                                                                                                          COURT OF APPEALS
                                                                                                             G1V! SIO1,4 IT
                                                                                                     2015 MAR - 3
                                                                                                                  At1 8: 3
       IN THE COURT OF APPEALS OF THE STATE OF WASHM rt"                                                                      TON

                                                     DIVISION II
                                                                                                      E3 Y           ilk
STATE OF WASHINGTON,                                                                   No. 45048 -8 -II

                                          Respondent,


           v.




DAVID CHRISTOPHER HAVILAND,                                               PUBLISHED IN PART OPINION


                                          Appellant.




          SUTTON, J. —          David Christopher Haviland appeals his bench trial convictions and


sentences for two counts of second degree child rape, RCW 9A.44. 076, and three counts of third

degree child rape, RCW 9A.44. 079. He argues that his second degree child rape convictions must

be reversed because the bill that amended RCW 9A.44. 076, Second Substitute Senate Bill 6259,

51St

       Leg., Reg.   Sess. ( Wash. 1990) ( 2SSB 6259), is              unconstitutional.      We hold that the second


degree rape of a child statute codified in RCW 9A.44. 076 does not violate article II, section 19' s

single- subject   or    subject -in    -title   requirements.   In the unpublished portion of the opinion, we


address and reject Haviland' s remaining arguments. We affirm his convictions and sentences.

                                                          FACTS


          The State charged Haviland with two counts of second degree child rape ( Counts I and II);

and    three counts    of   third   degree   child rape ( Counts   III, IV,   and   V). All counts included a domestic


violence enhancement.               After a bench trial, the trial court found Haviland guilty as charged and

sentenced him to an exceptional sentence totaling 340 months. Haviland appeals his convictions

and sentences.
No. 45048 -8 -II



                                                                ANALYSIS


             Haviland argues that 2SSB 6259, 1 which amended the second degree child rape statute,2 is

unconstitutional because the bill violates the single- subject and subject -in -title requirements in


article II, section 19, of the Washington State Constitution. Thus, he argues that his convictions

and sentences for second degree child rape must be vacated and the charges dismissed with

prejudice. Haviland' s argument fails because section 903 of the bill, which specifically amended

RCW 9A.44. 076, does not violate the single- subject or subject -in -title requirements..

                                                      A. STANDARD OF REVIEW


             We review allegations of constitutional violations de novo. State v. Lynch, 178 Wn.2d 487,

491, 309 P. 3d 482 (2013).              A defendant may raise a " manifest error affecting a constitutional right"

for the first time        on appeal.         RAP 2. 5(   a)(   3); State v. Robinson, 171 Wn.2d 292, 304, 253 P. 3d 84


    2011).      Courts     presume       that    statutes       are   constitutional;   a   party challenging   a "   statute' s




constitutionality bears the heavy burden of establishing its unconstitutionality beyond a reasonable

doubt.        Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P. 3d 762, 27

P. 3d 608 ( 2001);        see   State   v.   Hunley,     175 Wn.2d 901, 908, 287 P. 3d 584 ( 2012). This standard is


met when " argument and research show that there is no reasonable doubt that the statute violates

the constitution."         Pierce      County    v.   State, 159 Wn.2d 16, 27, 148 P. 3d 1002 ( 2006) ( citing         Larson

v.    Seattle Popular Monorail Auth., 156 Wn.2d 752, 757, 131 P. 3d 892 ( 2006)); Amalgamated


Transit, 142 Wn.2d at 205.




1
     LAWS    OF   1990,   ch.   3, §   903.


2 RCW 9A.44. 076



                                                                       2
No. 45048 -8 -II



                                                  B. ARTICLE II, SECTION 19


             Article II,   section    19   of   the Washington State Constitution                  provides       that: "[    n] o bill shall


embrace more           than   one    subject, and       that      shall   be   expressed     in the title."       Article II, section 19


established         two specific    requirements: (          1) the single- subject rule, and ( 2) the subject -in -title rule.

State   v.   Stannard, 134 Wn.          App.     828, 834, 142 P. 3d 641 ( 2006) (                 citing Citizens for Responsible

Wildlife Mgmt. v. State, 149 Wn.2d 622, 632, 71 P. 3d 644 ( 2003)).

                                                        1.   Single- Subject Rule


             Haviland argues that 2SSB 6259 violates the single- subject rule because it "covers a variety

of other general         topics," unrelated to second degree rape of a child and that the various subjects .


contained       in 2SSB 6259 have           no rational        unity. Br.       of   Appellant   at   11.   We disagree.


             Article II,   section    19   prohibits a       bill from embracing            more   than     one   subject. "   The single -


subject requirement seeks to prevent grouping of incompatible measures as well as pushing

through unpopular legislation               by   attaching it to          popular or       necessary legislation."           Pierce County

v. State, 144 Wn. App. 783, 819, 185 P. 3d 594 ( 2008).

             The first step in analyzing whether the legislature violated " the single- subject requirement

is to determine         whether     the title    of   the bill is    general or restrictive."          State   v.   Alexander,          Wn.


App. ,           340 P. 3d 247, 250 ( 2014), petition for review filed, No. 91174 -6 ( Wash. Jan. 5, 2015);

see   Washington Ass 'n of Neigh. Stores                     v.   State, 149 Wn.2d 359, 368, 70 P. 3d 920 ( 2003). "`                      A


general title is broad, comprehensive, and generic, as opposed to a restrictive title that is specific

and narrow' and ` selects a particular part of a subject as                          the   subject of the   legislation.'" Alexander,


340 P. 3d      at   250 ( internal   quotation marks and alteration omitted) (                    quoting Pierce County, 144 Wn.

App.    at    819 -20). " To be considered a general title, the title need not ` contain a general statement




                                                                          3
No. 45048 -8 -II



of the subject of an act; a few well- chosen words, suggestive of the general subject stated, is all

                          3
that   is necessary. "'       On the     other    hand, " restrictive titles tend to deal with issues that are subsets


of an   overarching     subject."       Pierce County, 144 Wn. App. at 820. If the bill has a general title, it

    may constitutionally include all matters that are reasonably connected with it and all measures

that may facilitate the        accomplishment of            the   purpose stated."         Id. at 821.


          The second step in analyzing the single- subject requirement is to determine the connection

between the general subject and the incidental subjects of the enactment. Alexander, 340 P. 3d at

251; Pierce     County,       144 Wn.      App.     at   821. "   Where a general title is used, all that is required is


rational   unity between the          general subject and         the incidental       subjects."    Amalgamated Transit, 142


Wn.2d at 209; see Alexander, 340 P. 3d at 251.

           RCW 9A.44. 076, the second degree rape of a child statute, was amended in 1990 as part

                   4
of   2SSB 6259.        The bill is titled, " Community Protection Act ": "                        AN ACT Relating to criminal

offenders."     LAWS OF 1990, ch. 3, at 12. Haviland acknowledges that the title of the bill is general.




3
    Alexander, 340 P. 3d       at    250 -51 (             quoting Amalgamated Transit, 142 Wn.2d at
                                                 alteration omitted) (

209); see Stannard, 134 Wn. App. at 836. See also Amalgamated Transit, 142 Wn.2d at 209, 212,
216 ( holding that the title "[ s] hall voter approval be required for any tax increase, license tab fees
be $ 30 per year for motor vehicles, and existing vehicle taxes be repealed" was general because,
read as a whole,       the title     embraced      the   general   topic      of vehicle   taxes);   City ofBurien v. Kiga, 144
Wn.2d 819, 825, 827, 31 P. 3d 659 ( 2001) ( holding                           that the title "[   s] hall certain 1999 tax and fee
increases be nullified, vehicles exempted from property taxes, and property tax increases ( except
new construction)         limited to 2 [     annually ?" was general because the entirety of the title
                                                 percent]

encompassed the general subject of tax relief); Citizens, 149 Wn.2d at 632, 636 ( holding that the
title "[ s] hall it be a gross misdemeanor to capture an animal with certain body- gripping traps, or

to poison an animal            with sodium          fluoroacetate        or    sodium    cyanide ?"      was general because the
specific topics referenced in the title were " merely incidental to the general topic reflected in the
title[ —]a   ban on methods of trapping and killing animals. ").

4
    LAws OF 1990,      ch.    3, §   903, at 96 -97.




                                                                     4
No. 45048 -8 -II



Therefore, the question here is whether there is rational unity between the general subject and the

incidental subjects. Amalgamated Transit, 142 Wn.2d at 209.


           Haviland argues that the various subjects contained in 2SSB 6259 have no rational unity

and points          to the   distinct " general topics"         amended      in 2SSB 6259: ( 1) "     the Juvenile Justice Act,"


 2) "   civil   detention"          statutes, (   3) "     compensation     for   crime victims"     statutes, (   4) "   sex offender




treatment       provider"          statutes, (   5) "    civil commitment of        sexually   violent predators"         statutes, (   6)


 background            check"       statutes, (     7) "    funding   and    grant"   statutes,   and (   8)   statutes concerning


 treatment and supervision of                     parents"     who    have   abused children.        Br. of Appellant at 11 - 12.


According to Haviland, the bill violates the single -subject rule because it "covers a variety of other

general topics" unrelated to second degree child rape. Br. of Appellant at 11.

           2SSB 6259 amended the second degree child rape statute from a Class B felony to a Class
                5
A   felony.           This amendment is reasonably connected to the other subjects related to criminal

offenders because it creates a greater penalty for individuals who commit child rape. The subjects

addressed in the bill are reasonably connected to each other. (all are related to criminal offenses)

and     to the bill' s title ( criminal           offenders and       community       protection).    This bill is not like those


where the Supreme Court found violations of the single- subject rule because there was no rational


unity among the matters included in the act. See e. g., Barde v. State, 90 Wn.2d 470, 471 -72, 584

P. 2d 390 ( 1978) (            where the Court held that an act that provided for criminal penalties for


dognapping and the recovery of attorney' s fees in some civil replevin actions lacked rational

unity).




5
    LAws OF 1990,            ch.   3, §   903, at 96 -97.




                                                                        5
No. 45048 -8 -II



            We hold that there is rational unity among the subjects in this bill. Haviland fails to prove

beyond a reasonable doubt that 2SSB 6259 violated the single- subject rule and his argument fails.

                                                      2. Subject -in -Title Rule


            Haviland also argues that 2SSB 6259 violates the subject -in -title rule because it addresses

subjects not encompassed in its title. He contends that, because the bill " also amends and enacts


myriad statutes relating to juvenile offenders, civil commitment, treatment providers, employee

background         checks,    funding for         community          organizations, and         help   for   crime victims,"       the bill


violates     the   subject -in   -title   rule.   Br.    of   Appellant        at   14.   He further contends that enumerating

each   RCW         section   does   not cure      this   deficiency,          and   thus the   entire act    is   unconstitutional.    We


disagree.


            Article II,   section    19     requires     that   a   bill' s title   must state   the   subject of     the   bill: " No bill


shall embrace more            than   one subject, and           that shall be         expressed    in the title." " This provision


ensures     that the   public      has    notice of   the [ bill'    s]   contents."      Stannard, 134 Wn. App. at 841 ( citing

Citizens, 149 Wn.2d           at   639). " This requirement is satisfied if the title of the act gives notice that


would lead to an inquiry into the body of the act or indicates the scope and purpose of the law to

an   inquiring      mind."    Pierce County, 144 Wn. App. at 822. A title does not need to provide details

or an exhaustive        index. Id. "         Any objections to a title must be grave, and the conflict between it

and the constitution palpable, before we will hold an act unconstitutional for violating the subject-

in- title   requirement."        Pierce County, 144 Wn. App. at 822.

            2SSB 6259,       which amends          RCW 9A.44. 076, is titled " Community Protection Act ": " AN


ACT    Relating to      criminal offenders."             LAWS OF 1990, ch. 3, at 12. The title plainly notifies readers

that the bill' s contents relate to criminal offenders, and the bill enumerates the statutes it amends,




                                                                          6
No. 45048 -8 - II




specifically stating that it amends RCW 9A.44. 076, the statute criminalizing second degree child

rape. LAWS OF 1990, ch. 3, at 12. All sections of the bill relate to the unified purpose of addressing

                                                                           6
criminal     offenders        at     all   stages   of   the    process.       We hold that 2SSB 6259 does not violate


Washington Constitution article II, section 19' s single- subject or subject -in -title requirements.


        A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record


in accordance with RCW 2. 06. 040, it is so ordered.




6 But even if we were to hold that any of the bill' s sections violate Washington Constitution article
II, section 19, this would not render the entire act invalid because invalid provisions may be
severable.

        A legislative act is not unconstitutional in its entirety unless invalid provisions are
        unseverable and it cannot be reasonably be believed that the legislative body would
        have passed one without the other, or unless elimination of the invalid part would
        render the remaining part useless to accomplish the legislative purposes.
Amalgamated Transit, 142 Wn.2d at 227 -28.
        Thus, Haviland' s argument also fails because section 903 of the bill, which specifically
amended RCW 9A.44. 076, does not violate the single- subject or subject -in -title requirements. The
amended section provides:

           1)    A person is guilty of rape of a child in the second degree when the person has
        sexual intercourse with another who is at least twelve years old but less than
        fourteen years old and not married to the perpetrator and the perpetrator is at least
        thirty -six months older than the victim.
           2)    Rape of a child in the second degree is a class A felony.
LAws    OF      1990,   ch.   3, §    903, at 96 -97.
        The       plain   language           of section        903   relates   to "   criminal   offenders"   and sexual violence,
which   also relate           to the title     and       subject of    2SSB 6259.          Thus, section 903 does not violate
Washington Constitution article II, section 19.




                                                                         7
No. 45048 -8 -II




           Haviland also argues that ( 1) the trial court erred by admitting testimony from the victim' s

friend and ( 2) his jury trial waiver was not valid. He also raises several issues in his Statement of

Additional Grounds ( SAG). We reject these arguments.


                                                      ADDITIONAL FACTS


                                                         I. SEXUAL ABUSE


           David Christopher Haviland, R.H.' s7 father, began raping R.H. when she was about 13

years old.       Before the first incident, R.H.            and    her friend, S. B., went to the outbuilding /shop on


Haviland'    s   property to     ask   Haviland for chewing tobacco. Haviland told R.H.               and   S. B. that "[ they]


would      have to   work    for it." 2 Verbatim Report              of   Proceedings ( VRP)   at   14, 72.   Haviland told


S. B. to   watch     the   door,   and   directed R.H. to      a   back   room   in the shop. Haviland then raped R.H.


and ejaculated on          the   floor   of   the shop.    He then called S. B. into the back room of the shop and

made S. B. watch as he masturbated. Haviland raped R.H. on multiple occasions when she was 13

to 14 years old. The last sexual assault occurred in 2011.


           In November 2012, R.H. told her mother about the abuse. The mother confronted Haviland

about    R.H.'   s allegations, and           he   responded, "[   I] t wasn' t that bad" and that " it was only like one

time."     1 VRP at 85 -86.




7
    According to Division II' s General Order 2011 -1, we use initials to protect the juveniles' privacy.



                                                                    8
No. 45048 -8 -II




                                           II. PROCEDURAL HISTORY


          The State charged Haviland with two counts of second degree child rape- domestic violence

 counts   I   and   II); and three counts of third degree child rape- domestic violence ( counts III, IV, and


V).8 The trial court held a hearing on the State' s motion to admit evidence, allowing the State to

introduce testimony from S. B. regarding her presence during the first instance of sexual abuse by

Haviland      against    R.H., after which the court entered findings of fact and conclusions of law.


          Haviland presented the trial court with a written waiver of a jury trial, signed by him and

his attorney.       The trial court conducted a colloquy with Haviland to discuss the jury trial waiver

and confirmed that Haviland understood his waiver; after which the judge signed the waiver.

          After the bench trial, the trial court found Haviland guilty as charged,9 and sentenced him

to an exceptional sentence on the third degree child rape -domestic violence ( count V) totaling 340

months, consisting of concurrent 280 -month sentences each on counts I and II, and concurrent 60-

month sentences each on counts III, IV, and V, with his 60 -month sentences to be served

consecutively to his 280 -month sentences. The trial court stated that it made this decision because

some of Haviland' s current offenses would go unpunished due to his high offender score. Haviland

appealed his convictions and exceptional sentence.




8 These charges all related to R.H., not S. B.

9 Second degree child rape- domestic violence (counts I and II) and third degree child rape -domestic
violence ( counts III, IV, and V).




                                                         9
No. 45048 -8 -II



                                                                ANALYSIS


                                                     I. ADMISSIBILITY OF EVIDENCE


          Haviland argues that the trial court improperly admitted S. B.' s testimony because it was

propensity evidence and used it to convict him, in violation of his due process rights under the

Fourteenth Amendment to the United States Constitution. He argues that the trial court erred in


admitting S. B.' s testimony under ER 401 and 402 that Haviland engaged in sexual misconduct

with    S. B.   on   the   day     of   his first    offense against      R. H.. He also asserts that the trial court applied


the wrong legal standard and, alternatively, admitted the evidence under two ER 404(b) exceptions

 res gestae and common scheme or plan) that do not apply.

             We   review a        trial   court' s   interpretation     of an   evidentiary   rule   de   novo.   State v. Gresham,


173 Wn.2d 405, 419, 269 P. 3d 207 ( 2012).                          If the trial court interpreted the rule correctly, then we

review       the trial court' s ruling for                an abuse of   discretion.   Gresham, 173 Wn.2d             at   419.   A trial


court abuses         its discretion        when      it   makes a   decision that is "'   manifestly unreasonable or based on

untenable grounds. "'               State    v.   Depaz, 165 Wn.2d 842, 858, 204 P. 3d 217 ( 2009) ( quoting                     State v.

Quismundo, 164 Wn.2d 499, 504, 192 P. 3d 342 ( 2008)).


              We leave credibility determinations to the trier of fact" and do not review them on appeal.

State   v.   Grier, 168 Wn.             App.      635, 644, 278 P. 3d 225 ( 2012), cert. denied, 135 S. Ct. 153 ( 2014).


We "    can affirm         the trial      court' s rulings on       any   grounds   the   record and      the law   support."     Grier,


168 Wn.         App.    at    644.        If we hold that a trial court' s evidentiary ruling is erroneous, we then

determine if that ruling was prejudicial. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P. 2d 1120

 1997).       An     error   is   prejudicial      if "`within reasonable probabilities, the outcome of the trial would




                                                                          10
No. 45048 -8 -II



have been materially           affected   had the   error not occurred. '    Bourgeois, 133 Wn.2d at 403 ( quoting

State v. Tharp, 96 Wn.2d 591, 599, 637 P. 2d 961 ( 1981)).

             S. B.' s testimony was relevant under ER 401 and admissible under ER 402, and admissible

under a " common scheme               or plan" exception      under    ER 404( b).   The trial court did not abuse its


discretion in admitting S. B.' s testimony on these grounds.

                                                    A. Relevant Evidence


             The trial court admitted S. B.' s testimony that Haviland engaged in sexual misconduct with

S. B.   on   the   day   of   the first alleged offense     against   R.H.   The trial court ruled that this evidence


was relevant under ER 401 and 402 as part of the events leading up to and culminating in the

sexual offense against R.H. The trial court concluded that S. B.' s testimony was relevant evidence

and could




             properly be offered by the State to corroborate allegations of sexual abuse against
              R.H.] because [ S. B.' s] observations [ were] so close in time and space to the alleged
             sexual abuse that they [ did] not constitute prior bad acts and [ were] instead simply
             corroborative observations of sexual misconduct generally.


Clerk' s Papers ( CP) at 3 ( Conclusion of Law (CL) 2. 5).


             We hold that the evidence was relevant to show the context for Haviland' s course of action,


his method of concealing his misconduct, and the entirety of his criminal scheme. S. B.' s testimony

made the existence of Haviland' s misconduct against R.H. in the outbuilding /shop more probable

than    it   would   have been      without   S. B.'   s statements.    Accordingly, it was relevant under ER 401

and admissible under ER 402, subject to a proper ER 403 balancing test which the trial court

conducted.
No. 45048 -8 -II



                                                           B. ER 404( b)


                                  1.    Evidence of other crimes, wrongs, or acts


          Haviland challenges the trial court' s evidentiary ruling that S. B.' s testimony was

admissible under      ER 404( b)        as evidence under a " common scheme or plan."                         CP at 3 ( CL 2. 7).


He argues that S. B.' s testimony was not admissible under ER 404( b) to show a " common scheme

or plan"    because the    acts   described in her testimony                 were unlike    those   alleged     by   R.H.   Br. of


Appellant     at   19 ( citing 1 VRP         at   15 -31, 74 -75).        The State argues that the trial court properly

admitted    the evidence ( 1) . under ER 401                 and    402;    or   alternatively, ( 2)   S. B.' s testimony was

properly    admitted under a " common scheme or plan" exception under                          ER 404( b), and ( 3) the trial


court conducted a proper ER 403 balancing test before admitting the evidence. We hold that the

trial court properly admitted S. B.' s testimony under ER 401 and 402 and also under a " common

scheme or plan" exception under ER 404(b).


          Although ER 404( b) generally              prohibits "[ e] vidence of other crimes, wrongs, or acts ...               to


prove the     character   of a person         in   order   to show action         in conformity therewith,"          evidence of



misconduct or other crimes             is   admissible when        it " complete[ s] the   crime    story."    ER 404( b); State


v.   Hughes, 118 Wn.      App.    713, 725, 77 P. 3d 681 ( 2003);                see State v. Mutchler, 53 Wn. App. 898,

901, 771 P. 2d 1168 ( 1989).            Such evidence must compose " inseparable parts of the whole deed or


criminal scheme."         Mutchler, 53 Wn.            App.    at   901.    The evidence remains inadmissible to show


that the accused has acted in conformity with his or her alleged bad character. Mutchler, 53 Wn.

App. at 901.

           But misconduct evidence is admissible to demonstrate a " common scheme or plan" where


 1) "`   several crimes constitute constituent parts of a plan in which each crime is but a piece of the




                                                                   12
No. 45048 -8 -II




larger   plan, '    or ( 2)     "`   an individual devises a plan and uses it repeatedly to perpetrate separate but

very   similar crimes. '               Gresham, 173 Wn.2d at 421 -22 ( quoting State v. Lough, 125 Wn.2d 847,

854 -55, 889 P. 2d 487 ( 1995)).                     Prior to admitting ER 404( b) evidence, a trial court must conduct

a   four -part test. State            v.   Gunderson, 181 Wn.2d 916, 337 P. 3d 1090, 1093 ( 2014). The trial court


must:




             1)    find     by       a preponderance             of   the     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."


Gunderson, 181 Wn.2d at 1094 ( quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P. 3d 1159

 2002)).


          The       trial       court        found        that       S. B.'   s    testimony      of    Haviland' s        misconduct        at   the


outbuilding /shop           corroborated " sexual                    misconduct           generally"    and was "     admissible to show a


                                                10
 common           scheme      or plan. '              CP        at   2 -3 ( CL 2. 4; 2. 5, 2. 7).          We agree that the evidence is


admissible, but not under a res gestae exception as the trial court concluded, but rather under a


    common        scheme        or plan"       exception under                    ER 404( b).     Because the instances of misconduct


against S. B. and R.H. were so similar in time, place, and action, we hold that S. B.' s testimony

made the existence of Haviland' s misconduct against R.H. in the outbuilding /shop more probable




10 The trial court found that S. B.' s testimony that she went to the outbuilding /shop, was told to act
as a    lookout, then            was       called    into the        room where            Haviland had sexually           assaulted    R.H.,     and

Haviland      masturbated              in front      of   S. B., was relevant under ER 401 and admissible under ER 402
and    did   not   implicate          a prior   bad       act   because the             acts were so close       in time   and space.    The trial
court also ruled that, even if S. B.' s testimony could be considered ER 404( b) evidence, it was " still
admissible as res gestae evidence, as a " common scheme or plan" evidence, and any prejudice is
far outweighed by the probative value of the evidence." CP at 3 ( CL 2. 7).




                                                                                   13
No. 45048 -8 -II




than it would have been without S. B.' s statements; accordingly, the trial court properly admitted

S. B.' s testimony as relevant evidence under ER 401 and 402 and under a " common scheme or

plan" exception under ER 404( b).


                                                    2. ER 403


         Haviland also argues that S. B.' s testimony unfairly prejudiced him under ER 403 and

should    have been    excluded.     Because a trial court has considerable discretion in determining

whether the probative value of evidence is outweighed by its potential prejudice, we will find
reversible error "   only in the   exceptional circumstance of a manifest abuse of             discretion." Carson


v.   Fine, 123 Wn.2d 206, 226, 867 P. 2d 610 ( 1994).              We presume that a trial court considers


evidence only for its proper purpose, and the danger of prejudice is reduced in a bench trial. State

v.   Gower, 179 Wn.2d 851, 855 -56, 321 P. 3d 1178 ( 2014);            State v. Jenkins, 53 Wn. App. 228, 236-

37, 766 P. 2d 499 ( 1989).


          After conducting a balancing test, the trial court ruled that S. B.' s testimony would be

introduced to corroborate R.H.' s version of events on the day of R.H.' s rape, and thus was relevant

to proving the elements of child rape. The trial court concluded that " any prejudice [ from S. B.' s

testimony    was]    far   outweighed   by   the   probative   value   of   the   evidence."    CP   at   3 ( CL 2. 7).


Although the testimony prejudiced Haviland, it was not unfairly prejudicial when balanced against

the highly probative nature of showing Haviland' s actions and his scheme for committing sexual

misconduct against R.H. We hold that the trial court did not abuse its discretion in concluding that

the evidence was relevant under ER 401, admissible under ER 402, and not unduly prejudicial

under ER 403.




                                                         14
No. 45048 -8 -II



                                                     II. JURY TRIAL WAIVER


          Haviland next argues that the trial court erred by accepting his jury trial waiver without

first affirmatively establishing that Haviland understood all of his rights under article I, sections

21 and 22 of the Washington Constitution. He also argues that a felony criminal defendant cannot

waive his or her constitutional right to a jury trial. We disagree.

          A criminal defendant has a constitutional right to a trial by jury. U.S. CONST. amend. VI;

WASH. CONST.        art.   I, §§ 21, 22; see State v. Williams -Walker, 167 Wn.2d 889, 896, 225 P. 3d 913


 2010).       The Washington State Constitution' s jury trial right is broader than the federal

constitution' s   jury trial   right.       State   v.   Pierce, 134 Wn. App. 763, 770, 142 P. 3d 610 ( 2006). Article


I, section 21 of the Washington State Constitution states that the " right of trial by jury shall remain

inviolate."     Haviland appears to read this phrase to mean that a person can never waive a jury trial

when facing a felony charge. Haviland contends that jury waivers in felony cases violate article I,

sections 21 and 22 of the Washington Constitution. 11

          Haviland is incorrect;            a   defendant      can waive      his   or   her   right   to a jury trial: "' The obligation



of the state is to assure a trial by a jury of twelve in a criminal case, and not to insist that an accused,

against   his   expressed    desire,        submit       his   cause   to   such a   jury. "'     State v. Stegall, 124 Wn.2d 719,




11 Section 21 provides:
          TRIAL BY JURY.         The right of trial by jury shall remain inviolate, but the
          legislature may provide for a jury of any number less than twelve in courts not of
          record, and for a verdict by nine or more jurors in civil cases in any court of record,
          and for waiving of the jury in civil cases where the consent of the parties interested
          is given thereto.
Section 22      provides,   in part:    "   RIGHTS OF THE ACCUSED. In criminal prosecutions the accused
shall   have the   right   to appear and defend                in   person, or   by      counsel, ...     to have a speedy public trial
by an impartial jury."



                                                                        15
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724, 881 P. 2d 979 ( 1994) ( alteration      omitted) (   quoting State v. Lane, 40 Wn.2d 734, 737, 246 P. 2d

474 ( 1952)).     A felony defendant can validly waive his or her jury trial right as long as the

defendant "`    acts   intelligently,   voluntarily, [   and]    free from improper influences. '           Stegall, 124


Wn.2d    at   725 ( quoting Lane, 40 Wn.2d       at   737) (    alteration   in   original).   And we recently held that

 Washington law        allows a   defendant to   waive a        jury   trial,"   subject to a knowing, intentional, and

voluntary waiver. State v. Benitez, 175 Wn. App. 116, 127, 302 P. 3d 877 (2013).

         Haviland      argues   alternatively that his    waiver        in this   case was not "`   voluntary, knowing,

and   intelligent. '    Br. of Appellant at 36, 38 ( quoting State v. Hos, 154 Wn. App. 238, 250, 225
P. 3d 389 ( 2010)).     A defendant may waive a jury trial orally or by filing a written waiver. State v.

Ramirez- Dominguez, 140 Wn.             App.   233, 240, 165 P. 3d 391 ( 2007); State v. Donahue, 76 Wn.


App.   695, 697, 887 P. 2d 485 ( 1995); CrR 6. 1(         a).    Compliance with CrR 6. 1( a) 12 constitutes strong

evidence of a validly waived right. Benitez, 175 Wn. App. at 128; Pierce, 134 Wn. App. at 771.

The record shows that Haviland signed a written jury trial waiver.13 And the trial court engaged

in an extensive colloquy with Haviland about his right to a jury trial after receiving Haviland' s




12 CrR 6. 1( a) requires criminal cases to be tried by a jury " unless the defendant files a written
waiver of a jury trial, and has consent of the court."

13 The waiver stated:
                   I am the defendant in the above named case and acknowledge that I have
         been informed of my right to a jury trial in my case, and I understand that I may
         waive this right. I have fully discussed this waiver with my attorney and I want to
         waive my right to a jury trial in this matter.
          I UNDERSTAND THAT I HAVE A RIGHT TO A JURY TRIAL AND I
          HEREBY WAIVE MY RIGHT TO A JURY TRIAL, AND ASK THAT MY
          CASE BE TRIED BEFORE A JUDGE WITHOUT A JURY.
Suppl. CP at 88.




                                                                16
No. 45048 -8 -II




written waiver, during which Haviland acknowledged the rights he forfeited and the risks he
                                           14
acquired   by   submitting his   waiver.        The trial   court accepted   his   waiver.   We hold that Haviland




14 The trial court conducted the following colloquy with Haviland:
       THE COURT: Mr. Haviland, I' ve been handed a waiver ofjury trial in this matter.
       And again, just so we' re clear, we' re dealing with the original information, the
       original five count information.
        PROSECUTOR]: Yes.
       THE COURT:         So Mr. Haviland, you understand that you have a right to a jury
       trial, to have this matter tried to a jury of 12 people?
       MR. HAVILAND: Yes, Your Honor.
       THE COURT: Do you understand that by signing this waiver of jury trial, you' re
       giving that up and you' re agreeing that I would decide this case?
       MR. HAVILAND: Yes, sir.
       THE COURT: Do you understand that there can be some real advantages to having
       this tried as a jury trial as opposed to a bench trial?
        MR. HAVILAND: Yes, sir, I do.
        THE COURT:         You understand that in order for the State to obtain a conviction
        with a jury trial they have to convince all 12 people beyond a reasonable doubt that
             guilty of each of the charges? Do you understand that?
       you' re

        MR. HAVILAND: Yes, sir.
        THE COURT: Do you understand that if you give that right up, then it' s just tried
        to me and they only have to convince one person?
        MR. HAVILAND: Yes, Your Honor.
        THE COURT: You understand that difference?
        MR. HAVILAND: Yes.
        THE COURT:         All   right.    Have you been threatened or pressured in any way to
        sign this waiver?
        MR. HAVILAND: No, sir.
        THE COURT: All right. This is something that you' re doing voluntarily?
        MR. HAVILAND: Yes, sir.
        THE COURT:         Do you feel like you have had sufficient time to talk to [ defense
        counsel] to weigh all of the pros and the cons in this?
        MR. HAVILAND: Yes, sir.
        THE COURT: You' re sure this is what you want to do?
        MR. HAVILAND: Yes.

VRP ( May 3, 2013) at 25 -27.



                                                             17
No. 45048 -8 -II




voluntarily, knowingly, and intelligently waived his jury trial right in writing. Hos, 154 Wn. App.

at 249. Accordingly, this argument fails.

                                                     III. SAG ARGUMENTS


          Haviland also raises several additional grounds for review. He contends that the trial court


 1)   erred   by imposing        an exceptional sentence        based   upon   his   offender score; (   2) erred when it


allowed the State to present an argument that Haviland was the source of a sexually transmitted

disease; ( 3)    erred when it allowed testimony from the State' s witnesses after becoming aware that

the child' s advocate had communicated in -court witness testimony to State witnesses that had yet

to testify; and ( 4) committed " plain error" when it convicted him and imposed an exceptional

sentence. SAG at 8.


                                                   A. Exceptional Sentence


          Haviland first contends that the trial court improperly imposed an exceptional sentence

based     upon   the "'   Free Crimes' concept" by ordering him to serve his sentence on third .degree

child rape ( count V) consecutive to his sentences on his other counts. SAG at 1 But the trial court


imposed an exceptional sentence based on aggravating factors found by the court after Haviland

waived a jury trial. Under RCW 9. 94A.535, the trial court entered written findings of fact, stating

that "[   t]here are substantial and compelling reasons to impose an exceptional sentence ";

specifically, that Haviland " committed multiple current offenses and [ his] high offender score


results    in    some      of    the     current   offenses    going    unpunished."          CP   at   25 (   citing RCW

9. 94A. 535( 2)( c)).


              Generally,   a    trial   court must   impose   a sentence within      the   standard range."    State v. Law,




                                                                18
No. 45048 -8 -II



154 Wn.2d 85, 94, 110 P. 3d 717 ( 2005);                 see   RCW 9. 94A.505( 2)(       a)( i).    But the Sentencing Reform

Act, chapter 9. 94A RCW, permits departures from the standard range if the sentencing court

  finds, considering the purpose of this chapter, that there are substantial and compelling reasons

justifying     an exceptional sentence. "'             Law, 154 Wn.2d at 94 ( quoting former RCW 9. 94A. 120( 2)

 2000), recodified as RCW 9. 94A.535).


          To   reverse an exceptional sentence, we must                   find: ( 1) " under a clearly erroneous standard,"


insufficient     evidence      in the     record       supports    the sentencing court' s "         reasons for imposing an

exceptional sentence; (         2)   under a    de   novo standard,"       the sentencing court' s reasons " do not justify

a departure from the standard range; or ( 3) under an abuse of discretion standard, the sentence is


clearly   excessive or        clearly too lenient."          State v. France, 176 Wn. App. 463, 469, 308 P. 3d 812

 2013),   review    denied, 179 Wn.2d 1015 ( 2014).                       Because Haviland challenges the trial court' s


reasons for imposing an exceptional sentence, we review the exceptional sentence de novo.

France, 176 Wn. App. at 469.

          RCW 9. 94A.535( 2) sets forth aggravating factors that a court may consider when imposing

an exceptional sentence upwards outside                      the   scope of   the   standard range.       Law, 154 Wn.2d at 95


n.   6. The    statute provides       that "[   t] he trial court may impose an aggravated exceptional sentence

without a      finding   of   fact   by   a   jury   under   the   following   circumstances:... (         c) The defendant has


committed multiple current offenses and the defendant' s high offender score results in some of the

current    offenses      going       unpunished."            RCW 9. 94A. 535( 2).         Thus, the trial court made an


appropriate      written      finding     of    fact   justifying its departure from               the   standard   range.   RCW


9. 94A. 535( 2)(   c).   We reject Haviland' s assertion and affirm his exceptional sentence.




                                                                     19
No. 45048 -8 -II



                                             B.   Sexually Transmitted Disease

          Haviland next contends that the trial court erred when it allowed the State to argue or


 infer" during cross -examination that he transmitted chlamydia, a sexually transmitted disease, to

R.H., the     victim.      SAG   at   4.   He contends that the trial court ( 1) violated his " Sixth Amendment

 right   to   confront '    because he never had an opportunity to object to the State' s allegations, and

 2) violated the rules of evidence by admitting statements by S. B. that were more prejudicial than

probative. SAG at 4.


          At trial, the State presented evidence that Haviland was infected with chlamydia at the time


that he had      sex with     R.H.    and   that he gave chlamydia to        R.H.. Haviland did not object to this


evidence; rather, at trial he attempted to rebut the State' s argument by alleging that R.H. was

sexually      promiscuous      in the community.         By failing to object at trial, Haviland waives this issue

on appeal.      In   re   Det. of Post, 145 Wn.      App.   728, 755 -56, 187 P. 3d 803 ( 2008) (        a party who fails

to object to the admissibility of evidence may not raise the issue on appeal).

                                                   C. Witness Tampering

          Haviland next contends that the trial court erred when it allowed testimony from State

witnesses      that he    alleges were "     tampered"    by   another   State   witness,   the   child advocate.   SAG at


6.   He refers to an incident during trial where some of the testimony was communicated to State

witnesses. He relies on the following colloquy during trial:

                    There' s one other thing I wanted to address. Some of the witnesses that
              COURT]:
                             me— they' re sitting out in the hallway —that some man in the
          I had yesterday told
          courtroom yesterday was getting up, leaving and going and telling the state' s
          witnesses what the testimony is. So I brought this to the prosecutor' s attention, but
          that obviously needs to stop if it is going on.
              PROSECUTOR]:    I wasn' t aware of it. I agree it would need to stop. Thankfully
          there were no State witnesses yesterday. But I will address that with them.



                                                               20
No. 45048 -8 -II




3VRPat216.


              Haviland did not object at trial or request any corrective action by the trial court. Because

he failed to object at trial, Haviland has waived this issue on appeal. Post, 145 Wn. App. at 755-

56.


                                                     D. Plain Error


              Finally, Haviland contends that each of the three arguments he raised in his SAG constitute

 plain error," and        therefore,   we   may   review   these   arguments       for the first time   on appeal.   SAG at


8. He cites federal case law for this rule, but the substance of his argument appears to rely on RAP

2. 5(   a),   which permits the appellate court to review a " manifest error affecting a constitutional

right"        for the first time   on appeal.   See SAG     at   8.    Because none of Haviland' s SAG assertions


demonstrate that the trial court committed error, we reject them and affirm his convictions and

sentences.



               We affirm Haviland' s convictions for second degree and third degree child rape, as well as


his exceptional sentence.



                                                                      941144/ Tnei
                                                                      Sutton, J.
We concur:




                                                              21
