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                                                                                                                                  APPEALS


     IN THE COURT OF APPEALS OF THE STATE OF W.
                                                                                                                               A IfWNTON
                                                                DIVISION II                                     KYA
                                                                                                                             P NTY
STATE OF WASHINGTON,                                                                        No. 43332 -0 -II


                                                Respondent,


             V.




DUANE MICHAEL RADER,                                                                  UNPUBLISHED OPINION


                                                0

             PENOYAR, J. —             Duane Rader appeals his first degree arson, felony harassment, unlawful

imprisonment, and fourth degree assault domestic violence related convictions against his then

wife H.R. 1 Rader argues the trial court erred when it admitted into evidence ( 1) prior misconduct

testimony          under    ER 404( b), (       2) expert testimony on the general dynamics of domestic violence,

and (   3)       statements       he   made     to    a   treating    physician' s assistant.    Rader also argues there was


insufficient evidence for the jury to find the aggravating factor that the arson and unlawful

imprisonment              charges      occurred within          the   sight or sound of    the   victim' s minor child.     In his


statement of additional                  grounds (        SAG),   Rader argues the trial court improperly calculated his

offender          score.        Because the trial court improperly admitted the prior misconduct testimony

under    ER 404( b), we reverse and remand for further proceedings.


                                                                       FACTS


I.           BACKGROUND


             Rader        and    H. R.   met online        in   January   2010.   In August 2010, they met in person and

began        a    dating   relationship,        and   quickly     moved     in together.   Rader and H.R. were married on


January 3, 2011.


1 It is appropriate to provide some confidentiality in this case. Accordingly, initials will be used
in the   body        of   the   opinion    to   identify    certain parties    involved.
43332 -0 -II




         H.R. testified that after they were married, Rader became controlling and he started

physically     and    mentally abusing her.             H.R said that between mid- January and mid -
                                                                                                   February

Rader pushed her approximately eight times when she tried to leave during arguments, one time

pushing the back       of   her head causing her head hit the door.                   According to H.R., in mid -
                                                                                                                January

Rader threatened her approximately once or twice a week, and told her that if she left him, he

would   hurt her      and   her 11-   year -old    daughter. He also told H.R. that she was worthless and that


he deserved better.


II.      FACTS RELATED TO THE CRIMES CHARGED


         H.R. testified that on the evening of February 13, 2011, she and Rader were in their living

room    together, and       when    Rader     poured    himself      a   drink   she asked   him to stop    drinking.   Rader


responded      that   he    would "       drink everything in the house if he                  wanted    to."   3 Report of


Proceedings ( RP)           at   421. .     After     Rader'   s    comment,       H.R.    went upstairs to go to bed.


Approximately         an    hour   after    H.R.    went   to bed, Rader           went   upstairs,   slammed open H. R.' s


bedroom door,         and   told   her that   she "   was evil and that he had a bullet he was going to put in

 her] head."     3 RP at 426.


         Rader then went back downstairs to the living room and H.R. got up, wearing just a tank

top and underwear, and started downstairs to get her purse so that she could leave with her
daughter. As she was walking downstairs, H.R. heard her daughter " kind of awake in her room."

3 RP    at   432. H.R.      went   into the kitchen to       retrieve     her    purse.   Rader also went into the kitchen,


grabbed H.R. by the back of her head, hit her head on the counter, and tossed her to the floor,

causing her head to bruise.               While she was still on the floor, Rader again told H.R. that she was


evil and     had to die     and poured       lighter fluid     on   her legs.     He then tossed a lit match on her legs,


causing her legs to catch fire. H.R. began screaming and grabbed a blanket off the couch to wrap
                                                                    2
43332 -0 -II




around    her legs. H.R. went upstairs to soak her legs in cold water and then put aloe vera gel on


them, which failed to soothe the pain.


          H.R. then    went      back downstairs to          get    her   phone and call     911.   On her way downstairs,

H.R.' s daughter    poked        her head     of   her   room.     H. R. testified that her daughter " was frantic.    She


was   just terrified....         She    was   crying     and     asking ...   what all the yelling was about and what

was   wrong."    3 RP       at   463.   Rader objected to H.R. calling 911 and threatened to hurt H.R. and

her daughter if     she     told the truth;        so    H. R.   promised     not   to tell the truth.   H.R. told the 911


operator and the firemen, EMT, and police officers who responded that she was filling a Zippo

lighter when she spilled lighter fluid on herself. Rader told deputy sheriff Tyson Beall that he

was smoking a cigarette by the back door when the couch accidentally caught on fire.

          H.R.   and   her daughter           were      taken to the hospital.          When Rader visited H.R. at the


hospital the next morning, he again threatened to hurt her and her daughter if she told the truth.

H.R. remained in the hospital for five days, was in severe pain for about a month, and could not

walk without a walker or crutches for about a month.


          Several days later, Rader went to an aid station on Joint Base Lewis- McChord and was

treated   for burns    on   his   right   hand     and   left foot    by   Physician'   s   Assistant Rebecca Bean.   Rader


told Bean that he had been burnt by a fire that he started while he was drunk. He also told Bean

he had not come in sooner because his wife was also burned and that he had been in the hospital

with her.


          At the beginning of May 2011, H.R. and her daughter moved to Bellingham to care for

H.R.' s   sick grandmother.             By August 2011, H.R. felt safe enough being away from Rader that

she   told the   police what        really happened         on     February    13, 2011.      After Rader was arrested, he


attempted to call H.R. ten times while in jail, completing three of those calls on August 18, 2011
                                                                     9
43332 -0 -II



between 12: 55         PM and    5: 30 PM.     In   one of     the      calls,   Rader      stated, "   It happened....        That night


ruined   my life." 3 RP at 568.


III.     PROCEDURAL HISTORY


         The         State    charged    Rader           with: (   1)        first    degree     attempted      murder     with       child



            domestic
enhancement /                     violence; (       2)     first degree              arson with child          enhancement /domestic


violence; (     3)    felony    harassment /domestic               violence; (         4)   unlawful imprisonment with child


enhancement/          domestic      violence; (     5) tampering              with    a witness /domestic        violence; (    6) fourth


degree            domestic
          assault /                  violence (     February            13,    2011); (     7)   fourth degree assault /domestic


violence' ( between           April 1    and   April 30, 2011); ( 8) -( 10)                  violation     of a pretrial       no   contact



order /
      domestic violence.


         Prior to trial, the State moved to admit the testimony of Rader' s former spouse R.R. to

bolster the credibility of H.R., arguing that the testimony was important in light of H.R.' s delay

in claiming      abuse.       Prior to marrying H.R., Rader was married to R.R. for seven years ( March

2003 to April 2010).           According to R.R., about a month after they married, Rader threw things at

R.R.    during       an argument.       Again a few months later, R.R. said Rader punched her in the arm.


R.R. said that in 2004 Rader threw a plate at her, and during another argument, he threw a beer

bottle   at   her.    Following an argument in 2005, R.R. said Rader pursued her, grabbed her by the

arms,    and    threw her in his         vehicle.         R.R also testified that in 2008, while she was in their


driveway, Rader grabbed her by her hair and slammed her head into the pavement, and shortly

thereafter Rader grabbed R.R. by her hair again.

          During their seven -year marriage, R.R. said that she never reported the abuse to the

police   because        she   was   afraid   Rader        would     harm her, her            children,    or   her   family.    R.R. said


Rader threatened to kill her children in front of her and made several other threats during the
                                                                        11
43332 -0 -II




duration     of   their   marriage.     R.R. also said Rader told her she was not good enough and said that


women were            evil, worthless,        and useless.       Rader         and    R.R. divorced in April 2010.           The trial


court found the prior misconduct testimony properly admissible under ER 404( b) as part of a

common scheme or plan.



           The State also moved to admit Peg Cain' s expert testimony " regarding the dynamics of

domestic        violence ...     and the reasons why these dynamics often lead to seemingly inconsistent

conduct on        the part of victims."         Clerk' s Papers ( CP)            at   135.   The trial court ruled that the expert


testimony regarding             the   general        dynamics        of   domestic      violence   was    admissible "   due to the


nature of the disclosure in this case [ which] occurred substantially after the alleged incident."

CP at 29.


            Rader moved to exclude his statements to Bean, the physician' s assistant who treated him

at   Joint Base Lewis- McChord.                  Specifically, he wanted the statements that he started the fire

while      he   was    drunk    and    that    his    wife   was     also     burned    excluded.     The trial court found the


physician- patient privilege inapplicable and " that the public interests outweighs the application

of   the   privilege."     1 RP 133.


            Rader     pleaded    guilty to the three         violation of no contact order charges.             CP at 17 -22. The


           found      Rader                            1)    first        degree      arson/ domestic      violence, (   2)     felony
jury                             guilty        of (




harassment /domestic            violence, (      3)    unlawful                    domestic
                                                                      imprisonment /                     violence,   and (   4) fourth


degree      assault (     February      13, 2011) /domestic               violence.     The jury also found the aggravating

factor that the arson and unlawful imprisonment were committed in the presence of a child.


            At the sentencing hearing, the parties agreed to Rader' s offender score, the crimes'

seriousness        levels,     and    the sentencing         ranges.          Due to the aggravating factor, the trial court

imposed an exceptional sentence of 120 months. Rader timely appeals.
                                                                          z
43332 -0 -II



                                                           ANALYSIS


I.         PRIOR MISCONDUCT — 404(b) EVIDENCE
                            ER


           Rader argues the trial court erred when it admitted R.R.' s testimony as part of a common

scheme       or plan.    We conclude that Rader' s alleged abuse of the two women did not contain

distinctive features sufficient to allow the alleged prior misconduct to prove much more than


Rader'   s   propensity for domestic           violence.    The State sought to admit the ER 404( b) evidence to


bolster H.R.' s credibility, but the defendant' s propensity to commit a crime is not a proper

inquiry      for   determining      the   victim' s   credibility.       Accordingly, the trial court erred by admitting

this evidence and we reverse.


           A.         Standard of Review


             We review a trial court' s interpretation of ER 404( b) de novo as a question of law. State

v.   Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009).                        If the trial court correctly interpreted ER

404( b),     we review the trial court' s decision to admit prior misconduct evidence to determine if

the trial court relied on unsupported facts, applied the wrong legal standard, or adopted a position

no reasonable person would take. Fisher, 165 Wn.2d at 745; State v. Lord, 161 Wn.2d 276, 284,

165 P. 3d 1251 ( 2007).


             A trial court must always begin with the presumption that evidence of prior misconduct is

inadmissible.         State   v.   DeVincentis, 150 Wn.2d 11, 17, 74 P. 3d 119 ( 2003).                Under ER 404( b),


     e] vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person

in   order    to   show action      in conformity therewith."              The   evidence   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).




                                                                     3
43332 -0 -II




          We read ER 404( b) in conjunction with ER 403, which requires the trial court to exercise


its discretion in evaluating             whether relevant evidence        is unfairly   prejudicial.   Before a trial court


admits evidence of prior misconduct under                 ER 404( b),      it must ( 1) find by a preponderance of the

evidence       that   the    prior       misconduct   occurred, (    2)   identify the purpose for admitting the

evidence —here,        to   prove a common scheme or plan, (              3) determine the relevance of the evidence


to prove an element of the crime, and ( 4) weigh the probative value of the evidence against its

prejudicial effect. Fisher, 165 Wn.2d at 745; DeVincentis, 150 Wn.2d at 17.

          Rader does not challenge the trial court' s oral ruling that the State proved the evidence of

prior misconduct           by   a preponderance of       the   evidence.     Unchallenged findings are treated as a


verity    on appeal.        State   v.   Chanthabouly,   164 Wn.      App.    104, 129, 262 P. 3d 144 ( 2011),      review




denied, 173 Wn.2d 1018, 272 P. 3d 247 ( 2012).                       Accordingly, we must determine whether the

trial court admitted the evidence on appropriate legal grounds.

          B.          Common Scheme or Plan


           Prior misconduct evidence is admissible to show a common scheme or plan under ER

404( b)    where (    1)    the evidence of prior acts is part of a larger, overarching plan; or ( 2) the

evidence of prior acts follows a single plan to commit separate but very similar crimes.

DeVincentis, 150 Wn.2d               at   19.   The instant case deals with the second type of common scheme


or plan, a single plan followed to commit separate but very similar crimes. Such a common

scheme or plan " may be established by evidence that the Defendant committed markedly similar

acts of misconduct              against   similar victims under similar circumstances."                State v. Lough, 125


Wn. 2d 847, 852, 889 P. 2d 487 ( 1995).                Evidence      of such a plan "`     must demonstrate not merely

similarity in results, but such occurrence of common features that the various acts are naturally to

be explained as caused by a general plan of which the charged crime and the prior misconduct
                                                                 7
43332 -0 -II




are   the individual        manifestations. "'          DeVincentis, 150 Wn.2d at 19 ( quoting Lough, 125 Wn.2d

at   860).     But such common features need not show a unique method of committing the crime.

DeVincentis, 150 Wn.2d at 20 -21.


             When evaluating whether the prior and current misconduct are part of a common scheme

or plan, the trial court examines the whole, not a part, of the planning, preparation, and execution

of   the   misconduct. "[      T] he preferred approach is for the trial court to focus on the closeness of the


relationship between the other misconduct and the charged crimes in terms of time, place and

modus operandi."             Lough, 125 Wn.2d at 858. Although a unique modus operandi is one factor to


consider,      the   crux of       the   inquiry is     similarity,   not   uniqueness.       DeVincentis, 150 Wn.2d at 20.


The degree of similarity for the admission of evidence of a common scheme or plan must be

substantial. DeVincentis, 150 Wn.2d at 20.


             Here, the State        sought      to admit R.R.' s      testimony     to bolster H.R.' s credibility.         The trial


court admitted         R.R.' s testimony "            for the purpose of establishing a common scheme or plan of

behavior       by    the   defendant relating to his behavior                with   this [   sic]   former   wife, [   R.R.], and his


current      wife [   H.R.]."        CP    at   27.     The trial court noted that this is not a case where Rader


allegedly tried to burn R.R., but that the                     abuse    of   both   women was similar enough "              that it is


appropriate       that     such prior evidence of          domestic    violence     be   admitted."     1 RP at 91.


             We   must     determine       whether      the trial   court was correct     in finding "` such         a concurrence of



common         features "' between Rader' s alleged abuse of R.R. and H.R. that his alleged abuse of


both victims was naturally to be explained as manifestations of a general plan; thus, making

R.R.' s testimony            admissible         under    ER 404( b).        DeVincentis,        150 Wn.2d       at    19 -20 ( quoting


Lough, 125 Wn.2d              at   856).   To so find, we must examine whether there was anything distinctive

about      the way in        which       Rader allegedly       abused       these two    women.        In    other words, were    the
43332 -0 -II



features of the abuse commonplace or was there something about the abuse that distinguishes it

from that   suffered   by   many     victims of      domestic   violence.      If the latter is true, then the test is met


because distinctive abuse inflicted on multiple victims is naturally to be explained as

manifestations of a general plan.



         We hold that the           alleged   acts    against   R.R.    and    H. R., while emblematic of domestic


violence, were not substantially similar and did not establish a common scheme or plan.

Certainly there were common features in the alleged abuse of the two women: the victims were

both   married   to Rader     and   they both       stated   Rader physically      and   verbally   abused   them.     Rader,


however, also allegedly committed different acts of abuse against each woman, e. g. he punched

R.R. in the arm, but not H.R. and he set H.R. on fire, but did not set R.R. on fire.

         Thus, while the alleged abuse that R.R. and H.R. suffered was similar, it also was

common      to the typical domestic         violence case.       Domestic violence is a persistent and pernicious


problem and,      unfortunately, the legal           system and     this   court   have   seen much of       it.   The abuse .


routinely involves threats,          assaults,      and verbal abuse.         As Cain, the domestic violence expert


witness,    testified, "   Domestic violence is a pattern of verbal, emotional, psychological, social,


sexual assault, or     fear   of   imminent harm between intimate               partners."   2 RP    at   368.     Cain stated


that the hallmark      of     domestic     violence     is isolation    and    also   controlling behavior.         The State


advanced no argument           that the    common elements of           the   alleged abuse of   R.R.     and   H. R. —Rader


pushed both H.R. and R.R., prevented them from leaving, and threatened them and their family' s

safety if they left— did           not   fit this    usual   pattern.    Thus we cannot say that the abuse was

distinctive or part of Rader' s common scheme or plan, but only that he is allegedly inclined to

abuse women.




                                                                X
43332 -0 -II




            Because propensity to         commit     a   crime    is    not   admissible    under   ER 404( b) and the


probative value of the evidence was slight and its prejudicial effect significant, it was error to

admit    this evidence.        We   reverse and remand      for further       proceedings.    Although we remand to


the trial court, we address the following issues because they may repeat upon further proceedings

on remand.




11.         EXPERT OPINION EVIDENCE


            Rader argues that the trial court abused its discretion when it admitted expert testimony

on    the   general   dynamics       of   domestic   violence.          Rader contends that the irrelevant expert


testimony      was    highly     prejudicial   and   requires     reversal.      We hold the trial court properly

exercised its discretion because expert testimony on domestic violence is admissible to explain

why a victim may initially deny the abuse.

            We review the trial court' s decision to admit expert testimony to determine if the trial

court' s    decision is based       on unreasonable or untenable grounds.              State v. Kirkman, 159 Wn.2d


918, 927, 155 P. 3d 125 ( 2007);            In re Det. of Anderson, 166 Wn.2d 543, 549, 211 P. 3d 994

 2009) ( citing Indus. Indem. Co. of Nw.,                Inc. v. Kallevig, 114 Wn.2d 907, 926, 792 P. 2d 520

  1990)).


            Expert testimony is properly         admissible "[         i] f scientific, technical, or other specialized


knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,

  the]   witness qualifie[ s]    as an expert   by   knowledge,        skill, experience,   training,   or education," and




the basis of the expert' s testimony is accepted by experts in the relevant field. ER 702 -03. Under

 ER 702, expert testimony will be deemed helpful to the trier of fact only if its relevance can be

 established.     State   v.   Riker, 123 Wn.2d 351, 364, 869 P. 2d 43 ( 1994).                An evidentiary error " is

 prejudicial        within reasonable probabilities, had the error not occurred, the outcome of the
                if, `

                                                             10
43332 -0 -II



trial   would     have been materially          affected. "'    State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255

 2001) (   quoting State v. Smith, 106 Wn.2d 772, 780, 725 P. 2d 951 ( 1986)).

           In Washington, expert testimony pertaining to domestic violence is relevant to explain

the seemingly        inconsistent behavior           of   domestic   violence victims.        See, e. g., State v. Allery, 101

Wn.2d 591,          597,    682 P. 2d 312 ( 1984) (            holding expert testimony on the battered woman

syndrome         admissible       to   explain "   why a person suffering from the battered woman syndrome

would      not    leave her        mate,    would    not    inform      police   or   friends, and would fear increased


aggression against herself would be helpful to a jury in understanding a phenomenon not within

the     competence     of an       ordinary    lay   person. ");   State. v. Ciskie, 110 Wn.2d 263, 271, 751 P. 2d


1165 ( 1988) (       admitting expert testimony as to battered women syndrome to help the jury

                                         failed to leave the relationship                     the   acts of violence);   State v.
understand       why the     victim                                               or report




Grant, 83 Wn.         App.        98, 109, 920 P. 2d 609 ( 1996) (          noting that expert testimony pertaining to

domestic violence can be valuable to explain apparent inconsistent conduct on the part of the

victim).




           The trial court admitted the expert testimony on the general dynamics of domestic

violence because the " delay in [H.R.' s] disclosure creates credibility issues" and

            P]   erhaps [   many jurors] would not have a detailed understanding of domestic
           violence, [      thus,]       this type of opinion evidence would be helpful in their
           assessment       of     the   circumstances      here that     are    alleged.   And . . .     this kind of
           evidence has come in other cases where it is appropriate as expert opinion, and it
           is generally accepted within the scientific community.

1 RP at 87 -88.


           At trial, Cain testified generally regarding what a typical domestic violence relationship

looks like and how the offender and victim function within that relationship, but made no

specific references          to    either   party.   See 2 RP at 368 -71, 385 ( discussing characteristics of the
                                                                   11
43332 -0 -II




offender);     2 RP    at   372 -77 (    discussing the characteristics of the victim and reasons why the

victim    may   not report    the   abuse).     Rader contends that " evidence regarding the mental state or

behavior   of perpetrators was [ not] relevant                   to   either   why [ H.R.]     did not immediately report her

allegations or    to any     of   the elements        of   the    charged crimes."        Appellant'       s   Br.   at   40 -41.   Rader


also takes particular issue with Cain' s statement that a woman typically leaves an abuser seven

times before staying away           and   for   others     it may take fourteen times, " if they' re                 not   dead."    2 RP


at 385.


          Cain' s testimony was offered to educate the jury on the general dynamics of domestic

violence and     to   explain     the inconsistencies        of       H.R.' s reporting   of   the   abuse she suffered.            Cain' s


testimony about perpetrators was relevant and properly admissible because it provided context
for her testimony      about victims        generally       and       their typical   responses      to   abuse.     Although Cain' s


statement that victims may take as many as 14 times to leave their abuser " if they' re not dead,"

may not be specifically relevant to the jury' s evaluation of H.R.' s credibility, this minor error

does   not require reversal         of   Rader'   s   conviction.           Further, Rader did not object to this specific


statement at trial.


III.      PHYSICIAN- PATIENT PRIVILEGE


          Rader argues the trial court erred when it admitted statements he made to a treating

physician' s     assistant                    the     cause       of    his burn- related injuries.             Specifically,       Rader
                              regarding


contends the trial court improperly applied the balancing test between a criminal defendant' s

right to claim the physician- patient privilege and the public' s interest in disclosure of his

statement' s to the physician' s assistant. We disagree and hold the trial court carefully considered

Rader' s motion and properly exercised its discretion when allowing the physician' s assistant to

testify regarding Rader' s statements.
                                                                       12
43332 -0 -II




         We review a trial court's evidentiary rulings to determine if the trial court' s decision is

manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State v.
Finch, 137 Wn.2d 792, 810, 975 P. 2d 967 ( 1999).


         The physician -
                       patient privilege prevents a physician from testifying in a civil action

about information the physician acquired when treating the patient, unless the patient consents.

RCW 5. 60. 060( 4).        The purposes of the privilege are " to promote proper treatment by facilitating

full disclosure     of    information[,]" and to protect the patient from embarrassment or scandal that


might result if the intimate details of medical treatment were revealed. Carson v. Fine, 123

Wn.2d 206, 213, 867 P. 2d 610 ( 1994).                 Information connected with obtaining medical treatment

is that " which     was    necessary to     enable [   the   physician]   to   prescribe or act   for the   patient."   RCW


5. 60. 060( 4).


         Unlike all other privileges created by the statute, the legislature did not apply the

physician- patient privilege          to   criminal cases.      State v. Smith, 84 Wn. App. 813, 820, 929 P. 2d

1191 ( 1997).           Washington courts, however, have extended the physician- patient privilege to


criminal prosecutions " so far as practicable" under RCW 10. 58. 010. State v. Mark, 23 Wn. App.

392,   396,       597    P. 2d   406 ( 1979) ( internal        quotation       marks   omitted).      In criminal       cases,


  a] pplication of the privilege requires a balancing of the benefits of the privilege against the

public   interest   of    full   revelation of   the facts."     State v. Stark, 66 Wn. App. 423, 438, 832 P. 2d

109 ( 1992).


         The domestic violence statute ( ch. 26. 50 RCW) reflects the legislature' s belief that the

public   has   an   interest in preventing domestic            violence.       State v. Dejarlais, 136 Wn.2d 939, 944,


969 P. 2d 90 ( 1998).        Quoting this court, the Supreme Court stated:



                                                                13
43332 -0 -II




            The Legislature has clearly indicated that there is a public interest in domestic
            violence    protection          orders.    In   its   statement    of    intent for RCW              26. 50,   the

            Legislature      stated      that    domestic     including violations of protective
                                                               violence,


            orders, is expressly a public, as well as private, problem, stating that:

            Domestic violence is a problem of immense proportions affecting individuals as
            well as communities. Domestic violence has long been recognized as being at the
            core of other major social problems: Child abuse, other crimes of violence against
            person or property, juvenile delinquency, and alcohol and drug abuse. Domestic
            violence costs millions of dollars each year in the state of Washington for health
            care, absence     from     work, services        to   children, and more.       LAWS of 1992, ch. 111,
              1.


Dejarlais, 136 Wn.2d at 944 ( quoting State v. Dejarlais, 88 Wn. App. 297, 304, 944 P. 2d 1110

 1997)).


            Here, Rader told Bean that he started the fire when he was drunk and that his wife had

also   been burned.           The trial court allowed Bean to testify to these statements because it

determined that        although       the   statements would subject          Rader to   embarrassment, "            the jury' s right

to receive full information and make their own judgment, and the public interest in all of the

facts surrounding the          charges at        issue here"      outweighed   the   benefits     of   the   privilege   for Rader. 1


RP     at   133.      Rader argues the trial court improperly balanced the public' s interest in full

disclosure         against   only his       potential   embarrassment         if the   statements        were      revealed.     In its


written order, however, the trial court noted that the " privilege has been overcome and broken in

this case by weighing the conflicting public policy issue of confidentiality and production [ of]

full information for          a   jury   to     make   an   informed decision."        CP    at   30.        Further, the trial court


heard extensive argument on the balancing test and cited to multiple legal authorities that discuss

the balancing test when giving his oral ruling. Accordingly, Rader' s argument that the trial court

improperly considered only his potential embarrassment fails.



                                                                     14
43332 -0 -II




             The trial court properly balanced the public' s interest against the benefits of the privilege

because the purpose of the privilege of encouraging full disclosure for proper medical treatment

will not be promoted here and Rader' s statements will be no more embarrassing than the charges

already brought           against    Rader. See State v. Boehme, 71 Wn.2d 621, 637, 430 P. 2d 527 ( 1967).


Bean' s ability to provide proper treatment was unaffected by Rader' s statements that he started

the   fire   and   that his   wife was also       burned. See 2 RP 262 ( " What I focused on as a provider was


not   how the fire had        started. ")     Whereas Bean noted that Rader' s statement that he was burned on

               13 ( four days before seeing Bean)             was      particularly important to his treatment.         Thus,
February

the purpose of the privilege of promoting proper treatment by facilitating full disclosure of

information is not served by excluding Rader' s statement that he started the fire and his wife was

also burned. As noted in Dejarlais, the public' s interest in preventing domestic violence is great

due to the      public problems         it   creates.   Accordingly, we hold the trial court properly exercised its

discretion when balancing the public' s interest in full disclosure against the benefits of the

privilege and properly admitted Rader' s statements to Bean.

V.           AGGRAVATING FACTOR


             Rader argues there was insufficient evidence to prove the aggravating factor that either

the   arson or      the   unlawful    imprisonment " occurred          within sight or sound of   the   victim' s ...   minor




children."         Appellant' s Br. at 50.


             We review a jury's special verdict finding the existence of an aggravating circumstance

under    the sufficiency of the              evidence standard.     State v. Stubbs, 170 Wn.2d 117, 123, 240 P. 3d

 143 ( 2010);       see also    RCW 9. 94A. 585( 4) (       stating that we may reverse a sentence outside of the

standard        range     if " the    reasons supplied by the sentencing court are not supported by the

record. ").        Under this   standard, "      we review the evidence in the light most favorable to the State"

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to determine whether any rational trier of fact could have found the presence of the aggravating

circumstances beyond a reasonable doubt. See State v. Yates, 161 Wn.2d 714, 752, 168 P. 3d 359

2007) ( quoting State              v.    Varga, 151 Wn.2d 179, 201,                    86 P. 3d 139 ( 2004)). "         A claim of


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

drawn therefrom."            State      v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                     Circumstantial


and   direct   evidence are        deemed equally            reliable.     Yates, 161 Wn.2d         at   752.   We defer to the jury

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


evidence.      State   v.    Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004) (                             citing State v. Cord,

103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985)).


         The trial court may impose an exceptional sentence when certain aggravating factors are

present.    RCW 9. 94A. 535.                 One    of   the aggravating factors        states: "   The current offense involved


domestic       violence ...          and      one   or more     of   the    following     was   present: ... (       ii) The offense


occurred within sight or sound of the victim's or the offender' s minor children under the age of


eighteen years[.]"          RCW 9. 94A. 535( 3)( h)( ii).             This is an aggravating circumstance that the State

must prove       to the     jury   beyond       a reasonable      doubt. RCW 9. 94A.537( 3).                When a jury finds this

aggravating circumstance, the court may sentence the offender to a term of confinement up to the

statutory      maximum         for the underlying              conviction "       if it finds . . .      that the facts found are


substantial and       compelling             reasons   justifying    an exceptional sentence."            RCW 9. 94. 537( 6).


           Although it is clear H.R.' s daughter did not see the crimes, the evidence and testimony

support a      finding    that her daughter heard the                crimes      happen. A rational trier of fact could have


found H.R.' s daughter was awakened by Rader slamming open H.R.' s bedroom door and

threatening to put a bullet in her head. A rational trier of fact could also have found that H.R.' s

daughter heard Rader hitting H.R.' s head on the counter, then throwing her to the floor, and
                                                                       16
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lighting her    on   fire.   The testimony that H.R. heard her daughter moving around in her bedroom,

H.R. screaming after Rader lit her on fire, and the terror H.R.' s daughter exhibited when H.R.

was upstairs after the crimes also support a determination that a rational trier of fact could have

found H.R.' s daughter heard the arson and unlawful imprisonment crimes. Accordingly, we hold

the there was sufficient evidence from which a rational trier of fact could find beyond a


reasonable doubt that H.R.' s daughter heard the crimes being committed.

VI.       SAG IssuE


          Rader contends he should have only been given one point for the three violations of the

no contact order on August 18, 2011, which he plead guilty to, because they should be deemed

other     current     offenses      under    RCW          9. 94A. 525( 1).     RCW     9. 94A. 525( l)   provides   that



  c] onvictions entered or sentenced on the same date as the conviction for which the offender

score is being computed shall be deemed ` other current offenses' within the meaning of RCW

9. 94A. 589."     RCW 9. 94A.589( 1) states that when a person is sentenced for " two or more current

offenses, the sentence range for each current offense shall be determined by using all other

current and prior convictions as if they were prior convictions for the purpose of the offender

score,"   unless the trial court enters a finding that some or all of the current offenses encompass

the same criminal conduct, in which case those offenses shall be counted as one crime. One

exception to this rule is in domestic violence cases.


          Under RCW 9. 94A. 525( 21)(               c),   where the present conviction is for a felony domestic

violence     offense,   the trial    court should "[       c] ount one point for each adult prior conviction for a

repetitive     domestic      violence   offense      as   defined in RCW 9. 94A.030 ... [        that] was plead and



proven after     August 1, 2011."           Here, Rader'      s   domestic   violence offense —violation of a pretrial




domestic       violence      no   contact   order    under    RCW, 26. 50. 110( 1) —   falls within the definition of

                                                                  17
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RCW 9. 94A.030, and he committed and pleaded guilty to the violations after August 1, 2011.

The trial court did not enter a finding that the three violations of the no contact order encompass

the same criminal conduct. Thus, Rader misinterpreted RCW 9. 94A.525( 1) and instead his three

convictions for his violation of the no contact order are considered prior offenses and the trial


court properly assigned one point for each of the three offenses under RCW 9. 94A.525( 21)( c).

        Because Rader' s abuse of R.R. and H.R. do not have any distinctive features, and instead,

only represent what is commonplace for domestic violence, the trial court erred by admitting

Rader' s prior misconduct toward R.R. as part of a common scheme or plan under ER 404(b).

We reverse and remand for further proceedings.


        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

2. 06. 040, it is so ordered.




We concur:




                         t

         Maxa, J.



                     4




         Schindler, J.




                                                 V.
