      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 DIVISION ONE
                     Respondent,
                                                 No. 70820-1-1
                v.
                                                 UNPUBLISHED OPINION
JOSE ISMAEL MALDONADO,

                     Appellant.                  FILED: July 20, 2015


       Dwyer, J. — Jose Maldonado appeals from the judgment entered on a

jury's verdict finding him guilty of child molestation in the first degree. Maldonado
contends both that the trial court erred by admitting evidence of prior sex

offenses pursuant to ER 404(b) and that the State presented insufficient
evidence that he touched the victim for the purposes of sexual gratification. In a

statement of additional grounds for review, Maldonado claims that he received

ineffective assistance of counsel. Finding no error, we affirm.

                                          I


       In December 2010, Maldonado lived in a one-bedroom apartment in

Seattle with his wife, Maria Gomez, and their five-year-old daughter, G.M.

During her winter vacation from school, G.M. went to stay with her older sisters,
19-year-old Isabel and 24-year-old B.V., at B.V.'s home in Aberdeen. At one
point during the visit, G.M. told B.V. that she did not want to go back home
70820-1-1/2



"because her dad was hurting her." The following morning, while B.V. was giving

G.M. a bath, B.V. noticed a bruise on G.M.'s upper thigh. B.V. finished bathing

G.M. and told Isabel to ask G.M. about the bruise while B.V. took a shower.

G.M. told Isabel that Maldonado had grabbed her thigh and squeezed "really

hard." Isabel asked if Maldonado touched G.M. anywhere else and G.M. said

yes and patted her vaginal area. Isabel asked if Maldonado touched G.M. over
or under her underwear. G.M. said "under" and demonstrated by pulling her

underwear forward and placing her hand underneath. G.M. told Isabel the abuse

took place while she and Maldonado watched television in bed and that she told
Maldonado to stop but "he would just ignore her and act like she didn't say
anything." When B.V. returned, G.M. told B.V. that Maldonado "would warm up
his hands and put them underneath her pants and her underwear and push
down." G.M. told B.V. that the abuse happened when she and Maldonado were

watching television togetherwhile Gomez was at work.
        B.V. reported G.M.'s disclosures to police. As part of the investigation,
child interview specialist Carolyn Webster interviewed G.M. G.M. told Webster
that Maldonado "put his finger in my colita." G.M. demonstrated, through the use
of a drawing as well as on her own body, that "colita" meant her vaginal area.1
Consistent with her earlier disclosures, G.M. stated that the abuse occurred

when she and Maldonado were watching television while Gomez was at work,



            1ASpanish interpreter testified that "colita" is a term commonly used in Mexico which
 can mean "the bottom of a child, but itcould be the front partor the back like the buttocks or the
 vagina."
70820-1-1/3



and that Maldonado touched her underneath her underwear. G.M. told Webster

that Maldonado did not talk to her or answer her when she talked to him, but

merely continued to watch television. G.M. stated that it hurt because he "just
squished it" and that afterwards Maldonado went to the bathroom and washed
his hands.

       The State charged Maldonado by amended information with two counts of
child molestation in the first degree. Maldonado's first trial ended in a mistrial
after the jury could not reach a unanimous verdict. For reasons that are unclear
from the record, it appears that the State proceeded at retrial on one count of
child molestation in the first degree - domestic violence.

       Prior to the retrial, the State moved to introduce evidence of prior sexual
misconduct by Maldonado against B.V. B.V. is Gomez's daughter from a prior
relationship. B.V. was two or three years old when Gomez and Maldonado
began their relationship. In approximately 1992 or 1993, when B.V. was six or
seven, Maldonado and Gomez were living in Forks. Gomez discovered blood in
B.V.'s underwear and B.V. disclosed that Maldonado was sexually abusing her.

B.V. stated that Maldonado would come into her bedroom early in the morning,

while Gomez was making his lunch for work, and "he would come in and remove
 my pants and underwear, whatever Iwas wearing, and he'd grab his hand up to
 his lips and tell me to be quiet." B.V. stated that Maldonado "would put his hands
 on top of my vagina and would rub, and then Iwould be really wet and it would
 hurt and Ifelt pressure." Gomez confronted Maldonado, who denied the
 allegations. Gomez allowed Maldonado to remain in the home because
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Maldonado threatened to take Isabel away from her and have her deported to

Mexico.

      In 1994, the family moved to Aberdeen. For the first year, the family lived
in an apartment where B.V. had her own bedroom with a doorthat locked.
Maldonado did not abuse B.V. in that apartment. The family subsequently

moved to another apartment where B.V.'s bedroom door did not have a lock.
During the year the family lived in that apartment, Maldonado entered B.V.'s
bedroom approximately three orfour times a week late at night or in the early
morning. On these occasions Maldonado would put his hand inside B.V.'s
underwear and rub her vaginal area. Maldonado did not say anything other than
telling B.V. to be quiet. Because Gomez was afraid that Maldonado was
continuing to abuse B.V., she attempted to monitor his whereabouts by placing a
small trash can behind B.V.'s bedroom door or sprinkling talcum powder around
B.V.'s bed. When Gomez went into B.V.'s bedroom in the morning she

frequently discovered that the trash can had been knocked over or there were
footprints in the powder the size of"a big foot."
          In 2006, B.V. reported the abuse that occurred in Forks to police. At the
time B.V. did not remember the abuse that occurred in Aberdeen. Maldonado

admitted during a subsequent Child Protective Services (CPS) investigation that
 he had touched B.V. in a sexual manner on one occasion while the family lived in

 Forks.

          The State argued thatthe evidence ofthe prior abuse of B.V. was
 admissible for purposes of demonstrating motive, intent, a common scheme or
                                           -4-
70820-1-1/5



plan and absence of mistake or accident. The trial court ruled that evidence of
Maldonado abusing B.V. while the family lived in Forks was admissible on all of

these grounds.

       Ido find by a preponderance ofthe evidence that molestation did
       occur of [B.V.] in Forks and that the probative value of this
       testimony outweighs its prejudicial effect. Certainly there is
       prejudicial effect, but Ithink there's very substantial probative value
       here, particularly for showing that this was in fact done for purposes
       ofsexual gratification, also for showing that it wasn't done in some
       sort of accidental way or that [G.M.] misunderstood what was going
       on.


       And also Ithink that we've clearly got a common scheme or plan
       here in terms of the manner of the touching, being done with a
       hand, underthe underwear, at the - that in the child's bedroom
       when the mother is either at work or making a meal, that it is done
       when the children are about the same age, that it's true that [B.V.]
       is not the biological daughter of Mr. Maldonado but was in the
       position of being a daughter at the time that this occurred, just as
       [G.M.] is, and Ithink that therefore it does meet the standards for
       common scheme or plan as well. So I'll - Iwill admit that testimony
       at trial.

The trial court initially ruled that the State had not proved Maldonado had abused
 B.V. in Aberdeen by a preponderance of the evidence, finding it "inconsistent"
that B.V. did not remember the Aberdeen abuse when she reported the Forks
 abuse in 2006. After further argument, the trial court reversed its ruling and
 admitted the evidence.

        Okay. Well, Iguess Iwill reconsider. Imean Ihave to admit that as
        Ithink about it, you know, Ms. Maria Gomez's testimony does
        support, to the extent that she can do so, corroborate elements of
        what [B.V.] is remembering, and so if we're simply on a more
        probable than not basis, which we're talking about preponderance
        ofthe evidence, then Iguess on a more probable than not basis on
        [B.V.'s] testimony, you know, Ifind that it did occur and then it
        becomes relevant. So I think it is admissible.
70820-1-1/6



The trial court did not explicitly state for which purposes the Aberdeen evidence

was admissible. However, the trial court instructed the jury that "evidence of the

defendant's prior sexual contact with [B.V.] may be considered by you only for

the purposes of common scheme or plan, absence of mistake or accident and as
evidence of sexual motivation as it relates to the current charge."

       Maldonado testified at trial. He stated that he was using alcohol and drugs

in 1993 and that he frequently had blackouts where he did not remember

anything. He admitted to touching B.V.'s vaginal area on top of her clothes on
one occasion while B.V. was asleep. He also admitted that he was not

responsible for putting B.V. to bed or getting her dressed in the morning and had
no reason to ever go into B.V.'s bedroom. He denied he had ever touched G.M.
sexually but stated he may have massaged her legs with baby oil two or three
times at Maria's suggestion.

       The jury convicted Maldonado of one count of child molestation in the first
degree - domestic violence. Maldonado appeals.
                                           II


       Maldonado argues that the trial court erred in admitting evidence,
pursuant to ER 404(b), that he sexually abused B.V. We review a trial court's
interpretation of an evidentiary rule de novo. State v. DeVincentis, 150 Wn.2d
 11, 17, 74 P.3d 119 (2003). If the trial court has correctly interpreted the rule, we
 review the decision to admit or exclude evidence for abuse of discretion.

 DeVincentis, 150Wn.2d at 17. Atrial court abuses its discretion if its decision "is
70820-1-1/7



manifestly unreasonable or based upon untenable grounds or reasons." State v.

Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

        Under ER 404(b), a court is prohibited from admitting "[ejvidence of other

crimes, wrongs, or acts ... to prove the character of a person in order to show
action in conformity therewith." Such evidence may, however, be admissible for

other purposes, such as demonstrating motive, intent, a common scheme or
plan, or lack of mistake or accident. ER 404(b); State v. Fisher, 165 Wn.2d 727,
744, 202 P.3d 937 (2009). This court has recognized that evidence of prior bad
acts is especially probative in cases involving child sexual abuse because of "(1)
the secrecy in which the acts occur, (2) the vulnerability ofthe victims, (3) the
lack of physical proof ofthe crime, (4) the degree ofpublic opprobrium
associated with the accusation, (5) the unwillingness ofvictims to testify, and (6)
the jury's general inability to assess the credibility of child witnesses." State v.
Baker. 89 Wn. App. 726, 736, 950 P.2d 486 (1997). Before admitting evidence
pursuant to ER 404(b), the trial court must "(1) find by a preponderance of the
evidence the misconduct actually occurred, (2) identify the purpose ofadmitting
the evidence, (3) determine the relevance of the evidence to prove an element of
the crime, and (4) weigh the probative value against the prejudicial effect of the
evidence." Fisher, 165 Wn.2d at 745.

         Maldonado first argues that the State failed to prove by a preponderance
ofthe evidence that he sexually abused B.V. in Aberdeen.2 We will uphold a trial


         2Although not entirely clear, it appears that Maldonado is challenging the sufficiency of
 the evidence only as to the Aberdeen abuse. Maldonado did not designate the portion of the
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70820-1-1/8



court's finding that prior misconduct occurred if substantial evidence in the record

supports the finding. State v. Benn. 120Wn.2d 631, 653, 845 P.2d 289 (1993).
Here, there was substantial evidence that Maldonado sexually abused B.V. in

Aberdeen. B.V. testified that Maldonado frequently came into her bedroom late at

night or in the early morning and rubbed her vaginal area under her clothes.
Maldonado conceded that he had no reason to be in B.V.'s bedroom. And

Gomez testified that she frequently found the trash can behind B.V.'s door

knocked over or large footprints in talcum powder around the bed. Although
Maldonado challenges B.V.'s credibility, we do not review a trial court's credibility
determinations. State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
        Maldonado further contends that the trial court erred in determining the

evidence of prior sexual abuse was relevant for an admissible purpose. But the
trial court properly admitted the evidence to demonstrate the existence of a
common scheme or plan. When "the issue is whether the crime occurred, the
existence of a design to fulfill sexual compulsions evidenced by a pattern of past
behavior is probative." DeVincentis, 150 Wn.2d at 17-18. Admission of evidence
for this purpose "requires substantial similarity between the prior bad acts and
the charged crime." DeVincentis, 150 Wn.2d at 21. However, there is no
 requirement that the similarities "be atypical or unique to the way the crime is
 usually committed." DeVincentis, 150 Wn.2d at 13.



 record wherein the State argued for admission of evidence of the Forks abuse, and in the portion
 ofthe record available to this court, trial counsel conceded that the State had met its burden as to
 the Forks abuse evidence.
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70820-1-1/9



       Contrary to Maldonado's assertion, there were marked similarities

between the prior offenses and the charged offense. Maldonado had a paternal

relationship with both girls: G.M. was Maldonado's daughter and B.V. was

Maldonado's step-daughter. Maldonado abused both girls in the home, while the
girls were in bed, either sleeping or watching television. Maldonado began
abusing both girls at a similar age, when G.M. was five years old and when B.V.
was six years old. Finally, Maldonado's behavior during the prior offenses was
substantially similar to the charged offense. Without speaking, other than telling
B.V. to stay quiet, Maldonado placed his hand inside the girls' underwear and
rubbed their vaginal areas. These similarities were sufficient to support the trial
court's finding that the incidents demonstrated a common scheme or plan.3
        In his reply brief, Maldonado argues for the first time that the trial court
erred in failing to consider and weigh the lapse in time between the prior offenses
and the charged offense in determining relevance. We will not address an issue
first raised in a reply brief. RAP 10.3(c); State v. Chen, 178 Wn.2d 350, 358 n.
11, 309 P.3d 410 (2013).

                                                 Ill


        Maldonado next contends that his trial counsel provided ineffective

assistance by failing to request a limiting instruction regarding the ER 404(b)
evidence. This contention is unavailing. As we have already noted, the trial


         3Becausewe hold that the trial court properly admitted evidence of Maldonado's prior
 offenses under the common scheme or plan exception to ER 404(b), we need notaddress
 Maldonado's claim that the trial court erred in admitting the evidence for other purposes.
70820-1-1/10



court expressly instructed the jury as to the permissible purposes for the ER
404(b) evidence, and the deputy prosecutor discussed this limiting instruction at
length in closing argument. Maldonado implicitly abandons this issue in his reply

brief and we do not consider it further.

                                           IV


       Maldonado next claims that insufficient evidence was adduced at trial to

support the jury's verdict because the State did not establish that he touched
G.M. for the purpose of sexual gratification. We disagree.
       Aclaim ofevidentiary insufficiency admits the truth ofthe State's evidence
and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537,
551, 238 P.3d 470 (2010). We view all evidence in the light most favorable to the
State in order to determine whether "any rational trier offact could have found
the essential elements ofthe crime beyond a reasonable doubt." State v. Joy,
121 Wn.2d 333, 338, 851 P.2d 654 (1993).

       Aperson is guilty of child molestation in the first degree when the person
has "sexual contactwith anotherwho is less than twelve years old and not
 married to the perpetrator and the perpetrator is at least thirty-six months older
than the victim." RCW 9A.44.083(1). "Sexual contact" is "any touching ofthe
 sexual or other intimate parts of a person done for the purpose of gratifying
 sexual desire of either party or a third party." RCW 9A.44.010(2). "Sexual
 gratification" is not an essential element of child molestation in the first degree;
 rather, it clarifies the meaning of "sexual contact" to exclude inadvertent touching
 or contact from being condemned as criminal. State v. Lorenz, 152 Wn.2d 22,
                                           -10-
70820-1-1/11



34, 93 P.3d 133 (2004). Ajury may infer sexual gratification from the
circumstances ofthe touching itself, where those circumstances are unequivocal
and not susceptible to innocent explanation. See State v. Whisenhunt, 96 Wn.
App. 18, 24, 980 P.2d 232 (1999).

       It is clear that sufficient evidence was presented at trial to support the

jury's finding that Maldonado touched G.M. for the purposes of sexual
gratification. G.M. told Isabel, B.V., and Webster that Maldonado touched her
vaginal area underneath her underwear while the two of them watched television
together. G.M. stated that it hurt because Maldonado applied pressure. When
G.M. asked Maldonado to stop, Maldonado ignored her. The evidence does not
support an inference that the touching was fleeting or open to innocent
explanation. Arational trier of fact could reasonably infer that Maldonado
touched the intimate parts of G.M. for the purpose of gratifying his sexual desire.
                                           V


       In a pro se statement of additional grounds, Maldonado contends that he
 received ineffective assistance of counsel because trial counsel failed to present
 any evidence or file motions on his behalf. Maldonado's claim is contradicted by
 the record. Four witnesses testified on Maldonado's behalf, including an expert
 witness who challenged Webster's interviewing techniques, and trial counsel filed
 motions challenging the admissibility of child hearsay and the ER 404(b)
 evidence. Maldonado additionally claims that trial counsel was ineffective for
 failing to secure an interpreter for client meetings and for fraudulently overbilling
 him for services. These claims appear to rely on facts outside the record and
                                          -11-
70820-1-1/12



cannot be considered on direct appeal. State v. McFarland, 127 Wn.2d 322,

337-38, 899 P.2d 1251 (1995).

       Maldonado further contends that the trial court abused its discretion by

permitting G.M. to testify as a witness, claiming it caused her undue stress
because of her young age. Maldonado did not challenge G.M.'s testimony at trial.
Issues raised for the first time on appeal are not reviewable unless they

constitute "manifest error affecting a constitutional right." RAP 2.5(a)(3).

Because Maldonado's claim is raised for the first time on appeal and does not

affect a constitutional right, we decline to consider it. Maldonado's pro se claim
regarding sufficiency of the evidence merely repeats that raised by appellate
counsel and we need not further readdress it.

       Affirmed.




We concur:



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