 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                             o
     "E OF WASHINGTON,                      ]
                                                  No. 72660-9-1                   2*.
                     Respondent,            )                                     •so
                                                  DIVISION ONE                        1
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                                                  UNPUBLISHED OPINION                     3E>Lj
                                                                                          a^i—
     DWAYNE WHEELER, JR.,                                                         s
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                     Appellant.             i     FILED: April 4, 2016


      Trickey, J. — Bill Dwayne Wheeler, Jr. appeals his judgment and sentence

for his conviction of sexual exploitation of a minor. He contends that the evidence

is insufficient to support his conviction. He also contends that the trial court erred

when it denied his motion to dismiss for outrageous government conduct, denied

his motion to dismiss for mismanagement, denied his motion for a mistrial,

admitted evidence in violation of ER 404(b), and did not give a unanimity

instruction. Finding no error, we affirm.

                                       FACTS

       In January 2013, the Everett Police Department received citizen complaints
about female baristas engaging in lewd conduct at two drive-through Grab-N-Go
espresso stands. The Grab-N-Go espresso stands are "bikini barista" stands,
where the baristas dress in lingerie or bikinis. One stand is located on Everett Mall

Way in the city of Everett. The other stand is located on Broadway Avenue in the
city of Everett. Wheeler and James Wiley are co-owners of Grab-N-Go Espresso,
Inc. Wheeler owns the Everett Mall stand, and Wheeler and Wiley own the

Broadway stand.

       In response to the complaints, the Everett Police Department's Special
No. 72660-9-1 / 2


Investigations Unit began an undercover investigation. On several occasions in

January and February 2013, Detective Jeffrey Nevin visited the espresso stands

and posed as a customer.        During these visits, he observed female baristas

engaging in sexually explicit conduct while serving customers. He saw baristas

expose their breasts and other intimate areas to customers in exchange for tips.

On many ofthese occasions, the baristas exposed themselves to Detective Nevin.

He captured several of these incidents on video.

       On one of Detective Nevin's visits, M.S. was working. While waiting in the

line of cars, Detective Nevin watched M.S. expose her breasts to the customer in

front of him. Detective Nevin then pulled up to the window. After making small

talk, Detective Nevin asked M.S. if he could "get what the customer in front of [him]

had."1 M.S. climbed onto the windowsill and told Detective Nevin to put money in

her underwear. He complied. M.S. then exposed her breasts to the detective and

told him to come back and visit her.

       After several weeks of undercover investigation, the detectives arrested the

baristasfor violating the city of Everett's adult cabaret and lewd conduct laws. After
the arrests, the detectives learned that one of the baristas they arrested—M.S.—

was 16 years old. The other baristas were adults. At this point, the detectives
decided to shift their investigation to the owners of the stands.

       Thereafter, the State charged Wheeler with one count of sexual exploitation

of a minor. It alleged that Wheeler "on or about the 1st day of January, 2013,
through the 20th day of February, 2013, aided, invited, employed, authorized, and


1 Report of Proceedings (RP) (July 23, 2014) at 162.
                                           2
No. 72660-9-1 / 3


caused a minor, to wit: M.S. ... to engage in sexually explicit conduct, knowing

that such conduct would be photographed and part of a live performance."2 The

Snohomish County Prosecuting Attorney and the Washington State Attorney

General's Office gave Detective Nevin immunity for his role in the investigation.

      Wheeler moved for a dismissal based on outrageous government conduct.

He argued that Detective Nevin committed a crime by encouraging M.S. to engage

in sexually explicit conduct and that his actions were so outrageous that it violated

due process. The court later denied this motion.

      The case proceeded to a jury trial. The State's theory of the case was that

Wheeler invited or caused M.S. to engage in sexually explicit conduct through his

business practices. The State argued that Wheeler was heavily involved in the

operations of the business and that he put standards in place that forced M.S. to

be competitive with other baristas working at the stands. The State argued that

this was all part of Wheeler's plan to make money and to increase sales.

       In support of its theory, the State presented testimonyfrom several baristas,

including M.S.      In general, the baristas testified about the operations of the
business, including pay structure and scheduling. They also testified about

Wheeler's involvement in the business. They explained that Wheeler managed

and monitored the stands, assigned the schedules, and set the rules. Additionally,

the baristas testified about performing sexually explicit shows for customers. They

explained that they earned more money when they performed shows, because

they saw a significant increase in tips.



 Clerk's Papers (CP) at 452.
No. 72660-9-1/4


      The State also presented testimony from Detective Nevin and Detective

Jeffrey Shattuck. Detective Nevin detailed his role in the undercover investigation.

The court admitted several of Detective Nevin's video recordings of the baristas

performing sexually explicit shows. One of these videos depicted M.S. The other

videos depicted adult baristas.

       Detective Shattuck testified about recovering footage from a surveillance

system that he had seized from the Everett Mall stand on March 6, 2013. He

testified that he recovered approximately eight days of footage. He explained that

he calculated this by counting back to the oldest recorded footage, which was from

February 26, 2013.

       Detective Nevin testified that he reviewed this footage. He stated that he

observed approximately 37 sexually explicit shows in the eight days of footage.
From this footage, the court admitted 10 videos clips that showed the baristas
engaging in sexually explicit acts. The court excluded another video clip because
it was cumulative and prejudicial.

       At the close of the State's case, defense counsel informed the court that he

had discovered that the surveillance footage did not include eight days of footage

as the detectives had testified. The footage was missing March 4, 5, and 6 and

contained duplicate footage.         Wheeler moved for dismissal based on
mismanagement. In the alternative, he moved for a mistrial or to strike Detective
Nevin's testimony in its entirety. The court recessed for the parties to determine
whether the surveillance system, which was at the Everett Police Department, had
the missing footage.
No. 72660-9-1 / 5


       Later that day, the court conducted a hearing outside the presence of the

jury. Detective Shattuck testified at the hearing that the surveillance system was

now corrupted and no longer worked. The parties were thus unable to determine

whether it had the missing footage. Detective Shattuck also testified that he

provided everything he had downloaded to the State, who in turn, provided it all to
the defense.3 He did not think that there ever existed any footage from March 4,

5, and 6. On cross-examination, Detective Shattuck admitted that the surveillance

system was recording when he seized it on March 6 and that there should be
footage until that date. He also admitted that if the system had remained plugged
in, it is less likely that it would be corrupted.

       After hearing argument from the parties, the court denied Wheeler's motions
for dismissal, a mistrial, and to strike the testimony of Detective Nevin in its entirety.
Over Wheeler's objection, the court issued a curative instruction, directing the jury
"to disregard the testimony of Detective Nevin and Detective Shattuck that there
was a total of eight days of video surveillance footage from the Everett Mall stand."4
       The jury convicted Wheeler as charged. Wheeler appeals.
                                        ANALYSIS

                                        Sufficiency

       Wheeler contends that the evidence was insufficient to sustain his

conviction. He argues that, at most, the evidence showed that he tried to run a

successful business. We disagree.

        Due process requires the State to prove beyond a reasonable doubt all the

3 RP (July 31, 2014) at 38, 51.
4 RP (July 31, 2014) at 119.
No. 72660-9-1 / 6


necessary facts of the crime charged. State v. Colquitt, 133 Wn. App. 789, 796,

137 P.3d 892 (2006). "The test for determining the sufficiency of the evidence is

whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found guilt beyond a reasonable doubt." State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences

from the evidence must be drawn in favor of the State and interpreted most strongly

against the defendant." Salinas, 119 Wn.2d at 201. "A claim of insufficiency

admits the truth of the State's evidence and all inferences that reasonably can be

drawn therefrom." Salinas, 119 Wn.2d at 201.

       Circumstantial evidence and direct evidence can be equally reliable. State

v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We must defer to the trier

of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d

970 (2004).

       A person is guilty of sexually exploiting a minor if the person "[a]ids, invites,

employs, authorizes, or causes a minor to engage in sexually explicit conduct,

knowing that such conduct will be photographed or part of a live performance."

RCW9.68A.040(1)(b).

       The words "aids, invites, employs, authorizes or causes" are not defined in

the statute. In State v. Chester, our Supreme Court defined these terms after

consulting a dictionary. 133 Wn.2d 15, 22, 940 P.2d 1374 (1997). The Supreme

Court also stated that the terms require "some affirmative act of assistance,

interaction, influence or communication on the part of the defendant which initiates
No. 72660-9-1 / 7


and results in a child's display of sexually explicit conduct." Chester, 133 Wn.2d

at 22.

         Here, to convict Wheeler of sexual exploitation of a minor, the jury had to

find beyond a reasonable doubt that (1) "on or about the 1st day of January, 2013
through the 20th day of February, 2013, [Wheeler] did invite or cause a minor to

engage in sexually explicit conduct;" (2) Wheeler "did know the conduct would be
photographed orwould be part ofa live performance;" and (3) "these acts occurred
in the State of Washington."5

         The court instructed the jury that "'[i]nvite' means to offer an incentive or

inducement; and requires some affirmative act of that nature on the part of the
defendant."6 It instructed the jury that "'[c]ause' means to be the cause of, to bring
about, orto induce; and requires some affirmative act of that nature on the part of
the defendant."7

         In this case, there is no dispute that M.S. was a minor and that Wheeler
knew that M.S. was 16 years old. There is also no dispute that M.S. engaged in
sexually explicit conduct and that the conduct was part of a live performance. M.S.
testified to these facts at trial. The contested issue is whether the State presented
sufficient evidence to establish that Wheeler invited or caused M.S. to perform the

shows. We conclude that it did.

         Testimony attrial established that Wheeler did not pay his baristas an hourly
wage. Each barista's pay was based solely on tips. The baristas testified that they


 5 CP at 145.
 6 CP at 146.
 7 CP at 147.
No. 72660-9-1 / 8


made significantly less money without giving shows then when they gave shows.

Wheeler scheduled the baristas with the highest sales for the busier and more

desirable shifts. Additionally, Wheeler set a sales quota for each shift. He required

there to be $300 in the till after a weekday shift and $150 in the till after a weekend

shift.8 If the barista did not make her daily sales quota, Wheeler required her to

make up the difference. This evidence supports the State's theory that Wheeler

invited or caused M.S.'s conduct by setting up a business model that rewarded

baristas for exposing themselves with better conditions and better income.

       M.S.'s testimony further confirms the State's business model theory. M.S.

testified that at the end of each shift, Wheeler would count the till. If the till was

short, Wheeler would "make a comment or say, you need to make sure that you

get your sales up to the volumes of that."9 Significantly, M.S. offered the following

explanation for why she performed sexually explicit shows for customers:

       Because there was a standard set by the girls that were doing it, all
       those things. And there was pressure from [Wheeler] to, you know,
       you need to make more money and get more customers or you're
       not going to be on the schedule. And the girls that made the most
       moneygot puton the schedule.™

M.S. explained that the girls set the standard by "giving other shows, the customers

expect shows."11 And she explained that the girls who gave shows had the most

customers.    M.S.'s testimony reveals that Wheeler's comments and practices

invited or caused her to engage in sexually explicit conduct by pressuring her to

make more money and get more customers in order to keep her job.


8 RP (July 24, 2014) at 133.
  RP (July 24, 2014) at 136.
10 RP (July 24, 2014) at 139-40 (emphasis added).
11 RP (July 25, 2014) at 68.
                                           8
No. 72660-9-1 / 9


      Additionally, substantial evidence establishes that Wheeler knew that M.S.

performed shows.     M.S. testified that Wheeler was present during discussions

about shows and how to avoid getting caught. She said that she had conversations

about shows in front of Wheeler on two or three separate occasions. M.S. also

testified that at the end of each shift, Wheeler reviewed surveillance footage from

inside the stand. She further testified that she showed her breasts to customers a

couple times per shift. Moreover, another barista testified that Wheeler told her

that M.S. would let customers touch her and that M.S. performed shows. She

testified that Wheeler knew this because he could monitor the stand's surveillance

footage remotely from his cell phone.

      Viewing this evidence in the light most favorable to the State, we conclude

that it is sufficient to establish that Wheeler invited or caused M.S. to engage in

sexually explicit conduct and that he knew it would be part of a live performance.

       Wheeler points to evidence in the record that negates the State's theory.

For example, the evidence established that one barista did not perform shows.

Additionally, several baristas testified that Wheeler told them not to do shows. But

we must defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of evidence. Thomas, 150 Wn.2d at 874-75.

Accordingly, we reject this argument.

                               Outrageous Conduct

       Wheeler contends that the trial court erred when it denied his motion to

dismiss the charge against him based on outrageous government conduct. He

relies on State v. Lively. 130 Wn.2d 1,19, 921 P.2d 1035 (1996), to assert that
No. 72660-9-1/10


outrageous government conduct violated his due process rights.12 We disagree.
       "[OJutrageous conduct is founded on the principle that the conduct of law
enforcement officers and informants may be 'so outrageous that due process

principles would absolutely bar the government from invoking judicial processes to
obtain a conviction.'" Lively, 130 Wn.2d at 19 (quoting United States v. Russell,

411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). Forpolice conduct

to violate due process, "the conduct must be so shocking that it violates
fundamental fairness." Lively, 130 Wn.2d at 19. Examples of outrageous conduct

include "those cases where the government conduct is so integrally involved in the
offense that the government agents direct the crime from beginning to end, or
where the crime is fabricated by the police to obtain a defendant's conviction,
rather than to protect the public from criminal behavior." Lively, 130 Wn.2d at 21.
       A claim based on outrageous conduct requires "more than a mere
demonstration of flagrant police conduct." Lively, 130 Wn.2d at 20. "Public policy
allows for some deceitful conduct and violation of criminal laws by the police in
order to detect and eliminate criminal activity." Lively, 130 Wn.2d at 20. "Dismissal
based on outrageous conduct is reserved for only the most egregious
circumstances." Lively, 130 Wn.2d at 20.

        In reviewing a defense of outrageous government conduct, the court
evaluates the conduct based on the totality of the circumstances. Lively, 130
 Wn.2d at 21. There are several factors to consider when determining whether


 n wheeler moved for dismissal pursuant to CrR 8.3(b) as well as the state and federal
 constitutions. On appeal, however, he relies solely on the state and federal constitutional
 right to due process to argue that dismissal was warranted.
                                             10
No. 72660-9-1 /11


police conduct offends due process: (1) "whether the police conduct instigated a

crime or merely infiltrated ongoing criminal activity," (2) "whether the defendant's

reluctance to commit a crime was overcome by pleas of sympathy, promises of

excessive profits, or persistent solicitation," (3) "whether the government controls

the criminal activity or simply allows for the criminal activity to occur," (4) whether

the police motive was to prevent crime or protect the public," (5) "whether the
government conduct itself amounted to criminal activity or conduct 'repugnant to a
sense of justice.'" Lively, 130 Wn.2d at 22. Whether the State has engaged in
outrageous conduct is a matter of law, not a question for the jury. Lively, 130
Wn.2d at 19.

       In State v. Lively, our Supreme Court concluded that the State's actions

constituted outrageous conduct in violation of the defendant's due process rights.
130 Wn.2d at 1. There, the State charged Amy Lively with two counts of delivery

of cocaine after she made two deliveries at the request of the State's informant.

At the time of the offenses, Lively was raising two small children alone. She had
become addicted to cocaine and alcohol at age 14 and had sought treatment

several times.         Lively met the police informant at an Alcoholics
Anonymous/Narcotics Anonymous meeting. She had recently attempted suicide
and was emotionally distraught. The informant asked Lively out on a date two
weeks after they met, and the two developed a close relationship and moved in
together. The informant repeatedly asked Lively to obtain cocaine for him. Lively,
 130 Wn.2d at 6-7. Lively had no criminal history prior to the events of the case
and "no apparent predisposition" to engage in such conduct. Lively, 130 Wn.2d at


                                           11
No. 72660-9-1/12


15.      She ultimately complied with the informant's requests, and the State

subsequently brought charges.

         Relying on the factors outlined earlier, the Supreme Court determined that

the State's conduct warranted dismissal of the charges. First, the informant did

not infiltrate an ongoing criminal activity but instead established a relationship with

Lively for the purpose of instigating a crime. Lively, 130 Wn.2d at 23. Second,

Lively's reluctance to commit a crime was purposely overcome by the State by

taking advantage of her emotional reliance on the informant. Lively, 130 Wn.2d at

24-25. Third, the informant controlled the criminal activity "from start to finish."

Lively, 130 Wn.2d at 26. Fourth, the government conduct demonstrated a greater

interest in creating crimes to prosecute than in protecting the public from criminal
behavior. Lively, 130 Wn.2d at 26. Fifth, and most importantly, the conduct was

"so outrageous that it shock[ed] the universal sense ofjustice." Lively, 130 Wn.2d

at 26.

          The conduct in this case is far different from that in Lively. There, the

informant contacted an emotionally vulnerable woman with no predisposition to

engage in illegal activity for the sole purpose of involving her in police sponsored
drug activity. There was no demonstration that she was involved in criminal activity
prior to the State's involvement. Here, in contrast, Detective Nevin did not
establish a relationship with M.S. for the purpose of instigating a crime. Rather,
he was at the espresso stand to investigate ongoing criminal activity. M.S. was
already engaging in the illegal activity when Detective Nevin contacted her. In fact,
Detective Nevin directly observed M.S. engage in illegal activity before he asked


                                           12
No. 72660-9-1/13


her to repeat the illegal conduct. Additionally, in contrast to Lively, M.S. was not

reluctant to engage in such conduct. She agreed after Detective Nevin asked her

once. And although Detective Nevin initiated M.S.'s conduct on that one occasion,

he did not control her criminal activity from start to finish.

       Further, Detective Nevin's motive was to prevent further crime.           The

detectives were responding directly to citizen complaints. Unlike in Lively, the

government conduct in this case demonstrates a greater interest in preventing

criminal behavior than in initiating it.

       As the State admits, Detective Nevin's conduct was technically a crime. It

is not a defense to a charge of sexual exploitation of a minor that the person did

not know the alleged victim's age. RCW 9.68A.110(3). Nor is it a defense that the

individual was involved in law enforcement activities in the investigation of criminal

offenses. RCW 9.68A. 110(1).

       But as Lively noted, public policy allows for some deceitful conduct and

violation of criminal laws by the police in order to detect and eliminate criminal

activity. 130 Wn.2d at 20. Washington courts have rejected the outrageous

conduct defense even in cases where police engage in illegal activities. State v.

Markwart, 182 Wn. App. 335, 349-50, 329 P.3d 108(2014). Forexample, in State

v. Jessup, this court held that dismissal was not warranted based on the fact that

a government agent engaged in acts of prostitution. 31 Wn. App. 304, 313-14,
641 P.2d 1185 (1982). Here, there is no evidence that Detective Nevin knew that

M.S. was underage or that any ofthe baristas working at the stand were underage.

Detective Nevin's conduct was not so outrageous that it violates fundamental


                                            13
No. 72660-9-1 /14


fairness. The circumstances of this case do not support dismissal.

                                  Mismanagement

       Wheeler argues that the trial court abused its discretion when it denied his

CrR 8.3(b) motion for dismissal based on the State's purported mismanagement

of a video surveillance system that it had in evidence. We disagree.

       CrR 8.3(b) provides:

       The court, in the furtherance of justice, after notice and hearing, may
       dismiss any criminal prosecution due to arbitrary action or
       governmental misconduct when there has been prejudice to the
       rights of the accused which materially affect the accused's rights to
       a fair trial.

       In order to succeed on a CrR 8.3(b) motion to dismiss, the defendant must

show by a preponderance of the evidence "(1) 'arbitrary action or governmental

misconduct' and (2) 'prejudice affecting the defendant's right to a fair trial.'" State

v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Michielli,

132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)). "Although mismanagement is

sufficient to establish governmental misconduct, dismissal under CrR 8.3(b) is an

extraordinary remedy used only in truly egregious cases." State v. Flinn, 119 Wn.

App. 232, 247, 80 P.3d 171 (2003).

       We review a trial court's decision to dismiss charges under the abuse of

discretion standard. Michielli, 132 Wn.2d at 240. A trial court abuses its discretion

when its decision is manifestly unreasonable or is exercised on untenable grounds

or for untenable reasons. Michielli, 132 Wn.2d at 240.

       Here, as we explained earlier, the footage from the surveillance system did

not include eight days of footage as the detectives had testified. The footage was


                                          14
No. 72660-9-1/15


missing March 4, 5, and 6. At trial, the parties were unable to determine whether

the surveillance system in evidence had the missing footage, because the

surveillance system had become corrupted. Detective Shattuck did not know the

reason for this, but he testified that if the surveillance system had been plugged in,

it was less likely that it would be corrupted. Based on this, Wheeler moved for

dismissal under CrR 8.3(b) for the State's failure to maintain the surveillance

system by keeping it plugged in.

       The trial court denied Wheeler's motion.       It noted that the issue of the

missing footage should have been explored earlier. Additionally, it stated that the
significance of this footage was speculative. And it stated that because the record
was unclear about why there was no footage from March 4, 5, and 6, "the notion
that there is real mismanagement on this particular point is speculative."13 The
court determined that the error could be corrected with a curative instruction.

       The court's ruling was not an abuse of discretion. The State provided
Wheeler with all of the surveillance footage that it had downloaded. It is unclear

whether footage from March 4, 5, and 6 ever existed on the surveillance system.
It is also unclear whether the State was responsible for the lack of any footage

from those days. Accordingly, this record does not show by a preponderance of
the evidence mismanagement on the part of the State.

       Further, Wheeler fails to show that the alleged mismanagement prejudiced
his right to a fair trial. As the court noted, the significance of any missing footage
was speculative. Moreover, the trial court's instruction to the jury cured any


13 RP (July 31, 2014) at 103.
                                          15
No. 72660-9-1/16


prejudice resulting from the erroneous testimony. Despite Wheeler's assertion to

the contrary, the trial court did not place the burden on the defense to correct the

State's mismanagement. The facts of this case do not show egregious conduct

warranting dismissal.

                                      Mistrial

       Wheeler argues that the court abused its discretion when it denied his

motion for a mistrial based on mismanagement. We disagree.

       To determine whether a trial irregularity warrants a new trial, we examine

the seriousness of the irregularity, whether it involved cumulative evidence, and

whether the trial court properly instructed the jury to disregard it. State v. Emery.

174 Wn.2d 741, 765, 278 P.3d 653 (2012). "[A] trial court should grant a mistrial

only when the defendant has been so prejudiced that nothing short of a new trial
can ensure that the defendant will be fairly tried." Emery. 174 Wn.2d at 765.

       We review the trial court's denial of a motion for a mistrial for abuse of

discretion. Emery. 174 Wn.2d at 765. Denial of a mistrial should be overturned

only when there is a "'substantial likelihood'" that the error affected the jury's
verdict. State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002) (internal

quotation marks omitted) (quoting State v. Russell. 125 Wn.2d 24, 85, 882 P.2d
747(1994)).

       Here, the trial court did not abuse its discretion when it denied Wheeler's

motion for a mistrial after the parties discovered that there was missing

surveillance footage and the detectives erroneously testified that there was eight
days of footage. The admission of the erroneous testimony was not serious


                                          16
No. 72660-9-1/17


because the precise number of days of video footage was minimally relevant to

the issues before the jury. Further, the detectives' mistaken understanding about

the number of days of footage did not affect their testimony about the content of

the footage. And the detectives' testimony about the content of the footage was

cumulative with much of the other evidence presented at trial. Moreover, the

erroneous testimony was cured by the court's instruction to "disregard the

testimony of Detective Nevin and Detective Shattuck that there was a total of eight

days of video surveillance footage from the Everett Mall stand."14 In short, there

is not a "substantial likelihood" that the error affected the jury's verdict.

                                    False Testimony

       Wheeler argues that his conviction should be reversed because "the case

went to the jurywith false testimony."15 We disagree.

       The due process clause of the Fourteenth Amendment imposes on

prosecutors a duty not to introduce perjured testimony or use evidence known to
be false to convict a defendant. Napue v. People of State of HI.. 360 U.S. 264,

269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). This duty requires the prosecutor to

correct state witnesses who testify falsely.       Napue. 360 U.S. at 269; State v.

Finnegan, 6 Wn. App. 612, 616, 495 P.2d 674 (1972). "A conviction obtained by

the knowing use of perjured testimony is fundamentally unfair and must be set

aside if there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury." State v. Larson. 160 Wn. App. 577, 594, 249

P.3d 669 (2011).


14 RP (July 31, 2014) at 119.
15 Opening Br. of Appellant at 39 (boldface and capitalization omitted).
                                            17
No. 72660-9-1/18


      Here, the State did not use false evidence to obtain a conviction. Although

both Detective Nevin and Detective Shattuck erroneously testified that they

recovered and reviewed eight days of surveillance footage, the court corrected this

testimony with a curative instruction "to disregard the testimony of [the two

detectives] that there was a total of eight days of video surveillance footage from

the Everett Mall stand."16       We presume that the jury followed the court's

instructions. Emery, 174 Wn.2d at 766.

      Wheeler argues that the curative instruction was inadequate. He asserts

that the jury "was not told that the footage contained duplication or that footage

that was on the system when the police took it was lost and could not be

recovered."17    And he asserts that the instruction "ignores that there were

substantial problems with the footage that was captured and the testimony that

thirty-seven shows by baristas were on the footage."18
       But there is no showing on this record that the missing footage affected the

detectives' testimony about the content of the remaining footage. Thus, Wheeler
fails to show that the detectives' testimony was false. Moreover, testimony about

the precise number of days of video or precise number of shows by the baristas
on the footage was minimally relevant. Thus, there is not a reasonable likelihood
that false testimony on these issues could have affected the judgment ofthe jury.
                                     Evidentiary Ruling

       Wheeler argues that the trial court abused its discretion in admitting



16 RP (July 31, 2014) at 119.
17 Opening Br. of Appellant at 39.
18 Reply Br. of Appellant at 18.
                                             18
No. 72660-9-1/19


evidence of alleged prior bad acts of the adult baristas. Although he acknowledges

that some of this evidence was relevant and admissible, he claims that the quantity

of evidence was unfairly prejudicial. We reject his claim.

       Under ER 404(b), "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." Such evidence may be admissible for other purposes, however, such

as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." ER 404(b). Another proper purpose is to show

the existence of a common scheme or plan. State v. Gresham, 173 Wn.2d 405,

421-22, 269 P.3d 207 (2012).

       To admit evidence of a person's prior misconduct, the trial court must "'(1)

find by a preponderance ofthe evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine
whether the evidence is relevant to prove an element of the crime charged, and

(4) weigh the probative value against the prejudicial effect.'" Gresham. 173 Wn.2d
at 421 (quoting State v. Vv Thang. 145Wn.2d 630, 642, 41 P.3d 1159 (2002)).
       We review a trial court's decision to admit evidence under ER 404(b) for

abuse of discretion. State v. Fisher. 165 Wn.2d 727, 745, 202 P.3d 937 (2009). A

trial court abuses its discretion only when its decision is manifestly unreasonable

or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,

482 P.2d 775 (1971).

       Here, prior to trial, Wheeler moved in limine pursuant to ER 404(b) to
exclude any evidence that adult baristas performed "shows" or engaged in lewd


                                         19
No. 72660-9-1 / 20


conduct.19 He argued that such evidence was not indicative of a common scheme

or plan, because M.S. was the only minor. He also argued that the evidence was

not relevant and was more prejudicial than probative.

       The trial court questioned whether ER 404(b) applied, noting that the

conduct was not Wheeler's prior conduct but rather was conduct of third parties.

Nonetheless, it applied ER 404(b) by analogy and determined that the evidence

was admissible.      First, it stated that at least a portion of the evidence was

admissible under the res gestae exception. The court then conducted a thorough

analysis of the four ER 404(b) factors on the record. Itconcluded that the evidence

was relevant to show a common scheme, plan, or business practice at the

espresso stands and to show Wheeler's knowledge. The court noted that the

evidence was prejudicial in the sense that it was "unpleasant," but because the

evidence was not of Wheeler's actions, the court reasoned that it was not the same

kind of "direct prejudice."20     Because the relevancy of the evidence was

"significant," the court determined that the potential relevance outweighed the

potential prejudice and the evidence was admissible.21
       At trial, the court admitted testimony from two detectives and five baristas

detailing the adult baristas' sexually explicit shows. It admitted several video
recordings taken by Detective Nevin that depicted the baristas giving sexually

explicit shows. And it admitted several video clips from the Everett Mall stand's
surveillance system that depicted the baristas giving sexually explicit shows.



19 CP at 205.
20 RP (July 23, 2014) at 36-37.
21 RP (July 23, 2014) at 37.
                                         20
No. 72660-9-1/21


Wheeler did not object to any of this evidence on the basis that it was cumulative.

Nonetheless, the court excluded one clip from the surveillance system due to its

cumulative and prejudicial nature.

       Assuming that Wheeler preserved the argument he raises on appeal, we

conclude that the trial court properly exercised its discretion when it admitted this

evidence. As the court stated, evidence that the adult baristas performed shows

was highly relevant. Wheeler concedes this point, stating that "[s]ome testimony

about the business structure and culture of the espresso stands was relevant to

both guilt and innocence of the charged crime."22 Further, this evidence was less

likely to invoke a negative emotional response toward Wheeler because itwas not

evidence of his prior conduct but rather the conduct of third parties. Finally, the

record shows that the court carefully considered the nature of each video clip and

its probative value before determining whether it should be admitted. It did not

abuse its discretion when it excluded only one video clip.

                                 Unanimity Instruction

       Wheeler argues that his conviction must be reversed because the trial court

failed to give a unanimity instruction. We disagree.

       Criminal defendants in Washington are entitled to a unanimous jury verdict.

State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the

State presents evidence of several acts that could form the basis of one count

charged, either the State must elect the act it relies on for the conviction or the

court must instruct the jury to agree on a specific criminal act. State v. Kitchen,



22 Opening Br. of Appellant at 28.
                                          21
No. 72660-9-1 / 22


110 Wn.2d 403, 409, 756 P.2d 105 (1988). If neither of these alternatives occurs,

a constitutional error arises because of the possibility that some jurors may have

relied on one of the criminal acts while other jurors relied on another, resulting in

a lack of unanimity on all of the elements necessary for a conviction. State v.

Greathouse, 113 Wn. App. 889, 916, 56 P.3d 569 (2002).

       No election or unanimity instruction is required, however, if the evidence

shows that the several acts constitute a "'continuing course of conduct.'" State v.

Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quoting State v. Petrich, 101

Wn.2d 566, 571, 683 P.2d 173 (1984)). We evaluate the facts in a commonsense

manner to decide whether criminal conduct constitutes a continuing course of

conduct. Handran, 113 Wn.2d at 17.

       Generally, where the evidence involves conduct at different times and

places, then the evidence tends to show several distinct acts rather than a

continuing course ofconduct. Handran. 113 Wn.2d at 17. Merely having the same

victim is not enough in itself to demonstrate that the offense was one continuing

offense. State v. Fiallo-Lopez. 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). But

"evidence that a defendant engages in a series of actions intended to secure the

same objective supports the characterization of those actions as a continuing
course of conduct rather than several distinct acts." Fiallo-Lopez. 78 Wn. App. at

724.

       In State v. Barrington. this court concluded that the defendant's acts were

a continuing course of conduct rather than separate distinct acts. 52 Wn. App.

478, 481-82, 761 P.2d 632 (1988). There, the defendant promoted a prostitution


                                         22
No. 72660-9-1 / 23


enterprise over three months, involving one woman and a "single objective—to

make money." Barrington. 52 Wn. App. at 481. This court reasoned that the

incidents of prostitution "were primarily illustrative of the nature of the enterprise

rather than solely descriptive of separate distinct acts or transactions." Barrington,

52 Wn. App. at 481. It concluded that neither a unanimity instruction nor an

election was required. Barrington, 52 Wn. App. at 482.

       Division Two applied Barrington's reasoning in State v. Knutz, 161 Wn. App.

395, 409, 253 P.3d 437 (2011). Over the course of three years, Lisa Knutz had
obtained several cash loans from Robert J. Von Gruenigen after proffering various

lies. Knutz, 161 Wn. App. at 399-400. Division Two, reasoning that "Knutz used
Von Gruenigen 'to promote an enterprise with a single objective'—to obtain money
through deceit," concluded that Knutz's several acts of fraud constituted a
continuing course of conduct. Knutz, 161 Wn. App. at 409.
       Here, M.S. testified that she worked at the Broadway stand twice and the
Everett Mall stand five to eight times. She testified that she showed her breasts to
customers "[a] couple times per shift."23 Wheeler argues that each time M.S.
exposed her breasts was a separate act. In response, the State asserts that the
facts of this case show a continuing course of conduct for which no unanimity

instruction was required.

       We agree with the State. The facts of this case show a continuing course
of conduct. Barrington and Knutz focus on the conduct of the defendant in the
course of committing the crime, not on the actions of the victims. Like in those


23 RP (July 24, 2014) at 141.
                                          23
No. 72660-9-1 / 24


cases, Wheeler's conduct showed that he used M.S. to promote an enterprise with

a single objection—to make money through the baristas' sexually explicit acts.

Similar to Barrington. where the incidents of prostitution "were primarily illustrative

of the nature of the enterprise rather than solely descriptive of separate distinct

acts or transactions," the explicit shows by M.S. were also illustrative of the nature

of the enterprise. 52 Wn. App. at 481. Viewed in a commonsense manner, the

evidence supports the conclusion that Wheeler engaged in a continuing course of

conduct. No unanimity instruction was required.

       We affirm the judgment and sentence.




                                                     ^Xr\ <k~\\ ^
WE CONCUR:




                                                 WnvAPc.y


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