                                                                                        FILED
                                                                                  COURT OF APPEALS
                                                                                      DIVISION Is

                                                                                2013 APR -9   AM 9*02

                                                                                 STS

                                                                                 19 Y




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

STATE OF WASHINGTON,                                                    No. 42422-
                                                                            11-  3


                                Respondent,

       V.



CHRISTIAN LEVI GAGNON,                                            UNPUBLISHED OPINION




       Q.INN-BRINTNALL,
        U                     J. —     Christian Levi Gagnon appeals his conviction of second

degree rape, arguing that the trial court erred in admitting his prior conviction of unlawful
imprisonment under RCW 10.5 8.90 and ER 404( ); he received ineffective assistance of
                            -0             b that -
counsel when his attorney failed to request a limiting instruction under ER 404( ); that
                                                                               b and

cumulative error deprived him of a fair trial. We hold that admission of the prior conviction was
harmless error, as our review of the record shows that the trial's outcome would not have
differed without this evidence. We reject Gagnon's claims of prejudicial and.cumulative error
and affirm his conviction.

                                                FACTS


       On November 28,2010, Gagnon and several friends, including T. .,
                                                                   M gathered at Amanda

Tribble's apartment in     Olympia. T. . left Tribble's apartment at about 9:0 PM and walked
                                     M                                      0

downstairs to her   own   apartment. She put   on   her   nightgown and got into bed.
No.42422 3 II
         - -



       She then heard   a   knock   on   her door.   She answered it and found a "pretty drunk" and

pretty high"Gagnon outside, asking for his backpack. I Report of Proceedings (RP)at 9. T. .
                                                                                        M
had agreed to store his backpack in her bathroom because a can of whipped cream had exploded
inside it and Tribble did not want the mess in her apartment. T. . asked Gagnon to wait outside
                                                               M

while she retrieved the backpack. Instead, he entered her apartment, shut and locked the door,

and attempted to kiss T. . When she resisted, Gagnon grabbed her by the throat, pushed her
                       M
against the wall, and ripped off her underwear. He then vaginally raped her with his penis and
anally raped her with his fingers. In the process, he bit her shoulder.
        After Gagnon left, T. . took a shower, cleaned her apartment, and threw away her
                            M
nightgown     and underwear.   She told her therapist and some supervisors at Community Youth

Services (CYS)about the assault a few days later. At their urging, she reported it to the police
about a week after that. She identified Gagnon from a photo montage.

        Detective Paul Evers arrested Gagnon in late January after he made conflicting

statements about his whereabouts on November 28. Gagnon first said that he had not been in

Olympia since November 4, and then said he was at Tribble's apartment on November 28, but
left, ith some friends. In yet another explanation, he said he left Olympia because he had been
    w
falsely accused of T. .' and insisted he was not there on the 28th.
                   s rape
                    M
        The State charged Gagnon with second degree rape and moved to admit evidence

regarding his prior juvenile conviction for unlawful imprisonment under RCW 10.5 8.90 and ER
                                                                                  0
404( ). conviction arose from Gagnon's alleged rape of his mother in August 2008. The
   b This
 trial court entered the following findings of fact concerning this prior offense:

         1.      On August 4, 2008, deputies of the Whatcom County Sheriff's Office
                 contacted [ R. .], had called 911 to report her 17- old son,
                              L who                                year -

                                                      2
No. 42422 3 II
          - -



                 Christian Gagnon, had raped her on the evening of August 3, 2008 in her
                 home.
       2. [      R. .]
                  L reported to the deputy that at approximately 2200 hours she had
                 been home with herson. As both were preparing for bed, [R. .]
                                                                            L had
                 disrobed and made a trip to the bathroom. Gagnon's bedroom door was
                 closed and [R. .] covered herself with her arms. [R. .]
                               L had'                                  L reported that
                 on leaving the bathroom she stopped at Gagnon's closed door to remind
                 him to wake early the next morning.
       3. [      R. .]
                    L reported that as she was talking to him through the closed door
                 Gagnon opened the door and proceeded       to   give [ R. .] hug. [ R. .]
                                                                         L a          L
                 reported that as he tried to kiss her mouth, she attempted to push him away
                 and commanded, No, stop." Gagnon
                                "                         then forcefully threw [R. .]
                                                                                  L onto
                 his bed.
       4. [      R. .]
                  L reported that Gagnon threw her legs up and she felt his penis
                 penetrate her vagina.   She told him to stop but was afraid of what he
                 would do if she resisted too much. [R. .]
                                                        L reported that he had done this
                 twice before. [ R. .]
                                   L reported that during the first incident Gagnon was
                 very aggressive and forceful with her.

Clerk's Papers ( CP) at 78 79.
                           -       The trial court found this offense substantially similar to the

current allegations:

       7.        The allegations in the present case are substantially similar to the factual
                 basis relied upon in the prior Whatcom County case in that in both cases,
                 Gagnon] met the alleged victim in a doorway, began attempting to kiss
                 the alleged victim and when met with resistance, forcibly vaginally
                 penetrated the alleged victim with his penis.
CP at 79.


       With regard to ER 404( ), trial court concluded that the existence of a design to fulfill
                            b the
sexual compulsions evidenced by Gagnon's past acts was highly probative, that the probative
value of the prior acts outweighed the risk of prejudice, and that evidence of the prior Whatcom
 County acts was admissible to show Gagnon's common scheme or plan to fulfill sexual
 compulsions. The court also concluded that Gagnon's prior act of rape was admissible under
 RCW 10. 8.to show any fact in issue.
     090
       5




                                                   3
No. 42422 3 II
          - -



       At Gagnon's trial, T. . and Detective Evers testified to the facts set out above
                           M
                                     November 28, 2010, and the         resulting investigation.   Nina
concerning the alleged   rape   on




Berenfeld, the CYS counselor with whom T. . spoke on November 30, testified that she saw
                                        M

bite marks on T. .'
              s shoulder and a red mark on her neck. Rhonda Ayers, a CYS supervisor,
               M

testified that T. . had bruises and marks on her shoulder and neck when they talked on
                M

December 1.      Tribble testified that she saw Gagnon at T. .'
                                                          s doorstep after the gathering in
                                                           M

Tribble's apartment and that she saw bruises on T. .'
                                                s neck the next day. She said that when
                                                 M
T. . saw Gagnon a week later, she was frightened and walked away from him. When Tribble
 M
asked Gagnon about the incident, he said he could not remember and had blacked out. Tribble

added that her boyfriend retrieved Gagnon's backpack from T. .'
                                                          s apartment and threw it away.
                                                           M
       After Tribble testified, the court read this stipulation regarding Gagnon's prior offense to

the jury:

       The Defendant, Christian L. Gagnon, has previously been found guilty in
       Whatcom County Cause Number 08 8-  - 00421 8 of the crime of unlawful
                                                  -
       imprisonment.     The factual basis for that   charge   was as   follows:   On August 4,
       2008, Whatcom County.Deputies contacted R. ., reported that the defendant
                                                L who
       had raped her. The Deputy noted that R. . was visibly upset and crying. R. .
                                               L                                  L
       reported that on August 3, 2008, at approximately 2200 hours, she had been at
       home with [Gagnon]. They had been hanging out and listening to music together.
       R. . went to ready herself for bed and had completely disrobed before making
         L
       one      trip to the bathroom. When R. . left the bathroom, she stopped at
             last                               L
        Gagnon's]   door to remind him he needed to get up in the morning. [ Gagnon]
       then opened the door and proceeded to give R. . a hug. [Gagnon] then tried to
                                                   L
       kiss R. ., which time she attempted to push him away and said, " o stop."
             L at                                                     n
       Gagnon] then forcefully threw R. . onto his bed, threw her legs up and
                                       L
       penetrated.her vagina with his penis. R. .reported that she told him to stop but
                                              L
       was afraid of what he would do if she resisted too much. R. .reported that this
                                                                 L
       had happened twice in the past.

CP at 67.


        The court then read the following limiting instruction to the jury:


                                                  4
No. 42422 3 II
          - -



                 This evidence has been admitted in this             case regarding [ Gagnon's]
       commission of      a   previous   sex   offense. [   Gagnon] is not on trial for any act,
       conduct or offense not charged in this case. Evidence of a prior sex offense on its
       own is not sufficient to prove [Gagnon] guilty of the crime charged in this case.
       The state has the burden of proving beyond a reasonable doubt that [Gagnon]
          committed each of the elements of the crime charged in this case.

2 RP at 115.


          Christina McVeigh, another CYS employee, testified that when she talked to Gagnon

about his weekend at the end of November, he complained of being accused of something he had

not done. Gagnon did not mention leaving Olympia over the weekend.

          Gagnon's mother testified that her son came home to Bellingham on November 27 and

was there until his arrest at the end of January. Gagnon's friend, Michael Russell, testified that

he saw Gagnon in Bellingham on November 28, and he did not remember telling Detective Evers

that he    was   mistaken about that date.        Gagnon testified that he took a bus to Everett on

November 26, hitchhiked to his mother's home the next day, and stayed with her until January

27. He admitted knowing T. . but denied raping her. He testified that he did not find out about
                         M

the rape rumors until he got to Bellingham.

           A Greyhound bus employee found no record that Gagnon rode a Greyhound bus out of

Olympia in November 2010. The State recalled Detective Evers,who testified that Tribble told
him that she saw Gagnon at the door of T. .'
                                       s apartment on November 28 and that Russell said
                                        M
he   saw   Gagnon   after Christmas and' not after      Thanksgiving. Sandra McClanahan, the CYS

mental health coordinator, testified that T. . was traumatized on November 30 while talking
                                           M

about the rape and had bruises and a handprint on her neck. McClanahan also testified that she

saw Gagnon in Olympia on December 1. The court then admitted the tape of a 911 call received

on December 1, in which the caller identified himself as Gagnon, described his location in


                                                       5
No. 42422 3 II
          - -



Olympia, and reported the location of a runaway teen. Evers recognized Gagnon's voice. When

the defense recalled Gagnon, he said it was possible he had made the call from Olympia on

December 1, but he did not remember it.      He added that it was also possible that he and his

mother had their dates wrong.

       The court's instructions to the jury included the limiting instruction it read during trial.

During closing argument, defense counsel emphasized that Gagnon was not on trial for any past

act. On rebuttal, the prosecuting attorney agreed and stated that the only reason the prior act was,

offered was to show a common scheme or plan.

       The jury found Gagnon guilty as charged, and the trial court sentenced him to a standard

range sentence of 100 months. Gagnon appeals.

                                          DISCUSSION


ADMISSIBILITY OF PRIOR CONVICTION


       Gagnon argues that the trial court erred in admitting his prior conviction under RCW

10. 8. and ER
090
  5                     b Because our Supreme Court struck down RCW 10. 8. as
                     404( ).                                        090
                                                                      5

unconstitutional a few months after Gagnon's sentencing, we need -only discuss the court's

alternative basis for admitting the prior conviction. See State v. Gresham, 173 Wn. d 405, 413,
                                                                                  2

269 P. d '207 (2012) RCW 10. 8.which admitted evidence of the defendant's prior sex
     3               (   090
                           5

offenses for any purpose, violated the separation of powers doctrine).

        We review a trial court's rulings under ER 404( ) abuse of discretion. State v. Kipp,
                                                      b for

171 Wn. App. 14, 20, 286 P. d 68 (2012).A trial court abuses its discretion if it bases a ruling
                          3
on untenable grounds or untenable reasons. State v. Rafay, 167 Wn. d 644, 655, 222 P. d 86
                                                                 2                  3

2009).



                                                 0
No. 42422 3 II
          - -



       ER 404( )
             b forbids a trial court to admit evidence of a person's other crimes, wrongs, or

acts to prove a person's character in order to show that the person acted in conformity therewith.
But ER 404( )
          b does not forbid "other acts" evidence admitted for other purposes, such as to
show a common scheme or plan. Evidence of prior acts is admissible under this theory if 1)
                                                                                        ( the

State can show the prior acts by a preponderance of the evidence, 2) evidence is admitted for
                                                                  ( the

the purpose of showing a common scheme or plan, 3)the evidence is relevant to prove an
                                                (
element of the crime charged or to disprove a defense, and (4) evidence is more probative
                                                              the

than prejudicial. State v. Kennealy, 151 Wn. App. 861, 886, 214 P. d 200 (2009),
                                                                 3             review denied,
168 Wn. d 1012 (2010).Gagnon disputes only the second element of this test.
      2

       There are two types of common plans: (1)evidence of prior acts that are part of a larger,
overarching criminal plan; or (2)evidence of prior acts following a single plan to commit
separate but very similar crimes. Kipp, 171 Wn. App. at 21. Gagnon's case involves the second
type of common plan because he allegedly devised a plan and put it into action against his
victims on separate but similar occasions. Kipp, 171 Wn. App. at 21. To introduce evidence of
this second type of common scheme or plan, the prior misconduct and the charged crime must
demonstrate "` uch occurrence of common features that the various acts are naturally to be
             s

explained as caused by a general plan of which' the two are simply `individual manifestations. "'
 Gresham, 173 Wn. d at 422 (quoting State v. Lough, 125 Wn. d 847, 860, 889 P. d 487 (1995)).
                2                                         2                  2

Although mere similarity in result is insufficient, and the offenses must be markedly and
 substantially similar, the common features need not show a unique method of committing the
 crime. State v. DeVincentis, 150 Wn. d 11, 19 20,74 P. d 119 (2003).
                                    2          -      3

        The State cites the facts in Gresham concerning co-
                                                          defendant Schemer in arguing that the

 facts here revealed   a common   scheme   or   plan. Schemer was charged with child molestation

                                                   7
No. 42422 3 II
          - -



based on his fondling of his granddaughter's genitals after he lured her to his bed while the other
adults in the house were asleep. Gresham, 173 Wn. d at 414 15. The court admitted testimony
                                                2          -

concerning     his   prior   abuse. of four other children. Gresham, 173 Wn. d at 415 16. In each
                                                                           2          -


instance, Schemer took a trip with young girls and at night, while the other adults were asleep,

approached the girls and fondled their genitals. Gresham, 173 Wn.2d at 422. Though there were
some differences, they were not so great as to dissuade a reasonable mind from concluding that

the acts were individual manifestations of the same plan. Gresham, 173 Wn. d at 423.
                                                                         2

         This court affirmed the admission of evidence of a prior rape conviction under the

common scheme or plan theory in State v. Williams, 156 Wn. App. 482, 491, 234 P. d 1174,
                                                                               3
review denied, 170 Wn. d 1011 (2010).When compared, the evidence of the prior and current
                     2

rapes showed a common scheme involving similar victims (women of similar age, involved with
drugs) and a similar method of attack (promise of drugs, attacked from behind with a forearm
across   the   throat, strangled into unconsciousness during the rape). Williams, 156 Wn. App. at

491.


         The evidence of common scheme or plan in this case is not nearly as strong. The trial

court found sufficient        commonality       in these facts alone:    Gagnon met the alleged victim in a

doorway, began attempting to kiss the alleged victim and, when met with resistance, forcibly
vaginally penetrated         the   alleged   victim with his   penis. On appeal, the State adds that in both

 instances, Gagnon vaginally raped the victim after "hanging out"with her and after the victim
 left to go to bed.

         While the common factors need not be unique, substantial similarity is required, and we

 do not see it here. Gagnon was acquainted with one victim, who was close to him in age; the
 other victim    was   his mother. T. . asserted that
                                    M                          Gagnon   was   drunk and   high when   he assaulted
No. 42422 3 II
          - -



her; there was no such evidence in the encounter with his mother. Gagnon was home with his

mother and pulled her into his bedroom and onto his bed; he entered T. .'
                                                                    s apartment and
                                                                     M

pushed her against the wall. The facts that doorways, forcible kissing, and vaginal intercourse
were involved do not show a common plan to rape. We agree with Gagnon that the trial court

abused its discretion in admitting evidence of his prior conviction under ER 404( ).
                                                                                b

        The State asserts that any   error   in   admitting this evidence   was   harmless. Under the


applicable harmless error test, the question is whether within reasonable probabilities, the
outcome of the trial would have been materially affected had the error not occurred. Gresham,
173 Wn. d at 433.
      2


        Gagnon presented   an   alibi defense.     He claimed he was in Bellingham on the day of

s alleged rape and that he remained there until his January arrest. By his own subsequent
T. .'
 M
testimony, however, he undermined that alibi. After the State played the 911 call, Gagnon stated
he could have made it,which placed him in Olympia rather than Bellingham shortly after the

rape.   Several witnesses also placed him in Olympia on the day of the rape and a few days
afterward. Another witness challenged his testimony that he left Olympia by bus in November.

In addition to the evidence undermining Gagnon's alibi, there was evidence confirming T. .'
                                                                                      sM

testimony. Tribble testified that after Gagnon left the gathering in her apartment on the night of
the rape, she. saw him at T. .'
                          s doorstep. She added that her boyfriend later retrieved Gagnon's
                           M
backpack        s apartment and that T. . began
           from T. .'
                 M                    M                       avoiding Gagnon. Tribble and several

other witnesses testified that T. . had bruises and marks after being raped and that she was
                                M

traumatized in speaking about the incident. We see no reasonable probability that the outcome
 of the trial would have differed had the trial court excluded the evidence concerning Gagnon's

 prior bad acts.

                                                     9
No. 42422-
    11-  3


INEFFECTIVE ASSISTANCE OF COUNSEL


       Gagnon argues next that he received ineffective assistance of counsel when his attorney

failed to request a limiting instruction under ER 404( ).
                                                     b

       To prevail on this claim, Gagnon must show that his attorney's performance fell below an

objective standard of reasonableness based on all the circumstances and that the deficient
performance prejudiced the result. State v. Nichols, 161 Wn.2d 1, 8, 162 P. d 1122 (2007).We
                                                                          3
presume that counsel was effective and require a defendant to show the absence of legitimate
strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn. d 322,
                                                                                    2
336, 899 P. d 1251 (1995).To show prejudice, a defendant must prove that, but for the deficient
          2

performance, there is a reasonable probability that the outcome would have been different.
McFarland, 127 Wn. d at 335.
                 2

       Where a claim of ineffective assistance is based on counsel's failure to request a

particular jury instruction, the defendant must show that he was entitled to the instruction, that
counsel was deficient in failing to request it,and that the failure to request the instruction caused

prejudice. State v. Johnston, 143 Wn. App. 1, 21, 177 P. d 1127 (2007).He must also show that
                                                       3
the decision not to request a limiting instruction was not tactical.

       Under the law as it existed at the time of trial, no limiting instruction under ER 404( ) .
                                                                                             b

was necessary because evidence of the other rapes was admissible without limitation under RCW
 090.
 10. 8. State v. Thompson, 169 Wn. App. 436, 495, 290 P. d 996 (2012).The trial court did
   5                                                   3
offer a limiting instruction pursuant to RCW 10. 8.that followed the pattern instruction. 11
                                             090
                                               5
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:                    CRIMINAL 5.0, at 29
                                                                                        4


 Supp. 2011).    This instruction stated simply that evidence of the defendant's previous sex

 offense had been admitted, that this evidence did not prove the defendant's guilt of the crime
                                                  10
No.42422 3 II
         - -


           and that the State still had the burden of   proving   each element of that crime.   A
charged,

subsequent instruction stating that the prior act was admissible only to show a common scheme

or plan would have been confusing and somewhat contradictory. We see no basis fora claim of
deficient performance under these circumstances, and Gagnon's claim of ineffective assistance
of counsel fails. See State v. Fredrick, 45 Wn. App. 916, 923, 729 P. d 56 (1986) failure to
                                                                    2              (

show either prong of ineffective assistance of counsel ends inquiry).
CUMULATIVE ERROR


       Gagnon's final argument is that cumulative error,based on his earlier arguments, entitles
him to a new trial. The cumulative error doctrine applies where there have been several trial

errors that do not individually require reversal but, when combined, denied the defendant a fair

trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P. d 390 (2000).Having identified a single error
                                                3
that was harmless, we decline to grant Gagnon relief due to cumulative error.

       Affirmed.


       A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will.be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
 0



                                                        INN-
                                                                  Ai,
                                                                    4
                                                           BRINTNALL, J.
We concur:



                              4 ,C
   HANSON, A. .
           J.
            C




                                                11
