (1) proved by a preponderance of the evidence, (2) admitted for the purpose of showing a common scheme or plan, (3) relevant to prove an element of the crime charged, and (4) more probative than prejudicial. [5] Sexual Offenses — Evidence — Other Offenses or Acts — Common Scheme or Plan — Child Sex Abuse — Probative Value — In General. In a prosecution for child sex abuse in which the occurrence of the alleged crime is disputed, the existence of a design by the defendant to fulfill sexual compulsions evidenced by a pattern of past behavior is probative of the defendant's guilt. [6] Criminal Law — Evidence — Other Offenses or Acts — Common Scheme or Plan — Separate Manifestations of General Plan — Similar Crimes. Evidence of a criminal defendant's prior bad acts is admissible under ER 404(b) for the purpose of proving a common scheme or plan when the prior acts demonstrate a single plan used repeatedly to commit separate but very similar crimes. The past acts and charged crime must be substantially similar. The similarity must clearly be more than coincidental; it must indicate conduct created by design. [7] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Review — Standard of Review. A trial court's determination of the relevance of a criminal defendant's prior bad acts under ER 404(b) is reviewed for an abuse of discretion. [8] Criminal Law — Evidence — Other Offenses or Acts — Common Scheme or Plan — Remoteness — Effect. The remoteness in time of a criminal defendant's prior bad acts is not necessarily determinative in deciding if evidence of the prior acts should be admitted under ER 404(b) to prove a common scheme or plan. [9] Sexual Offenses — Evidence — Other Offenses or Acts — Common Scheme or Plan — Child Sex Abuse — Relevance — Factors. A prior similar act of child sex abuse committed by a defendant currently charged with child sex abuse may be relevant to proving a common scheme or plan where there is a similarity between the child victims and their relationship with the defendant and substantial similarity between the time, place, and manner of the separate acts of abuse. [10] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Balanced Against Prejudice — Necessity. In ruling on the admissibility of evidence of a criminal defendant's prior bad acts under ER 404(b), a trial court must balance the probative value of the evidence against its prejudicial effect. Substantial probative value is needed to outweigh the potential prejudicial effect of ER 404(b) evidence due to the inherent prejudice of evidence of prior bad acts. [11] Evidence — Relevance — Balanced Against Prejudice — Review — Standard of Review. A trial court's balancing of the probative value of evidence against its prejudicial effect under ER 403 is reviewed for an abuse of discretion. [12] Sexual Offenses — Evidence — Other Offenses or Acts — Common Scheme or Plan — Child Sex Abuse — Probative Value — Factors. A prior similar act of child sex abuse committed by a defendant currently charged with child sex abuse may be more probative than prejudicial in proving a common scheme or plan where the defendant generally denies that the charged acts occurred, such that every element of the charged offenses is at issue, and the credibility of the alleged victim is central to the outcome of the case. [13] Criminal Law — Evidence — Other Offenses or Acts — Review — Harmless Error — In General. The erroneous admission of evidence of a criminal defendant's prior bad acts under ER 404(b) is harmless if the remaining untainted evidence overwhelmingly supports a finding of guilt. [14] Sexual Offenses — Evidence — Other Offenses or Acts — Common Scheme or Plan — Child Sex Abuse — Harmless Error — Videotapes of Charged Acts — Admissions of Guilt. The erroneous admission of evidence of a prior similar act of child sex abuse committed by a defendant currently charged with child sex abuse is harmless where the untainted evidence presented to the jury includes several pornographic videotapes of the defendant engaged in sexual acts with a person identified by witnesses as the named victim and audiotaped conversations between the defendant and the victim in which the defendant admits to certain sexual acts with the victim. [15] Criminal Law — Review — Reversal of Conviction — Necessity of Remand. When one of a defendant's multiple convictions is reversed on appeal, the appellate court is not required to remand the case for resentencing if it is confident the trial court would impose the same sentence, such as where the sentence imposed by the trial court for the conviction was ordered to be served concurrently with longer sentences for valid convictions of more serious offenses. [16] Criminal Law — New Trial — Review — Standard of Review. A trial court's denial of a criminal defendant's motion for a new trial is reviewed for a clear abuse of discretion. [17] Criminal Law — Evidence — Hearing — Review — Standard of Review. A trial court's denial of a criminal defendant's motion for a special evidentiary hearing is reviewed for a clear abuse of discretion. [18] Sexual Offenses — Sexual Misconduct With Minor — Evidence — Videotape of Sex Acts — Identity of Victim — Question of Fact. In a prosecution for child sex abuse, the trial court may admit a videotape of the defendant engaging in sexual acts with another person and leave it for the jury to decide whether the person depicted on the tape is the alleged child victim. [19] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Evidence — Test. Defense counsel's failure to have objected to evidence at trial will not support a claim of ineffective assistance of counsel unless not objecting fell below prevailing professional norms, the proposed objection likely would have been sustained, and the result of the trial would have been different had the evidence not been admitted. To prevail on the ineffective assistance claim, the claimant must rebut the presumption that counsel's failure to object was the result of a deliberate tactical choice. [20] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Evidence — Admissible Evidence. Defense counsel's failure to object to the admission of lawfully admitted evidence does not constitute ineffective assistance of counsel. [21] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Defendant's Burden. A criminal defendant alleging prosecutorial misconduct has the burden of establishing that the prosecutor's argument was both improper and prejudicial. [22] Criminal Law — Witnesses — Exclusion From Courtroom — Discretion of Court. A trial court has the discretion to exclude potential witnesses from the courtroom in a criminal trial. [23] Criminal Law — Trial — Misconduct of Prosecutor — Requesting Witness Exclusion From Courtroom. A prosecuting attorney does not commit misconduct by requesting that a potential witness be excluded from the courtroom if there is nothing to suggest that the prosecuting attorney listed the person as a potential witness for an improper purpose. [24] Criminal Law — Evidence — Videotapes — Edited Version — Failure To Object — Waiver. A criminal defendant who fails to object to the showing of edited versions of incriminating videotapes and to request the showing of the complete tapes waives any claim of error in the showing of only the edited versions. [25] Searches and Seizures — Consent — Joint Control — Spousal Consent. The spouse of a suspect has authority to consent to a search of a shared residence. [26] Criminal Law — Trial — Misconduct of Prosecutor — Subornation of Perjury — Review — Failure To Provide Proof. An appellate court may decline to consider a convicted offender's claim that the prosecuting attorney suborned perjury if the offender fails to provide the court with affidavits or proof in support of the allegation. [27] Witnesses — Examination — By Court — Validity. ER 614(b) permits a trial court to interrogate witnesses. [28] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Review — Element of Crime — Identification — Necessity. An appellate court cannot review a convicted offender's claim that there is insufficient evidence to support a conviction if the offender does not identify which element of the crime is allegedly unsupported by the evidence. Nature of Action: Prosecution for one count of first degree child molestation, three counts of second degree child rape, one count of first degree incest, and two counts of possession of depictions of a minor engaged in sexually explicit conduct, with sexual motivation. Superior Court: The Superior Court for Spokane County, No. 04-1-03613-6, Salvatore F. Cozza, J., on October 31, 2005, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the trial court did not abuse its discretion by admitting evidence of the defendant's prior child sex abuse as proof of a common scheme or plan; that the conviction of first degree incest should be reversed, but that the reversal does not require remand for resentencing; that the trial court did not abuse its discretion by admitting videotaped evidence of the crimes, denying the defendant's motion for a new trial, or denying the defendant's motion for a special hearing regarding the identity of the person depicted in the videotapes; that the defendant did not receive ineffective assistance of counsel; and that the prosecuting attorney did not commit misconduct, the court affirms the judgment in part and reverses it in part. William D. Edelblute-, for appellant. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo- and Andrew J. Metts III-, Deputies, for respondent. ¶1 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. ¶2 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. FACTS ¶3 Robert Sexsmith lived with his girl friend and her daughter, C.H., for several years. C.H. was 7 years old when Mr. Sexsmith began living with her mother. ¶4 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. ¶5 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. ¶6 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. ¶7 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. ¶8 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. ¶9 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 stepsister, 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. ¶10 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. ¶11 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. ¶12 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. ¶13 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. ¶14 Mr. Sexsmith was convicted of all charges at trial. He was sentenced to a term of incarceration of 280 months. ANALYSIS A. Prior Bad Acts ¶17 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). ¶18 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 ¶20 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). ¶22 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 nude photographs, watch pornography, and to fondle him. ¶23 There is a significant lapse of time between the sexual abuse of A.S. and the abuse of C.H. But the lapse of time is not a determinative factor in this analysis. See State v. Baker, 89 Wn. App. 726, 733-34, 950 P.2d 486 (1997). ¶24 While the individual features of the prior and charged acts of abuse are not in themselves unique, the cumulative similarity between the two suggests a common plan rather than coincidence. The trial court did not abuse its discretion in finding that A.S.'s testimony was relevant to the overall question of Mr. Sexsmith's guilt. More Probative than Prejudicial ¶27 The trial court weighed the probative value of A.S.'s testimony against its potential for prejudice on the record. Based on the effect of Mr. Sexsmith's general denial of the charges, which meant that every element of the offenses was at issue, and the fact that credibility was central to the outcome of the case, the trial court determined that A.S.'s testimony was "clearly more probative than prejudicial." RP at 35. Nothing in the record demonstrates that the court abused its discretion or based its decision on untenable grounds or reasons. The court did not err in admitting evidence of A.S.'s abuse by Mr. Sexsmith. Harmless Error ¶30 In addition, Mr. Sexsmith admitted to anal intercourse during the taped conversations he had with C.H. These conversations were played for the jury. This evidence, taken with C.H.'s testimony regarding the sexual abuse, overwhelmingly supports the jury's verdict of guilt. There is no reasonable probability that the outcome of this trial would have been different had the trial court suppressed A.S.'s testimony. Any potential error here is harmless. B. First Degree Incest ¶31 Mr. Sexsmith asserts that there was insufficient evidence to support his conviction for first degree incest. ¶32 A person is guilty of first degree incest if he or she knowingly engages in sexual intercourse with a person who is related to him or her as a descendant. Former RCW 9A.64.020(1) (1989). The term "descendant" includes stepchildren younger than 18 years of age. Former RCW 9A.64.020(3). ¶33 The State concedes that there was no evidence presented at trial that C.H. was Mr. Sexsmith's descendant at the time the abuse occurred. Therefore, both the State and Mr. Sexsmith agree that his conviction for first degree incest should be reversed. ¶35 Mr. Sexsmith was sentenced to a concurrent sentence of 280 months based on the maximum term of confinement for his most serious offense, second degree child rape. There is no doubt that, upon remand, Mr. Sexsmith would receive the same sentence from the trial court. Therefore, we do not remand for resentencing. ¶36 We reverse the conviction for first degree incest. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW ¶37 Mr. Sexsmith presents this court with a statement of additional grounds for review in which he claims that (1) the trial court erred by admitting videotaped evidence; (2) the trial court erred by denying his motion for a new trial; (3) the trial court erred by failing to permit Mr. Sexsmith a special hearing regarding the identity of the person on the videotape; (4) he received ineffective assistance of counsel; (5) the prosecutor committed misconduct by excluding a potential witness from the courtroom, suborning perjury, accepting stolen videotapes, and altering the evidence; (6) the trial court gave the jury the impression that the court favored the State's position; and (7) there was insufficient evidence to support his convictions for possession of depictions of a minor engaged in sexually explicit conduct, with sexual motivation. Each of these claims is without merit. Admission of the Videotape, Denial of Motion for Retrial, and Denial of Request for Special Hearing ¶38 Mr. Sexsmith disputed at trial, and continues to dispute, that the individual depicted on the videotapes shown to the jury is C.H. The admission of the tape was the basis for his request for a special evidentiary hearing and for a new trial. Ineffective Assistance of Counsel Prosecutorial Misconduct Interrogation by the Court Sufficiency of the Evidence ¶50 We reverse the conviction for first degree incest. We affirm the remaining convictions and the sentence. SCHULTHEIS, A.C.J., and KATO, J. PRO TEM., concur.