           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE

STATE OF WASHINGTON,                                   No. 68468-0-1


                           Respondent,

                   v.                                  UNPUBLISHED OPINION

KEVIN GARNETT LARSON, SR.,

                           Appellant.                  FILED: November 25, 2013

       Schindler, J. — In this prosecution for child molestation, the trial court properly

admitted evidence of prior sexual misconduct under ER 404(b) to rebut the defense of

accident or mistake and to show common scheme or plan. While the court failed to give

a proper limiting instruction, the court did not abuse its discretion in ruling that the error

was harmless and did not warrant a new trial. We affirm.

                                              FACTS

       The State charged Kevin Garnett Larson, Sr. with one count of first degree child

molestation of nine-year-old A.O. on September 20, 2010.1 Prior to trial, the State
moved to admit evidence that Larson had sexually assaulted A.O.'s mother B.O. several

years earlier, and had molested his nieces S.S. and L.W. many years earlier. The court

admitted the evidence under RCW 10.58.090.


       1RCW 9A.44.083. Although King County also charged Larson with molesting his niece, N.L
those charges were dropped when it was determined that the molestation occurred in Pierce County.
No. 68468-0-1/2


      At trial, the evidence established that in August 2010, Larson moved into an

apartment with his son Shon Larson, Shon's girlfriend B.O., their 16-month-old son, and

B.O.'s nine-year-old daughter A.O. Shon, B.O., and the children slept in the bedroom

and Larson slept on the living room couch.

      On September 19, 2010, Shon, B.O., and Larson spent the day watching

television and drinking beer and vodka. That evening, the children went to sleep in the

bedroom. Shon and B.O. fell asleep on a mattress in the living room and Larson fell

asleep on the couch.

      A.O. testified that she woke up in the middle of the night because she felt

something wet on her feet. The light from the television allowed her to see Larson

kneeling beside the bed. Her pajama bottoms were rolled up to her thighs and Larson

was sucking on her toes and licking her feet and shin. Her thighs were wet. Larson

eventually touched and licked A.O.'s genital area over her clothes. When A.O. rolled

over, Larson immediately left the bedroom and went into the bathroom. A.O. then ran to

her mother and woke her up.

       B.O. testified that around 4:00 a.m., A.O. came into the living room crying and

shaking. A.O. told her mother that Larson had been in her bedroom licking her legs.

B.O. said she had never seen A.O. so scared. B.O. shoved Larson out of the apartment

and followed him to a bus stop where she assaulted him. A passing police officerfound

her standing over Larson, crying and yelling hysterically. Shon corroborated B.O.'s

testimony.
No. 68468-0-1/3


        On cross examination, A.O. and B.O. testified that A.O.'s pajamas "were soaked"

after Larson left the bedroom. Defense counsel also elicited testimony from Shon about

the amount of beer Larson consumed that day and the fact that A.O. smelled strongly of

beer.


        Seattle Police Department Detective Jess Pitts testified that she tape-recorded

an interview with A.O. nine days after the incident. The court played the tape recording

for the jury. A.O.'s statements during the tape-recorded interview were consistent with

her testimony at trial.

        Joanne Mettler, a registered nurse practitioner and child abuse specialist,

testified that she examined A.O. the day after the interview with Detective Pitts. A.O.

made essentially the same allegations to Mettler that she had made previously to her

mother and Detective Pitts.

        L.W., Larson's niece by marriage, testified to incidents that occurred roughly 20

years earlier when she was between nine and 12 years old. One incident occurred

when she was standing at the bathroom sink. L.W. said that Larson gave her a "bear

hug" from behind and pressed what felt like an erect penis against her back. In another

incident when L.W. and Larson were wrestling and tickling each other, he pinned her

face-down and again pressed his erect penis against her back. L.W. told her sister S.S.

what happened and they agreed to never be alone with Larson. L.W. did not report the

incidents to anyone else until she was an adult.

        L.W.'s sister S.S. testified to incidents with Larson during roughly the same time

period. S.S. testified that when she was approximately five years old and sleeping at
No. 68468-0-1/4


Larson's house, she awoke to find him laying on top of her and moving rhythmically up

and down her leg. When he fell asleep several minutes later, S.S. moved to a bed

across the room.


       A similar incident occurred when S.S. was around 11 or 12 years old. S.S. said

she was sleeping on a couch at a relative's house and woke up to find Larson's hand

under her shirt holding her breast. S.S. told L.W. about the second incident but, like her

sister, did not report it to others until she was an adult. Over defense objections, the

trial court admitted photographs of L.W. and S.S. when they were children. The court

concluded the photographs were relevant to show the similarity in the ages of Larson's

victims and were not so prejudicial as to warrant exclusion under ER 403.

       B.O. testified to an incident that occurred in the same apartment four years

before the incident involving A.O. B.O. said that she awoke to find Larson licking her

genital area. Shon kicked Larson out of the apartment and they were estranged for

several years. After Larson later apologized for the incident with B.O., he and Shon

reconciled.


       At the close of the evidence, the court ruled that in addition to being admissible

under RCW 10.58.090, Larson's prior sexual misconduct was admissible under ER

404(b) to rebut the defense of accident or mistake.

       The jury convicted Larson of child molestation in the first degree of A.O. After

the verdict but prior to sentencing, the Washington Supreme Court held in State v.

Gresham, 173 Wn.2d 405, 429, 269 P.3d 207 (2012), that RCW 10.58.090 was

unconstitutional. Larson filed a motion for a new trial, arguing that absent RCW
No. 68468-0-1/5


10.58.090, the prior misconduct evidence was admissible only under ER 404(b).

Because the court had not given a proper limiting instruction, Larson claimed he was

entitled to a new trial. The court denied the motion for a new trial, ruling the error was

harmless because the other evidence against Larson was overwhelming. Larson

appeals.

                                        ANALYSIS

       Larson contends the trial court abused its discretion in admitting evidence of his

prior sexual misconduct under RCW 10.58.090 and ER 404(b). The State concedes

that under Gresham, the court erred in admitting the evidence under RCW 10.58.090.

But the State argues that the court properly admitted the evidence under ER 404(b).

We agree.

       We review evidentiary rulings for abuse of discretion. Gresham, 173 Wn.2d at

419. Under ER 404(b), evidence of prior sexual misconduct may be admitted to show,

among other things, common scheme or plan or the absence of mistake or accident.

       In this case, the court admitted Larson's prior sexual misconduct to show the

absence of mistake or accident. The defense theory at trial was that Larson is an

alcoholic, he was intoxicated while in a relatively unfamiliar apartment, and he stumbled

into the bedroom "where A.O. misconstrued his conduct." In closing argument, defense

counsel argued that what A.O. felt on her leg was "not saliva. It's beer. He spilled beer

on her. And that's what happened. He spilled beer on her, and in his own drunken

inept way he is trying to clean it up." But on appeal, Larson focuses exclusively on the

common scheme or plan basis for admitting the prior sexual misconduct evidence under
No. 68468-0-1/6


ER 404(b). Because common scheme or plan and absence of mistake are distinct

alternatives for the admission of evidence under ER 404(b), Larson's failure to provide

any argument or authority as to the latter basis for admitting the evidence is fatal to his

contention. RAP 10.3(a)(6); State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004);

see State v. Baker, 89 Wn. App. 726, 732-37, 950 P.2d 486 (1997) (distinguishing

common scheme or plan and absence of mistake or accident bases for admission under

ER 404(b)).

       Furthermore, even if Larson had properly challenged the court's basis for

admitting the evidence, he could not demonstrate an abuse of discretion. 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.121

       ER 404(b) misconduct evidence may be admitted to rebut a claim of mistake or

accident if it is sufficiently similar to the charged acts to "meet a threshold of

noncoincidence." Baker, 89 Wn. App. at 734-35. The threshold is crossed when the

recurrence of similar acts creates an improbability of coincidence that tends to negate a

defense of accident or mistake. Baker. 89 Wn. App. at 735. Under the doctrine of

chances, "recurrence or repetition of the act decreases the likelihood that the act was




         (Emphasis added.)
No. 68468-0-1/7


an accident."3

        Here, the repetition and similarity of Larson's prior acts support admission under

ER 404(b) to rebut the defense of accident or mistake. Larson had a familial

relationship or lived in the same household with all four victims. Larson took advantage

of the living situation to commit his offenses. With respect to S.S., B.O., and A.O., he

snuck into their rooms at night and sexually assaulted them while they were sleeping.

S.S., L.W., and A.O. were all young girls at the time Larson molested them. Although

B.O. was an adult victim, the manner in which Larson sexually assaulted her was

strikingly similar to the manner in which he molested A.O. In short, the repetition and

similarities between Larson's prior sexual misconduct and his current offense were

sufficient to demonstrate noncoincidence.4

        The prior acts of misconduct were also admissible to show a common scheme or

plan under ER 404(b). Prior misconduct evidence 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 Eric D. Lansverk, Admission of Evidence of Other Misconduct in Washington To Prove Intent or
Absence of Mistake or Accident: The Logical Inconsistencies of Evidence Rule 404(b), 61 Wash. L. Rev.
1213, 1226-28 (1986) ("The doctrine of chances may be used to negate a claim of accident by showing
the improbability that the act was inadvertent. . . . Under the doctrine, recurrence or repetition of the act
decreases the likelihood that the act was an accident or the result of a mistaken belief.... The judge
must decide whether sufficient similarity exists to justify a reasonable finding by a rational jury of
noncoincidental acts.... In making the threshold determination, judges must focus on the factors that
make the coincidence objectively or statistically improbable: repetition of and similarity between the
acts.").
        4See Baker, 89 Wn. App. at 735 (similarities in relationships, ages, scenarios, and touching
supported admission of prior acts evidence to rebut defense of accident).
No. 68468-0-1/8


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)).

        Larson contends the second and fourth factors are not satisfied here. As to the

second factor, 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." Lough, 125 Wn.2d at

852. 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 explained

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

the individual manifestations.'" DeVincentis, 150 Wn.2d at 19 (quoting Lough, 125

Wn.2d at 860). Contrary to Larson's assertions, there were marked similarities between

his prior misconduct and his molestation of A.O. As previously discussed, the incidents

with S.S. and L.W. occurred under circumstances markedly similar to those involving

A.O.5 And with the exception of the victims' ages, the sexual assault of B.O. was

essentially identical to the molestation of A.O.

        With respect to the fourth element, Larson contends the trial court abused its

discretion by concluding that the probative value of his prior misconduct outweighed its

prejudicial effect. "Generally, courts will find that probative value is substantial in cases

        5See e.g., State v. Kipp, 171 Wn. App. 14, 21-22,286 P.3d 68 (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).
No. 68468-0-1/9


where there is very little proof that sexual abuse has occurred, particularly where the

only other evidence is the testimony of the child victim." State v. Sexsmith. 138 Wn.

App. 497, 506,157 P.3d 901 (2007). Here, the State's case rested in large part on the

credibility of A.O. Moreover, the misconduct evidence was highly probative of the

defense theory of the case, i.e., that the touching was accidental or misinterpreted.

Accordingly, the court did not abuse its discretion in concluding that the probative value

of the prior misconduct evidence outweighed any resulting prejudice.

       Larson next contends, and the State concedes, that the trial court erred in failing

to give an instruction limiting the jury's use of the misconduct evidence to the purposes

for its admission under ER 404(b). 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. Gresham. 173 Wn.2d

at 423-24; see State v. Griswold, 98 Wn. App. 817, 825, 991 P.2d 657 (2000) ("the 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"). No such instruction was given in this case. That omission was error.

Gresham. 173 Wn.2d at 424-25.

       However, an error under ER 404(b) is harmless unless " 'within reasonable

probabilities, had the error not occurred, the outcome of the trial would have been

materially affected.'" Gresham. 173 Wn.2d at 433 (quoting State v. Smith. 106 Wn.2d

772, 780, 725 P.2d 951 (1986)). In denying Larson's motion for a new trial, the trial



                                              9
No. 68468-0-1/10


court ruled the error was harmless "because of the overwhelming nature of the

remainder of the evidence." We review a trial court's denial of a new trial for an abuse

of discretion. State v. Bourgeois. 133 Wn.2d 389, 406, 945 P.2d 1120 (1997); State v.

Slone. 133 Wn. App. 120, 130, 134P.3d 1217 (2006) ("We find no abuse of discretion

in the trial court's ruling that this violation of its order in limine was a nonprejudicial,

harmless error."). We conclude the court did not abuse its discretion for several

reasons.


       First, while Larson correctly points out that the court's instruction regarding the

misconduct evidence allowed the jury to use it for "any matter to which it is relevant," the

instruction 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 crime charged in the Information. 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
       offense charged in the Information. I remind you that the defendant is not
       on trial for any act, conduct, or offense not charged in the Information.[6]
       Second, the prosecutor repeatedly told the jury that the evidence had a limited,

nonpropensity purpose:

        Now, this testimony is not admitted again to show that Mr. Larson is a bad
       person or you shouldn't like him or any of those things. It's admitted to
       corroborate rA.O.'sl testimony. . . . That this man molests children while
       thev sleep . . . .


         (Emphasis added.)


                                                10
No. 68468-0-1/11




               I was very clear in my closing arguments about why -- that the
        testimony of [S.S.] and [L.W.], in addition to the evidence about the
        assault on [B.O.] was introduced. It's not to throw dirt around. I don't
        want you to convict Mr. Larson because you think he is a drunk or not a
        good person or whatever. I want you to convict Mr. Larson because he
            molested rA.O.l And the reason that that testimony came in, and the
            reason that you have a jury instruction on how to use that evidence, it's
            not because I decided that I want to throw some dirt around. It's because
        the law allows victims of prior assaults to come in and testify about their
        experiences, and that you can use that testimony for any purpose that you
            deem relevant. And the reason it's relevant is it goes to what Mr. Larson's
            intent was when he touched rA.O.l

                  The reason this evidence comes in is because it is evidence of
            what Mr. Larson's intent was when he entered rA.O.'sl bedroom. It is
            evidence that goes against this cockamamie theory that Mr. Larson
            entered that bedroom, and accidentally spilled a beer on rA.O.l. and that's
            why she is wet.[7]

Thus, the prosecutor clearly indicated that the evidence was admitted to show either a

common scheme or plan or the absence of mistake or accident. Significantly, the

prosecutor never encouraged the jury to use the evidence for propensity.8
            Third, A.O.'s testimony did not stand alone but, rather, was strongly supported by

those who heard her statements and observed her condition mere moments after the

incident. A.O.'s testimony was also consistent with her statements to others.

            Fourth, while misconduct evidence cannot be used to show that the defendant

has a certain character and acted in conformity with that character, such evidence can

be used to show that the defendant's conduct in the current case conformed to the

            7(Emphasis added.)
            8 See State v. Williams. 156 Wn. App. 482, 492, 234 P.3d 1174 (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 "acommon scheme or plan."); Cjty
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").


                                                      11
No. 68468-0-1/12


conduct alleged in the prior allegations. Gresham. 173 Wn.2d at 423-24. In other

words, where misconduct evidence is admitted because of its similarities to the charged

conduct, the proper and improper uses of the evidence are almost indistinguishable.

Given the subtlety of this distinction, it is highly unlikely that a proper limiting instruction

would have affected the jury's verdict.

        Finally, in the context of all the evidence presented, the defense theory that

Larson merely spilled beer on A.O. and that she misperceived the incident strained

credulity.

        In sum, considering the evidence, instructions, and arguments, and given the trial

court's superior position for determining the impact ofany errors,9 we conclude the court
did not abuse its discretion in denying Larson's motion for a new trial.

        Larson also contends the court abused its discretion in admitting photographs of

his nieces taken around the time he allegedly molested them. Larson contends the

photos were not relevant, and even if relevant, were more prejudicial than probative

under ER 403. He argues that when combined with the court's instructional error, the

error in admitting the photographs warrants a new trial. We disagree.

        Under the cumulative error doctrine, trial errors that do not warrant a new trial by

themselves may warrant a new trial when considered cumulatively. State v. Greiff, 141

Wn.2d 910, 929, 10 P.3d 390 (2000). Here, even if the court abused its discretion in

admitting the photographs, a new trial is not warranted. Viewed in the context of all the

        9Cf. State v. Walton. 5 Wn. App. 150, 152-53, 486 P.2d 1118 (1971) ("We believe the trial judge
was in the most favorable position to observe the impact of the statement, and do not find in the record
evidence of a sufficient nature to allow us to hold that there has been an abuse of discretion by the trial
court."); State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (trial court is in best position to
most effectively determine if prosecutorial misconduct prejudiced a defendant's rightto a fair trial).


                                                     12
No. 68468-0-1/13


evidence in this case, the photographs generated little prejudice. The live testimony of

the women depicted in the photographs was far more damaging to the defense than the

two photographs. And as the trial court noted in its ruling denying a new trial, the totality

of the evidence against Larson was overwhelming. Any cumulative error did not

warrant a new trial.


       Affirmed.




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