 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 68219-9-1
                       Respondent,
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                                                UNPUBLISHED OPINION               Ztt    O     ~V-

RUBEN RUIZ-SORIA,                                                                 _—



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      Grosse, J. — Errors under Evidence Rule (ER) 404(b) are harmless

unless, within reasonable probabilities, the outcome of the proceedings would

have been materially affected had the error not occurred. The trial court in this

case properly admitted prior misconduct evidence under ER 404(b) but did not

give a proper limiting instruction. We conclude, however, that the instructional

error was harmless, and therefore affirm.

                                      FACTS

       Based on allegations that Ruben Ruiz-Soria sexually assaulted his

daughters A.R. and W.C., the State charged him with one count of second

degree rape of a child and one count of first degree child molestation.

       Before trial, the State moved to admit evidence that Ruiz-Soria had

sexually assaulted the children's aunt, B.C., 15 years earlier. Over defense
counsel's objections, the court admitted the evidence under both RCW 10.58.090

and ER 404(b), stating in pertinent part:

       [T]he testimony is that [B.C.] was raped approximately five times by the
       defendant in Mexico in the mid-1990s ..., when she was between the age
       of 10 and 12.
No. 68219-9-1/2

             With regard to the similarity of the prior acts, there are some
      substantial and I think fairly significant similarities. The contact was
      of a sexual nature with a young girl under the age of consent. The
      victim was a relative or the relative of his girlfriend at the time. He
      allegedly raped the girls when they were vulnerable; their mothers
      were away from the home. [B.C., A.R., and W.C] were all close to
      the same age when the alleged misconduct occurred. And the
      defendant allegedly convinced all three to keep quiet about the
      abuse through threats of harm to Maximina.

             The appellate courts have repeatedly found that the
      evidence or prior sex offenses is highly probative. I believe that
      [B.C.'s] testimony about having been raped and then threatened
      with harm to Maximina is very probative.          It's evidence that
      supports the State's allegation that the defendant is sexually
      attracted to young girls and that he's willing to take steps to fulfill
      that attraction.
             The evidence though, is also very highly prejudicial to the
      defendant....

             Given the substantial similarity of [B.C.'s] story to that told by
      [A.R. and W.C] and the ability of the parties and the court to
      fashion an appropriate limiting instruction, the court will allow the
      State to offer testimony from [B.C.] that she was raped by the
      defendant and then threatened to induce her to keep silent about it.

            Under [ER] 404(b), the biggest concern that I had about. . .
      the common scheme or plan exception was the fact that the
      incidents occurred so far apart in time.             But in State v.
      DeMincentis. 15[0] Wn.2d 11, [74 P.3d 119 (2003)], which is a
      2003 case, the Supreme Court basically said that incidents of
      sexual misconduct, even if they're 15 years apart, can still be
      evidence of a common scheme or plan. Basically, the fact that the
      alleged incidents were committed in a similar way and under similar
      circumstances is sufficient under the DeMincentis case to be
      admissible under ER 404(b).
              So given the circumstances of the proffer that's been made
      to the court, I would independently find the evidence admissible
      under the common scheme or plan exception to ER 404(b).

      At trial, Maximina Cortes testified that she and Ruiz-Soria have four

daughters: R.R. (17 years old at trial), A.R. (15), W.C. (14), and S.C. (5). The
three oldest girls were born in Mexico in the 1990s.
No. 68219-9-1/3

       Maximina testified that her relationship with Ruiz-Soria was marred by

domestic violence. He hit her frequently, often in front of the children. Her sister,

B.C., witnessed several of these incidents in Mexico.

       In 1997, Ruiz-Soria left the family to live in the United States. Maximina

joined him in 2001, but soon went back to Mexico to retrieve their daughters.

When she returned to the United States, she learned that Ruiz-Soria had been

involved with   another woman        and   had fathered    two   children with   her.

Nevertheless, Maximina and the girls moved into a Seattle apartment with him.

       Maximina testified that after about six months, Ruiz-Soria began coming

home from work drunk and angry. If she asked where he had been, he would

beat her and tell her that it was none of her business. The children were afraid

and would often ask her if she was okay.

       In the fall of 2006, her daughters told her they wanted to talk to her in

R.R.'s bedroom.     A.R. disclosed that Ruiz-Soria had sexually assaulted her.

Maximina angrily confronted him. When he denied the allegations, Maximina

had A.R. repeat her allegations. Ruiz-Soria then said A.R. was telling the truth.

Maximina told him to leave and took the girls to the park.

       A week later, Maximina returned home from work to find Ruiz-Soria in the

house. He had cooked and cleaned and said, "I already talked to my daughter,

so I'm going to stay and live with you." Maximina again told him to leave. She
testified that he never lived with the family again.

       On July 11, 2009, the family attended a special mass for R.R.'s 15th
birthday. Two days later, on July 13, Maximina, her daughters, and other
No. 68219-9-1/4


relatives gathered at the Rose Garden in Portland, Oregon. W.C.'s godmother

told Maximina that Ruiz-Soria had done something to W.C.

      In August 2009, Maximina obtained a restraining order against Ruiz-Soria

and started taking A.R. and W.C. to counseling. Maximina eventually reported

the incidents to the police, who took statements from A.R. and W.C in the

presence of their aunt, B.C.    After the officers left, B.C. started crying and

disclosed that Ruiz-Soria had sexually assaulted her when she was a child in

Mexico.

      A.R. testified that in 2005 or 2006, when she was approximately 10 years

old, Ruiz-Soria sexually assaulted her while her mother was at work. A.R. was

babysitting her sister, S.C, when Ruiz-Soria came home from work. While A.R.

was making his bed, Ruiz-Soria came out of the bathroom and told her to pull

down her pants. He was wearing his work clothes, including black and white

striped pants. A.R. was scared and took off her red pajamas and underwear.

Ruiz-Soria laid her down on the carpet, took out his penis, and put it inside her.

A.R. cried from the pain. When Ruiz-Soria saw her tears, he stopped. He gave

her some candy and said that if she told anyone something would happen to her

sisters and her mother.

      A.R. said she first mentioned the incident one year later when she told

R.R. She shared a room at the time with W.C. and R.R. She woke R.R. up and

told her everything. The next day, R.R. told Maximina when she arrived home
from work.    Maximina, R.R., and A.R. then went into the living room and

confronted Ruiz-Soria. A.R. recalled sitting on the couch with Maximina. Ruiz-

Soria pulled up a chair and sat down. Maximina repeated A.R.'s allegations and

                                        4
No. 68219-9-1/5


Ruiz-Soria denied them. A.R. said, "Why are you lying, you know you did this[.]"

Ruiz-Soria said, "But she liked it." A.R. became angry and said, "No, I didn't.

Why would I like it?" According to A.R., Maximina told Ruiz-Soria to get his

things and leave. She then took all three girls to the park and they discussed

what to do next.

       Ruiz-Soria returned the next morning while Maximina was at work.          He

brought groceries in and asked A.R. to forgive him, which she did.            When

Maximina came home, "she didn't know what to do" because A.R. was asking

her to let Ruiz-Soria stay.   He ended up staying with them for months before

going back to Mexico.    He returned from Mexico after about a year but never

lived with them again.

      A.R. testified that at some point after Ruiz-Soria returned from Mexico,

Maximina reported A.R.'s allegations to police.     All her sisters and B.C. were

present when the police came to their apartment.

      On cross-examination and re-direct, A.R. had difficulty with dates and the

sequence of events, particularly the events occurring in the summer of 2009.

She said she did not learn of W.C.'s abuse until after Ruiz-Sorias left for Mexico.

      Thirteen-year-old W.C. testified that Ruiz-Soria molested her when she

was 8 years old. Maximina was at work and she was watching television in her

parents' bedroom with her sisters and Ruiz-Soria. She left the room briefly, and

when she returned her sisters were asleep. Ruiz-Soria was on the floor saying,

"Come and lay down with me." W.C lay beside him and he started rubbing her

vagina over her clothing. This went on for 5 to 10 minutes before she got up and
No. 68219-9-1/6

left the room. Later, Ruiz-Soria came to her room and told her not to tell anyone

or something would happen to her mother.

       W.C.'s recollection of A.R.'s disclosure to Maximina mirrored A.R.'s. W.C.

said she and R.R. were in the bedroom when A.R. told Maximina.             When

Maximina confronted Ruiz-Soria, he denied the allegations. W.C. remembered

him "saying that [A.R.] wanted it to happen." Maximina told him to leave and

then took the girls to the park. Ruiz-Soria continued to live with them until he

went away to Mexico.

       W.C. testified that in the summer of 2009, she and her sisters went to the

Rose Garden in Portland, Oregon with Maximina and extended family members.

W.C.'s godmother asked W.C. if Ruiz-Soria had ever done anything to her. W.C.

said, "[H]e tried to do something." She testified that she was scared and not

ready to tell her godmother the entire truth. Shortly after her disclosure, she

began seeing a counselor. She eventually told the counseloreverything and also

told her story to the police.

       On cross-examination, W.C. said she and A.R. discussed their abuse

before A.R. disclosed to Maximina. This conflicted with A.R.'s testimony that she

did not know about W.C.'s abuse until much later.

       Maximina's sister, B.C., testified that Ruiz-Soria sexually assaulted her

several times in Mexico when she was between 10 and 12 years old. He came

by her house when her mother was working, took her to a room, removed her
clothes from the waist down, and put his penis in her vagina. When he finished,

he told her not to tell anyone or Maximina would "pay the consequences." B.C.
interpreted this as a threat to hit Maximina because she had seen him hit and
                                        6
No. 68219-9-1/7

kick her before. Ruiz-Soria had intercourse with B.C. six to eight times. Based

on B.C.'s age, the incidents occurred sometime between 1995 and 1997. B.C.

testified that she first told Maximina about the incidents in January 2011.

       R.R. corroborated the testimony of her sisters regarding A.R.'s initial

disclosure to R.R. and Maximina. R.R. did not learn of W.C.'s abuse until July

2009. She testified that Ruiz-Soria and Maximina argued frequently, especially

when he was drinking, and that he slapped and hit her.

       Seattle Police officer Kayla Cockbain testified that she and another officer

took statements from A.R. and W.C. on October 5, 2010. A.R. became visibly

upset during her interview. She did not "go to her [mother] for answers" when

describing the incident. W.C. became "very upset and began to cry" during her

interview.

         Seattle Police Detective Michael Moore testified that he interviewed A.R.

and W.C. on October 26, 2010.        He also interviewed Maximina and B.C. by

phone.

         The defense called no witnesses. In closing argument, defense counsel

argued that there was reasonable doubt based on a paucity of details, delayed
reporting, inconsistent chronologies, and Maximina's motive to fabricate the
allegations. Counsel repeatedly pointed out that allowing Ruiz-Soria to live with
the family after A.R.'s disclosure was inconsistent with the allegations of abuse.
Similarly, he pointed out that B.C.'s decision to live with the family in Seattle

despite her claim that Ruiz-Soria repeatedly raped her when she was a child in
Mexico was also incredible.

         The jury convicted Ruiz-Soria as charged. He appeals.

                                          7
No. 68219-9-1/8

                                    ANALYSIS

      Ruiz-Soria contends the trial court abused its discretion by admitting

B.C.'s allegations of prior sexual misconduct under RCW 10.58.090 and ER

404(b). The State concedes that, under State v. Gresham,1 the court erred in
admitting the evidence under RCW 10.58.090. It argues, however, that the court

properly admitted the evidence under ER 404(b). We agree with the State.

       Under ER 404(b),2 evidence of prior misconduct may be admitted to show
a common scheme or plan if it is "'(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.'"3      Ruiz-Soria challenges the trial court's
application of the second and fourth elements of this test.

      As to the second element, he correctly points out that a common scheme

or plan "may be established by evidence that the Defendant committed markedly

similar acts of misconduct against similar victims under similar circumstances."4
Evidence of such a plan "'must demonstrate not merely similarity in results, but

such occurrence of common features that the various acts are naturally to be




1 173 Wn.2d 405, 269 P.3d 207 (2012).
2 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.
3 State v. DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003) (quoting State v.
Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)).
4 Lough, 125Wn.2dat852.
                                          8
No. 68219-9-1/9

explained as caused by a general plan of which the charged crime and the prior

misconduct are the individual manifestations.'"5

      Contrary to Ruiz-Soria's assertions, the incidents involving A.R., W.C,

and B.C. share sufficient common features to support a conclusion that they

were manifestations of a general scheme or plan. The girls were similar in age

and were related to Ruiz-Soria. The sexual assaults occurred when the girls'

mothers were at work. The acts were facilitated by Ruiz-Soria's position of trust.

Finally, and   most significantly, Ruiz-Soria      accomplished these acts by

threatening the girls in a unique manner. Instead of threatening to harm the girls

if they disclosed the acts, he threatened to harm Maximina—a person the girls

knew he had harmed in the past. These common features are supported by the

record and are sufficient to demonstrate a common scheme or plan under ER

404(b).6
      The trial court was also well within its discretion in concluding that the

probative value of B.C.'s testimony outweighed its prejudicial effect. "Generally,

courts will find that probative value is substantial in cases where there is very

little proof that sexual abuse has occurred, particularly where the only other

5 DeVincentis. 150 Wn.2d at 19 (quoting Lough. 125 Wn.2d at 860).
6 See e&, State v. Kipp, _ Wn. App. _ , 286 P.3d 68, 72-73 (2012) (facts
showed common scheme or plan where victims were of similar ages, were
defendant's nieces, and were molested in his house and their grandparents'
house); Gresham. 173 Wn.2d at 422-23 (evidence showed common scheme or
plan where defendant took trips with young girls and fondled their genitals at
night when other adults were asleep); State v. Kennealv. 151 Wn. App. 861, 889,
214 P.3d 200 (2009) (facts showed "design or pattern to gain the trust of
children. . . in order to sexually molest them" where charged victims were
between ages of 5 and 7 and lived in same complex, uncharged victims were
nieces and daughter between ages of 7 and 13, acts with all victims occurred out
of view of others, children trusted defendant because of family relation or gifts
and conversation, victims were touched under and outside of their clothing on
their vaginas, and sexual acts occurred more than once with most of the victims).
                                        9
No. 68219-9-1/10

evidence is the testimony of the child victim."7 Here, the State's case rested

almost entirely on the credibility of A.R. and W.C. As the prosecutor noted in

closing, "the issue in this case is really going to be about credibility. You're going

to be asked to talk about do you believe these people." In addition, as the trial

court recognized, B.C.'s testimony was necessary to rebut Ruiz-Soria's defense:

       But the defense theory of the case as I understand it, is that the
       children have fabricated these stories. I think the theory was ... to
       help the mother in some way obtain revenge against the defendant
       either for having abandoned them when he went to Mexico or for
       some other reason relating to their relationship.
               If this is the theory being advanced, then [B.C.'s] testimony
       would arguably be necessary to demonstrate an existence of a
       sexual attraction to children that predates any alleged fabrications
       by these two girls.

The court did not abuse its discretion in concluding that the probative value of

B.C.'s testimony outweighed any resulting prejudice.

       Ruiz-Soria next contends the trial court erred in failing to give an

instruction limiting the jury's use of the misconduct evidence to prove a common

scheme or plan. The State responds that Ruiz-Soria either failed to preserve or

invited the error.   The State overlooks the fact that an ER 404(b) limiting

instruction could not have been given at trial because the evidence was also

admitted under RCW 10.58.090. That statute allowed juries to use misconduct

evidence for the very purposes disallowed by ER 404(b).8 Because the statute
was declared unconstitutional after his trial, thus leaving ER 404(b) as the only

basis for admitting the misconduct evidence, Ruiz-Soria is entitled to argue for

the first time in this court that the jury should have received a proper limiting

instruction.


7State v. Sexsmith. 138 Wn. App. 497, 506,157 P.3d 901 (2007).
8 See Gresham. 173 Wn.2d at 429-30.
                                         10
No. 68219-9-1/11

          Ruiz-Soria correctly points out that when a court admits evidence under

ER 404(b), the defendant is entitled to an instruction informing the jury of the

specific purpose of the evidence and prohibiting them from using it to conclude

that the defendant has a particular character and acted in conformity with that

character.9 No such instruction was given in this case. That omission was
         10
error.


          The remaining question is whether the error was harmless. Error of this

nature is harmless unless "'within reasonable probabilities, had the error not

occurred, the outcome of the trial would have been materially affected.'"11 We
conclude, for several reasons, that there is no reasonable probability the

outcome would have been different had a proper limiting instruction been given.

          First, while the instruction regarding the misconduct evidence allowed the

jury to use it for "any matter to which it is relevant," it also emphasized that the

evidence was contextual in nature and not to be given conclusive weight:

                   In a criminal case in which the defendant is accused of an
          offense of sexual assault or child molestation, evidence of the
          defendant's commission of another offense or offenses of sexual
          assault or child molestation is admissible and may be considered
          for its bearing on any matter to which it is relevant.
                   However, evidence of a prior offense on its own is not
          sufficient to prove the defendant guilty of the crimes charged
          in this case. Bear in mind as you consider this evidence at all
          times the State has the burden of proving that the defendant
              committed each of the elements of the offenses charged in



9 Gresham, 173 Wn.2d at 423-24; see State v. Griswold, 98 Wn. App. 817, 825,
991 P.2d 657 (2000) ("[T]he court should give limiting instructions to direct the
jury to disregard the propensity aspect of the evidence and focus solely on its
evidentiary effect tending to show common scheme or plan.").
10 Gresham. 173 Wn.2d at 424-25.
11 Gresham, 173 Wn.2d at 433 (quoting State v. Smith, 106 Wn.2d 772, 780, 725
P.2d951 (1986)).
                                           11
No. 68219-9-1/12


       this case. I remind you that the defendant is not on trial for any
       act, conduct, or offense not charged in this case.12

       Second, both defense counsel and the prosecutor told the jury that the

evidence had a limited purpose. Defense counsel stated:

       I mean, the idea is that he's not on trial for what he did to [B.C.].
       The State is saying look at this, you need to use it to evaluate the
       credibility of what [A.R.] and [W.C] are saying ....
             The idea is that we have to instruct you regarding this
       because the danger is well, a rapist in 1996 who gets [B.C.]
       must be a rapist in 2006 against some child, is to try and make
       sure you don't make that connection.13

Similarly, the prosecutor argued that B.C.'s testimony "shows that this man has a

pattern and an approach to children of that age and what he wants to do with

them."14 Thus, both counsel indicated that the evidence was admitted to show a

common scheme or plan.15 In addition, the prosecutor barely mentioned the
misconduct evidence and never encouraged the jury to use it for propensity.16
       Third, the victims' testimony regarding the incidents and disclosures was

detailed, relatively consistent, and largely corroborated by their older sister R.R.,

who was not herself a victim.




12 (Emphasis added.)
13 (Emphasis added.)
14 (Emphasis added). Contrary to Ruiz-Soria's assertions, the prosecutor's
statement later in closing argument that the misconduct evidence was "about. . .
understanding that the defendant likes young girls" was not a propensity
argument. Viewed in the context of the prosecutor's earlier argument quoted
above, this argument was simply referring to his common scheme or plan.
15 State v. Williams. 156 Wn. App. 482, 492, 234 P.3d 1174, 1178 (2010) ("[T]he
prosecutor effectively gave the jury a limiting instruction during closing argument"
by telling them they could not consider prior convictions for propensity and could
only consider it for "a common scheme or plan.").
16 Citv of Seattle v. Patu. 108 Wn. App. 364, 377, 30 P.3d 522 (2001) (noting that
City "did not argue that the conviction made it more likely that Patu was a bad
person or that he had a propensity to obstruct the police").
                                         12
No. 68219-9-1/13


       Fourth, there is some merit to the State's observation on appeal that while

the use of misconduct evidence to show a common scheme or plan is proper and

the use of the same evidence for propensity is improper, the two uses are similar.

Misconduct evidence cannot be used to show propensity, i.e., to show that the

defendant has a certain character and acted in conformity with that character.

State v. Gresham. 173 Wn.2d at 423-24.          But such evidence can be used to

show that the defendant's conduct in the current case conformed with the

conduct alleged in the prior allegation. State v. Gresham. 173 Wn.2d at 424. As

the prosecutor notes on appeal:

              It is a fine line indeed, and a difficult one to distinguish,
       between a jury being able to find that the defendant's character as
       a child rapist (evidenced by his rape of B.C.) showed he raped
       [A.R. and W.C], and that the defendant's rape of B.C. showed he
       had a common scheme or plan to rape [A.R. and W.C.]. In other
       words, in a case like this, the proper use of the evidence for [ER]
       404(b) purposes, and the improper use of the evidence, is almost
       indistinguishable.

Considering the subtlety of this distinction, it is highly unlikely that a proper

limiting instruction would have affected the jury's verdict.

       Finally, given the evidence presented, the defense theory that Maximina

orchestrated the allegations strained credulity. As the prosecutor noted:

             This plan, for which there is no evidence, . . . doesn't make
       any sense. . . . [H]ow did it come out? It didn't come out through
       mom; it came out through [R.R.] Why get her involved if she's not
       involved in the conspiracy? That would mean that mom would
       have to get [A.R.] - listen, [A.R.], I want you to tell [R.R.] about your
       dad having sex with you. Tell [R.R.] and [R.R.] obviously will tell
       me and then I can confront him. But when we confront him, I'll kick
       him out and then let him back in, then I'll sit on it two years, and
       then two years from now, [W.C], she'll come up and say something
       too. And then, you know, we'll really go after him. And then we'll
       call the police like four or five months after that. Please.


                                          13
No. 68219-9-1/14


       Considering the evidence, instructions, and arguments in this case, there

is no reasonable probability that the outcome would have been different absent

the error.

       Affirmed.



                                                         ^s-yiv      1
WE CONCUR:




      KSiC^i       M-




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