                                                         7PI04 3 Y I i   1-Vi C- Kl




       IN THE ^OURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                             No. 71453-8-1

                     Respondent,                 DIVISION ONE

              v.



DANIEL JOHN WILCKEN,                             UNPUBLISHED OPINION

                     Appellant.                  FILED: May 11, 2015


       Beckerj J. — Daniel Wilcken appeals his convictions on four counts

involving the sexual abuse of children. He contends that the trial court erred in
denying two mptions for a mistrial on the grounds of prosecutorial misconduct
               i


and by admitting evidence of prior sex offenses. We affirm.

                                      FACTS


      Wilcken has two daughters who were elementary and middle-school aged

at the time of the offenses. HJ met Wilcken's younger daughter at school when

she was 10 ye|ars old. HJ and Wilcken's younger daughter became friends and
HJ frequently Slept over at the Wilcken's home. One night, when HJ was 12

years old, she woke up to discover Wilcken in bed with her. Wilcken had his

hand inside her underwear and his fingers were tangled in her pubic hair. The

following morning, Wilcken apologized. HJ did not know what to do and was

worried that sne would get into trouble if she told anyone.
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       On another occasion, HJ fell asleep on Wilcken's living room couch. HJ

woke up to discover Wilcken attempting to pull her pants off. HJ pretended to be

asleep, and eventually Wilcken abandoned the attempt.

       Wilcken told HJ he was writing and producing a television show and

offered to let HJ star in it. Wilcken told HJ he needed to create a "digital stunt

double" of her and to do so, he needed to photograph her in the nude. Wilcken

took nude photographs of HJ on several occasions. On one of these occasions,

Wilcken groped and twisted HJ's nipple. Wilcken also asked HJ if he could kiss

her and take a close-up photograph of her vagina. These events involving HJ

were the basis for count 1, child molestation in the second degree.

       CS met Wilcken's older daughter at church when she was 12 years old.

CS quickly became close to Wilcken's older daughter because she did not have

many friends and because the two girls had a shared interest. Like HJ, CS was

frequently invited to spend the night at Wilcken's home. On her first overnight

visit, CS woke to Wilcken straddling her. CS noticed that her pajama shirt was

pulled up, exposing her chest, and Wilcken had his hand in her pajama pants,

over her underwear. CS grabbed her clothes and ran into the bathroom. When

CS came out, Wilcken asked CS "if it felt good," and CS said no. Wilcken told

CS not to tell anyone about the incident. He then took CS to a store and offered

to buy her a DVD if she agreed to not tell anyone. Afraid to lose her friendship

with her only friend, CS continued to regularly spend the night at Wilcken's house

but would wrap herself tightly in blankets and sleep as close to Wilcken's older

daughter as she could.

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       On three subsequent occasions, CS awoke to find Wilcken standing in the

corner of the room.

       Wilcken told CS he wanted her to star in a movie that he had written. He

told her he wanted to create a "virtual character" of her and to do so he would

need to photograph her entire body in the nude. CS refused. Wilcken later

showed CS nude photos he had taken of his two daughters. These events

involving CS were the basis for count 2, attempted child molestation in the

second degree.

       SE met Wilcken's younger daughter at school when she was 10 years old.

They quickly became friends. SE began spending the night at Wilcken's house

two or three times a month. One night, Wilcken entered the room where SE was

sleeping. Wilcken told SE to "scoot over" and lay down next to her. He put his

hand inside her pajama pants and underwear and rubbed her vaginal area. SE

pretended to be asleep "because it was a very confusing situation for me and I

wasn't sure if I was supposed to know or react." Wilcken told SE "not to tell [her]

family because they wouldn't understand." Wilcken frequently told SE that his

family loved and appreciated her.

       Wilcken told SE that he was making a movie and needed some "anatomy

references" for his "animation program." He asked to photograph SE in the nude.

SE was uncomfortable but agreed because Wilcken was also photographing his

younger daughter in the nude and because she wanted the Wilcken family to

continue to like her. These events involving SE were the basis for count 3, child

molestation in the first degree.

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       When TW was eight she met Wilcken's older daughter at school. The girls

quickly became best friends, and TW went to Wilcken's home nearly every day.

Wilcken told TWs family that he worked with other celebrities and that he "had

some connections" and would be able to get TW into modeling. According to

TWs older sister, Wilcken took photos of TW in which she was "partially

dressed," wearing "bikini tops, booty shorts" and "bent over" with her "legs spread

open." Wilcken described himself as TWs "manager" and bought TW expensive

gifts such as clothes, roller blades, and a bracelet.

       One night, when TW was 11 years old, she woke up to Wilcken pulling her

shirt up and exposing her breasts. TW pretended she was asleep and rolled

away from Wilcken. TW called her mother and went home. On several

subsequent occasions, while showering at Wilcken's home, TW noticed Wilcken

watching her through the bathroom window. These events involving TW were

the basis for count 4, attempted child molestation in the second degree.

       JB's mother, DB, dated Wilcken in the 1980s and remained friends with

Wilcken. JB's family frequently stayed overnight at Wilcken's home. On one

occasion, when JB was nine years old, she woke up to find Wilcken rubbing her

breasts and lower torso underneath her pajamas. JB rolled away and told her

mother the next morning. JB and her family did not ever go back to Wilcken's

house. These events involving JB were the basis for count 5, child molestation in

the first degree.




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       When interviewed by law enforcement, CS, HJ, and SE initially denied that

anything had happened at Wilcken's house but later admitted Wilcken had

molested them.


       The State charged Wilcken with child molestation in the second degree

(count 1), attempted child molestation in the second degree (count 2), child

molestation in the first degree (count 3), attempted child molestation in the

second degree (count 4), and child molestation in the first degree (count 5). A

jury convicted Wilcken on counts 1 through 4 but acquitted him of count 5, the

count involving JB. Wilcken appeals.

                                     ANALYSIS

Prosecutorial Misconduct


       Wilcken claims that the trial court erred when it denied two motions for a

mistrial based on the prosecutor's misconduct during voir dire and opening

statements. A trial court's decision to deny a motion for a mistrial will be

overturned only when there is a substantial likelihood the prejudice affected the

jury's verdict. State v. Russell. 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert-

denied, 514 U.S. 1129 (1995). Because the trial court is in the best position to

determine the extent of the prejudice, a trial court's decision is reviewed for an

abuse of discretion. State v. Escalona. 49 Wn. App. 251, 254, 742 P.2d 190

(1987). To determine whether the trial court abused its discretion in denying a

motion for a mistrial, we examine (1) the seriousness of the irregularity, (2)

whether it involved cumulative evidence, and (3) whether the trial court properly
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instructed the jury to disregard it. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d

390 (2000).

       Prosecutorial misconduct is a form of trial irregularity. State v. Davenport,

100 Wn.2d 757, 762, 675 P.2d 1213 (1984). To establish prosecutorial

misconduct, the defendant bears the burden of showing the conduct was both

improper and prejudicial. State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937

(2009). It is improper for a prosecutor to make comments designed to appeal to

the passion and prejudice of the jury, or encourage a verdict based on emotion

rather than evidence. State v. Belgarde. 110 Wn.2d 504, 507-08, 755 P.2d 174

(1988). We review the allegedly improper comments in the context of the issues

presented, the evidence addressed, the instructions given to the jury and the

argument of the parties. Russell, 125 Wn.2d at 85-86.

       Wilcken first argues that the prosecutor committed misconduct during voir

dire when he asked prospective jurors to reflect on their own sexual experiences.

He claims this was "tantamount to asking jurors to put themselves in the victims'

shoes" and was "designed to create sympathy for the victims."

       During voir dire, the prosecutor asked the jury panel to consider whether

they would expect child molestation to be committed in the open or in private.

The prosecutor then asked the jury panel to recall their first sexual experiences

and invited them to talk about their memories.

             I want to shift gears and I want to ask you all to close your
      eyes at this point. You aren't going to need to lift up your card for
      this one, but you close your eyes.
             I want you to think back to your first sexual experience. It
      can be whatever you consider to be your first sexual experience. I

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       want you to think about who it was with. I want you to think of that
       person's name. I want you to think about the day's events leading
       up to that event. Think about where you were when it occurred,
       who you were beforehand, think about the clothing that you were
       wearing, think about the time of day, think about what he or she
       might have said to you leading up to it, think about the feeling that
       you had when you experienced it, think about the scents that you
       might have smelled, think about the sounds, think about words that
       were exchanged, think about how it ended, think about how it felt
       afterwards, how things were left between you.
              I want you to open up your eyes now and I want to ask who
       would like to come up here and talk about that on the witness
       stand? I'm not seeing any cards.

When no one volunteered, the prosecutor proceeded to question prospective

jurors about why they might be reluctant to tell strangers about a sexual

experience and whether they could remember precise details of the experience if

it happened long ago.

       Wilcken objected. At a sidebar conference, Wilcken moved for a mistrial,

contending the prosecutor's questioning was improper because it encouraged

prospective jurors to sympathize with the victims by putting themselves in the

victims' shoes. The trial court denied the motion.

       On appeal, the State defends the prosecutor's remarks, claiming the

prosecutor was merely inquiring how prospective jurors might assess a witness's

demeanor when describing past events, particularly when those memories were

highly personal. This argument is not persuasive. The State is entitled to

explore how prospective jurors will evaluate a witness's credibility. But the

prosecutor could and should have done so without asking prospective jurors how

they would feel if they had to testify in court about intimate sexual activity

experienced at a young age. This emotionally charged inquiry was improper.

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       Nevertheless, the prosecutor's remarks were not so prejudicial as to

warrant a mistrial. Given the evidence of Wilcken's guilt, we cannot say there

was a substantial likelihood the statements affected the jury's verdict. Moreover,

the prosecutor pursued this line of inquiry for several pages before Wilcken

objected, at which point the trial court instructed the prosecutor to move on.

Wilcken could have alleviated some of the impropriety by raising a

contemporaneous objection or requesting a curative instruction. The trial court

did not err in denying Wilcken's request for a mistrial.

       Wilcken next argues that the prosecutor committed misconduct during

opening statement by stating that he brought the case on behalf of the victims.

The prosecutor introduced each victim by stating, "we're here for" that victim,

showing a photo of the victim and describing the testimony the victim was

expected to give.

       We're here for [TW].
             And we're also here for [CS]....

              So we're here for [CS], as well....
              We're also here for [HJ].. ..

              ... So we're here for [HJ], as well.
              We're also here for [SE]. . . .

              Oh, yeah. Also here for [JB].

       Defense counsel again moved for a mistrial, claiming that the prosecutor

had purposefully appealed to the jury's sympathy by encouraging them to align

themselves with the victims. The trial court denied the motion.




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       Again, the prosecutor's statements were improper. A prosecutor does not

represent the victims in a criminal trial. State v. Pierce, 169 Wn. App. 533, 558,

280 P.3d 1158, review denied, 175 Wn.2d 1025 (2012). Rather, a prosecutor is

"'presumed to act impartially in the interest only of justice.'" State v. Monday, 171

Wn.2d 667, 676 n.2, 257 P.3d 551 (2011) (quoting People v. Fielding, 158 N.Y.

542, 547, 53 N.E. 497 (1899)). Stating "we're here for" the victims improperly

suggests that the role of the prosecutor and jury is to seek justice for the victims.

Though the State argues that the phrase is harmless because the identity of the

referenced group "we" is ambiguous, this is precisely the reason why the use of

"we" statements is discouraged. See United States v. Younger, 398 F.3d 1179,

1191 (9th Cir. 2005).

       However, the trial court did not err in denying Wilcken's motion for a

mistrial. In light of the remainder of the prosecutor's opening statement, which

properly focused on outlining the evidence the State planned to introduce, any

prejudicial effect was mild. And Wilcken did not object during the prosecutor's

opening statement but instead waited to raise the issue once the jury had been

excused at the end of the day. IfWilcken had objected, the trial court could have

instructed the prosecutor to refrain from using the phrase.

ER 404(b) Evidence

       Wilcken contends the trial court erred in admitting evidence of prior

uncharged acts of sexual misconduct pursuant to ER 404(b) as evidence of a

"common scheme or plan." He argues the evidence was insufficient to establish



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a common scheme or plan because the earlier acts were too remote in time and

were not sufficiently similar to the charged offenses.

       Prior to trial, the State sought to introduce evidence involving four other

girls who were molested by Wilcken approximately 20 years prior to the charged

offenses.

       AC is the younger sister of DB, the mother of JB. When DB dated Wilcken

in the 1980s, AC was between seven and nine years old. AC initially liked

Wilcken because he gave her attention and took her on fun outings to swimming

pools and amusement parks. However, on two of these outings, Wilcken put his

hands underneath AC's bathing suit and touched her chest and vaginal area.

       AC, her siblings, and their friends frequently had "campouts," where they

all slept in sleeping bags on the floor of her parents' living room. On one

occasion, Wilcken climbed into AC's sleeping bag and put his hand inside her

shirt. AC began sleeping in her closet or her parents' bedroom to avoid Wilcken.

When AC expressed discomfort with Wilcken's behavior, Wilcken told her "he

was a very physical and affectionate person, that adults didn't understand that,

but that's the way he was raised and it was just his personality." Wilcken took

lots of photographs of AC, including ones in her bathing suit. Wilcken told AC

that he wanted her to be in a movie he was producing and encouraged her to

recruit her friends to participate in the movie.

       AC stayed with DB and Wilcken at his apartment for approximately a week

while her parents were out of town. During that time, AC repeatedly awoke to

Wilcken climbing into her bed and putting his hands under her clothes.

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      MW is another younger sister of DB, approximately two years younger

than AC. As with AC, Wilcken took MW on fun outings. On one such occasion,

when MW was six or seven, Wilcken, MW, and some of MWs family members

were waiting for a ferry back to MWs house. Wilcken put MW on his lap and

rubbed her chest and nipples under her shirt for approximately five minutes. On

a later occasion, during one of the living room "campouts," Wilcken unzipped

MWs sleeping bag and put his hand under her shirt and rubbed her chest and

nipples. When MW left the living room and went to her bedroom to escape

Wilcken, Wilcken followed her and stood in her bedroom doorway while she

pretended to sleep.

      KM was a close friend of AC and frequently spent time at her home. On

one occasion, when KM was approximately 13, KM attended one of the living

room "campouts." She woke up feeling breathing on her face and realized her

shirt was pulled up, exposing her left breast. KM heard someone "scurrying"

onto the couch and opened her eyes to see Wilcken sleeping or pretending to

sleep on the couch.

      IS, Wilcken's niece, stayed with the Wilcken family for several days

around Christmas when she was approximately 17. One night IS awoke with her

shirt pulled up and Wilcken standing over her fondling her breasts. Wilcken took

photographs of IS, suggested he could help her become a model, and asked her

to have sex with him.

      The trial court permitted the State to offer evidence with regard to AC, MW

and KM, finding that the evidence showed:

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71453-8-1/12



       a common scheme or plan by the defendant to establish contact
       with young girls through females in his life, including his former
       girlfriend, [DB], and his daughters ... to develop his own personal
       relationships with the young girls; to use various methods to
       desensitize the girls to nudity and physical contact with the
       defendant, including exposing them to nude photos of other similar
       aged girls, or appearing in the nude or semi-nude state around the
       girls, or taking photographs of the girls in dress-up, asking some
       girls to pose nude for him, and subjecting the girls to seemingly
       innocuous hugging/groping, kissing, and sitting on his lap; to build a
       relationship with the girls so that they feel safe around him; to allow
       them to sleep in his home or a place that is home-like for the
       defendant; and to touch the young girls on their breasts and/or
       vaginas as they slept.

The trial court prohibited the State from offering evidence with regard to IS,

finding that IS was significantly older than the victims of the charged offenses

and her interaction with Wilcken was substantively different due to her maturity.

       Under ER 404(b), a court is prohibited from admitting "[evidence 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

any other purpose, depending on its relevance and the balancing of its probative

value and danger of unfair prejudice." State v. Gresham, 173 Wn.2d 405, 420,

269 P.3d 207 (2012). "One proper purpose for admission of evidence of prior

misconduct is to show the existence of a common scheme or plan." Gresham,

173 Wn.2d at 421. "Proof of such 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).


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       We review a trial court's ruling on the admissibility of evidence for an

abuse of discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).

A trial court abuses its discretion if it acts on untenable grounds or for untenable

reasons. Magers, 164 Wn.2d at 181.

       Here, the trial court did not abuse its discretion in admitting the evidence

because the acts involving AC, MW, and KM were markedly similar to the acts

involving HJ, CS, SE, TW, and JB. In both cases, Wilcken took advantage of a

pre-existing relationship to meet preteen girls: he became acquainted with AC,

MW, KM, and JB through his girlfriend and HJ, CS, SE and TW through his

daughters. In addition, Wilcken developed a sufficiently familiar relationship with

all of the girls so that he could have access to them while they slept. Each girl

reported waking up and discovering Wilcken removing their clothing or touching

their breasts and vaginal areas underneath their clothing. Wilcken developed a

bond with AC and MW by providing them with attention and entertainment,

similar to how Wilcken acquired the trust of HJ, CS, SE, and TW. Finally,

Wilcken took photographs of AC and asked her to star in his movie, similar to

what Wilcken did with HJ, CS, SE, and TW. These similarities are, in the words

of Wigmore, "'strong indication of a design (not a disposition)'" to molest young

girls. Lough, 125 Wn.2d at 858-59 (quoting 2 John H. Wigmore, Evidence § 357,

at 335 (James H. Chadbourn rev. ed. 1979)).

       Wilcken argues that any relevance is diminished by the remoteness in

time of the prior allegations. But "while the lapse of time between instances may

slowly erode the commonality between acts, when similar acts have been

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performed repeatedly over a period of years, the passage of time serves to

prove, rather than disprove, the existence of a plan." Lough. 125 Wn.2d at 860.

Because Wilcken's acts have exhibited a similar pattern over many years,

admission of the evidence was a proper exercise of the trial court's discretion.

Statement of Additional Grounds for Review

          In a pro se statement of additional grounds, Wilcken contends the trial

court erred in failing to suppress evidence because a search warrant was

overbroad. But a review of the record shows that the warrant was supported by

probable cause and described the items to be seized with sufficient particularity.

Wilcken fails to establish a basis for review.

       Wilcken argues that police lacked probable cause to arrest him. Because

Wilcken did not raise this argument below, he has waived it. RAP 2.5(a).

       Wilcken claims his offender score was miscalculated. RCW 9.94A.525(17)

requires that an offender receive three points for each prior sex offense. Current

convictions are treated as prior convictions. RCW 9.94A.589(1)(a). We see no

basis for review.


       Wilcken claims that his due process rights were violated because he was

not indicted by a grand jury. A grand jury indictment is not required to assure

due process of the law. State v. Ng, 104 Wn.2d 763, 774-75, 713 P.2d 63

(1985).

       Wilcken claims his sentence violates the equal protection clause and the

Eighth Amendment's proscription against cruel and unusual punishment. These



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claims will not be considered because they are vague and fail to "inform the court

of the nature and occurrence of alleged errors." RAP 10.10(c).

       Wilcken argues that the trial court erred in denying his motion to sever

count 5 involving JB. We see no basis suggesting reversal would be warranted.

      Wilcken argues that the limiting instruction regarding the ER 404(b)

evidence was "irrelevant and confusing" because the trial court erred in admitting

the evidence. As we hold above, admission of the evidence was not error.

      Wilcken claims the evidence was insufficient to prove he committed the

offense against SE and that the charging periods for the offenses against HJ and

TW are incorrect. These claims are too vaguely stated to permit review.

      Wilcken's claims regarding a postseizure hearing, speedy trial, bill of

particulars, federal habeas corpus petition, the admissibility of photographs,

judicial misconduct, vindictive prosecution and ineffective assistance of counsel

appear to rely on facts outside the record and cannot be considered on direct

appeal. State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).

      Affirmed.



                                                                    /




WE CONCUR:




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