                                                                20IU1ARIO AiU0:3Z

          IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                  No. 69238-1-1
                     Respondent,
                                                  DIVISION ONE



JOHN SHELBY,                               )      UNPUBLISHED OPINION

                     Appellant.            )      FILED: March 10.2014

       Spearman, A.C.J. — John Shelby appeals his conviction on two counts of child

molestation in the first degree, arguing that the trial court erred in admitting evidence

that he molested his stepdaughter twenty-one years earlier to show a common

scheme or plan, motive, and intent. In his statement of additional grounds for review,

Shelby also argues that the prosecutor committed misconduct and violated his right to

a fair and impartial jury, and that his counsel was ineffective in failing to respond

appropriately. Finding no reversible error, we affirm.

                                           FACTS


       When J.P. was four months old, she went to live with her aunt and uncle,

LaTonya and John Shelby. J.P. referred to them as "mom and dad." Clerk's Papers

(CP) at 4. On February 1, 2010, when J.P. was eight years old, a school official called

CPS after noticing marks on J.P.'s body. When a Child Protective Services' (CPS)
No. 69238-1-1/2


social worker asked J.P. about the marks, J.P. said that LaTonya beat her with an

extension cord.1 CPS removed J.P. from her home and contacted law enforcement.2

        On February 22, 2010, J.P.'s foster mother brought her to Dr. Naomi Sugar,

director of the Center for Sexual Assault and Traumatic Stress at Harborview Medical

Center, for an evaluation in connection with the physical abuse. In the course of

interviewing J.P. about the physical abuse, Dr. Sugar asked J.P. whether "anyone had

hurt her on her privates in a way she didn't like." 6 Verbatim Report of Proceedings

(VRP) at 93. J.P. replied "just my dad when he was drinking too much, ..." 6VRP at

94. Dr. Sugar asked J.P. what happened, and J.P. described at least two different

incidents that allegedly occurred when J.P. was between six and eight years old.

        One evening, six-year-old J.P. stayed up late watching television. After everyone

else went to bed, Shelby brought J.P. into the kitchen. J.P. said Shelby "'pulled me

through his knees, then he started to squeeze me with his legs.'" 6VRP at 94. He

positioned her face down on the floor and got on top of her. She could "feel him on my

butt going up and down." 6VRP 142. Both were fully clothed. CP at 184. J.P. said it

felt "weird" and she "didn't like it." CP at 4. Afterwards, Shelby told J.P. not to tell her

mom what happened. J.P. eventually disclosed the incident to her sister, and her sister

told LaTonya. Later that evening, during a family bible study, Shelby apologized to J.P.

and said he wouldn't do it again.



        1We refer to Ms. Shelby by her first name, LaTonya, for clarity. No disrespect is intended.
        2LaTonya pled guilty to assault of a child in the third degree in a separate proceeding, and is not
a party to this appeal.
No. 69238-1-1/3

       J.P. said it happened again when LaTonya went to visit family in Kansas City.

J.P. was eight years old at that time. It was night, and J.P.'s sisters were upstairs.

Shelby again took J.P. into the kitchen, laid her on the floor, got on top of her, and

starting moving up and down. J.P. said she could feel "lumps, bumps that just goes

down and up" against "my butt." 6VRP at 149.

       Shelby was charged with two counts of child molestation in the first degree.

Before trial, the State sought to admit evidence that Shelby had sexually molested his

adult stepdaughter A.P. twenty-one years earlier.3 This evidence included a transcript
of A.P.'s witness statement, a transcript of an interview of A.P., and a transcript of an

interview of A.P.'s grandmother, who corroborated A.P.'s version of events.

       A.P. said the first incident happened shortly after Shelby married LaTonya and

moved in with them. A.P. was around seven years old at that time. LaTonya was at

nursing school during the day, and A.P. was out of school for the summer. A.P. went

into the living room and started clearing the table where Shelby was sitting. Shelby

pulled A.P. down on his lap and began moving her around. She could feel his erect

penis against her bottom. A.P. was fully clothed and Shelby was wearing a red

bathrobe. A.P. jumped up and went to her room. A.P. said it happened again on

multiple occasions during the summer, when Shelby came home for lunch in the middle

of the day. A.P. said Shelby took her into a back room, positioned her so she was

straddling him in the front, then "danced" and rubbed his erect penis against her. Both


       3A.P. did not live with J.P. She learned of J.P.'s allegations from her grandmother and a social
worker after CPS removed J.P. from Shelby and LaTonya's home.
No. 69238-1-1/4

were fully clothed. Sometime later, A.P. disclosed the abuse to her grandmother,

Shelby, and LaTonya. Shelby denied wrongdoing.

      One night when A.P. was nine or ten, she woke up and felt someone touching

her lower back. She turned around and saw Shelby sitting on her bedroom floor in his

underwear. Shelby said, '"don't tell your mom'" and walked away. 6VRP at 178. A.P.

told her mother, who said she would "take care [of] the situation." CP at 138. No further

sexual abuse incidents occurred after that. The family did not report any of these

incidents to law enforcement.

      The trial court found that the prior misconduct described by A.P. had been

proven by a preponderance of the evidence. The court then ruled that evidence of

Shelby's prior sexual abuse of A.P. was admissible under ER 404(b) to show common

scheme or plan, motive, and intent. J.P., A.P., and A.P.'s grandmother testified at trial.

Shelby did not testify. The trial court gave a limiting instruction regarding the testimony

of A.P. and her grandmother, as Shelby requested. The jury returned a guilty verdict on

both counts, and the trial court imposed a standard range sentence. Shelby appeals.

                                        ANALYSIS

       Shelby argues that the trial court committed reversible error by admitting

evidence of prior uncharged incidents of sexual misconduct with A.P. to show a

common scheme or plan. He contends that this evidence was improperly used for the

forbidden purpose of demonstrating his propensity to commit such crimes, and that it

was more prejudicial than probative. We disagree.




                                            -4
No. 69238-1-1/5

       ER 404(b) prohibits a court from admitting "[e]vidence of other crimes, wrongs, or

acts ... to prove the character of a person in order to show action in conformity

therewith." "A trial court must always begin with the presumption that evidence of prior

bad acts is inadmissible." State v. DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003).

Such evidence "may, however, be admissible for any other purpose, depending on its

relevance and the balancing of its probative value and danger of unfair prejudice" State

v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). "If the evidence is admitted, a

limiting instruction must be given to the jury. .. ." Foxhoven, 161 Wn.2d 168, 175, 163

P.3d 786 (2007).

      "One proper purpose for admission of evidence of prior misconduct is to show

the existence of a common scheme or plan." Gresham. 173 Wn.2d at 420. "Proof of

such a plan is admissible if the prior acts are (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." State v. Lough. 125 Wn.2d 847, 852, 889 P.2d 487 (1995).

      We review the trial court's decision to admit evidence under ER 404(b) for abuse

of discretion. Foxhoven. 161 Wn.2d at 174. Discretion is abused if it is exercised on

untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker. 79 Wn.2d

12, 26, 482 P.2d 775 (1971).

      The trial court did not abuse its discretion in finding that A.P.'s testimony was

admissible to show common scheme or plan. "Evidence of past acts may be admissible

to show a common scheme or plan where the prior acts demonstrate a single plan used


                                           -5-
No. 69238-1-1/6

repeatedly to commit separate but very similar crimes." State v. Sexsmith. 138 Wn.

App. 497, 504-05, 157 P.3d 901 (2007). "Such evidence is relevant when the existence

of the crime is at issue." DeVincentis. 150 Wn.2d at 21. The prior misconduct and the

charged crime must show "such a concurrence of common features that the various

acts are naturally to be explained as caused by a general plan of which they are the

individual manifestations." Lough. 125 Wn.2d at 855 (internal citations omitted). Where

identity is not at issue, a unique method of committing the crimes is not required.

DeVincentis. 150 Wn.2d at 21.

       Here, the evidence showed marked similarities between Shelby's abuse of A.P.

and J.P. Shelby was in a position of authority over both girls. He was A.P.'s stepfather

and the primary father figure for J.P. since she was an infant. Both girls were about the

same ages when Shelby molested them. And both girls said that Shelby brought them

to a certain room and molested them by holding them in a certain position and rubbing

his penis against them while fully clothed.

      Shelby further argues that the evidence is inadmissible as a common scheme or

plan because A.P.'s unreported allegations took place twenty-one years earlier. We

acknowledge that "the lapse of time may slowly erode the commonality between acts

and reduce the relevance of the prior acts." State v. DeVincentis. 112 Wn. App. 152,

162, 47 P.3d 606 (2002). However, this factor is not determinative. The "time lapse

between the prior bad act and the present one affects weight rather than "the

admissibility of the evidence." State v. Evans. 45 Wn. App. 611, 617, 726 P.2d 1009

(1986). The trial court did not abuse its discretion in concluding that Shelby's actions
No. 69238-1-1/7


were admissible as individual manifestations of a common scheme or plan to sexually

molest young girls in his care.4

            Shelby also contends that the probative value of this evidence was substantially

outweighed by extreme prejudicial effect. Although the elapsed time weighs against

admission, other factors present in this case strongly favor admissibility. "The purpose

of ER 404(b) is to prohibit admission of evidence designed simply to prove bad

character; it is not intended to deprive the state of relevant evidence necessary to

establish an essential element of its case." Lough, 125 Wn.2d at 859. Because there

was no physical evidence that J.P. was sexually molested and no other witnesses to the

events she described, the State's case rested on the testimony of J.P., A.P., and A.P.'s

grandmother. J.P.'s credibility was the central issue. "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 evidence is the testimony of the child

victim." Sexsmith. 138 Wn. App. at 506. It is not unusual for Washington courts to

uphold evidence of prior bad acts in child sexual abuse cases, even where the elapsed

time between the prior acts and the charged crime is substantial. See DeVincentis. 112

Wn. App. at 161 (15 years); State v. Baker. 89 Wn. App. 726, 734, 950 P.2d 486 (1997)

(11 to 15 years); State v. Krause. 82 Wn. App. 688, 691-92, 919 P.2d 123 (1996) (14 or



            4See Sexsmith. 138 Wn .App. at 505 (evidence showed common scheme or plan when
defendant was in position of authority, isolated girls of the same age, and forced them to perform similar
sex acts); State v. Kennealv. 151 Wn. App. 861, 888-889, 214 P.3d 200 (2009) (common scheme or plan
where prioracts of molestation occurred with defendant's young daughter and nieces and were
substantially similar to charged crimes); Gresham, 173 Wn.2d at 422-23 (slight differences in details
between priorbad acts and charged crimes did not outweigh common occurrence of fact with remaining
details).
No. 69238-1-1/8

more years). We also note that the trial court minimized the danger of unfair prejudice

by giving a limiting instruction to the jury. The trial court did not abuse its discretion in

concluding that the probative value of this evidence outweighed the prejudicial effect.5

       Shelby raises two additional issues in his statement of additional grounds for

review, both arising from the same event. On June 5, 2012, the prosecutor told the

court that a member of her office staff had received a phone call from the staff

member's mother, who had been one of the potential jurors on this case, but who had

been released. The call was about Juror No. 37, who was excused for cause, on

motion of Shelby's counsel, during individual voir dire. The caller reported that while

they were in the jury room, Juror No. 37 "expressed complete disdain for the State, went

so [sic] to far as calling all prosecutors liars, that they bring cases without evidence, that

they bring cases on false accusations." 3VRP at 2. The prosecutor stated that she had

discussed the situation with defense counsel, and that they agreed to ask the court to

strike the jury panel and begin anew.

       Shelby argues that the prosecutor committed misconduct and violated his Sixth

Amendment right to a fair and impartial jury by accepting a phone call from a potential

juror and asking the court to strike the entire jury pool. To establish a claim for

prosecutorial misconduct, the defendant bears the burden of showing that the

prosecutor's conduct was both improper and prejudicial. State v. Magers. 164 Wn.2d

174, 191, 189 P.3d 126 (2008). Shelby has not made this showing. The record

       5Shelby also argues that the trial court erred in concluding that the evidence was admissible
under ER 404(b) to prove motive and intent. Because we conclude that the evidence was admissible to
prove common scheme or plan, we need not address these arguments.
No. 69238-1-1/9

demonstrates that the prosecutor did not communicate directly with a juror. Rather, she

received a call from a member of her office staff, who had obtained information about

events that occurred in the jury room. The prosecutor promptly reported the incident to

the trial court. The prosecutor's actions were not improper. Moreover, the prosecutor's

actions were not prejudicial. Both the federal and state constitutions provide a criminal

defendant the right to trial by an impartial jury. U.S. Const, amend. VI; Wash. Const,

art. I, §22 (amend, x). And Shelby does not contend that the jury that actually heard the

trial was biased in any way. Moreover, even if Shelby preferred to retain the first jury

panel, "[a] defendant has no right to be tried by a particular juror or by a particular jury."

State v. Gentry. 125 Wn.2d 570, 615, 888 P.2d 1105 (1995).

       Shelby further argues that he received ineffective assistance of counsel because

his attorney did not heed his request to challenge the prosecutor's motion or ask for an

evidentiary hearing to determine what happened in the jury room. To demonstrate

ineffective assistance of counsel, a defendant must show that defense counsel's

representation was deficient and that counsel's deficient representation caused

prejudice. State v. MacFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We

presume that counsel's representation was effective. State v. Hendrickson. 129 Wn.2d

61, 77, 917 P.2d 563 (1996). The presumption can be overcome by a showing that

counsel's "representation was unreasonable under prevailing professional norms and

that the challenged action was not sound strategy." In re Davis. 152 Wn.2d 647, 673,

101 P.3d 1 (2004) (quoting Kimmelman v. Morrison. 477 U.S. 365, 384, 106 S.Ct. 2574,

91 LEd.2d 305 (1986)).
No. 69238-1-1/10

       Shelby has not met this standard. "Under the laws of Washington, the right to a

jury trial includes the right to an unbiased and unprejudiced jury." State v. Davis. 141

Wn.2d 798, 824, 10 P.3d 977 (2000) (citing State v. Parnell. 77 Wn.2d 503, 507, 463

P.2d 134 (1969)). When the prosecutor moved to dismiss the jury panel, defense

counsel told the court that she agreed Juror No. 37's comments may have tainted the

jury pool to the possible detriment of both parties. Her response was a reasonable

tactical decision. Furthermore, Shelby's desire for an evidentiary hearing does not

mandate a different result. Differences of opinion regarding trial strategy or tactics will

not support a claim of ineffective assistance. State v. Lord. 117 Wn.2d 829, 883, 822

P.2d 177 (1991).

       Affirmed.




                                                     M^//^^/).(.\J
WE CONCUR:




                                              10
