IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                      )
                                              )         No. 75429-7-1
                     Respondent,              )
                                              )         DIVISION ONE
              v.                              )
                                              )         UNPUBLISHED OPINION
JAMES LARRY JOHNSON, III,                     )
                                              )
                     Appellant.               )         FILED: December 26, 2017
                                              )
      APPELWICK, J. — A jury convicted Johnson of two counts of rape of a child.
Johnson argues that the trial court erred in admitting into evidence other alleged

sexual assaults against children under ER 404(b).        He also challenges his

community custody conditions on various grounds, and alleges numerous errors

in a SAG. We remand for the trial court to strike four community custody conditions

and modify another. We affirm in all other respects.

                                     FACTS

       In 2013, James Johnson began dating a woman. Johnson was the

exclusive child care provider for the woman's eight year old son, M.D., while she

was at work. It was normal for Johnson and M.D. to wrestle together at home.

According to M.D., Johnson, while in his boxers, would wrestle M.D. to the ground,

position himself behind M.D., and insert his penis into M.D.'s anus. These assaults

would happen this same way each time.
No. 75429-7-1/2



       M.D. told his mother that Johnson had "put something in his butt." Johnson

was charged with two counts of rape of a child in the first degree for his acts against

M.D.

       The State sought to introduce at trial evidence of similar assaults against

two other children as a common scheme or plan. First, Johnson had also been

accused of raping his female cousin, M.G.1 M.G. is seven and a half years younger

than Johnson. Johnson would babysit her. M.G. was expected to follow Johnson's

instructions while he was watching her.

       M.G. alleged that, while she was between nine and 12 years old, Johnson

repeatedly molested and raped her. On one occasion, M.G. and Johnson were

home alone, sitting on a couch. Johnson bent M.G. over on the couch, pulled

down her pants, and attempted to put his penis inside of her anus. Johnson's

penis slightly penetrated her, but Johnson stopped once M.G. started crying. The

trial court admitted this act as evidence of a common scheme or plan, but excluded

other instances of alleged molestation of M.G. as not sufficiently similar to the facts

alleged by M.D.

       Second, Johnson was accused of raping another cousin, P.P.J.2 P.P.J. is

eight years younger than Johnson. Like M.G., Johnson would also look after P.P.J.

P.P.J. alleged that he and Johnson would "fake wrestle" emulating wrestlers that



       1 The evidence regarding M.G. was reported to police after the charges
were filed against Johnson. The investigation therefore took place after the
investigation into M.D.'s allegations had begun.
       2 P.P.J.'s mother spoke to a detective about the accusations. But, the
record does not indicate that Johnson was ever prosecuted for these accusations.

                                              2
No. 75429-7-1/3



they saw on television. Some of Johnson's wrestling moves turned into touching

P.P.J.'s genitalia and buttocks. The wrestling lasted ten minutes and the touching

occurred the entire time.

      In an 11 page written findings of fact and conclusions of law, the trial court

explained that it would admit only some of the evidence:

      The Court is only finding that certain, specific acts of sexual
      misconduct against M.G. and P.P.J. are admissible to demonstrate
      the defendant's common scheme or plan. These acts include the
      following: (1) the defendant anally raping M.G, when he was
      babysitting her and no other adults were present, and (2) the
      defendant repeatedly fondling P.P.J.'s genitalia during an incident of
      play-wrestling. The other acts, referenced above, are not admissible
      because they do not contain sufficient similarities to be considered
      part of the same common scheme or plan. However, these two
      specific prior acts demonstrate substantial degrees of similarity such
      that they can be explained as individual manifestations of a common
      plan.



      The Court is very mindful about not admitting propensity evidence.
      This case is based on the testimony of a young child, M.D., who
      delayed reporting the alleged abuse. There is no physical evidence
      to corroborate M.D.'s testimony. The defendant allegedly raped
      M.D. in secrecy so no other adults could bear witness to the abuse
      or protect M.D. Evidence of prior bad acts is highly probative
      because it tends to prove material issues of the charged crime:
      whether the defendant had sexual contact with M.D. The Court has
      conducted an ER 403 balancing test and finds that the probative
      value of the evidence is not substantially outweighed by the danger
      of unfair prejudice. The evidence is highly probative for all the
      reasons discussed above. Finally, to cure any potential prejudice,
      the Court will provide the jury with a limiting instruction, which will
      specifically tell the jury that they shall evaluate the prior sexual
      misconduct evidence only for the limited purpose of assessing
      common scheme or plan.

A jury found Johnson guilty of both counts of rape of a child in the second degree.

Johnson appeals.


                                            3
No. 75429-7-1/4



                                   DISCUSSION

       Johnson argues that the trial court erred in admitting the common scheme

or plan evidence. He challenges the community custody conditions on various

grounds. He also makes numerous arguments in a statement of additional

grounds (SAG).

  I.   Common Scheme or Plan Evidence

       Johnson first argues that the trial court abused its discretion in admitting the

acts against M.G. and P.P.J. as part of a common scheme or plan under ER

404(b). When, as here, a trial court interprets an evidentiary rule correctly,3 this

court reviews the trial court's determination to admit or exclude evidence for an

abuse of discretion. State v. Gresham, 173 Wn.2d 405,419,269 P.3d 207(2012).

       ER 404(b) provides that

       [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. It may, however, be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.

Proof of a "plan" is admissible if the prior acts are (1) proved by a preponderance

of the evidence,(2)admitted for the purpose of proving a common plan or scheme,

(3) relevant to prove an element of the crime charged or to rebut a defense, and

(4) more probative than prejudicial. State v. Lough, 125 Wn.2d 847, 852,889 P.2d

487(1995).

       There are two instances when evidence is admissible to prove a common

scheme or plan:(1) where several crimes constitute constituent parts of a plan in

       3 Johnson   does not contend that the trial court misinterpreted ER 404(b).

                                              4
No. 75429-7-1/5



which each crime is but a piece of the larger plan and (2) where an individual

devises a plan and uses it repeatedly to perpetrate separate but very similar

crimes. Gresham, 173 Wn.2d at 421-22. This case involves the second category.

Evidence of this second type of common scheme or plan is admissible because it

is not an effort to prove the character of the defendant. Id. at 422. Instead, it is

offered to show that the defendant has developed a plan and has again put that

particular plan into action. Id.

       To introduce evidence of this type of common scheme or plan, the prior

misconduct and the charged crime must demonstrate common features such that

they are naturally explained as a general plan of which the two are simply individual

manifestations. Id. Mere similarity in results is insufficient. Id. While the prior act

and charged crime must be markedly and substantially similar, the commonality

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

       A handful of cases illustrate the bounds of a trial court's discretion regarding

common scheme or plan evidence. First, in Lough, our Supreme Court allowed

common plan evidence where the defendant was alleged to have drugged and

raped several women and he warned the women not to report the rape because

no one would believe them. 125 Wn.2d at 864-65. The court noted that the

common plan victims were all strangers to the victim, Lough surreptitiously

drugged them, and raped them while unconscious. Id. at 865. The court stated,

"Far from being inadmissible 'character' evidence, it is powerful, convincing,

reliable and relevant evidence." Id.




                                              5
No. 75429-7-1/6



       Shortly after Lough, this Court found no abuse of discretion in State v.

Krause,82 Wn. App.688,697,919 P.2d 123(1996). There, Krause was convicted

of child molestation and child rape. Id. at 690. He had repeatedly fondled and had

sexual contact with two charged victims: J., a member of his girlfriend's family, and

B., a boy who frequently visited their residence. Id. at 690-91. The trial court

admitted common plan evidence of molestation offour previous victims. Id. at 692.

Krause became acquainted with these victims in different ways. Id. One victim

was a son of a friend's girlfriend. Id. at 691. A second victim was a son of one of

Krause's friends. Id. at 692. A third victim was the young stepbrother of one of

Krause's friends.    Id. The fourth victim he befriended in the course of his

employment as a hotel manager. Id. However, this court found it important that

Krause gained the children's affection through games and outings, and eventually

placed himself in a position where molestation would occur. Id. at 691-92, 695.

We therefore held that a rational trier of fact could find that these similarities

showed an overarching plan. Id. at 695.

       Johnson argues that this case is more like State v. Slocum, 183 Wn. App.

438, 333 P.3d 541 (2014). Slocum was charged with child molestation and rape

of a child for the alleged inappropriate sexual contact with his 15 year old

stepgranddaughter. Id. at 443. The alleged molestation occurred while the

granddaughter was between ages three and 14. Id. The abuse typically occurred

when Slocum would be sitting in a recliner chair, and would ask the victim to sit on

his lap. Id. at 444. He would then rub the victim's genitals. Id. On another




                                             6
No. 75429-7-1/7



instance, Slocum locked the victim in a family trailer, pushed her onto a couch, and

inserted his fingers into her vagina. Id.

       The State moved to admit common plan evidence of Slocum sexually

abusing the alleged victim's mother and aunt many years earlier. Id. at 443-44.

The mother testified that when she was 12 years old, around 1981, Slocum had

rubbed her vagina while she sat on Slocum's lap in a recliner chair. Id. at 445. In

another instance, Slocum had fondled her breasts while she was lying on the floor.

Id. The aunt testified that in 1996 or 1997, when she was about 12, Slocum briefly

placed his hands on her breasts after she granted his request to apply sunscreen

on her. Id. at 446. The trial court admitted the allegations of both the mother and

the aunt. Id.

       The Court of Appeals found no abuse of discretion in admitting the mother's

abuse on the recliner, given that the granddaughter also alleged abuse on a

recliner, and involved "grandfatherly behavior." Id. at 455. But, it found an abuse

of discretion in admitting the evidence of fondling the mother on the floor, and

fondling the aunt while applying sunscreen. Id. at 455-56. These instances

appeared to be nothing more than opportunistic and therefore were not a common

scheme or plan. Id.

       A. M.G.

       Here, the common plan evidence shares similarities with Johnson's

molestation of the charged victim, M.D. M.G. was between ages 9 and 12 during

the assault. M.D. was age 8 or 9 during the assault. The assaults of M.G. and




                                            7
No. 75429-7-1/8



M.D. occurred while Johnson was babysitting alone. Like M.D., Johnson had

gained the trust of M.G.'s and M.D.'s mothers to babysit the children when the

mothers were gone. And, prior to the assaults of M.G. and M.D., Johnson used

physical violence to dominate both children—he hit both M.G. and M.D. prior to the

assault. The assaults of M.G. and M.D. occurred in a similar physical position.

With both M.G. and M.D., Johnson pulled down their underwear and inserted his

penis into their anus from behind. He took specific steps to make sure the victims

did not see his penis. When the victims expressed their pain and distress, Johnson

took steps to calm them. Given these similarities, the trial court acted within its

discretion in deciding that the incidents involving M.D. and M.G. were part of a

common scheme or plan.

       B. P.P.J.

       While the acts against P.P.J. did not involve anal penetration, they too

developed out of a similar pattern. P.P.J. is Johnson's cousin, and is eight years

younger than Johnson. The assaults occurred when he was six years old, and at

Johnson's home. He had frequently spent time with Johnson growing up. They

would play video games together. Johnson had a position of trust over P.P.J., and,

P.P.J.'s mother trusted Johnson to watch over him. Johnson and P.P.J. would

occasionally "fake wrestle" imitating moves of professional wrestlers. But, some

of Johnson's wrestling "moves" involved touching P.P.J.'s genitals and buttocks.

Johnson would say "whoops" and "sorry" when the touching occurred. But, it

happened repeatedly over the course of about ten minutes.




                                            8
No. 75429-7-1/9



       The similarities with the assault of M.D. are numerous. Johnson developed

trust with the both children's mothers so that he could look after the child. P.P.J.

was six, while M.D. was eight or nine years old. Both assaults began with

wrestling,4 a physical but playful activity. Johnson then made sexual advances.

The trial court also acted within its discretion in finding the assaults of P.P.J. and

M.G. were part of a common scheme or plan.

       Johnson argues that, despite these similarities, there is no evidence that

Johnson deliberately isolated M.G. and P.P.J. to prey upon them. Rather, he

contends that the evidence showed he took advantage of a mere opportunity and

that does not amount to a common scheme. But, a rational trier of fact could easily

conclude that development of the trust relationships with M.D.'s, M.G.'s, and

P.P.J.'s mothers were each intended to create the opportunity to sexually assault

the children.

       Johnson also argues that the molestation of P.P.J. is critically different than

M.D. because the assault on P.P.J. did not involve anal penetration. But, in State

v. DeVincentis, 150 Wn.2d 11, 14-15, 16, 25, 74 P.3d 119 (2003), our Supreme

Court affirmed the admission of common scheme or plan evidence involving oral

sex, where the charged crime did not involve oral sex. Johnson's goal in both




       4 The  common thread of wrestling is comparable to the common thread of
the recliner chair in Slocum, 183 Wn. App. at 444. It is a key precipitating factual
circumstance that evidences the similarities in the defendant's design. Similarly,
in Lough, the assaults would start with Lough drugging the victims. 125 Wn.2d at
865. Here, the assaults against M.D. and P.P.J. began as playful wrestling with
unassuming children.
No. 75429-7-1/10



circumstances was sexual stimulation involving a child of similar age, over whom

Johnson had a position of authority.

       The lengthy findings and conclusions illustrate the trial court understood and

properly applied the rule to exclude other acts the state sought to admit. The

carefully reasoned decision properly admitted the challenged evidence under ER

404(b). The trial court did not abuse its discretion.5

 II.   Community Custody Conditions

       Johnson challenges various community custody conditions. He challenges

conditions regarding curfew, alcohol, sexual materials, sex related businesses,

contact with children, and dating relationships.

       Trial courts may impose crime-related prohibitions while a defendant is in

community custody. RCW 9.94A.505(9), .703(3)(f). A "crime-related prohibition"

prohibits conduct that directly relates to the circumstances of the crime for which

the offender has been convicted. RCW 9.94A.030(10). "Directly related" includes

conditions that are reasonably related to the crime. State v. Irwin, 191 Wn. App.

644, 656, 364 P.3d 830 (2015). "'[B]ecause the imposition of crime-related

prohibitions is necessarily fact-specific and based upon the sentencing judge's in-

          Johnson's ER 404(b) challenge is primarily that the acts are insufficiently
similar. But, his brief also includes a single sentence that argues that the
evidence's probative value was substantially outweighed by the danger of unfair
prejudice. But, the probative value of the evidence was very high, because the
facts aligned closely with the alleged crime. And, while the evidence surely created
prejudice, numerous cases have found that the prejudicial effect of prior similar
molestations that are offered as common plan evidence does not substantially
outweigh the probative value. See, e.g., DeVincentis, 150 Wn.2d at 23-24. And,
the trial court explicitly noted its balancing of the probative value and prejudicial
effect, and for that reason gave a limiting instruction that the jury was to use the
evidence only for assessing the common scheme or plan.

                                             10
No. 75429-7-1/11



person appraisal of the trial and the offender,' the appropriate standard of review

is abuse of discretion." State v. Norris, 1 Wn.App. 2d 87, 97,    P.3d     (2017)

(quoting In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374-75, 229 P.3d 686

(2010)). A sentencing court abuses its discretion if its decision is manifestly

unreasonable or if exercised on untenable grounds or for untenable reasons.

Irwin, 191 Wn. App. at 656.

       A. Curfew and Alcohol

       Johnson challenges community custody conditions 7 and 12, which impose

a curfew and prohibit alcohol use, respectively. The State concedes that these

conditions should be stricken, because they are unrelated to the crime. We accept

the State's concession and remand with instructions to strike the conditions that

impose a curfew and prohibit alcohol use.

       B. Sexually Explicit Materials and Sex Related Businesses

       Johnson next challenges the community custody conditions that prohibit

possession of sexually explicit materials and prohibit him from patronizing sex

related businesses. He argues that (1) they are not crime related, and (2) even if

they are crime related, they violate his First Amendment rights to free speech.

          1. Sexually Explicit Materials

       Condition 11 states,

       Do not possess, use, access or view any sexually explicit material as
       defined by RCW 9.68.130 or erotic materials as defined by RCW
       9.68.050 or any material depicting any person engaged in sexually
       explicit conduct as defined by RCW 9.68A.011(4) unless given prior
       approval by your sexual deviancy provider.




                                            11
No. 75429-7-1/12



Johnson notes that this court accepted the State's concession on a similar

argument in State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014). There

Kinzie was convicted of two counts of first degree child molestation. Id. at 777.

This court accepted the State's concession on whether a prohibition on sexually

explicit materials condition was reasonably related to the crime. Id. at 785.

          However, a   recent opinion resulted in a different outcome.- See Norris, 1
Wn. App. 2d at 90. The Norris court found a prohibition on sexually explicit

materials to be sufficiently related to second degree child molestation. Id. It

emphasized that the relationship of a community custody condition to the crime

must be based on the facts of the crime, rather than the class of the crime. See

id. at 96-97. For example,the Norris court upheld a prohibition on sexual materials,

because the crime involved exchanging sexually explicit text messages and

images with the child victim. Id. at 99. Here, besides the fact that the crime is

sexual in nature, there are no facts that pertain specifically to sexually explicit

materials or images. This is insufficient to connect the crime to the condition. We

remand with instructions that the trial court strike condition 11. Because we find

that condition 11 is insufficiently related to the crime, we need not address whether

the sexually explicit materials restriction violates Johnson's First Amendment

rights.

             2. Sex Related Businesses

          Condition 10 states, "Do not enter sex-related businesses, including: x-

rated movies, adult bookstores, strip clubs, and any location where the primary




                                              12
No. 75429-7-1/13



source of business is related to sexually explicit material." In Norris a prohibition

on entering sex related business was insufficiently related to a sexual crime

against children, when the record does not show that frequenting sex related

business was in any way related to the crime. Norris, 1 Wn. App. 2d at 98. Here,

as in Norris, the only relationship between the crime and sex related business is

that they are both sexual in nature. Id.

       We remand with instructions to strike condition 10, and therefore decline to

address Johnson's First Amendment arguments with respect to sex related

businesses.

       C. Contact with Children

       Johnson next argues that condition 16, which prohibits contact with minors,

infringes on his constitutional right to parent his child. Johnson requests only that

he have the opportunity for supervised contact with his child. The State concedes

that the condition should be modified to prohibit only contact with minors without

the supervision of a responsible adult with knowledge of this conviction. We accept

this concession and remand with instructions to modify the condition to allow

Johnson to have contact with his child under the supervision of a responsible adult

that has knowledge of this conviction.

       D. Dating Relationship

       Johnson next contends that the community custody condition that requires

him to disclose a dating relationship is unconstitutionally vague. But, in Norris, we

rejected an identical argument and held that the term is sufficiently specific. Id. at




                                             13
No. 75429-7-1/14



95. The "dating relationship" community custody provision is not unconstitutionally

vague.

 III.   Statement of Additional Grounds for Review

        Johnson makes numerous arguments in his SAG.

        A. Right to Present a Complete Defense

        In additional grounds one and six, Johnson first argues that he was denied

a right to present a complete defense. He claims that he wanted to present

evidence that M.D. rescinded his accusation, but he was prevented from doing so.

It is Johnson's burden on appeal to present facts sufficient to support his

assignment of error. State v. Holbrook, 66 Wn.2d 278, 280, 401 P.2d 971 (1965).

He has not.

        B. Ineffective Assistance of Counsel

        Johnson argues that his trial counsel was ineffective for failing to impeach

or cross-examine M.D. and other state witnesses, and by issuing an inadequate

subpoena'during investigation of the case.

        As to the impeachment and cross-examination issue, this court employs a

strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995). Johnson claims that counsel should have

confronted M.D. about rescinding his accusation. But, the trial court record shows

a lengthy cross-examination of M.D., a child witness. Therefore, counsel's choice

not to use Johnson's preferred strategy for impeachment is insufficient to

overcome the strong presumption of effective representation. See In Re Det. of




                                             14
No. 75429-7-1/15



Hatfield, 191 Wn. App. 378, 398, 362 P.3d 997 (2015)("The array of trial tactics

and strategy available to the attorney as a means of achieving the client's goals is .

considerable, including decisions as to who to call and how to question a

witness.").

       Johnson also claims that counsel was ineffective in impeaching and cross-

examining other witnesses. But, he fails to identify who those witnesses are, and

why counsel should have employed a different strategy. He does note that the trial

court once asked counsel not to repeat direct examination. But, this is also

insufficient to overcome the presumption of effective representation.

       As to the subpoena, Johnson claims that counsel's subpoena of school

records contained language that inadequately described the records sought. But,

the defendant bears the burden of showing ineffective assistance based on the

record. Id. at 337. The subpoena he describes is not in the record, nor does he

point to any portion of the record ,that discusses the circumstances of that

subpoena. This argument therefore fails.

       C. Jury Instructions

       Johnson also claims that the jury was improperly instructed on the definition

of sexual intercourse. But, this argument was not raised below, and it is therefore

waived under RAP 2.5(a) (stating that appellate courts need not address issues

raised for the first time on appeal).




                                            15
No. 75429-7-1/16



       D. Expert Testimony

       Johnson argues that the opinions of the State's expert on child abuse and

psychology are not based on a recognized scientific principle, and are not

generally accepted in the field. But, nothing in the record shows that Johnson

objected to the expert's testimony on this ground. Therefore, this argument is also

waived under RAP 2.5(a) (stating that appellate courts need not address issues

raised for the first time on appeal).

       E. Sufficiency of Evidence

       Johnson next claims that the evidence was insufficient to show (1) that he

committed two distinct acts that would support the two counts he was charged with,

and (2) that he penetrated the victim's anus. The test for determining the

sufficiency of the evidence is whether, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       Johnson was charged with two counts of rape of a child in the first degree.

The only grounds he gives for this sufficiency challenge is that the evidence did

not delineate between specific incidents of rape. But, when asked how many times

Johnson had penetrated him, the victim, M.D., testified that it happened more than

once, and occurred on both weekends and weekdays. Viewed in the light most

favorable to the State, this testimony alone establishes that multiple rapes

occurred.




                                            16
No. 75429-7-1/17



       Johnson also argues that, because M.D. testified only that Johnson

penetrated his "butt," the evidence was insufficient to show that Johnson

penetrated M.D.'s anus. When the sufficiency of the evidence is challenged in a

criminal case, all reasonable inferences from the evidence must be drawn in favor

of the State and interpreted most strongly against the defendant. Id. M.D. testified

that Johnson would come out of his room in his boxers, get on top of M.D., use his

"boy body part," and M.D. would feel pain in his "butt." It is a reasonable inference

to determine that M.D. was referring to penetration of his anus.

       The evidence was sufficient to prove two counts of rape of a child in the first

degree.

       F. Pretrial Rulings

       Johnson's next SAG argument claims that the "trial court abused its

discretion in basing pre-trial rulings on erroneous views of the law." He then cites

to a case regarding the proper remedy when charging information is insufficient.

He makes no further argument on this issue, and it fails to identify any ground for

reversal.

       G. Racial Bias

       Finally, Johnson argues that the trial court was required to inquire into

possible racial bias of jurors. But, our Supreme Court has clearly stated that a trial

court has "no obligation to raise the question of racial prejudice when it was not

requested by the defendant or his counsel." State v. Davis, 141 Wn.2d 798, 834,




                                             17
No. 75429-7-1/18



10 P.3d 977(2000). Johnson does not point to any part of the record where he or

his attorney made any such request. This argument fails.

      We remand for the trial court to strike condition 7(curfew), condition 10(sex

related businesses), condition 11 (sexually explicit materials), and condition 12

(alcohol), and modify condition 16 (contact with minors). We affirm in all other

respects.




WE CONCUR:




                                           18
