                                                          VILED
                                                  COURT 07 APPEALS DIV 1
                                                   STATE OF VASEING'TC1
                                                                    9:3
                                                   2011 JUL 214




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )      No. 74804-1-1
                     Respondent,         )
                                         )      DIVISION ONE
             v.                          )
                                         )
JAY ADAM SPEAR,                          )      UNPUBLISHED OPINION
                                         )
                    Appellant.           )      FILED: July 24, 2017
                                         )

       BECKER, J. — Appellant Jay Spear, convicted of child rape and child

molestation against his daughter and niece, contends the trial court erred in

denying his request to sever the charges. He also challenges the admission of

prior acts of uncharged misconduct. Spear's prior acts were admissible as

evidence of a common scheme or plan to make the two young girls accept

sexual touching between family members as normal so as to facilitate his abuse

of them. The charged acts involving each girl were cross admissible for the

same reason. We affirm.

      The State charged Spear with two counts of first degree child rape and

one count of first degree child molestation. The alleged victim of the rape

charges was Spear's daughter, JN. The alleged victim of the molestation charge

was C, Spear's niece.
No. 74804-1-1/2

       JN was 12 at the time of trial. Until she was 10, JN lived with her father,

grandparents, and two brothers in Maple Valley. She shared a bedroom with

Spear. Witnesses testified that JN and her father often slept in the same bed

and watched TV together in bed.

       JN testified that her father raped her in the Maple Valley house "at least

two times." She was able to recall details of only one incident: they were in her

bedroom, in bed, and Spear took off her pants and underwear and inserted his

penis in her vagina. JN testified that Spear raped her again later, after she had

moved to California to live with her mother. On this occasion, JN visited Spear at

a truck stop and he had vaginal intercourse with her in the back of his truck.

       JN's older brother, J, testified that when Spear was visiting the children in

North Fork, California, he observed his father in bed with JN. He saw that JN

was naked and Spear had no pants on. Spear told J to take his pants off and

perform sex acts on JN. Spear told him that "people have sexual relationships

with their siblings all the time." J saw Spear put his penis in JN's mouth during

this incident.

       Spear's niece, C, was 16 at the time of trial. As a child, she had often

visited the Maple Valley house when Spear and his children lived there. C

testified that when she was 5 or 6 years'old, Spear removed her pants and

underwear and started talking about her vagina. At one point, he touched her

vagina and told her that when she got older "this part, when you rub it, will feel

good." She said that when she was around 11 or 12, Spear often suggested she




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No. 74804-1-1/3

get naked. He would make comments about her breasts and sometimes

squeezed them.

       Spear's son testified that he once witnessed Spear sitting on a futon while

C stood in front of him with her pants down. Spear pointed out different parts of

C's body. He and C both testified about a time when Spear had the children play

a game of "Truth or Dare," during which he dared them to run around naked and

dared J to put his mouth on C's vagina.

       At the close of the State's evidence, the trial court granted the State's

motion to dismiss one of the rape counts involving JN.

       Spear testified. He denied having sexual contact with JN and C.

       The jury convicted Spear as charged. He was sentenced to 160 months

of confinement.

       On appeal, Spear contends the rape and molestation charges should have

been tried separately. He brought two unsuccessful motions to sever, one before

trial and one at the close of the State's evidence. We review the trial court's

denial of these motions for an abuse of discretion. State v. Kalakoskv, 121

Wn.2d 525, 536-37, 852 P.2d 1064 (1993).

       Offenses that are properly joined may be severed if the trial court

determines that severance will promote a fair determination of the defendant's

guilt or innocence of each offense. CrR 4.4(b); State v. Bythrow, 114 Wn.2d 713,

717, 790 P.2d 154(1990). A defendant must demonstrate that "a trial involving

both counts would be so manifestly prejudicial as to outweigh the concern for

judicial economy." Bvthrow, 114 Wn.2d at 718. Severance is important when


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No. 74804-1-1/4

there is a risk that the jury will use evidence of one crime to infer the defendant's

guilt for another crime or to infer a general criminal disposition. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Joinder can be particularly

prejudicial when the alleged crimes are sexual in nature. Sutherbv, 165 Wn.2d at

884.

       In determining whether to sever charges, a court considers: the

admissibility of evidence of the other charges even if not joined for trial, the

strength of the State's evidence on each count, the court's instructions to the jury

to consider each count separately, and the clarity of defenses as to each count.

Sutherbv, 165 Wn.2d at 884-85. Spear contends that the first three factors

support severance. He does not make an issue of the fourth factor, as his

defense to both charges was the same: a general denial.

       Cross admissibility of the evidence supporting each charge is the most

significant factor in this case. Spear argues that under ER 404(b), evidence that

he raped JN would not have been admissible in a separate trial involving his

alleged molestation of C and vice versa. He contends the only relevance was to

show he had a general propensity to commit sex offenses against children.

       ER 404(b) bars propensity evidence, that is, evidence of other crimes,

wrongs, or acts intended to prove a person's character and show the person

acted in conformity with that character. State v. Gresham, 173 Wn.2d 405,420,

269 P.3d 207(2012). But evidence of other crimes, wrongs, or acts is admissible

for different purposes, including as proof of a common plan or scheme. ER

404(b); Sutherbv, 165 Wn.2d at 887.


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No. 74804-1-1/5

       One fact pattern in which evidence is admissible to show a common plan

or scheme is when an individual devises a plan and uses it repeatedly to

perpetrate separate but very similar crimes. Gresham, 173 Wn.2d at 421-22.

The prior act and charged crime must be markedly and substantially similar, but

the commonality need not be a unique method of committing the crime.

Gresham, 173 Wn.2d at 422, citing State v. DeVincentis, 150 Wn.2d 11, 19-21,

74 P.3d 119(2003).

       In ruling on the severance issue, the trial court found that evidence

involving each complaining witness showed a common plan or scheme. This

determination was consistent with DeVincentis and similar cases, a line of

precedent that Spear does not acknowledge or distinguish. Spear's conduct with

his daughter and with his niece had common features. Both victims were young

girls when the abuse began. Both were Spear's family members, and Spear

involved his son in the sexual touching as well. Spear's conduct manifested a

scheme to get the children to accept nudity and intimate touching and sexual

activity between family members as normal for the family although something to

be kept secret from others. A rational trier of fact could find that Spear acted on

a plan to groom children he already had a close and trusting relationship with,

over an extended period of time, so that he could create opportunities to have

sexual contact with them. See DeVincentis, 150 Wn.3d at 22; State v. Krause,

82 Wn. App. 688, 694-95, 919 P.2d 123(1996), review denied, 131 Wn.2d 1007

(1997). The fact that this plan led to different results, insofar as Spear was




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No. 74804-1-1/6

charged with raping JN and molesting C, does not disprove that he used a

common plan to get to those results.

       Because the evidence for both charges was cross admissible under ER

404(b), the first factor supports the trial court's decision to deny severance. We

briefly review the other severance factors.

       The second factor is whether the strength of the State's evidence was

comparable for each count. JN testified that Spear raped her. C testified that

Spear molested her. The girls' accounts were supported by other witnesses who

testified that Spear engaged in regular, intimate contact with both girls. Spear

denied having sexual contact with either girl. The jury's determination thus came

down to an assessment of witness credibility. Because the State's evidence was

of comparable strength for each count, this factor did not favor severance.

       The trial court satisfied the third factor instructing the jury to consider each

count separately: "A separate crime is charged in each count. You must decide

each count separately. Your verdict on one count should not control your verdict

on any other count." Spear contends this instruction was inadequate because it

did not inform the jury that evidence of one crime could not be used to decide

guilt for a separate crime. Cf. Sutherby, 165 Wn.2d at 885-86. This case is like

DeVincentis, not like Sutherbv. Under the circumstances of this case, with the

evidence cross admissible to prove a common scheme or plan, an instruction

phrased as Spear proposes would not have been correct.

       When evidence of a defendant's other misconduct is admitted, the

defendant is entitled to a limiting instruction stating that the evidence may not be


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No. 74804-1-1/7

used for the purpose of concluding that the defendant has a criminal propensity.

Gresham, 173 Wn.2d at 423-24. But Spear did not request a limiting instruction,

and the court was not required to give one sua sponte. Gresham, 173 Wn.2d at

214 n.2.

       In sum, Spear did not demonstrate that trying both counts together "would

be so manifestly prejudicial as to outweigh the concern for judicial economy."

The trial court did not abuse its discretion by denying severance.

       Spear separately challenges the trial court's admission of evidence related

to three specific events: the truth or dare incident, the truck stop incident, and

the North Fork incident. These incidents did not form the bases for the charges

against Spear. They are instances of other alleged misconduct, and therefore

admission of the evidence must satisfy ER 404(b).

       We find no abuse of discretion in the admission of evidence about the

truck stop, truth or dare, and North Fork incidents. As discussed above, the

evidence tends to show a common scheme, relevant to proving the charged

crimes by showing them to be manifestations of the common scheme.

       The trial court admitted evidence of the truck stop and North Fork

incidents on the additional basis that they demonstrated Spear's "lustful

disposition" towards JN. Spear contends the evidence was irrelevant for that

purpose and unduly prejudicial under State v. Dawkins, 71 Wn. App. 902, 863

P.2d 124 (1993). Given our conclusion that the evidence was admissible to

show a common plan or scheme, we need not address whether it was also

admissible to show lustful disposition.


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No. 74804-1-1/8

      Affirmed.




WE CONCUR:




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