                                                                                                                FILED
                                                                                                   OURT OF APPEALS
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                                                                                                              DIVISION I i

                                                                                               2014 JUL 22           fib' 10: 24

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                               DIVISION II


STATE OF WASHINGTON,                                                        No. 44626 -0 -II


                                  Respondent,


           v.

                                                                    UNPUBLISHED OPINION
ERIC DAVID BOWMAN,


                                  Appellant.




      MAXA, J. —     Eric Bowman appeals his conviction for first degree child molestation. He

argues that the trial court erred in instructing the jury that it had a " duty to return a verdict of

guilty" if it found all of the elements of the offense beyond a reasonable doubt. Clerk' s Papers

CP)   at   68. In his Statement   of   Additional Grounds ( SAG), Bowman argues that ( 1) the trial


court abused    its discretion in admitting testimony    of prior   bad   acts under   ER 404( b); ( 2) the trial


court abused its discretion in admitting certain out -of court statements made by the victim under
                                                         -

the child statement exception to the hearsay rule, RCW 9A.44. 120; and ( 3) his conviction should

be vacated because the jury improperly rendered its verdict based on emotion rather than reason.

We decline to consider Bowman' s challenge to the " duty to convict" instruction because he did

not object below and cannot show manifest error, and we reject Bowman' s SAG arguments.


Accordingly,    we affirm   Bowman'      s conviction.
44626 -0 -I1



                                                           FACTS


        In 2012, Bowman' s minor daughters, MB and CB, reported that Bowman would


frequently not wear clothes when he was alone with them and that he showed them nude pictures

of himself with his ex -
                       wife and her daughters. In addition, CB reported that Bowman would get

into bed with her and touch her chest and vagina, that he asked her to touch his penis, and that he

would take showers with her. The State charged Bowman with first degree child molestation of

CB.


         Before trial, the State moved to admit testimony from MB about her father' s

inappropriate sexual boundaries and how his actions made her feel uncomfortable, including

testimony that he walked around naked in front of her. The State argued that the testimony was

admissible under ER 404(b) as evidence of prior acts to show a common plan or scheme by

Bowman to groom his daughters for abuse. The trial court granted the motion. The State also


moved to admit two hearsay statements made by CB, arguing that the statements satisfied the

requirements for admission of child statements under RCW 9A.44. 120. The trial court held a


pretrial evidentiary hearing and ordered the evidence admitted.

         Bowman' s case was tried to a jury. Both CB and MB testified, and CB' s hearsay

statements also were introduced as evidence through the testimony of a police detective. The

trial court gave a " to convict" instruction that listed the elements of first degree child molestation

and   further   stated: "   If you find from the evidence that each of these elements has been proved

beyond   a reasonable        doubt, then it   will   be   your   duty to   return a verdict of guilty."
                                                                                               '          CP at 68.


Bowman did not object to this instruction.


         A jury found Bowman guilty as charged. Bowman appeals.


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44626 -0 -II


                                                             ANALYSIS


A. "         DUTY TO CONVICT" INSTRUCTION.


            Bowman argues that the trial court' s " to convict" instruction, which provided that the


jury had a " duty" to convict if it found the elements of the crime beyond a reasonable doubt,
misstated the law and violated his right to a jury trial under both the United States and

Washington Constitutions. We need not address this issue because Bowman did not object to the

instruction below and he cannot show a manifest constitutional error under RAP 2. 5( a)( 3).

            Under RAP 2. 5(       a)(   3),   we will consider an issue not raised in the trial court only if it

involves a manifest error affecting a constitutional right. Bowman asserts that the " duty to

convict" instruction involves a constitutional issue because both the United States and


Washington State Constitutions protect the fundamental right to trial by jury. U.S. CONST. art.

III, § 2; U.S. CONST.          amends.         V, VI, VII; WASH. CONST.          art.   I, §§ 21.    However, even assuming

that Bowman' s argument raises a constitutional issue, he .
                                                          cannot show that the trial court

committed a manifest error.



            The trial   court    instructed the jury,        " If you   find from the evidence that each of these


elements [ of first degree child molestation] has been proved beyond a reasonable doubt, then it

will   be   your   duty   to   return a verdict of        guilty." CP at 68. This instruction follows standard


language in the Washington                    pattern   jury instructions. 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL 44. 21 ( 3d.                           ed.   2008). Bowman nevertheless argues that


the instruction misstates the law because the jury does not have a " duty" to return a guilty

verdict. In support of this contention, Bowman points to the jury' s power to acquit against the

evidence and        the   court' s   lack      of power    to direct   a verdict or coerce a        jury.
44626 -0 -II



             We held in State   v.   Brown, 130 Wn.          App.    767, 770 -71, 124 P. 3d 663 ( 2005), that it is not


error to give the " duty" instruction. More recently, we stated that Brown had " unequivocally

rejected" the arguments Bowman now raises. State v. Davis, 174 Wn. App. 623, 641, 300 P. 3d

465 ( citing Brown, 130 Wn.              App.   at   770 -71),   review   denied, 178 Wn.2d 1012 ( 2013). The other


two divisions of this court also have rejected this argument in recent cases. State v. Moore, 179

                      465 -69, 318 P. 3d 296 ( Division One),                      denied,    Wn.2d (       2014);
Wn.     App. 464,                                                         review




State   v.   Wilson, 176 Wn.     App.      147, 151, 307 P. 3d 823 ( 2013) ( Division Three), review denied,


179. Wn.2d 1012 ( 2014). Based on this precedent, the trial court' s " to convict" instruction was


not improper. Accordingly, there was no manifest error and we need not consider Bowman' s

argument further.


B.           STATEMENT OF ADDITIONAL GROUNDS


             Bowman raises three additional grounds for review. First, he asserts that the trial court

should       have   excluded   MB'   s   testimony     under     ER 404( b).   Second, Bowman asserts that the trial


court should not have admitted CB' s statements in two interviews under RCW 9A.44. 120


because the interviews contained statements that fell outside the scope of the statute. Finally,

Bowman asserts that his conviction should be vacated because the jury verdict was based on

emotion, not reason. We reject Bowman' s arguments.


             1.     MB' s Testimony is Admissible Under ER 404( b)

             MB testified at trial that her father was often naked around her and showed her naked

pictures of himself with his ex -wife and their children. MB also testified that she disclosed her

father' s inappropriate behavior to a school guidance counselor, which led to a discussion with

CB about their father' s behavior and an investigation by a detective. Bowman argues that the


                                                                    4
44626 -0 -II



trial court abused its discretion in admitting MB' s testimony because it constituted improper

character evidence under       ER 404( b). He argues that the admission of this evidence for the


purpose of     demonstrating   a pattern of "grooming"'          was inappropriate testimony as to his

character. Because this testimony was admitted for a proper limited purpose, and because the

trial court appropriately gave a limiting instruction, we disagree.

        Interpretation of an evidentiary rule is a question of law reviewed de novo. State v.

Gresham, 173 Wn.2d 405, 419, 269 P. 3d 207 ( 2012). If the trial court' s interpretation of the


evidentiary rule is correct, then the trial court' s decision to admit evidence is reviewed for an

abuse of discretion. Gresham, 173 Wn.2d at 419.


        ER 404( b) prohibits admission of evidence of prior bad acts to prove that a defendant has


a criminal propensity, but permits evidence of prior acts for other purposes:

        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.

ER 404( b) (   emphasis added).         The list   of other proper purposes     is merely illustrative. Gresham,


173 Wn.2d at 420. The burden of demonstrating that the evidence will be used for a proper

purpose is on the proponent of the evidence. Gresham, 173 Wn.2d at 420.


        Washington courts repeatedly have held that testimonial evidence of prior acts of child

sexual abuse committed by a defendant is admissible in criminal proceedings for the purpose of

showing   a common scheme or plan.             E.g., Gresham, 173 Wn.2d          at   421 ( " One proper purpose for




   Grooming" is a " process by which child molesters gradually introduce their victims to more
and more explicit sexual conduct."           State v. Quigg, 72 Wn. App. 828, 833, 866 P.2d 655 ( 1994).
                                                             5
44626 -0 -II



admission of evidence of prior misconduct is to show the existence of a common scheme or

plan. ");   State   v.   DeVincentis, 150 Wn.2d 11, 22 -24, 74 P. 3d 119 ( 2003) ( evidence of defendant' s


prior molestation of another child was admissible                     to   show a common scheme or plan);   State v.


Sexsmith, 138 Wn.             App.   497, 501, 505, 157 P. 3d 901 ( 2007) ( daughter'        s testimony describing

acts of sexual abuse defendant committed upon her when she was a child was relevant to show a

common plan or scheme);                State v. Krause, 82 Wn. App. 688, 697, 919 P. 2d 123 ( 1996)

 evidence of prior uncharged sex abuse of young boys was admissible to show a common

scheme or plan           to   molest   young boys). Our Supreme Court in State v. Lough, 125 Wn.2d 847,


852, 889 P. 2d 487 ( 1995), held that in order for evidence of prior acts to come in as evidence of


a common scheme or plan,                the   prior acts must   be: "(     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." "      When [the Lough] analysis is scrupulously applied by the trial court, it effectively

prohibits mere       propensity        evidence."    DeVincentis, 150 Wn.2d at 23.


            The prior acts of abuse need not have been charged offenses to be admissible under ER

404( b). Lough, 125 Wn.2d at 863. However, because of the inherent risk of prejudice in


admitting this type of evidence, uncharged offenses are admissible only if their probative value is

substantial. Lough, 125 Wn.2d at 863; see also Krause, 82 Wn. App. at 690 ( holding that trial

court did not err in admitting evidence of uncharged sex abuse to show a common scheme or

plan).




            In DeVincentis, the court considered a challenge to the admission of evidence of prior


sexual misconduct with a child in a case where the defendant was charged with rape of a child



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44626 -0 -II



and child molestation.       150 Wn.2d at 14 -16. In that case, the trial court admitted testimony of a

witness who said that when she was a young girl the defendant regularly wore only bikini or g-

string underwear around her, showed her naked pictures, and engaged in sexual contact with her.

DeVincentis, 150 Wn.2d at 15. The trial court admitted this evidence, finding that the

defendant' s " lack of clothing showed a design or plan to add a sense of normalcy to his behavior

and to gain the trust of the girls by desensitizing them to his nudity, thereby making it easier to

move    from nudity to     physical ...   and sexual   behavior." DeVincentis, 150 Wn.2d at 16 ( internal


quotation marks omitted).        Our Supreme Court upheld the trial court' s admission of this


evidence, finding that the trial court conducted the proper hearing, made the required findings

under Lough, and had tenable grounds for its decision to admit this evidence. DeVincentis, 150


Wn.2d at 22 -24.


          Here, the trial court held a formal hearing, heard testimony from witnesses, and

considered an oral offer of proof of MB' s anticipated testimony at trial. The court considered the

four Lough factors and concluded based on the evidence presented that ( 1) the prior acts with


MB    occurred     by   a preponderance of   the   evidence, (   2) MB' s testimony " contain[ ed] sufficient

similarities to demonstrate a common scheme or plan by the Defendant to groom the two girls

for   abuse," (   3) the evidence was to be used for the proper purpose of showing a common plan or

scheme and to show the circumstances leading to CB' s disclosure, and ( 4) the evidence was

highly relevant and that its probative value outweighed its prejudicial effect. CP at 56. In this

case, like DeVincentis, the trial court concluded that MB' s testimony as to her father' s lack of

clothing and showing her naked pictures was sufficiently similar to the charged conduct and that

it went to a common plan or scheme to " groom" the young girls for sexual abuse. The trial court


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44626 -0 -II



did not abuse its discretion when it admitted the testimony of MB under ER 404(b) because it

meticulously applied the law and had tenable grounds and reasons for its decisions.

         Further, the trial court instructed the jury to consider MB' s testimony for a limited,

specified purpose. The jury is presumed to follow the trial court' s instructions, and in cases

where a limiting instruction is clearly given by the court, our Supreme Court has found that the

record fails to support a contention that the jury used the ER 404(b) evidence for an improper

purpose. See Lough, 125 Wn.2d at 864. Accordingly, we hold that the trial court did not abuse

its discretion in admitting this testimony.

         2.     Challenge to CB' s Statements was Unpreserved


         Bowman argues that the trial court abused its discretion in admitting under RCW
         1202

9A.44.          the audio recording from one interview of CB and written reports generated from

that interview and a second interview. Bowman contends that the court abused its discretion in

admitting these hearsay statements because the content of the two interviews exceeded the scope

of that allowed under RCW 9A.44. 120. We decline to address Bowman' s argument because he

failed to raise this objection in the trial court.


         Bowman admits that portions of the interviews were properly admitted under RCW

9A.44. 120, but contends that the court erred in admitting the interviews in their entirety because

portions of the interviews do not discuss " sexual contact" and therefore fall outside the statute' s

reach. SAG at 4 -6. This objection was not raised in the trial court. Moreover, at the evidentiary

hearing and in his briefing to the trial court, Bowman' s attorney specifically requested that if the

2
    RCW 9A.44. 120 allows for the admission of statements made by children under the age of ten
about acts of sexual contact if the time, content, and circumstances of the statement provide
sufficient indicia of reliability and the child testifies at trial or is unavailable.

                                                     8
44626 -0 -II



court was to admit any portion of the interview under RCW 9A.44. 120, under the best evidence

rule (ER 1002) and the rule of completeness ( ER 106) the court must admit the entire interview.

Because the court found that the recording contained admissible hearsay statements under RCW

9A.44. 120, and because both parties agreed the complete recording should be admitted, the court

found no reason to consider whether portions should be redacted and admitted the entire

recording.


        As noted above, RAP 2. 5( a)( 3) allows review of unpreserved arguments involving

manifest error affecting a constitutional right. But the issue Bowman raises is not constitutional.

If both the child hearsay declarant and the hearsay recipient testify at trial, then there is no issue

of constitutional magnitude involved in admitting child hearsay. State v. Quigg, 72 Wn. App.

828, 834, 866 P. 2d 655 ( 1994).   In Quigg, the court declined to consider the defendant' s

allegation that the court erred in admitting hearsay evidence that went beyond the scope of RCW

9A.44. 120 when the defendant did not object to the testimony at trial on those grounds, and

when the hearsay declarant testified at trial subject to full cross -examination. 72 Wn. App. at

834 -35. Here, both CB ( the hearsay declarant) and Detective Reinhold (the hearsay recipient).

testified at trial and were subject to cross -examination. Thus, the alleged error did not rise to the

level of a constitutional violation, and we decline to consider Bowman' s argument for the first

time on appeal.


         3.    Verdict Was Not Based on Emotion


         Bowman argues that the jury verdict was erroneously based on emotion, not reason. He

argues that the State' s theory that he had a plan to groom his daughters for abuse was designed to

 inflame the jurors'   emotions against   him,   and   that the   use of   that term,   as well as   the terms
44626 -0 -II



 victim" and " abuse,"        interfered with the jury' s ability to ignore their emotions and make a

decision based on a rational consideration of the evidence. SAG at 7. Bowman also claims that

the voir dire statement made by a juror (who was later excused) that she could tell the defendant

was guilty by looking into his eyes inflamed the jury. We reject these arguments.

          Bowman' s contention that the State' s " grooming" theory was unfairly prejudicial has no

merit. The court held that the " grooming" theory was relevant to the case and that the prejudicial

effect was outweighed by the probative value. Washington courts have allowed the State to

argue to the jury a theory that the defendant was " grooming" his victim for abuse based on

admitted prior acts of sexual abuse. See DeVincentis, 150 Wn.2d at 16 -24; Krause, 82 Wn. App.

at 94 -97. Further, there is no indication that the commonly used terms " victim" and " abuse" or

the term " grooming" were designed to evoke an improper emotional response. The evidence

presented at trial and the State' s arguments may have affected the jurors' emotions, but the trial

court    instructed the jury that "[   y] ou must not let your emotions overcome your rational thought

process."      CP   at   61. " We   presume   that juries follow   all   instructions   given."   State v. Stein, 144


Wn.2d 236, 247, 27 P. 3d 184 ( 2001).            We reject Bowman' s contention that the State' s grooming


theory and the use of these words inflamed the jury' s emotions and thereby denied him a fair
trial.


           There also is no support in the record for Bowman' s contention that the jury was

influenced by statements of a dismissed potential juror. Moreover, when the juror made the




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44626 -0 -II



comment Bowman did not move for a mistrial or ask for a limiting instruction. As a result,

under RAP 2. 5 we need not consider this argument.


        We affirm.


        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 pursuant to RCW 2. 06. 040, it is

so ordered.




We concur:




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