Opinion
No. 58465-1-I.
November 13, 2007.
Robert Teall appeals his conviction on charges of child rape, sexual molestation, and unlawful delivery of a controlled substance to a person under 18 years old. He argues that the trial court abused its discretion when it admitted evidence that he raped and molested two former stepdaughters more than 20 years before the current charges were brought. But the trial court did not abuse its discretion when it admitted evidence of the prior acts because they were substantially similar to the current charges, and the court properly balanced their probative value against their prejudicial effect.
Teall also contends that the evidence was not sufficient to prove that the substance he smoked with the current victim was methamphetamine. But the victim's description of the substance, how she smoked it, and its effects were consistent with the State toxicology expert's description of methamphetamine. We affirm.
FACTS
Robert Teall married Sharon Fishler when her daughter, C.G., was a toddler. Fishler divorced Teall in 1999, mainly because she could not tolerate his illegal drug use. C.G. was four years old at the time and had never known her biological father. She thought of Teall as her father.
Fishler and Teall remained friends, and in the summer of 2004, Fishler temporarily needed someone to care for C.G. Teall agreed to help that summer and continued to care for C.G. at times during the school year when Fishler was at work.
On June 21, 2005, Fishler came home from work, and nine-year-old C.G. told Fishler that she would be proud because C.G. did not smoke that day. Fishler asked C.G. what she was talking about, and C.G. explained that "Dad" let her smoke, but she knew it was not good for her. C.G. described putting a white substance on aluminum foil, holding a lighter underneath the foil, and inhaling through a straw. Fishler asked what else Teall had been doing. C.G. said Teall touched her privates, showed her movies of people having sex, and rubbed his privates until "gross white stuff came out." Over the course of an hour or two, C.G. described other sexual abuse by Teall, including penetration of her vagina and anus with his finger, penis, and a dildo.
Fishler reported what C.G. said to the police in Federal Way. Teall was charged with three counts of rape in the first degree, one count of child molestation in the first degree, and violation of the Uniform Controlled Substances Act — Distribution to Persons Under Age Eighteen.
Before trial, the State asked the court to admit evidence that Teall had sexually assaulted two former stepdaughters, Becky and Denise Hensen. Both of them testified in a pretrial hearing. Afterward, the court ruled that they would be allowed to testify at trial about Teall's prior bad acts to show a common scheme or plan under ER 404(b).
A jury convicted Teall of each of the crimes charged. This appeal followed.
Analysis Prior Bad Acts
Teall contends that the trial court erred when it admitted evidence of conduct that occurred more than 20 years earlier. He argues that the evidence was too old to be particularly relevant and was more prejudicial that probative.
Evidence of prior bad acts is presumed to be inadmissible. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Such evidence of prior bad acts is not admissible to prove a defendant has a criminal propensity, but under ER 404(b), it may be admissible as proof of a common scheme or plan. ER 404(b) provides:
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.
To bring in evidence of prior bad acts under the common scheme or plan exception of ER 404(b), the State must meet a substantial burden. DeVincentis, 150 Wn.2d at 17. "The prior acts must be `(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.'" Id. (quoting State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)). The prior conduct and current acts need not constitute unique ways of committing the crime, but the current and past incidents must be substantially similar. DeVincentis, 150 Wn.2d at 21. The acts must demonstrate such a concurrence of common features that they may naturally be explained as manifestations of a general plan. Id. A decision to admit evidence under ER 404(b) is reviewed for an abuse of discretion. DeVincentis, 150 Wn.2d at 17. A trial court abuses its discretion when the exercise of discretion is manifestly unreasonable or is based upon untenable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
The first and second steps of the Lough test are not at issue in this case. First, the prior acts were proved by a preponderance of the evidence because Teall pled guilty in 1982 to indecent liberties without forcible compulsion for acts against Denise and was convicted in 1986 of first degree rape of a child and indecent liberties for acts against Becky.
The 1986 conviction was overturned on procedural grounds.
Next, the trial court made clear that the purpose for admitting the prior bad acts was to prove a common scheme or plan. The court concluded that although each detail alone did not show a common scheme or plan, when combined the details established a plan to groom and then abuse the girls.
The third and fourth steps of the Lough test are at issue. Teall argues that the evidence of his prior misconduct was not relevant because it was too remote. In support of his argument, he cites State v. Ness, 707 N.W.2d 676 (Minn. 2006). But that case is not controlling. Furthermore, it undermines, rather than supports, Teall's argument.
Ness was a retired elementary school teacher and administrator. He began working as a teacher in 1948 and retired in 1992, after which he taught art in a community education program. One day in 2002, an 11 year old boy attended a class that Ness taught. Except for one teenage girl, all of the other students in the class were adults. At the end of the day, the boy reported to his mother that Ness had touched him inappropriately at least five times during the class. The boy said that Ness would come over and ask if he needed help, then would sit down and help him to paint, but would also touch him on his stomach and penis.
A woman in the class saw Ness's hand move down the boy's back, to his waist, around to the front of his lower body, and out of sight. She became concerned. After the class, she gave the boy her telephone number and asked him to have his mother call her. After talking with the woman, the mother contacted the police.
At trial on a charge of second degree criminal sexual conduct, Ness asserted that he touched the boy only on his back and legs, and the touches were not sexual. The court allowed a 43 year old man, Jeffrey Caron, to testify regarding acts that he claimed Ness committed when Caron was a student at the elementary school where Ness was the principal. Caron testified about two occasions when he was sent to Ness's office to be disciplined. In both instances, Ness allegedly groped himself when he sat next to Caron. The first time, Ness grabbed Caron's thigh, then slid his hand up to Caron's groin area. On the second occasion, Ness kept his hand on Caron's inner thigh. Caron testified that he did not tell anyone about the incidents with Ness until he was in substance abuse treatment at the age of 25. The district court found Ness guilty. The court of appeals affirmed. The Supreme Court of Minnesota affirmed, but held that the admission of the Caron evidence was error.
On appeal, Ness argued that the evidence of his prior acts was not relevant because the amount of time between the two incidents was too great. The State contended that the passage of time between the incidents was not significant because the incidents were similar. The court held that a balancing act should be employed; the longer the time between acts, the more similarities are required between the place and modus operandi of the acts for the prior acts to retain relevance. The court held that the incidents with Caron were too remote to retain relevance because they occurred 35 years before the charged offense and were not markedly similar. Ness, 707 N.W.2d at 689.
In contrast, in this case Teall's acts with Becky and Denise were markedly similar to the acts with C.G. The trial court noted the following similarities:
Teall got himself into situations where he had access to children. He isolated each girl from her mother and began sexually abusing each one before the age of ten, when they were particularly vulnerable. All three girls looked remarkably similar. Teall told each one to keep his acts secret. He disciplined and threatened the girls. He physically, verbally, and emotionally abused them. He bent their fingers back and made them cry.
Teall exposed himself to each girl. He touched their breast and vaginal areas. He penetrated them digitally, and also with either a dildo or a vibrator. He showed Becky and C.G. pornography. He also offered all three girls drugs. With Becky and Denise, he smoked marijuana and blew the smoke into their faces. With C.G., he smoked methamphetamine.
Teall denied that he molested C.G. and gave her drugs. The prior acts tended to disprove his defense. "When the existence of the criminal act is at issue, evidence of substantially similar features between a prior act and the disputed act is relevant." DeVincentis, 150 Wn.2d at 20. Moreover, when a defendant is charged with child rape or sexual molestation, a pattern of past behavior showing a design to fulfill sexual compulsions is probative of the defendant's guilt. DeVincentis, 150 Wn.2d at 17-18. Teall was charged with both rape and sexual molestation of C.G., which he disputed, and his past behavior with Denise and Becky was substantially similar to the incidents with C.G. Therefore, even though more than 20 years had passed between the incidents with Becky and Denise and those with C.G., the prior acts retained their materiality and probative value.
Furthermore, contrary to what Teall argues, the trial court did not ignore the great amount of time that had passed between Teall's prior bad acts and the current charge. The judge acknowledged that Teall's prior acts were more remote than evidence of prior misconduct that the State had offered in other cases she had heard. She emphasized, however, that the similarities in this case were so great that the prior acts were relevant.
Teall further argues that the prior acts were more prejudicial than probative and should not have been admitted for that reason as well. But the trial court did not abuse its discretion when it concluded otherwise.
Substantial prejudicial effect is inherent in ER 404(b) evidence. Lough, 125 Wn.2d at 863. Therefore, prior bad acts are admissible only if their probative value is substantial. Id. The incidents involving Becky and Denise were highly probative. And, as the trial court recognized, the need for evidence of prior similar acts is especially great in cases involving the sexual abuse of children, considering
the secrecy in which such acts take place, the vulnerability of the victims, the absence of physical proof of the crime, the degree of public opprobrium associated with the accusation, the unwillingness of some victims to testify, and a general lack of confidence in the ability of the jury to assess the credibility of child witnesses.
State v. Krause, 82 Wn. App. 688, 696, 919 P.2d 123 (1996) (quoting State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993)). The trial court had tenable reasons for concluding that the evidence admitted under ER 404(b) was more probative than prejudicial.
Citing State v. Holmes, 122 Wn. App. 438, 93 P.3d 212 (2004), Teall contends that the testimony of Becky and Denise improperly bolstered C.G.'s credibility. But Holmes is distinguishable and, therefore, is not persuasive. Holmes involved remarks elicited by the State that invited the jury to infer the defendant's guilt from his failure to assert his innocence when he was arrested for raping and sexually molesting three young sisters.
On appeal, this court concluded that even if the remarks were not a direct comment on Holmes' failure to immediately deny the charges, they likely were prejudicial, especially because the prosecutor exploited the comments during closing argument. "It is fundamentally unfair, and a violation of due process, to allow an arrested person's silence to be used to impeach an exculpatory explanation offered by that person at trial." Holmes, 122 Wn. App. at 443. The outcome of the case against Holmes depended on the jury's evaluation of his credibility as compared to the credibility of the victims. Therefore, even though the consistent testimony of the three girls was compelling, this court was not convinced beyond a reasonable doubt that the jury would have reached the same result absent the untainted evidence. Holmes, 122 Wn. App. at 447.
No one improperly commented on Teall's silence at trial. This court, therefore, need not decide whether the outcome of his trial would have different absent the testimony about Teall's prior bad acts. At issue is whether the trial court abused its discretion when it concluded that the testimony was more probative than prejudicial. The court did not abuse its discretion.
Evidence That Teall Delivered Methamphetamine
Teall argues that the evidence was insufficient to find him guilty of delivering a controlled substance to a person younger than 18 years old under RCW 69.50.406. He contends the State did not prove that the substance he provided to C.G. was methamphetamine.
Evidence is sufficient if, when viewed in the light most favorable to the State, any reasonable trier of fact could find guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence, and reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
To prove Teall guilty of unlawfully delivering a controlled substance to a minor, the State was required to prove beyond a reasonable doubt that the substance he smoked with C.G. was methamphetamine, a controlled substance. RCW 69.50.401(1); RCW 69.50.406. See also State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994) (State must establish the nature of the substance in prosecution for unlawful possession). Teall argues that because the white powdery substance that C.G. smoked was never found or tested, the State did not prove that it was methamphetamine. But expert chemical analysis was not required to prove that the white powder was methamphetamine. State v. Hernandez, 85 Wn. App. 672, 676, 935 P.2d 623 (1997). "Circumstantial evidence and lay testimony may be sufficient to establish the identity of a drug in a criminal case." Hernandez, 85 Wn. App. at 675.
C.G. testified that Teall placed a white powdery substance on tinfoil, heated it with a lighter, and smoked it through a straw. She also said he sometimes smoked the substance using a pipe. She explained that the pipe was "so you can suck it in." After the substance was heated, it melted "into black stuff." C.G. testified that when she smoked the substance, she mainly used tinfoil, but she had used a pipe, too. The smoking made her feel dizzy and tired, and made her say disrespectful things to her mom. C.G. said that one time she could not sleep, so she stayed up all night. C.G.'s mother testified that she could recall times when she returned home from work and C.G. was unusually hyperactive and disobedient.
An expert from the State toxicology laboratory testified that methamphetamine typically is a white or off-white powder. Although it may be in pill form, "as somebody becomes more used to the effects and starts to pursue a greater intensity of the effects, they very often proceed to smoking the drug." The expert testified that when people smoke methamphetamine, a black residue frequently remains.
According to the expert, methamphetamine sometimes makes a person feel the need to be in constant motion, and it may keep the user awake. It also may cause dizziness or irritability. Or, a person may feel that their brain is moving so fast that everything else seems to be moving slowly.
Methamphetamine use may be confirmed by a test of the user's hair. The State tested C.G.'s hair, but it tested negative for methamphetamine. The expert explained, however, that evidence of methamphetamine use may not show up in a person's hair if, for example, the use was infrequent or the amount ingested was small.
Despite the lack of corroboration from the test of C.G.'s hair, the evidence was sufficient to prove that the substance C.G. smoked with Teall was methamphetamine. The conformity between C.G.'s description of the substance and the methods used for smoking it and the expert's description of methamphetamine strongly supports that conclusion.
CONCLUSION
The trial court did not abuse its discretion when it admitted the evidence that Teall raped and molested Becky and Denise, and the evidence was sufficient to prove that the substance Teall smoked with C.G. was methamphetamine. Teall's judgment and sentence is affirmed.