Abbigail Gutierrez v. Olympia School District

• Court: Court of Appeals of Washington
• Decided: December 10, 2014
• Docket: 44324-4
• Status: Unpublished

Opinion

FILED COURT OF APPEALS DIVISION-1f IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 2011i DEC 10 PM 12: 09 DIVISION II STATE OF' WASHINGTON

ABBIGAIL - GUTIERREZ, individually, and BYNo.. t1Y1 II NL, a minor,

Respondents, UNPUBLISHED OPINION

v.

OLYMPIA SCHOOL DISTRICT,

Appellant.

BJORGEN, A.C. J. — Abbigail Gutierrez, personally and on behalf of her minor daughter,

NL, sued the Olympia School District after Gary Shafer, a bus driver employed by the District,

sexually abused NL aboard NL' s kindergarten bus. A jury found that the District' s negligence

proximately caused $ 1, 425, 000 in damages to NL and Gutierrez. The District appeals the jury' s

verdict, arguing that the trial court erred by admitting ( 1) certain evidence concerning the

number of times Shafer rode NL' s bus; ( 2) evidence that Shafer had abused other kindergarten

girls on District buses and possessed child pornography; and (3) an expert witness' s opinion that

the District should have taken certain measures that would have prevented the abuse. The

District further contends that (4) the remaining properly admitted evidence does not support the

jury' s verdict. Concluding that any errors did not, within reasonable probabilities, materially affect the verdict, we affirm.

FACTS

On December 30, 2010, NL disclosed to Gutierrez that " Gary, ".a " helper on the bus," had

touched her inappropriately. Verbatim Report of Proceedings (VRP) at 1063 -064. Gutierrez

immediately reported the abuse to the Thurston County Sheriffs Office. No. 44324 -4 -II

Detective Cheryl Stines investigated the report and conducted a one -on -one interview

with NL, which was recorded by video. NL stated that she had sat in Shafer' s lap on " the second

seat" on the school bus and that he had put his hand in her underwear and " tickled [her] private"

sometime after Halloween and before Thanksgiving or Christmas of 2010. VRP at 201 -04

transcription of excerpt of the video recording of Stines' interview with NL: Ex..97, as played to

the jury). NL later identified Shafer from a copy of his driver' s license photo. Shafer eventually

admitted to sexually abusing several girls, including NL, while driving or riding along on District

buses. He ultimately pled guilty to three counts of first degree child molestation involving NL,

NL' s seat mate VV, and another kindergarten girl, and to one count of possession of depictions

of a minor engaged in sexually explicit conduct.

Gutierrez filed this lawsuit in her individual capacity and as guardian of NL, alleging that

the District had failed ( 1) to adequately supervise and protect NL, (2) to maintain adequate

security on its buses, ( 3) to properly supervise Shafer, and ( 4) to properly supervise and train its

employees to recognize and prevent sexual abuse of children; and that these omissions

proximately caused injuries to NL and Gutierrez. The complaint did not name Shafer or any

other individual as a defendant.

A. Pretrial Motions

The District moved in limine to exclude, among other evidence, the testimony of all

expert witnesses retained by Gutierrez except one, Mark Whitehill, Ph.D., on the ground that

Gutierrez did not timely disclose the experts' opinions. The District also moved in limine to

exclude a psychological evaluation of Shafer performed as part of the presentence investigation,

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any statements attributed to Shafer, and any reference to Shafer' s sexual abuse of other students.

The trial court reserved ruling on these motions.'

On the first day oftrial, the court denied the District' s motion to exclude the testimony of

Gutierrez' s expert witnesses, but granted the District' s motion to exclude all evidence

concerning statements attributed to Shafer, except for the judgment and sentence in his related

criminal case. The court also prohibited Gutierrez' s experts from referring to those statements

even though the experts had relied on them in reaching their opinions. After balancing the

probative value of the evidence against the risk of unfair prejudice under ER 403, the court ruled

the judgment and sentence admissible,' but excluded the statements attributed to Shafer because

they amounted to hearsay and posed too great a risk of unfair prejudice to the District.

The court also denied Gutierrez' s later motion to have Shafer transported from prison to

testify on the grounds that Gutierrez had not named Shafer as a party or a potential witness and

that the risk of unfair prejudice to the District outweighed the probative value.

B. Evidence of the Frequency and Nature of Shafer' s Rides on Kindergarten and Preschool Buses

A significant portion of the trial testimony concerned the District' s policy of permitting

its bus drivers to ride along unpaid on other drivers' mid -day kindergarten and preschool routes.

Fred Stanley, the District' s transportation director, testified that he allowed Shafer to ride along

on NL' s bus because Shafer " was assisting students to remain seated and make sure they got to

1 The judgment and sentence listed Shafer' s convictions for molesting NL, VV, and another kindergarten girl, as well as his conviction for possession of depictions of a child engaged in sexually explicit conduct. The trial court performed its balancing test on the judgment and sentence as a whole; it did not separately balance the prejudicial versus probative value of each of these convictions.

3 No. 44324 -4 -II

their parents on time and learning the bus route so he could drive it more on time when he would

sub[ stitute]" for the regular driver. VRP at 481 -82.

At trial, Mario Paz, the driver regularly assigned to NL' s mid -day kindergarten route

during the 2010 -2011 school year, testified that he had been trained not to allow adults to sit with

children on the buses and that the District had a policy prohibiting bus drivers from sitting with

children while riding along on buses. Paz testified also that he did not enforce the rule with

Shafer because he " trusted [ Shafer and] figured he wouldn' t do anything to the kids." VRP at

67 -68. Paz admitted that he had considered Shafer a friend. Paz also gave conflicting testimony

about the District' s policy and practice? Compare, e. g., VRP at 61 -62 ( Paz testified: " We were

trained to make sure [ adults riding the bus] don' t sit with the kids, yes. That' s correct. ") and

VRP at 152 ( Paz admitted that he stated in his deposition, in his own words, that "[ p] olicy states

you are not allowed to sit with kids ") with VRP at 103 ( Paz testified: " There' s no rule

prohibiting adults from sitting with students]. That' s a mistake that I made in my own

deposition. ").

Paz testified that NL and her friend, VV, sat with Shafer in the seat directly behind the

driver, the only seat on the bus outside the field of view of the mirrors the driver used to monitor

activity on the bus. Paz admitted that Shafer did not ride the bus in order to learn the route and

that Shafer could not have seen where the bus was going from that seat. Paz also admitted that

2 Paz is not a native speaker of English and admitted having difficulty understanding the attorneys' questions. Paz also admitted, however, that counsel for the District had attended his deposition, that they had met prior to the deposition to discuss his testimony, that both he and the District' s counsel had read and reviewed his deposition and had an opportunity to make corrections, and that they did not make any changes. Paz claimed that only on the witness stand at trial did he realize that his deposition testimony had " a lot of mistakes." VRP at 143.

4 No. 44324 -4 -II

Shafer did not ride the bus as a monitor or to help Paz manage students and that Paz found

Shafer' s conduct " strange." VRP at 86 -87. Paz further acknowledged that, the first time Shafer

asked to ride along on Paz' s bus, he had asked transportation director Stanley' s permission, but

had " never bothered asking again because Fred Stanley just let [ Shafer] ride whenever he

wanted." VRP at 69. Paz testified that Shafer rode his bus a maximum of two or three times,

that no children rode the bus one of those times, and that Shafer sat with NL and VV only one

time for about 20 minutes. However, when asked whether he knew that NL and VV knew

Shafer as " Gary," Paz answered, " Yeah. He asked them all the time." VRP at 95.

Contrary to his previous testimony, Paz denied on cross -examination that the

transportation department had ever had a rule that adult passengers should not sit with children.

Paz also denied that Shafer had said or done anything suspicious. When asked why Shafer

wanted to ride the bus, Paz answered, " I can' t remember why." VRP at 107. Counsel for the

District then asked Paz if "it had anything to do with him learning the route or substituting for

you ?" VRP at 107. Paz responded that Shafer " wanted just to ride the bus to make sure there

were] no mistakes on the route." VRP at 108.

Several other District bus drivers also testified that Shafer sometimes rode their buses.

Driver Dale Thompson testified that Shafer rode along as many as 40 times over 5 years on

Thompson' s kindergarten route. Driver Thomas Reeves testified that Shafer asked to ride along

on Reeves' s kindergarten route because "[ Shafer] was bored and didn' t have anything to do."

VRP at 341. Driver Thomas Engle testified that Shafer rode along " a couple of times" and " sat

and chatted with kids" when Engle substituted on kindergarten routes. VRP at 367 -73. Engle

testified that Shafer moved between seats and sat with children during these rides and that he No. 44324 -4 -II

could not recall any other transportation department employee who would move around the bus

and sit with kindergarten children while riding along. District driver John Bakewell also testified

that Shafer often rode along when Bakewell substituted on kindergarten and preschool routes.

Stanley testified that the transportation department did not keep records of drivers'

requests to ride along on mid -day bus routes. Stanley testified that drivers had to obtain his

permission before riding along with another driver but that he had no controls in place governing

which drivers could ride along on other drivers' routes, that he had never denied any of Shafer' s

requests to ride along, and that Shafer might have ridden Paz' s bus without Stanley' s permission.

Stanley also testified that he thought Shafer' s trips on NL' s bus served an " educational

purpose" because Shafer was assisting students and learning the bus route. VRP at 481. When

confronted with contrary testimony from his own deposition, however, Stanley admitted that the

District had no valid reason for Shafer to have ridden along on Paz' s route more than one or two

times in the fall of 2010.

After Shafer came under investigation, Stanley distributed a survey to drivers asking if

they recalled when Shafer had ridden their buses. Paz and Bakewell did not respond, but five

other drivers did. The survey showed that four drivers recalled Shafer riding along on their mid-

day kindergarten routes 11 times in the 2010-to-2011 school year. Driver Todd Adams recalled

Shafer riding along on NL' s bus on two occasions when Adams substituted for Paz in the fall of 2010.

The parties agreed that an edited video recording of Detective Stines' interview with NL

would be played for the jury. On the video, in response to Stines' questions, NL related that

Gary," a " grown - up boy" who "[ r] ides on the bus," had put his hand in her underwear while she

6 No. 44324 -4 -II

sat on his lap " one time" on the way to school. VRP at 199 -201. NL stated that the abuse

occurred after Halloween and before Thanksgiving, then added, "[ a] nd before Christmas." VRP

1'[

at 204. When asked whether Shafer rode the bus every day, NL answered, s] ome days," and

then clarified that "[ s] ome days he' s not. Some days there' s a different guy. Some days there' s

no one." VRP at 204.

Over the District' s hearsay objection, Stines also testified concerning evidence she

obtained from VV, NL' s seat mate on the bus. Stines testified that Shafer sat the girls on his lap,

tickled them, and told them knock -knock jokes from his cell phone, which Stines characterized

as " grooming behavior" designed "[ t] o get closer to them." VRP at 217 -18. The court admitted

into evidence, without objection, a picture Stines obtained that VV had drawn of herself and

Shafer; and Stines testified that VV had hoped to take the picture to school to show her class her

friend Gary." VRP at 219. Stines stated that, according to her investigation, the relationship

between Shafer and the girls developed through "[ m] ore than one" interaction occurring on

multiple days." VRP at 222.

Stines also testified that she had " received some information that there were possibly

additional victims" and was able to identify one whom Shafer also pled guilty to molesting.

VRP at 226. Over the District' s renewed objection, the trial court then admitted Shafer' s

judgment and sentence.

NL' s teacher, Melanie Evans, testified that she had observed NL' s bus arrive at the

school "[ o] ccasionally" or " Maybe 75 percent of the time" in the fall of 2010 and that

occasionally a few times" she noticed another adult riding along. VRP at 416 -17. The principal

of NL' s school, Alice Drummer, testified that she had asked whether Evans had seen a man No. 44324 -4 -II

riding along on NL' s bus, that Evans had responded that she had seen " someone on there [ this]

November and December," and that the conversation had ended there. VRP at 446. Gutierrez

then introduced Drummer' s deposition testimony, in which Drummer, when asked whether

Evans had " confirmed that she felt it was also very unusual that there would be another man

riding along on that bus," responded, "[ c] orrect," and stated that Drummer herself also thought it

unusual. VRP at 447. Evans testified that this conversation with Drummer had never taken

place at all.

Gutierrez testified without objection that, in the weeks following NL' s interview with

Stines, NL sometimes brought Shafer up, asking, for example, whether Shafer would go to jail.

Gutierrez also testified that they prayed for Shafer, at NL' s request, every night for " about a two -

week period" because NL "felt bad for [ Shafer' s] wife and she felt bad for her friend that she had

to tell on him [ and] that he was going to jail so she wanted him to be safe." VRP at 1072.

Gutierrez then testified, over the District' s hearsay objection, about a conversation` she had with

NL in which NL said that Shafer " always rode the bus" and clarified that he rode the bus

a] bout two times a week for a while." VRP at 1073 -074.

C. Other Evidence That the District Should Have Known That Shafer Might Pose a Risk to Students

Kevin Gearhart testified that on October 19, 2009, his daughter, the last student to get off

her kindergarten bus after school, arrived home more than 30 minutes late. Gearhart testified

that his daughter was " not her chipper self" when she got off the bus, and told him later that

evening that she would not ride the bus to school anymore, but refused to say why not. VRP at

753 -54. According to Gearhart, he spoke to various district employees, including Stanley' s

training coordinator Barbara Greer, but never got a satisfactory explanation.

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Gearhart testified that, when Shafer' s arrest appeared in the news, his wife immediately

recognized Shafer as the man driving the bus the day their daughter told them she would not ride

the bus again. Gearhart eventually learned that Shafer had substituted for the regular driver on

October 19, 2009, and the court admitted a record Gutierrez had obtained from the District

confirming that Shafer had substituted on Gearhart' s daughter' s route that day.

D. Evidence That the District Did Not Properly Train Staff and Drivers About the Known Risk of Sexual Abuse of Students

Trial testimony on the District' s policies and training concerning sexual abuse of students

by school employees focused on two elements: ( 1) a presentation made by a representative of

Canfield Solutions to district administrators ( "Canfield presentation "); and ( 2) a " professional

boundaries" policy subsequently adopted by the District along with related procedures. Ex. 73,

74, 115.

The Canfield presentation included various statistics concerning sexual abuse of students

by school personnel, including ( 1) a slide stating that "[ i]n Washington state alone, 26 school

employees were in the headlines in 2007 .for sexually molesting students," Ex. 115, at 4; and (2)

a slide stating that 12 percent of such offenders were school bus drivers and showing a Seattle

Times article headlined " School -bus Driver, 48, Accused of Misconduct." Ex. 115, at 16. This

presentation emphasized the importance of reporting suspected impropriety and gave examples

of inappropriate conduct, including ( 1) "[ b] eing alone with student out of view of others," ( 2)

b] us driver allows 5th grade girl to sit on his lap," and ( 3) "[ e] ngages in peer -like behavior with

students." Ex. 115, at 14 -15.

The District' s professional boundaries policy, adopted May 24, 2010, and associated

procedures similarly described inappropriate conduct. The policy specified that "[ s] taff

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interactions with students must serve an educational purpose," namely " one that relates to the

staff members' duties in the District," and stated the expectation that staff would report issues to

a supervisor " whenever they suspect or are unsure whether conduct" violates the policy. Ex. 73.

The procedures required staff to " promptly notify" an administrator " if they become aware of a

situation that may constitute a violation" of the policy, and mandated training on the policy for

all staff. Ex. 74, at 2 ( emphasis added).

Beth Scouller, the District' s human resources director, testified that she did not use the

Canfield presentation itself to train staff because she " felt people would reject some of the

negativity of the message." VRP at 1386. Instead, Scouller prepared a one -page summary on a

large pad of paper that did not include the above statistics or most of the specific examples of

inappropriate conduct. The summary did, however, admonish staff to " report what concerns

you." Ex. 36.

Scouller admitted that she did not train anyone at the transportation department

concerning the information covered in the Canfield presentation until the month after Shafer' s

arrest. Paz testified that he did not receive any training on the Canfield materials or the District' s

professional boundaries policy and procedures until after Shafer' s arrest. District driver

Thompson testified that he had never seen the professional boundaries policies and procedures or

the information in the Canfield presentation. Thompson stated that it would have been useful to

learn the statistics concerning bus drivers and other school personnel sexually abusing students

because, prior to Shafer' s arrest, he " couldn' t imagine Gary doing any of this." VRP at 272 -73.

Stanley confirmed that the transportation department did not receive any training on the

Canfield materials or the professional boundaries policy and procedures until after Shafer' s

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arrest. Principal Drummer likewise testified that she did not recall Scouller ever coming to NL' s

school to train staff regarding the information in the Canfield presentation. Drummer also

testified that she did not recall receiving the professional boundaries policy and procedures until

after Shafer' s arrest.

E. Statements on Which Gutierrez' s Experts Relied in Reaching Their Opinions

Chris McGoey, a professional security consultant specializing in "the

anticipation, recognition and prevention of crime on properties open to the public," testified on

behalf of Gutierrez. VRP at 649 -50. The District had again moved to exclude McGoey' s

testimony on the grounds that McGoey had no " experience or training in the area of school

transportation" and that his opinions "[ were] not based on scientific, technical or other

specialized knowledge ... [ or] on any recognized rules or standards in the industry." Clerk' s

Papers ( CP) at 1252; VRP at 633 -41. The trial court denied the motion on the condition that

Gutierrez lay a proper foundation for McGoey' s opinion, informing the District that

if you feel it still hasn' t been laid, instead of making argument in front of jury, which I know you' re not going to do, just [ say,] " I renew my objection." It will be for the record if you feel at that point you need to voir dire, but I' m probably not going to change my mind, but it just preserves your objection without interrupting the experts' testimony and sending the jury out, which I don' t want to do.

VRP at 645. After Gutierrez questioned McGoey about his qualifications and the basis for his

opinions, however, the District did not renew its objection.

McGoey opined that the District had missed many opportunities to discover or prevent

Shafer' s misconduct because the District lacked " ordinary policies and procedures and systems

that] would have caught the unusual behavior." VRP at 666. Gutierrez then raised Paz' s

testimony that Shafer had ridden NL' s bus only three times, asking McGoey whether he had

11 No. 44324 -4 -II

reviewed evidence " that shows Gary Shafer actually rode up to twenty times with Mario Paz."

VRP at 667. The District objected, and the trial court heard argument outside the presence of the

jury.

The trial court overruled the objection and allowed McGoey to testify that, in addition to

the previously admitted interview with Stines, he had reviewed a report from psychologist Mark

Whitehill relating that NL had stated that Shafer rode her bus 20 times. The court first instructed

the jury, however, as follows:

Certain evidence has been admitted in this case only for a limited purpose. This evidence consists of testimony today by this expert regarding an interview with NL].... This evidence is not offered for the truth of the matter asserted but to explain this witness' s testimony to you.

VRP at 671 -72. When asked what conclusions he had drawn after weighing all the evidence

reviewed as to how frequently Shafer rode the bus, McGoey testified, without objection:

D] efinitely more than three times, two or three times, multiple times. I have to accept the evidence I see on its face, twenty times or - but, - you know, definitely more than three times.

VRP at 673. McGoey explained that he based this conclusion on, among other evidence,

Shafer' s record of riding along many times with other drivers and NL' s and VV' s apparent

familiarity with Shafer.

McGoey opined that the District should have established a system to monitor when

drivers were riding along on other routes so that supervisors could detect unusual patterns.

McGoey also gave the opinion that the District should have had policies and procedures

prohibiting drivers riding along on another' s route from sitting with children out of the bus

driver' s view.

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Psychologist Whitehill testified on behalf of Gutierrez concerning psychological harm to

NL arising from Shafer' s abuse. In discussing the materials on which he had based his opinion,

Whitehill testified that he had observed his colleague, licensed mental health counselor Cynthia

Beebe, conduct a half h - our video recorded interview with NL, the same video to which McGoey

had referred. Over the District' s objection, the trial court allowed Gutierrez to play for the jury

an excerpt of the interview video in which Whitehill' s colleague asked NL how many times

Shafer had ridden her bus, and NL responded, " Twenty." VRP at 989 -90.

F. Jury Instructions, Verdict, and Post -trial Motions

The trial court ultimately instructed the jury on four of Gutierrez' s claims:

1. Failing to provide reasonable protection for [NL]; 2. Failing to properly supervise the activities of Gary Shafer; 3. Failing to enforce rules designed to protect passengers from inappropriate touching; and 4. Failing to train employees about the danger that some school employees pose a risk of molesting children.

CP at 1087. The court instructed the jury that the " District and its employees have a legal duty to

exercise reasonable care to protect a student in its custody from reasonably foreseeable dangers"

and that "[ h] arm is reasonably foreseeable if the ... District knew or should have known of the

risk that resulted in the harm." CP at 1095. The instructions further specified that the jury could

find a breach of this duty if "the actual harm fell within a general field of danger which should •

have been anticipated," even if it found that the District did not anticipate " the exact sequence of

events" leading to the harm. CP at 1095. Over Gutierrez' s objection, the trial court also

instructed the jury that

w]ith regards to the criminal actions of any employee of the District, these actions are reasonably foreseeable only if the District and its employees knew or in the

13 No. 44324 -4 -II

exercise of reasonable care should have known that the employee was a risk to harm a student.

CP at 1095.

The jury returned a verdict for Gutierrez, awarding damages to her and NL in the amount

of $1, 425, 000. Over the District' s objection, the trial court entered judgment on this verdict.

The District unsuccessfully moved for a new trial or remittitur and timely appealed.

ANALYSIS

The District urges that the trial court made several erroneous evidentiary rulings and that

the properly admitted evidence is not sufficient to support the jury' s verdict.3 We address each contention in turn.

I. STANDARDS OF REVIEW AND GOVERNING LAW

Trial courts have " broad discretion in ruling on evidentiary matters and will not be

overturned absent manifest abuse of discretion." Sintra, Inc. v. City ofSeattle, 131 Wn.2d 640,

3 The District also assigns error to the trial court' s denial of the District' s motion for judgment as a matter of law and to its entry ofjudgment on the verdict. As for the first, the District unsuccessfully moved for judgment as a matter of law based on insufficient evidence atthe close of Gutierrez' s case -in- chief, but did not renew the motion at the close of all the evidence. Where the trial court denies a defendant' s motion for judgment as a matter of law at the close of the plaintiff' s case, and the defendant proceeds to present evidence, the defendant waives any challenge to the ruling on appeal. Goodman v. Bethel Sch. Dist. No. 403, 84 Wn.2d 120, 123, 524 P. 2d 918 ( 1974); 4 KARL B. TEGLAND, WASHINGTON PRACTICE, RULES PRACTICE, CR 50 at 220 ( 6th ed. 2013). As for the second, the District also opposed entry of judgment in the trial court on the grounds that the court had not instructed the jury to discount NL' s future medical expenses to their present value or included the postjudgment interest rate. Having raised no exception to RAP 2. 5' s preservation requirement, the District may argue this assignment of error on appeal only on the grounds raised in the trial court. Fischer- McReynolds v. Quasim, 101 Wn. App. 801, 814, 6 P. 3d 30 ( 2000). The District has thus waived this assignment of error on appeal by failing to present supporting argument or authority in its appellate briefing on the damages and interest issues raised below. Smith v. King, 106 Wn.2d 443, 451 -52, 722 P. 2d 796 ( 1986); see also RAP 10. 3..

14 No. 44324 -4 -II

662 -63, 935 P. 2d 555 ( 1997). Our Supreme Court has articulated this standard of review as

follows:

A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. A trial court' s decision is manifestly unreasonable if it adopts a view that no reasonable person would take. A decision is based on untenable grounds or for untenable reasons if the trial court applies the wrong legal standard or relies on unsupported facts.

Solos v. Hi -Tech Erectors, 168 Wn.2d 664, 668 -69, 230 P. 3d 583 ( 2010) ( internal quotation

marks and citations omitted). Further, we will not reverse based on the trial court' s erroneous

evidentiary ruling unless, "' within reasonable probability, [ it] materially affected the outcome of

the trial. "' Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 446, 191 P. 3d 879 ( 2008)

quoting State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 ( 1993)).

We also review a trial court' s denial of a motion for a new trial for abuse of discretion.

Smith v. Orthopedics Int' l, Ltd., 170 Wn.2d 659, 664, 244 P. 3d 939 ( 2010). Where the trial court

bases its denial of a motion for a new trial on issues of law, however, we review the decision de

novo. Orthopedics Int' l, 170 Wn.2d at 664.

Under the doctrine of respondeat superior, employers are vicariously liable for torts

committed by employees acting on the employer' s behalf. Niece v. Elmview Grp. Home, 131

Wn.2d 39, 48, 929 P. 2d 420 ( 1997). The scope of employment limits this liability: " Where the

employee steps aside from the employer' s purposes in order to pursue a personal objective of the

employee, the employer is not vicariously liable." Niece, 131 Wn.2d at 48 ( citing Kuehn v.

White, 24 Wn. App. 274, 277., 600 P. 2d 679 ( 1979)). The scope of employment does not, of

course, " limit ... an employer' s liability for a breach of its own duty of care." Niece, 131 Wn.2d

at 48. Thus, the conduct of an employee may give rise to a cause of action against the employer

15 No. 44324 -4 -I1

for negligent supervision based on a breach of the employer' s independent duty to foreseeable

plaintiffs. Niece, 131 Wn.2d at 48.

Negligent supervision claims proceed under a theory of liability " analytically distinct and

separate from vicarious liability ... [ and] based on the theory that ` such negligence on the part

of the employer is a wrong to [ the injured party], entirely independent of the liability of the

employer under the doctrine of respondeat superior.'" Niece, 131 Wn.2d at 48 ( quoting Scott v.

Blanchet High Sch., 50 Wn. App. 37, 43, 747 P. 2d 1124 ( 1987). This theory of liability stems

from the relationship between the employer and the employee.

Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or

instrumentalities entrusted to an employee from endangering others.

Niece, 131 Wn.2d at 48.

Our courts have generally limited the scope of an employer' s liability for negligent

supervision, however, to cases where " the employer knew, or in the exercise of reasonable care

should have known, that the employee presented a risk of danger to others." Niece, 131 Wn.2d

at 48 -49. This relationship between employer and employee may also give rise to a related duty

on the part of employers to adequately train their employees. Brown v. Labor Ready Nw., Inc.,

113 Wn. App. 643, 655 -56, 54 P. 3d 166 ( 2002); Strachan v. Kitsap County, 27 Wn. App. 271,

276 -77, 616 P. 2d 1251 ( 1980).

Our Supreme Court has further distinguished, from both vicarious liability and negligent

supervision, the cause of action that arises out of a protective special relationship between an

employer and the injured party. Niece, 131 Wn.2d at 43 -49. The placement of children under a

school' s custody and control gives rise to a duty on the part of the school " to protect students in 16 No. 44324 -4 -II

its custody from reasonably anticipated dangers," including from "the intentional or criminal

conduct of third parties." Niece, 131 Wn.2d at 44 ( citations omitted). This duty is not limited to

actions within an employee' s scope of employment. Niece, 131 Wn.2d at 47 -49. The duty of the

District arising from this special protective relationship is limited " only by the concept of

foreseeability." Niece, 131 Wn.2d at 50.

According to this principle, even "[ i]ntentional or criminal conduct may be foreseeable

unless it is ` so highly extraordinary or improbable as to be wholly beyond the range of

expectability. "' Niece, 131 Wn.2d at 50 ( quoting Johnson v. State, 77 Wn. App. 934, 942, 894

P. 2d 1366 ( 1995)). Thus, " as long as the possibility of sexual assaults" on students by bus

drivers lies " within the general field of danger which should have been anticipated," the District

may properly be held liable for its failure to take reasonable precautions against such foreseeable misconduct. Niece, 131 Wn.2d at 50.

II. ADMISSION OF EVIDENCE THAT NL SAID SHAFER RODE HER BUS 20 TIMES

The District contends that the trial court erred in allowing Whitehill and McGoey to

testify concerning NL' s statement that Shafer rode her bus 20 times and by allowing the jury to

watch the video of NL making this statement. Specifically, the District argues that the court

abused its discretion because ( 1) the statement was hearsay and the court improperly applied the

ER 803( a)( 3) hearsay exception for statements of a declarant' s then -existing state of mind and

2) the court improperly applied ER 703, which allows experts to rely on inadmissible facts and

data, by failing to first balance the statement' s probative value against the risk of unfair prejudice

under ER 403., The District maintains that (3) the evidence unfairly prejudiced it because it had

no opportunity to cross -examine NL, whom the court never found competent to testify,

17 No. 44324 -4 -II

concerning this statement. The District further contends that the admission of the statement

prejudiced it because ( 4) both experts vouched for the truth of the statement, and ( 5) the court' s

limiting instruction was ineffective.

As an initial matter, Gutierrez invites us to decline to consider some of the District' s

arguments. First, Gutierrez contends that the District may not complain on appeal about the

showing of the video because the District invited any error by asking the trial court to play the

similar video of NL' s interview with Stines. As the District points out, however, a party may

choose not to object to some inadmissible evidence without waiving the right to object to other

similar evidence. Patterson v. Kennewick Pub. Hosp. Dist. No. 1, 57 Wn. App. 739, 744 -45, 790

P. 2d 195 ( 1990). We reject Gutierrez' s invited error argument.

Gutierrez' s contentions that the District waived its arguments concerning NL' s

competency, the experts' alleged vouching, and the trial court' s failure to conduct the ER 403

balancing by not objecting on these grounds in the trial court, however, have merit. We address

them where relevant.

As to the merits of the District' s arguments, Gutierrez counters that the District presents a

straw man" argument concerning ER 803( a)( 3) because the trial court did not rely on that rule

in allowing reference to NL' s "[ t]wenty times" statement. Br. of Resp' t at 37 n.8. Gutierrez

further argues that trial courts have discretion to allow expert witnesses to reveal the bases for

their opinions even though the information relied on amounts to otherwise inadmissible hearsay

from an incompetent witness, and that, so long as the court gives a proper limiting instruction, a

trial court may admit the basis of an expert' s opinion without explicitly weighing its probative

value against the risk of unfair prejudice. Finally, Gutierrez maintains that the District cannot

18 No. 44324 -4 -II

show any unfair prejudice because the trial court gave a proper limiting instruction that we must

presume the jury followed.

A. ER 803( a)( 3)

The District argues first that the trial court abused its discretion by allowing Whitehill to

testify concerning NL' s "[ t]wenty times" statement under the ER 803( a)( 3) exception to the rule

against hearsay. However, the record shows that the court referred to ER 803( a)( 3) only in

passing when ruling on the District' s objection to Whitehill' s testimony about material he had reviewed from Stines' interviews with NL and VV. The record makes clear that the court

referred to ER 803( a)( 3) in the context of explaining why it had allowed Stines to testify

concerning the nature of the relationship between Shafer and the two kindergarten girls with

whom he rode on the school bus:

I allowed evidence of the general nature of the relationship that Gary Shafer had with these girls without specifics, and I previously at the request of counsel read a limiting instruction that this evidence is offered for the purpose of describing the nature of the relationship that Gary Shafer had with these victims. I wrote down I will allow it under 803( a)( 3). This was with respect to Cheryl Stines, detective, but I won' t allow the detail regarding GS' s touching; i.e., his admissions that I had previously excluded, but I would allow it to describe the relationship that Gary Shafer had with [ NL] and [ VV], and to include tickling, sat on lap, knock -knock jokes from phone and back scratching. And I wrote these notes in the context of Detective Stines' testimony.

VRP at 1000. The trial court, therefore, did not rely on ER 803( a)( 3) in allowing Whitehill to

testify to NL' s "[ t]wenty times" statement.

B. ER 703 and 705

ER 703 provides that

t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the

19 No. 44324 -4 -II

hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

McGoey and Whitehill both testified that in reaching their opinions, experts in their respective

fields routinely rely on victims' statements. The trial court properly instructed the jury to

consider the "[ t]wenty times" statement only as to the basis of the experts' opinions. Except to

the extent that the District challenges McGoey' s qualifications to give expert opinions on school

bus safety standards at all, the parties do not dispute that the trial court properly allowed the

experts to give opinions based on NL' s statements in genera1. 4

The more sharply contested question is whether the trial court erred in allowing the jury

to hear testimony about NL' s "[ t]wenty times" statement. ER 705 addresses this situation,

providing that

t]he expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination.

Read together, ER 703 and ER 705 allow expert witnesses to testify concerning the reasons for

their opinions, even though the information relied on would otherwise be inadmissible. The

rules give trial courts discretion whether to allow the jury to hear the experts' underlying

information with one exception: Under ER 705 the court must allow disclosure of the

underlying facts or data if the adverse party demands the underlying information on cross-

examination.

4 The District does not challenge the experts' reliance on NL' s statement in its opening brief, but does raise such a challenge in its reply brief. However, "[ a] n issue raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992). Therefore, we do not consider this challenge. 20 No. 44324 -4 -11

The District contends that these rules do not give " the party calling the expert ... the

automatic right to have the expert say he relied on [ the underlying information]," but instead

allow only the adverse parry to present the basis for the expert' s opinion. Br. of Appellant at 36-

37, 38 n. 17 ( citing State v. Martinez, 78 Wn. App. 870, 879 -80, 899 P. 2d 1302 ( 1995)). As a

matter of logic, the latter proposition does not follow from the former, and Washington

precedents, including those cited by the District, establish that trial courts have discretion to

allow the party calling the expert to elicit the otherwise inadmissible information underlying an

expert' s opinion. For example, we have held that, although

ER 703 is not designed to allow a witness to summarize and reiterate all manner of inadmissible The trial court may allow the admission of hearsay evidence.

evidence and otherwise inadmissible facts for the limited purpose of showing the basis ofthe expert' s opinion."

Hickok Knight - v. Wal -Mart Stores, Inc., 170 Wn. App. 279, 314, 284 P. 3d 749 ( 2012) ( internal

quotation marks omitted) ( quoting Deep Water Brewing, LLC v. Fairway Res. Ltd, 152 Wn.

App. 229, 275, 215 P. 3d 990 ( 2009)), review denied, 176 Wn.2d 1014 ( 2013); accord In re Det. ,

2005) ( holding ofMarshall, 122 Wn. App. 132, 146, 90 P. 3d 1081 ( 2004), aff'd, 156 Wn.2d 150 (

that ER 705 " permits the court to allow the expert to relate the hearsay to the fact finder to

explain the reasons for her opinion "). Similarly, in State v. Eaton, 30 Wn. App. 288, 294, 633

P. 2d 921 ( 1981), we held that a trial court erred in requiring the defendant to testify before

allowing a defense expert to relate the defendant' s prior statements because " it is of no moment

that defendant' s statements in the psychiatric interviews might be inadmissible hearsay, ifa

psychiatrist could reasonably rely upon them in forming an opinion about defendant' s mental

condition at the time of the crime."

21 No. 44324 -4 -II

Our holdings in these cases are consistent with the leading practitioner' s treatise on

Washington' s evidence law, which explains:

Rule 705 states that an expert may " give reasons" for his or her opinion " unless the judge requires otherwise." And since Rule 703 allows an expert to base an opinion

upon hearsay if it is reasonable to do so, Rule 705 permits ( but does not require) the court to allow the expert to relate the hearsay to the jury to explain the reasons for his or her opinion, subject to appropriate limiting instructions.

5B KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW AND PRACTICE § 705. 4, at 292

5th ed. 2007) ( footnotes omitted).

The authority on which the District relies is not to the contrary: In Martinez, we noted

that "[ ajlthough the trial court may allow disclosure of underlying facts or data, ` courts have

been reluctant to allow the use of ER 705 as a mechanism for admitting otherwise inadmissible

evidence as an explanation of the expert' s opinion. "' 78 Wn. App. at 879 ( quoting State v.

Anderson, 44 Wn. App. 644, 652, 723 P. 2d 464 ( 1986)). In Martinez we held that the trial court

had not abused its discretion by refusing to allow a defense expert to relate hearsay statements in

explaining the basis of his opinion. 78 Wn. App. at 879 -81. This holding does not establish,

though, that a trial court would necessarily abuse its discretion by allowing such testimony.

Indeed, we explicitly stated that "the trial court may allow disclosure of underlying facts or

data." Martinez, 78 Wn. App. at 879.

Similarly, the District cites State v. Nation, 110 Wn. App. 651, 661, 41 P. 3d 1204 ( 2002)

and Anderson, 44 Wn. App. at 652, for the proposition that only the adverse party may require

disclosure of otherwise inadmissible information underlying an expert' s opinion. Neither

authority supports the District' s proposition. In Anderson, as in Martinez, we merely held that

the trial court had not abused its discretion by refusing to allow an expert to relate hearsay,

22 No. 44324 -4 -II

noting th at " the disclosure of the underlying facts ... may be required either by the court or the

cross examiner." Anderson, 44 Wn. App. at 652 -53. In Nation, Division Three of our court held

that a trial court had erred in allowing the State' s expert to relate hearsay to the jury, but on the

ground that, where the requirements of ER 703 are not met: " ER 705 may not be used as a

mechanism for admitting otherwise inadmissible evidence as an explanation of an expert' s

opinion." Nation, 110 Wn. App. at 662. Whether the requirements of ER 703 are met is not at

issue here.5 Thus, we hold that the trial court did not err under ER 703 and ER 705 in allowing

the jury to hear testimony about NL' s "[ t]wenty times" statement, on which the experts had

based their opinions, while limiting the jury' s consideration of this statement to this narrow

purpose.

C. ER 403

The District' s argument that the trial court erred by failing to apply the ER 403 balancing

test before allowing the jury to hear NL' s "[ t]wenty times" statement appears to rely on the

following language from Martinez: " The trial court should determine under ER 403 whether to

allow disclosure of inadmissible underlying facts based upon whether the probative value of this

information outweighs its prejudicial or possibly misleading effects." 78 Wn. App. at 879 ( citing

LAIRD C. KIRKPATRICK, OREGON EVIDENCE, at 311 ( 1982)). That a trial court " should" make

this determination hardly establishes that a trial court commits reversible error by failing to

5 The District presents no argument or authority in its opening brief that the expert opinions based on NL' s statements do not meet the requirements of ER 703; but it does present such an argument in its reply brief, pointing out that it made such an argument to the trial court. Again, a]n issue raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon Conservancy, 118 Wn.2d at 809. We decline to consider the issue further.

23 No. 44324 -4 -II

evaluate the evidence under ER 403 on the record. As the District did not object on ER 403

grounds in the trial court here, and cites no authority establishing that failure to conduct the ER

403 analysis on the record amounts to reversible error, we decline to consider the argument

further. RAP 2. 5, 10. 3( a)( 6); DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 ( 1986)

Even if an objection is made at trial, a party may only assign error in the appellate court on the

specific ground of the evidentiary objection made at trial. ").

D. Vouching

We also decline to reach the District' s claims that McGoey and Whitehill vouched for the

truth of NL' s "[ t]wenty times" statement. The District did not object to the challenged testimony

on that ground at trial. Thus, the District failed to preserve the issue by raising a timely and

specific objection below. RAP 2. 5( a); DeHaven, 42 Wn. App. at 669.

E. Effect of the Limiting Instruction

Our Supreme Court has explained the proper use of otherwise inadmissible evidence to

explain the basis for an expert' s opinion as follows:

I] f an expert states the ground upon which his opinion is based, his explanation is not proof of the facts which he says he took into consideration. His explanation merely discloses the basis of his opinion in substantially the same manner as if he had answered a hypothetical question. It is an illustration of the kind of evidence which can serve multiple purposes and is admitted for a single, limited purpose only.

Grp. Health Coop. ofPuget Sound, Inc. v. Dep' t ofRevenue, 106 Wn.2d 391, 400, 722 P.2d 787

1986) ( quoting State v. Wineberg, 74 Wn.2d 372, 382, 444 P. 2d 787 ( 1968)). To properly allow

such testimony, a " trial court need only give an appropriate limiting instruction explaining that

the jury is not to consider this revealed information as substantive evidence." In re Det. ofCoe,

17.5 Wn.2d 482, 513 -14, 286 P. 3d 29 ( 2012).

24 No. 44324 -4 -II

As discussed above, the trial court gave a proper limiting instruction in both instances

prior to allowing the jury to learn about NL' s "[ t]wenty times" statement. The District argues,

however, that it is " unrealistic to think jurors could avoid considering references to NL' s

statement for a purpose other than deciding how frequently Shafer had ridden her bus" because

the purpose for which the NL statement was ostensibly offered and allowed in evidence was

congruent with the purpose for which the court told the jury the statement could not be

considered." Br. of Appellant at 46 -47.

Our Supreme Court recently rejected an argument indistinguishable from the District' s on

the ground that the jury is presumed to follow the court' s instructions. Coe, 175 Wn.2d at 514-

15 ( involving an expert' s disclosure of otherwise inadmissible unadjudicated prior offenses

during a sexually violent predator commitment trial). Therefore, the District' s argument fails.

F. Admission of the Video Recording of the Psychologist' s Interview with NL

The District contends that, even if the trial court had discretion to allow Gutierrez' s

experts to relate NL' s "[ t]wenty times" statement to the jury, the court nonetheless committed

reversible error by showing the jury the video of NL making the statement. The District points

out that, had Gutierrez sought to have NL testify at trial, the trial court would have assessed her

competency and the District could have cross -examined her concerning alleged inconsistencies

between her statement to Stines and her statement to the psychologist.6

6 The District had the opportunity to cross -examine McGoey and Whitehill concerning the reliability of statements from children, the possibility that someone had suggested the number 20 to NL, and other matters bearing on the reasonableness of their reliance on NL' s statement, but initially chose not to do so. After a juror submitted a question to Whitehill asking, " How reliable is the information gathered from a five- to VRP six -year -old child ? ", at 1035, the District posed a series of questions on the reliability of NL' s statements. VRP at 1047 -048. 25 No. 44324 -4 -I1

NL did not testify as a witness at trial, making issues of competency and cross -

examination irrelevant; and the court gave' a proper limiting instruction to consider her "[ t]wenty

times" statement only as it reflected the basis for the experts' opinions, an instruction we

presume the jury followed. Coe, 175 Wn.2d at 514 -15. Nonetheless, we agree with the District

that the trial court erred in allowing the jury to watch the video of NL' s statement to the experts.

We disagree, however, that this error warrants reversal.

Our Supreme Court initially articulated the rule governing disclosure of facts underlying

an expert' s opinion, now codified in ER 705, as follows:

W] hen an expert is allowed to testify to a[ n] ... opinion which is in part based on

facts which would normally be hearsay and inadmissible as independent evidence, the trial court may in its discretion allow the expert to state such facts for the purpose of showing the basis of the opinion.

Wineberg, 74 Wn.2d at 384. The Wineberg court thus contemplated that the underlying facts

would come in only through the expert' s testimony, not through independent evidence ofthose facts. The language of the rule as adopted reflects this distinction: " The expert may testify in

terms of opinion ... and give reasons therefor ... [ and] may in any event be required to disclose

the underlying facts or data." ER 705. That experts may give reasons for their opinions and

state or disclose the facts relied upon does not establish that the party calling the expert may then

introduce independent evidence of those underlying facts.

Although the trial court properly allowed McGoey and Whitehill to refer to NL' s

t]wenty times" statement under ER 703 and ER 705, these rules did not permit Gutierrez to

show the video of NL making the statement. Admitting the video, furthermore, potentially

increased the likelihood that the jury would disregard the court' s limiting instruction and take

NL' s statements for the truth of the matter asserted. We hold that the trial court erred in

26 No. 44324 -4 -II

admitting the video. Whether the error requires reversal presents a different question, addressed below.

III. THE ADMISSION OF MCGOEY' S EXPERT OPINION TESTIMONY

The District contends that the trial court erred in admitting McGoey' s opinions

concerning a school district' s standard of care because those opinions " amounted to nothing

more than gratuitous, retrospectively conceived rules" and McGoey admitted that he did not

know of any school district that had the sort of policies he recommended. Br. of Appellant at 52-

53. Gutierrez counters that the District waived this issue by failing to renew its objection to

McGoey' s qualifications during his testimony and, in the alternative, that the trial court did not

abuse its discretion in finding McGoey qualified and admitting his opinions. We agree with

Gutierrez' s first argument.

As noted, the trial court denied the District' s motion in limine to exclude McGoey' s

opinions. When a trial court denies a motion in limine, " the losing party is deemed to have a

standing objection where a judge has made a final ruling on the motion, `[ u] nless the trial court

indicates that further objections at trial are required when making its ruling.'" State v. Powell,

126 Wn.2d 244, 256, 893 P. 2d 615 ( 1995) ( quoting State v. Koloske, 100 Wn.2d 889, 895, 676

P.2d 456 ( 1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588

1988), aff'd, 113 Wn.2d 520 ( 1989)). "[ W]hen a ruling on a motion in limine is tentative, any

error in admitting or excluding evidence is waived unless the trial court is given an opportunity

to reconsider its ruling." State v. Carlson, 61 Wn. App. 865, 875, 812 P. 2d 536 ( 1991). Our

Supreme Court has explained the difference between a final and a tentative ruling on such a

motion as follows:

27 No. 44324 -4 -II

If the trial court has made a definite, final ruling, on the record, the parties should be entitled to rely on that ruling without again raising objections during trial. When the trial court refuses to rule, or makes only a tentative ruling subject to evidence developed at trial, the parties are under a duty to raise the issue at the appropriate time with proper objections at trial.

Koloske, 100 Wn.2d at 896.

Here, the trial court expressly told the District that, although the court would not likely

change its mind, to preserve the issue the District had to renew its objection after McGoey

testified to his qualifications. Under Koloske, 100 Wn.2d at 895 -96, by failing to do so the

District waived any objection.

IV. GUTIERREZ' S TESTIMONY CONCERNING NL' S STATEMENT THAT SHAFER OFTEN RODE NL' S BUS

The District argues that the trial court abused its discretion in admitting Gutierrez' s

testimony that NL said that Shafer " always rode the bus" and that he rode the bus " two times a

week for a while" because the testimony qualified as hearsay and no exception to the rule against

hearsay applied. Br. of Appellant at 49 -50. Gutierrez counters that the trial court properly

admitted this evidence because it was offered, not for the truth of the matter asserted, but as

circumstantial evidence of NL' s state of mind. We agree with the District that the trial court

erred in admitting this testimony; but we do not agree that reversal is required because of the

error.

Gutierrez relies on the general rule that a statement is not hearsay unless offered to prove

the truth of the matter asserted. Br. of Resp' t at 52. In support of this argument, Gutierrez cites

Betts v. Betts, 3 Wn. App. 53, 473 P. 2d 403 ( 1970), a child custody case predating the adoption

7 Because NL' s statements about how often Shafer rode the bus did not expressly assert any particular state of mind, the ER 803( a)( 3) exception to the hearsay rule plainly did not apply. 28 No. 44324 -4 -II

of the current evidence rules. See 5C TEGLAND, supra, § 803. 16, at 57 -58. We held in Betts that

the rule against hearsay did not prohibit admission of a child' s statements that the child' s

stepfather was mean and had killed the child' s brother because they " were not admitted to prove

the truth of the assertions she made, but merely to indirectly and inferentially show the mental

state of the child at the time of the child custody proceedings," namely, that the child feared the

stepfather. 3 Wn. App. at 59.

Here, neither the record nor Gutierrez' s brief makes entirely clear the proper purpose for

which Gutierrez purportedly offered NL' s statements. Initially, Gutierrez argues that she offered

the statements about how often Shafer rode the bus as circumstantial evidence that NL felt

familiar enough with him to consider him a friend. Later in the same paragraph of her brief,

however, Gutierrez states that

N.L.' s feeling of friendship with Shafer, in turn, was probative to demonstrating that Shafer had ridden her bus frequently enough to cultivate a friendship and groom her for sexual molestation, and ultimately toward establishing the damages caused by Shafer' s grooming.

Br. of Appellant at 53.

Thus, Gutierrez effectively, if obliquely, admits that the challenged statements were

offered to prove the truth of the matter asserted: the frequency with which Shafer rode NL' s bus.

The trial court did not instruct the jurors that they could consider the statements only for some

proper purpose, but simply overruled the District' s hearsay objection without comment. The

challenged statements are hearsay and do not fall within the scope of any asserted exception.

Therefore, the trial court erred in admitting NL' s statements to Gutierrez concerning how

frequently Shafer rode the bus. As shown below, however, this error does not require reversal.

29 No. 44324 -4 -II

V. STINES' TESTIMONY BASED ON VV' S DESCRIPTIONS OF INTERACTIONS WITH SHAFER

The District also contends that the trial court erred in allowing Stines to testify

concerning information she obtained from VV regarding VV' s and NL' s interactions with Shafer

on the bus because the testimony amounted to inadmissible hearsay. Gutierrez counters that this

evidence fell under the ER 803( a)( 3) exception to the rule against hearsay, or otherwise did not

constitute hearsay, because Gutierrez offered it to prove VV' s then -existing state of mind. We

agree with Gutierrez.

ER 803( a)( 3) provides that "[ a] statement of the declarant' s then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,

pain, and bodily health)" is " not excluded by the hearsay rule, even though the declarant is

available as a witness." This exception to the general ER 802 prohibition against hearsay

testimony does not include, however, " a statement of memory or belief to prove the fact

remembered or believed." ER 803( a)( 3).

Stines related only one actual statement directly attributed to VV: that VV said Shafer

was her friend." VRP at 219. This statement, however, does not fall within the definition of

hearsay." ER 801( c) defines " hearsay" as " a statement, other than one made by the declarant

while testifying ... , offered in evidence to prove the truth of the matter asserted." Gutierrez

clearly did not offer VV' s statement to prove that Shafer and VV were friends. Instead,

Gutierrez offered it to show that Shafer spent a substantial amount of time with VV and

cultivated a close, peer -like relationship with her. This " friendship," in turn, tended to make it

appear less reasonable that the District failed to notice that Shafer was taking advantage of the

ride -along policy to develop inappropriate relationships with kindergarten girls. Furthermore, it

30 No. 44324 -4 -II

undermined the testimony of the District' s employees who claimed that Shafer had ridden with

NL and VV fewer than three times. The evidence of VV' s statement was therefore relevant, not

hearsay, and the trial court did not err in admitting it.

Other matters to which Stines testified, such as evidence of lap sitting, back scratching,

and knock -knock jokes, did not expressly advert to any particular state of mind, and thus fall

outside the ER 803( a)( 3) hearsay exception. Again, however, Gutierrez did not specifically seek

to prove that these things happened: Instead, Gutierrez offered evidence that VV talked about

such matters only as circumstantial evidence of the declarant' s state of mind, namely, that VV

thought of Shafer as a close friend. See 5C TEGLAND, supra, § 803. 16, at 57 -63.

Indeed, during argument outside the presence of the jury after the District' s hearsay

objection, Gutierrez proposed a limiting instruction to that effect. The District, without waiving

its objection to admission of the evidence, asked the court not to give the instruction. After

Gutierrez declined to take a position on the matter, the trial court granted the District' s request

and did not give Gutierrez' s proposed limiting instruction.

That Shafer had the opportunity to develop such a relationship with NL' s seat mate had

some tendency to make it more probable that, in the exercise of due care, the District should

have realized that Shafer was abusing the ride along policy in order to get close to kindergarten

girls. Evidence that Shafer developed a relationship with VV similar to that involving NL,

contemporaneously and without detection, also tended to make the District' s efforts to protect

NL appear less reasonable. Thus, the evidence was relevant to Gutierrez' s claims of negligent

supervision of Shafer and failure to protect NL. Under our reasoning in Betts, 3 Wn. App. at 59-

60, and the rule stated in 5C Tegland, supra, section 803. 16, at 57 -63, Gutierrez offered this

31 No. 44324 -4 -II

evidence for a proper purpose other than the truth of matters asserted in VV' s statements. The

trial court did not err in admitting Stines' testimony concerning the relationships between VV

and Shafer and between NL and Shafer.

The District also argues that the trial court erred in admitting Stines' opinion that Shafer

developed a relationship with the girls over the course of "multiple days," because Gutierrez did

not call Stines to testify as an expert. VRP at 220 -22. As Gutierrez points out, however, the

District did not object to this testimony on that ground: In fact, the record shows that, although

the District interposed numerous objections during Stines' testimony, it did not object to Stines'

multiple days" testimony at all. VRP 220 -22. Because the District did not preserve this issue

for review, we decline to address it on appeal. RAP 2. 5.

VI. ADMISSION OF EVIDENCE CONCERNING SHAFER' S OTHER CONVICTIONS

The District contends that the trial court erred in admitting Shafer' s judgment and

sentence for convictions of possession of child pornography and of child molestation while

riding District school buses and for allowing Stines to testify about certain facts underlying these

convictions. The District argues that ( 1) this evidence posed too great a risk of unfair prejudice

to the District under ER 403, and ( 2) it amounted to " other Shafer wrongs" evidence prohibited

by ER 404( b). Br. of Appellant at 51 -52. Gutierrez argues that, although the District moved in

limine to exclude the judgment and sentence, it affirmatively waived its objection at trial.

Gutierrez argues in the alternative that the trial court properly admitted the judgment and

sentence under ER 404(b) because it was offered for a proper purpose other than to prove that

Shafer had acted in conformity with his later convictions when driving a bus for the District.

32 No. 44324 -4 -II

A. No Waiver

Gutierrez' s waiver argument fails. The District preserved its objection to the admission

of the judgment and sentence by obtaining a final ruling on its motion in limine and renewing its

objection on the record when Gutierrez offered the documents during trial. Powell, 126 Wn.2d

at 256 -57. Gutierrez selectively cites partial statements by the District' s counsel that initially

appear to demonstrate waiver, but, when read in context, do not. For example, Gutierrez quotes

only the first two words, " No objection," of the District' s response to her offer of Shaffer' s

judgment and sentence at trial, without mentioning that the District' s full response was "[ n] o

objection other than those I previously addressed in pretrial." VRP at 226 ( emphasis added);

Br. of Resp' t at 54.

B. ER 404( b)

Except for evidence of the conviction based on Shafer' s molesting NL, Gutierrez' s

alternative ER 404( b) argument also fails. 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 confonnity therewith. It may, however, be admissible for other such as proof of motive, opportunity, intent, purposes,

preparation, plan, knowledge, identity, or absence of mistake or accident.

Gutierrez satisfies the ER 404(b) test for only the NL molestation conviction. She does not

satisfy the test for the others.

1. Conviction for molesting NL

To properly admit evidence of other bad acts, the trial court must first identify a proper purpose for the evidence, then weigh, on the record, the probative value of the evidence against

the risk of unfair prejudice. Brundridge, 164 Wn.2d at 444 -45. The parties did not dispute that

Shafer molested NL. Thus, Gutierrez-plainly did not offer evidence of Shafer' s other crimes to

33 No. 44324 -4 -II

show that Shafer had acted " in conformity therewith" as to NL. With that, ER 404(b) did not bar

the admission of these crimes on this ground.

The trial court admitted evidence of Shafer' s conviction for molesting NL under the ER

803( a)( 22) exception to the rule against hearsay, which allows admission of evidence of certain

convictions " to prove any fact essential to sustain the judgment." The trial court apparently did

so to avoid the possibility that jurors would incorrectly believe they had to decide whether Shafer

had abused NL. Gutierrez had to establish that the abuse occurred to be entitled to a judgment in

her favor. As an essential fact, the probative value of Shafer' s conviction for molesting NL was

exceedingly high. As stated in part A of the Facts, above, the trial court balanced the probative

value of the evidence of the prior molestation convictions against the risk of unfair prejudice and

ruled the judgment and sentence showing the prior convictions admissible. The court did not

abuse its discretion in admitting evidence of Shafer' s conviction for abusing NL.

2. Convictions for molesting other children

Evidence of Shafer' s convictions for molesting other children, however, presents a -

different question. Gurierrez did not need to prove that Shafer had abused the other victims in

order to obtain a favorable judgment, and the admission of Shafer' s convictions for molesting

other girls posed a risk of unfair prejudice to the District. That is, jurors could have allowed their

outrage at the District' s employing as a school bus driver an individual who was later convicted

of multiple counts of child molestation to influence their decision on the merits of the case.

Shafer' s convictions for molesting other children may have had some tendency to

establish that the District should have realized that Shafer posed a risk. However, since the

judgment and sentence itself revealed little about the timing or circumstances of the conduct

34 No. 44324 -4 -II

giving rise to these other convictions, 8 the probative value was low. This risk of unfair prejudice to the District, in our view, outweighed the scant probative value of Shafer' s convictions for

molesting the other girls. We also hold that the trial court erred in allowing Stines' testimony

about Shafer' s other child molestation convictions because the risk of prejudice from this

evidence similarly outweighed its probative value. For these reasons, the trial court abused its

discretion in ruling that the probative value of evidence of the other convictions outweighed the

risk of prejudice. The evidence of Shafer' s convictions for molesting girls other than NL was

inadmissible under ER 403. Nevertheless, this error does not require reversal of the jury' s

verdict.

3. Conviction for possessing child pornography

Shafer' s conviction for possession of depictions of a minor engaged in sexually explicit

conduct, also part of the judgment and sentence, stemmed from files discovered on Shafer' s

home computer. Because the conduct giving rise to this charge did not occur on or involve

District property, this conviction was not probative of what the District should have known about

Shafer in hiring or retaining him as a school bus driver. Due to the absence of probative value

and the high potential for prejudice, the trial court erred under ER 403 in admitting Shafer' s

child pornography conviction.

VII. SUFFICIENCY OF THE EVIDENCE AND HARMLESS ERROR

The District contends that the trial court' s evidentiary errors require us to reverse the

jury' s verdict and to remand for dismissal of Gutierrez' s claim with prejudice. This is so, the

8 The judgment and sentence gives only an overlapping range of dates for each charge, and does not make clear which charge pertains to which victim.

35 No. 44324 -4 -II

District argues, because, without the improperly admitted hearsay and assuming the jurors

followed the court' s limiting instructions, " not even a scintilla of admissible evidence supports

the negligence and causation findings in the verdict." Br. of Appellant at 55. In the alternative,

the District argues that we should remand for a new trial on both liability and damages because

Gutierrez' s " liability and damages theories went hand in hand." Br. of Appellant at 55.

We first consider whether sufficient evidence supports the jury' s verdict under the

pleadings and instructions. Concluding that it does, we then turn to the District' s contention that

the erroneous admission of evidence was sufficiently prejudicial to require reversal. We

conclude that it was not.

A. Sufficiency of the Evidence

In reviewing a claim that .a jury' s verdict rests on insufficient evidence, we must interpret

the evidence most strongly against the party challenging the verdict and view the record in a light

most favorable to the prevailing party, accepting the truth of the prevailing party' s evidence and .

all favorable inferences that reasonably follow from it. Bell v. Hegewald, 95 Wn.2d 686, 689,

628 P. 2d 1305 ( 1981). To sustain a verdict against such a challenge, however, requires more

than " mere theory or speculation "; it requires "` substantial evidence' ... , evidence of a

character `which would convince an unprejudiced, thinking mind of the truth of the fact to which

the evidence is directed. ' Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P. 2d 275 ( 1980) ( quoting

Arnold v. Sanstol, 43 Wn.2d 94, 98, 260 P. 2d 327 ( 1953)).

1. Scope of duty instruction - no - assignment of error

The key liability instruction here, defining the scope of the District' s duty, provided:

The Olympia School District and its employees have a legal duty to exercise reasonable care to protect a student in its custody from reasonably foreseeable

36 No. 44324 -4 -II

dangers. The Olympia School District has a Iegal duty to exercise reasonable care in supervising and training its employees. A student is in the custody of the school district while riding on a school bus. Harm is reasonably foreseeable if the Olympia School District knew or should have known of the risk that resulted in the harm to plaintiffs. It is not necessary that the exact sequence of events be anticipated. It is only necessary that the actual harm fell within a general field of danger which should have been anticipated. With regards to the criminal actions of any employee of the District, these actions are reasonably foreseeable only if the District and its employees knew or in the exercise of reasonable care should have known that the employee was a risk to harm a student.

Under the law of the case doctrine we will not review an instruction, even if erroneous, to

which no party has assigned error. RAP 10. 3( g); Noland v. Dep' t ofLabor & Indus., 43 Wn.2d

588, 590, 262 P. 2d 765 ( 1953) ( " No assignments of error being directed to any of the

instructions, they became the law of the case on this appeal, and the sufficiency of the evidence

to sustain the verdict is to be determined by the application of the instructions and rules of law

laid down in the charge."). See also Chelan County Deputy Sheriffs' Ass 'n v. Chelan County,

109 Wn.2d 282, 300 n. 10, 745 P. 2d 1 ( 1987). Gutierrez did not cross appeal or assign error to

this instruction. Therefore, the instruction controls our decision.9

9 Because we are bound by this instruction under the law of the case doctrine, we decline to rule on its correctness. However, we do not suggest that we would uphold this instruction' s last sentence if properly challenged. This instruction appears to make the District liable for Shafer' s misconduct only if it had constructive notice that Shafer in particular posed a risk of child abuse. In Niece our Supreme Court rejected the contention that a failure -to- protect claim requires proof of constructive notice that the specific employee involved posed a risk when a special relationship is present. Niece, 131 Wn.2d at 48 -49. In reaching this conclusion for the operators of group homes, Niece relied in part on cases involving a school district' s duty to protect students. Niece, 131 Wn.2d at 50 -51 ( citing e. g., McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 322, 255 P. 2d 360 ( 1953)).

37 No. 44324 -4 -II

2. Constructive Notice

In deciding whether sufficient evidence supports the verdict under this instruction, we

consider whether, viewing the record before us in a light most favorable to Gutierrez, a rational

juror could have found that the District had constructive notice that Shafer posed a risk to

students of the type of harm that occurred.

The jury heard testimony from Stines that NL and VV sat by each other in the same school

bus seats every day. Thus, the jury could have inferred that at least some of Shafer' s inappropriate

conduct involving VV occurred prior to his abuse of NL. Gutierrez proposed instructing the jury

to consider this testimony only for the purpose of describing the relationship Shafer had established

with the girls; but at the District' s request, the court did not give a limiting instruction. The jury

could therefore have considered the evidence concerning VV for any purpose, including whether

the District should reasonably have foreseen the risk Shafer posed. Standing alone, however, this

evidence falls short of establishing that the District should have foreseen the risk from Shafer.

Whitehill' s and McGoey' s testimony concerning NL' s statement to Whitehill' s colleague

that Shafer had ridden her bus "[ t]wenty times" presents a similar issue. This time, however, the

trial court instructed the jury to consider the evidence only for the purpose of evaluating the

experts' opinions. Assuming, as we must in the absence of evidence to the contrary, that the

jurors followed the court' s limiting instruction, Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796

P. 2d 416 ( 1990), this evidence would not support a finding that the District should have known that Shafer posed a risk of sexual abuse.

38 No. 44324 -4 -II

The question remains, then, whether Gutierrez presented other evidence sufficient to

persuade a fair minded juror that the District should have known in the exercise of due care that

Shafer, specifically, posed a risk of abusing children. For the reasons that follow, we hold that

she did.

From the recording of Stines' interview with NL, the jury could reasonably have inferred

that Shafer rode NL' s bus more frequently than Paz and Stanley suggested in their testimony.

Stines also testified, without objection, that based on her investigation, she believed Shafer sat

with NL "[ m] ore than one [ time], multiple days." VRP at 222.

Other unchallenged or properly admitted evidence further supports the inference that

Shafer was riding along on kindergarten and preschool buses so frequently that the District

should have become suspicious. The survey conducted by Stanley, the District' s transportation

manager, showed that driver Todd Adams, one of only five drivers who responded to the survey,

recalled Shafer riding along on NL' s bus on two occasions in September and October of 2010

when Adams substituted for Paz. In total, four of the five responding drivers recalled Shafer

riding along a total of 11 times in the fall and early winter of 2010; the fifth recalled Shafer

riding along in prior years.

In their testimony, bus drivers Thompson, Engle, and Reeves confirmed their answers on

the survey. Thompson also recalled Shafer riding along 40 or more times on his kindergarten

route, including 10 times in the preceding 2009 -2010 school year. Reeves testified that Shafer

asked to ride along on Reeves' s kindergarten route; and Engle testified that Shafer rode along " a

couple of times" and " sat and chatted with kids" when Engle substituted on kindergarten routes.

VRP at 367 -73. Although neither Paz nor Bakewell responded to the survey, Bakewell testified

39 No. 44324 -4 -II

that Shafer often rode along when Bakewell substituted as the bus driver on kindergarten and

preschool routes. Paz testified that the first time Shafer asked to ride along on Paz' s bus, he

Paz) had asked transportation director Stanley' s permission, but had " never bothered asking

again because Fred Stanley just let [ Shafer] ride whenever he wanted." VRP at 69.

The jury could reasonably have inferred that, if Shafer rode NL' s route two times in two

months just on the occasions when Adams substituted for Paz, then Shafer was riding that route

with some regularity. Further, if the few drivers who responded to Stanley' s survey recalled 11

rides by Shafer in a four -month period, and other drivers who did not respond, Paz and

Bakewell, also recalled Shafer riding along multiple times during that period, the jury could have

reasonably concluded that Shafer was volunteering to ride along on kindergarten and preschool

buses, including NL' s bus, much more frequently than the two or three times Paz was willing to

admit.'°

NL' s kindergarten teacher, Evans, testified that she sometimes saw NL' s bus arrive at

school and noticed an adult riding along " multiple times," even though she did not always see

the bus arrive and had not specifically been paying attention. VRP at 418. Again, the jury could

reasonably have inferred that, if Evans noticed someone on the bus on multiple occasions, Shafer

had ridden the bus many more times than Evans noticed.

Furthermore, Paz' s testimony that Shafer sat with NL and VV only for about 20 minutes

during one bus ride was undermined by Paz' s testimony that he was not surprised that NL and

1° There were only 69 school days in the relevant period, and on 18 of those days Shafer drove a mid -day route for pay. Thus, even the 14 instances on which the District effectively admitted that Shafer rode along on mid -day routes amounted to more than one quarter of the remaining 51 school days.

40 No. 44324 -4 -II

VV knew Shafer as " Gary" because "[ Shafer] asked them all the time." VRP at 95. Paz could

hardly have meant that Shafer had asked the girls if they knew his name " all the time" during the

course of this single, 20- minute ride. The jury could have reasonably inferred that Paz refused to

admit that he routinely permitted Shafer to sit with NL and VV in the bus' s blind spot and, thus,

did not believe Paz' s testimony about the frequency with which Shafer rode along.

The evidence showing that NL thought of Shafer as a great friend whom NL frequently talked about and even prayed for, also gave rise to a reasonable inference that Shafer sat with the

girls on the bus many more than two or three times. Drummer testified that NL immediately

recognized Shafer as " Gary," the man who had touched her, from his driver' s license photo.

VRP at 428 -32. Gutierrez confirmed this, and described the depth of NL' s feelings of friendship

and concern for Shafer. Gutierrez also testified that NL had been " pretty shy" prior to the abuse

and took a long time " to get to know people." VRP at 1062. Again, the jury could reasonably

have inferred that a shy kindergarten girl would not have felt this degree of friendship and

concern for an adult man she had met only once or twice, and that the relationship had in fact

developed over numerous bus rides.

Similarly, Stines properly testified that NL' s seat mate, VV, considered Shafer a friend.

Stines identified, and the court admitted without objection, a picture VV had drawn of herself

and Shafer, identified as " Gare." VRP at 219; Ex. 120. The jury could have reasonably inferred

that a kindergarten girl would not draw such a picture of someone she had met only one or two

times, or think of him as a friend.

From this evidence, the jurors could reasonably have concluded that Shafer actually rode

along on the school bus many more times than the District admitted. From Adams' statement

41 No. 44324 -4 -II

that Shafer rode along on NL' s bus on two occasions in September and October of 2010 when

Adams substituted for Paz, the survey response by four drivers that Shafer rode along a total of

11 times in the fall and early winter of 2010, Thompson' s testimony that Shafer rode along 40 or

more times on his kindergarten route, including 10 times in the preceding 2009 -2010 school

year, and the evidence that NL thought of Shafer as a great friend and talked about and prayed

for him, the jurors could reasonably have concluded that many of these rides occurred prior to

Shafer' s abuse of NL. They could then reasonably have inferred that (1) had the District fulfilled

its duty to exercise due care, it would have noticed that Shafer was abusing the ride -along policy

in order to have inappropriate contact with young children; and ( 2) the District' s failure to do so

proximately caused damages to NL and Gutierrez.

In addition to the evidence concerning the frequency with which Shafer rode along on

NL' s school bus, the jury heard evidence that Shafer' s conduct while riding along was unusual

and suspicious. Driver Engle, for example, testified that he could not recall any other

transportation department employee besides Shafer who would move around the bus and sit with

kindergarten children while riding along. Paz also admitted that he thought it "strange" that

Shafer sat in the blind spot with kindergarten girls. VRP at 86 -87. The trial court instructed the

jury that "[ a] ny act or omission of an officer or employee is the act or omission of the Olympia

School District. "11CP at 1085. Thus, the jury could have properly imputed this employee

11 The trial court instructed the jury as follows: Defendant Olympia School District can only act through its officers and employees. Any act or omission of an officer or employee is the act or omission of the Olympia School District. Here, Mario Paz, Fred Stanley, Barbara Greer, and Beth Scouller were all employees of the Olympia School District during all relevant times. CP at 1085 ( Instruction 3).

42 No. 44324 -4 -II

knowledge to the District and also inferred from it that, in the exercise of due care, the District

would have realized that Shafer was abusing the ride -along policy in a way that posed a risk of

inappropriate contact with students.

Finally, Gearhart testified concerning his attempts to get the District to respond to his

concerns about what had happened to his daughter the day that Shafer had substituted on her bus

route. According to Gearhart, he spoke to various District employees, including Stanley' s

training coordinator Greer, but never got a satisfactory explanation. From this testimony, the

jury could have concluded that, had the District properly followed up on Gearhart' s complaint, it

would have noticed Shafer' s unusual behavior.

The court instructed the jury that the District owed the children a duty to exercise " the

highest degree of care consistent with the practical operation of the bus." CP at 1094. The jurors

could reasonably have found from the unchallenged and properly admitted evidence described

above that, had the District fulfilled this duty, it would have noticed and put a stop to Shafer' s

misconduct before he molested NL.

The court also instructed the jury on Gutierrez' s negligent training claim. As discussed,

Gutierrez presented evidence that the District knew about the potential for sexual abuse of

students by bus drivers, including Shafer, and developed policies to mitigate that risk, but failed

to timely disseminate that knowledge and implement those policies. From the testimony of

Mario Paz and Dale Thompson, the jury could have reasonably inferred that, had the District

informed its drivers about the known dangers, one or more of them would have reported Shafer' s

apparent abuse of the District' s ride -along policy. Thus, the jury could also have reasonably

43 No. 44324 -4 -II

inferred that the District breached its duty to train its employees, and that the breach proximately

caused NL' s damages.

We hold that sufficient evidence supports the jury' s verdict.

B. Harmless Error

The District has properly preserved for review three evidentiary errors by the trial court:

the admission of (1) NL' s statements to Gutierrez concerning how frequently Shafer rode NL' s

bus; ( 2) the video of NL saying that Shafer rode her bus 20 times; and ( 3) Shafer' s convictions

for molesting two other victims and for possession of child pornography. A trial court' s

erroneous admission of evidence merits reversal only if the error prejudiced the party opposing

admission of the evidence; that is, only if, "within reasonable probabilities, the outcome of the

trial would have been materially affected had the error not occurred." Saldivar v. Momah, 145

Wn. App. 365, 401, 186 P. 3d 1117 ( 2008); accord Brundridge v. Fluor Fed. Servs., Inc., 164

Wn.2d 432, 446, 191 P. 3d 879 ( 2008). Thus, these errors require us to reverse the jury' s verdict

only if they affected, or presumptively affected, that verdict. Brown, 100 Wn.2d at 196. We do

not generally consider the erroneous admission of hearsay prejudicial where it is merely

cumulative of properly admitted evidence. Brown, 100 Wn.2d at 196.

From the properly admitted evidence, just summarized, the jury could reasonably have

inferred that Shafer rode the bus with NL multiple times and that he rode on other kindergarten

routes many more times. The erroneously admitted statements NL made to Gutierrez concerning

the frequency with which Shafer rode her bus were merely cumulative of other evidence and

cannot be said to have materially affected the outcome of the trial. Thus, we hold that the error

in their admission was harmless.

44 No. 44324 -4 -II

Although we recognize that NL' s direct statements were more potent than those

recounted by others, the same analysis applies to the video. The video was merely cumulative of

other evidence and cannot be said to have materially affected the outcome of the trial. In

addition, the trial court instructed the jury to consider the video only for the purpose of

evaluating Whitehill' s opinions. Presuming, as we must, that the jury followed this instruction,

we hold that admission of the video was also harmless.

Finally, in the context of a lengthy trial involving extensive properly admitted evidence

that cast Shafer in a negative light, including the admission of Shafer' s conviction for molesting

NL, we see no reasonable probability that the admission of Shafer' s other convictions materially

affected the jury' s verdict. Concluding that the trial court' s errors were harmless, we affirm.

VIII. ATTORNEY FEES

Gutierrez argues that she is entitled to attorney fees under RAP 18. 9 because the

District' s appeal is frivolous and brought for purposes of delay. This claim lacks merit.

An appeal is frivolous if, considering the entire record, the court is convinced that the

appeal presents no debatable issues upon which reasonable minds might differ, and that the

appeal is so devoid of merit that there is no possibility of reversal." Advocates for Responsible

Dev. v. W. Wash. Growth M Hearings Bd., 170 Wn.2d 577, 580, 245 P. 3d 764 ( 2010). The

District' s appeal raises fairly debatable issues, and presents certain claims that have some merit,

although they do not warrant reversal. We deny Gutierrez' s fee request.

CONCLUSION

We hold that sufficient evidence supports the jury' s verdict and that the District has failed

45 No. 44324 -4 -II

to show a sufficient probability that the trial court' s evidentiary errors affected the outcome. We

affirm.

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.

I concur:

46 No. 44324 -4 -II

LEE, J. ( dissenting) — I respectfully disagree with the majority. In my opinion, ( 1) the trial

court abused its discretion by allowing Chris McGoey to testify about N.L.' s statement that Gary

Shafer rode her bus 20 times, ( 2) the trial court abused its discretion by improperly admitting

evidence of Shafer' s convictions for molesting V.V. and T.M.C., 12 ( 3) the trial court abused its

discretion by improperly allowing Detective Cheryl Stines to testify about V.V.' s hearsay

statements, ( 4) McGoey and Dr. Mark Whitehill improperly vouched for the credibility ofN.L.' s

statement that Shafer rode the bus 20 times, ( 5) the trial court improperly admitted the video of

N.L.' s statement,13 ( 6) the trial court improperly admitted Abbigail Gutierrez' s hearsay testimony

regarding N.L.' s statements, 14 and ( 7) the trial court improperly admitted evidence of Shafer' s

conviction for possession of depictions of a minor engaged in sexually explicit conduct.15 These

evidentiary errors in this case were not harmless. Accordingly, I would reverse and remand for a

new trial.

12 The majority agrees that the trial court improperly admitted the evidence of Shafer' s convictions for molesting V.V. and T.M.C., so the issue will not be further addressed in this dissent except in the context of harmless error.

13 The majority agrees that the trial court improperly admitted the video of N.L.' s statements, so the issue will not be further addressed in this dissent except in the context of harmless error.

14 The majority agrees that the trial court improperly admitted Gutierrez' s testimony regarding N.L.' s statements, so the issue will not be further addressed in this dissent except in the context of harmless error.

15 The majority agrees that the trial court improperly admitted evidence of Shafer' s conviction for possession of depictions of a minor engaged in sexually explicit conduct, so the issue will not be further addressed in this dissent except in the context of harmless error.

47 No. 44324 -4 -II

A. EVIDENTIARY RULINGS

1. McGoey' s testimony about N.L.' s statements under the guise of expert testimony: ER 703 and ER 705 The Olympia School District (the District) argues that McGoey improperly testified to

N.L.' s statement that Shafer rode the bus 20 times because N.L.' s statement was improperly

admitted as a basis for his expert opinion. This court reviews the trial court' s evidentiary rulings

regarding expert testimony for an abuse of discretion. Hickok Knight - v. Wal -Mart Stores, Inc.,

170 Wn. App. 279, 313, 284 P. 3d 749 ( 2012) ( citing Minehart v. Morning Star Boys Ranch, Inc.,

156 Wn. App. 457, 463, 232 P. 3d 591, review denied, 169 Wn.2d 1029 ( 2010)), review denied,

176 Wn.2d 1014 ( 2013). A trial court abuses its discretion when its decision is based on untenable

grounds or untenable reasons. Hickok -Knight, 170 Wn. App. at 313 ( citing Yousoufian v. Office

ofRon Sims, King County Exec., 168 Wn.2d 444, 458, 229 P. 3d 735 ( 2010)). Determining whether

the trial court properly allowed an expert to testify to otherwise inadmissible hearsay as the basis

for his or her opinion requires applying both ER 703 and ER 705. See Hickok Knight, - 170 Wn.

App. at 313 -15; State v. Martinez, 78 Wn. App. 870, 879 -80, 899 P. 2d 1302 ( 1995), review denied,

128 Wn.2d 1017 ( 1996), abrogated on other grounds by State v. Kinneman, 155 Wn.2d 272, 119

P. 3d 350 ( 2005).

ER 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

48 No. 44324 -4 -II

Under ER 703, the trial court may not allow an expert to testify to an opinion unless the opinion

is supported by facts or data which the expert reasonably relied upon. Walker v. State, 121 Wn.2d

214, 218, 848 P.2d 721 ( 1993) ( expert opinions lacking an adequate foundation should be

excluded). ER 703 allows an expert to form a valid, admissible opinion based on evidence that

either has not been admitted at trial or that would otherwise be inadmissible. However, ER 703

does not make the facts and data underlying the opinion admissible. Determining whether the

facts and data underlying the expert' s opinion is admissible in trial is governed by ER 705.

ER 705 states:

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination.

The purpose of allowing an expert to testify to otherwise inadmissible hearsay is to explain the

basis for the expert' s opinion. In re Det. of Leck, Wn. App. , 334 P. 3d 1109, 1120 ( citing

In re Det. of Marshall, 156 Wn.2d 150, 163, 125 P. 3d 111 ( 2005)), review denied, 335 P. 3d 941

2014). " However, ` it does not follow that such a witness may simply report such matters to the

trier of fact: The Rule was not designed to enable a witness to summarize and reiterate all manner

of inadmissible evidence. "' Marshall, 156 Wn.2d at 162 ( quoting State v. Devries, 149 Wn.2d

842, 848 n.2, 72 P. 3d 748 ( 2003)) ( internal quotations marks omitted).

The District argues that it was improper for the trial court to admit N.L.' s statement that

Shafer rode her bus 20 times as support for McGoey' s opinion. I agree with the District. McGoey

did not actually rely on N.L.' s statement when forming his opinion; he barely references N.L.' s

statement in explaining his opinion. Therefore, N.L.' s statement that Shafer rode the bus 20,times

should not have been admitted under the guise of "explaining" McGoey' s opinion.

49 No. 44324 -4 -II

McGoey purportedly relied on N.L.' s statement that Shafer rode the bus 20 times to form

his opinion that an organization needs policies and procedures in place so that the organization can

recognize suspicious and unusual behavior. When " explaining" this opinion, McGoey testified

that Shafer riding the bus 20 times was unusual behavior. This is the extent to which McGoey

relied" on N.L.' s statement that Shafer rode her bus 20 times. Based on McGoey' s testimony as

a whole, it was not necessary for McGoey to testify regarding N.L.' s statement to explain his

opinion. When the otherwise inadmissible hearsay does not explain the expert' s opinion, it does

not serve the purpose that allows its admission. Therefore, N.L.' s statement that Shafer rode the

bus 20 times was not admissible under ER 703 and ER 705 to explain McGoey' s opinion.

Not only was there nothing about the fact that N.L. said Shafer rode the bus 20 times that

explained the basis for McGoey' s opinion, which was that the District lacked " ordinary policies

and procedures and systems [ that] would have caught the unusual behavior," RP at 666, there is

no basis upon which McGoey could reach the conclusion that frequent ride alongs were unusual

behavior. Overall experience in security is not necessarily sufficient to offer a conclusory opinion

on what specifically constituted " unusual behavior" for a school bus driver. ER 702 ( experts may

testify to opinions when qualified by " knowledge, skill, experience, training or education. "); see

Tortes v. King County, 119 Wn. App. 1, 13, 84 P. 3d 252 ( 2003) ( In an action for negligence by

King County Metro trial court properly excluded affidavit by an expert because, although expert

was a security and law enforcement expert, the expert had no " expertise regarding the actual

standard of care applicable to public transit operators. "). McGoey' s testimony about N.L.' s 20-

times statement came only after Gutierrez asked him about evidence McGoey reviewed " that

shows Gary Shafer actually rode up to twenty times with Mario Paz." RP at 667. Thus, N.L.' s

50 No. 44324 -4 -II

statement that Shafer rode her bus 20 times was not used to explain his opinion, and the trial court

abused its discretion by allowing such testimony.

2. Stines' testimony about V.V.' s hearsay statements: ER 801( c) AND ER 803( a)( 3)

In addition to its objection regarding the admissibility of N.L.' s statements, the District

argues that the trial court improperly admitted hearsay through Stines' testimony. The majority

holds that Stines' testimony was properly admitted. I do not agree that the trial court properly

allowed Stines to testify to V.V.' s statement; rather the trial court abused its discretion by allowing

Stines to testify about V.V.' s hearsay statements.

This court reviews de novo whether a statement is hearsay, but this court reviews the trial

court' s ruling regarding a hearsay objection for an abuse of discretion. State v. Mason, 160 Wn.2d

910, 922, 162 P. 3d 396 ( 2007) ( citing State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239

1997)), cent. denied, 553 U. S. 1035 ( 2008). A trial court abuses its discretion if the trial court' s

decision was based on untenable grounds or untenable reasons. Mason, 160 Wn.2d at 922 ( quoting

State v. C.J., 148 Wn.2d 672, 686, 63 P. 3d 765 ( 2003)). When a trial court' s ruling is based on

the mistaken determination that a statement is not hearsay, the trial court abuses its discretion by

admitting the statement. See State v. Quismundo, 164 Wn.2d 499, 504, 192 P. 3d 342 ( 2008) ( "[ A]

court ` would necessarily abuse its discretion if it based its ruling on an erroneous view of the

law. ") ( quoting Wash. State Physicians Ins. Exch. & Ass 'n v. Fisons Corp., 122 Wn.2d 299, 339,

858 P. 2d 1054 ( 1993)).

Hearsay is " a statement, other than one made by the declarant while testifying at the trial

in to prove the truth of the matter ER 801( c). Under ER or hearing, offered evidence asserted."

802, hearsay is not admissible unless provided by court rule or statute. One hearsay exception is

51 No. 44324 -4 -II

the " state of mind" exception in ER 803( a)( 3). ER 803( a)( 3) states that a statement is not excluded

as hearsay if it is a:

statement of the declarant' s then existing state of mind, emotion, sensation, or physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant' s will.

To be admissible under ER 803( a)( 3), the declarant' s state of mind must be at issue. State v.

Powell, 126 Wn.2d 244, 893 P. 2d 615 ( 1995) ( "[ T] he state of mind exception of ER 803( a)( 3) is

applicable in instances where the state of mind of the deceased is at issue. "); State generally only

v. Aaron, 57 Wn. App. 277, 279 -80, 787 P. 2d 949 ( 1990) ( holding officer' s testimony regarding

statement by 911 dispatcher was not admissible to show officer' s state of mind in explaining why

officer acted the way he did because legality of search, and therefore officer' s state of mind, was

not at issue).

The District argues that the trial court improperly allowed Stines to testify regarding the

statements V.V. made about Shafer' s conduct with V.V. and N.L. on the bus. Specifically, Stines

testified that V.V. told her that Shafer was her friend and that Shafer scratched the girls' backs,

tickled them, let them sit on his lap, and read them knock -knock jokes on his phone. V.V.' s

statements were inadmissible hearsay.

As an initial matter, it is important to be clear about the issues before this court regarding

Stines' testimony about V.V.' s statements. The first question is whether V.V.' s statements are

hearsay at all under ER 801( c). And then, if so, whether the hearsay exception in ER 803( a)( 3)

permits the admission of V.V.' s statements. These are two distinct inquiries that the majority

conflates. V.V.' s statements are hearsay because they were offered for the truth of the matter

52 No. 44324 -4 -II

asserted. And, her statements are not admissible under the ER 803( a)( 3) " state of mind" exception

because V.V.' s state of mind is not material to a fact at issue in this case. Accordingly, the trial

court erred by allowing Stines to testify to V.V.' s hearsay statements.

First, at trial, Gutierrez asserted that "[ n] othing that' s being said is being offered for the

truth of whether [ Shafer] was their friend —" 2 Report of Proceedings (RP) at 208. Based on this

assertion Gutierrez was arguing that V.V.' s statements were not hearsay under ER 801( c) because

they were being admitted to show that Shafer rode the bus often enough that the District should

have been concerned — they were not being offered to prove that Shafer was V.V.' s friend or that

he scratched the girls' backs, told them jokes, or let them sit on his lap. However, a nearly identical

argument has been considered and rejected by Division One of this court in Tortes v. King County,

119 Wn. App. 1, 84 P. 3d 252 (2003).

In Tortes, the plaintiff was injured in a bus crash that resulted from another bus passenger

shooting the bus driver and then shooting himself. 119 Wn. App. at 6. The plaintiff filed a claim

alleging that King County was negligent in failing to protect her. Tortes, 119 Wn. App. at 6. The

reviewing court affirmed the trial court' s order granting summary judgment because, although

common carriers owe the highest degree of care to their passengers, the criminal act of a third

party murdering a bus driver was not reasonably foreseeable. Tortes, 119 Wn. App. 7 -8. In support

of her argument that the criminal acts were reasonably foreseeable, the plaintiff attempted to

introduce a newspaper article documenting other criminal incidents on buses. Tortes, 119 Wn.

App. at 13. The court affirmed the trial court' s ruling striking the article explaining:

Tortes claims she is not attempting to prove that the incidents in the article actually happened, but only that Metro was on notice that such incidents were being alleged and, therefore, the accident and resulting injuries at issue here were foreseeable. We disagree. To be relevant to the case, any incidents providing notice would

53 No. 44324 -4 -II

necessarily have to have happened. If the incidents actually happened, then the article was submitted for the truth of that fact, and, therefore, the article is certainly hearsay.

Tortes, 119 Wn. App. at 14.

The same reasoning applies here. In order to support the assertion that Shafer rode the bus

so often that the District should have been alerted to his unusual behavior, V.V.' s statements about

her interactions with Shafer would have to be true. Therefore, V.V.' s statements are being offered

for the truth of the matter asserted, which is hearsay, and would only be admissible if the state of

mind exception in ER 803( a)( 3). applies.

Gutierrez argued, and the trial court agreed, that V.V.' s statements were admissible under

ER 803( a)( 3). As noted above, to be admissible under ER 803( a)( 3), the statement must prove the

declarant' s then existing state of mind and the declarant' s state of mind must be relevant to a

material fact at issue. The majority determines that V.V.' s statements were admissible under ER

803( a)( 3) because " friendship" is a state of mind and all of V.V.' s statements are either direct or

circumstantial evidence that V.V. believed Shafer was her friend. Majority at 30 -31. However,

the inquiry under ER 803( a)( 3) does not end at determining whether the statement proves the

declarant' s state of mind. Even assuming that V.V.' s statements do prove her then existing state

of mind, V.V.' s state of mind is not material to an issue of fact before the jury.

There were four material issues before the jury: ( 1) Did the District fail to protect N.L. by

failing to have appropriate rules and procedures? ( 2) Did the District negligently supervise Shafer

by allowing him to ride along on midday routes? ( 3) Did the District negligently train its employees

by failing to train the transportation department on boundary invasions? and ( 4) Were Shafer' s

criminal acts reasonably foreseeable? V.V.' s state of mind regarding her " friendship" with Shafer

54 No. 44324 -4 -II

could only conceivably be relevant to whether Shafer' s acts were reasonably foreseeable. But the

District had no knowledge of V.V.' s state of mind. The District did not know that V.V. believed

that Shafer was her friend. V.V. did not make any statements that Shafer was her friend until after

N.L. was molested. At best, V.V.' s state of mind could support an inference that Shafer rode the

bus numerous times, which in turn could support an inference that the number of times Shafer rode

the bus was actually unusual or suspicious, which in turn could support the inference that the

District should have known that Shafer posed a risk of harm to children. However, this connection

is simply too convoluted and tenuous to render V.V.' s" state of mind" at issue in this case.

Therefore, V.V.' s statements were not admissible under ER 803( a)( 3), and Stines should not have

been permitted to testify to them.

3. McGoey and Whitehill improperly vouched for the credibility of N.L.' s statement

Although ER 702 allows an expert to offer an opinion on an ultimate issue of material fact,

an expert may not usurp the factfinder' s responsibility to determine credibility. Fettig v. Dep 't of

Soc. & Health Servs., 49 Wn. App. 466, 477, 744 P. 2d 349 ( 1987), review denied, 110 Wn.2d 1003

1988); see also State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P. 2d 1117 ( 1985) ( "` An expert

may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine

credibility.") ( quoting 5A KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW AND

PRACTICE, § 292, at 39 n. 4 ( 2d ed. 1982)). Moreover, "[ a] n expert may not offer an opinion on an

ultimate issue of fact when it is based solely on the expert' s perception of the witness'

truthfulness" State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 ( 1992).

55 No. 44324 -4 -II

a. McGoey' s testimony

The District argues that McGoey improperly vouched for the credibility of N.L.' s

statement. McGoey testified:

GUTIERREZ]: Okay. And so I was asking you what evidence did you see that would — would provide a differing estimation of the number of ride- alongs that Shafer did with [Mario] Paz? MCGOEY]: [ N. L.] said that Gary Shafer, rode 20 times on the bus. GUTIERREZ]: We had a chance to look at the video of the interview Detective Stines did with [ N.L.], and in that one she said he rode sometimes and he didn' t ride other times. Where was the information that you saw about the twenty times? MCGOEY]: It was in the report through the psychologist. GUTIERREZ]: Okay. All right. And did you draw conclusions at all after weighing the evidence about what the likely amount of time was that Gary Shafer rode along with Mario Paz? MCGOEY]: Yes. GUTIERREZ]: Tell us about that. MCGOEY]: Well, definitely more than three times, two or three times, multiple times. I have to accept the evidence I see on its face, twenty times or —but, you

know, definitely more than three times. GUTIERREZ]: You could accept the evidence at face value that Mario Paz said which was three times. Was that consistent with what you saw? MCGOEY]: No.

4 RP at 672 -73.

The majority asserts that the District waived its objection to this testimony because it did

not object during McGoey' s testimony. I disagree. Under RAP 2. 5( a) a party may not generally

raise an issue for the first time on appeal. However, this court may exercise its discretion to waive

any rule " to serve the ends of justice." RAP 1. 2( c). Here, McGoey' s testimony regarding the

accuracy of N.L.' s statement came immediately after the trial court told the parties that the

questioning of the witness would proceed " without further disruption." 4 RP at 671. I do not

believe it serves the ends of justice to penalize a party for following a trial court' s directive.

56 No. 44324 -4 -II

Moreover, an expert' s opinion vouching for otherwise inadmissible hearsay invades the province

of the jury and undermines confidence in the verdict. Accordingly, I would address the merits of

the District' s claim that McGoey improperly vouched for the credibility of N.L.' s statement.

As noted above, an expert may not offer an opinion that usurps the jury' s responsibility to

weigh the evidence and determine credibility. Fettig, 49 Wn. App. at 477. Here, McGoey

specifically testified that he was of the opinion that N.L.' s statement regarding how many times

Shafer rode the bus was more credible than Paz' s testimony that Shafer rode his bus three times.

4 RP at 672 -73. McGoey' s opinion clearly usurps the role of the jury. Not only did McGoey offer

an opinion on both the credibility of N.L.' s statement and Paz' s testimony, but he agreed that he

reached his conclusion after " weighing the evidence." 4 RP at 672 -73. McGoey' s testimony

improperly vouched for the credibility of N.L.' s statement. And, by stating that he weighed the

evidence, McGoey' s testimony gave the impression that N.L. "s statement was actually substantive

evidence of how often Shafer rode her bus.

b. Whitehill 's Testimony

I also disagree with the majority that this court should not address the District' s argument

that Whitehill improperly vouched for the accuracy of N.L.' s statement. The majority asserts that

the District waived its objection to Whitehill' s testimony asserting that N.L.' s statement was

reliable because the District did not object. The original line of questioning regarding the

reliability of N.L.' s statement began with a juror' s question, asking how reliable information

gathered from a five or six year old is. Whitehill offered a generic explanation that the reliability

of information varies depending on the child. However, on redirect Gutierrez continued the line

of questioning:

57 No. 44324 -4 -II

GUTIERREZ]: And in terms of the information that you gathered from [ the woman' s] interview, was it also similarly reliable? WHITEHILL]: It was. It was —you know, she didn' t make the disclosures that she' d made to Detective Stines in her interview with [ the woman], but in terms of

what she provided, you know, we saw that little clip with the twenty where she wrote that down as well, and that seemed to be factually correct information. That is, I didn' t have any evidence that it is not. GUTIERREZ]: So were the statements that she was making, both from Detective

Stines' s interview process and in your clinic, were they corroborated by the other evidence?

DISTRICT]: Objection. Leading. THE COURT]: Rephrase. GUTIERREZ]: What can you tell us about whether her statements were corroborated by other evidence? WHITEHILL]: Well, they seemed to be reliably— reliable. That is, reliability in psychology means kind of repeated measures of the same phenomenon, and to the extent that [ N.L.] shared similar information across both interviews, that would be

one index of reliability or corroboration.

6 RP at 1046 -47. Although the District did not specifically object on the basis of vouching, I

would consider the District' s argument under RAP 1. 2( c). Because an expert opinion on

credibility invades the province of the jury, expert testimony vouching for the credibility of an

otherwise inadmissible hearsay statement undermines confidence in the jury' s verdict. And,

considering the significance of N.L.' s statement if the jury did consider it reliable substantive

evidence, I believe it serves the end ofjustice to review the error.

Here, Whitehill testified that he believed N.L.' s statement that Shafer rode her bus 20 times

was factually correct. And, when Whitehill answered that N.L.' s statements appeared reliable in

response to Gutierrez' s question regarding whether N.L.' s statements were corroborated implies

to the jury that there is additional information that corroborates N.L.' s statement. This was

improper. Whitehill' s testimony regarding the reliability of N.L.' s statements was an improper

opinion on the credibility of an otherwise inadmissible hearsay statement.

58 No. 44324 -4 -II

Although the trial court made several erroneous evidentiary rulings, this court must still

determine whether the evidentiary errors require reversal. An erroneous evidentiary ruling

requires reversal only when it results in prejudice. Mut. ofEnumclaw Ins. Co. v. Gregg Roofing

Inc., 178 Wn. App. 702, 728 -29, 315 P. 3d 1143 ( 2013) ( quoting Brown v. Spokane County Fire

Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 ( 1983)). Any error that affects the outcome

of the case is prejudicial and not harmless. Mut. ofEnumclaw, 178 Wn. App. at 729 (citing Brown,

100 Wn.2d at 196). "` [ I] mproper admission of evidence constitutes harmless error if the evidence

is cumulative or of only minor significance in reference to the evidence as a whole.'" Mut. of

Enumclaw, 178 Wn. App. at 729 ( quoting Hoskins v. Reich, 142 Wn. App. 557, 570, 174 P.3d 16 1250, review denied, 164 Wn.2d 1014 ( 2008)).

Here, the improperly admitted evidence was prejudicial to the District. The jury was

specifically instructed that:

With regards to the criminal actions of any employee of the District, these actions are reasonably foreseeable only if the District and its employees knew or in the exercise of reasonable care should have known that the employee was a risk to harm a student.

16 Overall, a comparison between my harmless analysis and the majority' s harmless error analysis is unhelpful because of the disparity between the evidence the majority believes was improperly admitted and the evidence I believe was improperly admitted. However, I note that the majority relies on its determination that there was sufficient evidence to support the jury' s verdict to support its conclusion that the trial court' s evidentiary rulings were harmless. The sufficiency of the evidence standard is highly deferential to the jury' s verdict and requires examining all the evidence in favor of the prevailing party. Bland v. Mentor, 63 Wn.2d 150, 155, 385 P. 2d 727 ( 1963) ( When determining the sufficiency of the evidence, this court need only consider the evidence favoring In contrast, to determine whether an evidentiary error is harmless this court the prevailing party). must review the evidence as a whole to attempt to determine what effect, if any, the improperly admitted evidence had on the jury' s verdict. Mut. ofEnumclaw, 178 Wn. App. at 729. 59 No. 44324 -4 -II

Clerk' s Papers at 1095. To meet this burden, Gutierrez argued that if the District was exercising

reasonable care it would have noticed that Shafer was abusing the ride -along policy to groom and

abuse kindergarten girls. Proving this proposition required Gutierrez to show that Shafer was

riding the bus an unusual or suspicious number of times.

As an initial matter, the trial court gave the jury a limiting instruction which stated that the

evidence of N.L.' s statement was only admitted for a limited purpose. Although this court

presumes that juries follow the trial court' s instructions, there are circumstances in which the

prejudice cause by the trial court' s errors is so significant it cannot be cured by a jury instruction.

Bertsch v. Brewer, 97 Wn.2d 83, 88, 640 P. 2d 711 ( 1982); see also In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 708, 286 P. 3d 673 ( 2012) ( no instruction could cure the prosecutor' s

misconduct because of the " multiple ways in which the prosecutor attempted to improperly sway

the jury and the powerful visual medium he employed "). Given the circumstances of this case, I

do not believe that ajury instruction can cure the prejudice resulting from the erroneous evidentiary

rulings in this case.

N.L.' s statement was the only evidence specifically contradicting Paz' s testimony that

Shafer only rode his bus three times. And, because' McGoey was improperly permitted to offer an

opinion on the credibility ofN.L.' s statement, it is more likely that the jury believed that they could

rely on the statement as substantive evidence. Similarly Whitehill' s improper opinion that N.L.' s

statement appeared factually correct made it more likely that the jury would disregard the

instruction and consider N.L.' s statement as substantive evidence on how many times Shafer rode

the bus. More importantly, the trial court not only allowed the video of N.L.' s statement to be

shown to the jury, it admitted the video as an independent exhibit. When an improper piece of

60 No. 44324 -4 -II

evidence is admitted as an independent exhibit that the jury can review during deliberations, it can

be " even more noticeable and damaging." Bertsch, 97 Wn.2d at 88. And, images and other visual

aids are more prejudicial than simple statements. Glasmann, 175 Wn.2d at 707 -08. Therefore,

showing the jury the video ofN.L.' s statement and admitting the video as a separate exhibit created

a prejudice that could not be cured by a simple jury instruction. 17 The limiting instruction does

not resolve whether the evidentiary errors in this case harmless.' 8

Here, the majority of the evidence that Gutierrez relied on to prove that the District should

have known that Shafer posed a risk of harm to a child was either inadmissible evidence or

inextricably linked to inadmissible evidence. Without N.L.' s statement that Shafer rode her bus

20 times or Gutierrez' s testimony regarding N.L.' s other statements, the only direct evidence

regarding how often Shafer rode N.L.' s bus was Paz' s testimony that Shafer rode along two to

three times and N.L.' s interview with Stines in which N.L. stated Shafer rode the bus some days.

And, although there was evidence that Shafer rode along with other drivers, with the exception of

Dale Thompson' s route, he did not ride the same route more than three times. And, Fred Stanley,

and Thompson both explained why Shafer would have ridden Thompson' s bus with a legitimate

17 Even the majority admits that there was a " potentially increased likelihood that the jury would disregard the court' s limiting instruction" by the trial court' s erroneous admission of N.L.' s video recorded statements to the psychologist. Majority at 26.

18 Although N.L.' s statement was admissible to explain Whitehill' s opinion, I do not believe that the improper admission of N.L.' s statement in McGoey' s testimony, the video, or the vouching was harmless because they were cumulative. If the sole reference to N.L.' s statement was a brief reference to explain Whitehill' s opinion on damages, I would agree that the jury would follow the instruction and only consider the statement as a basis to explain Whitehill' s opinion on damages. However, given the admission of the statement in McGoey' s testimony, the video, and the vouching by both experts, it makes it more likely that the jury would consider the evidence as substantive evidence.

61 No. 44324 -4 -II

purpose approximately 60 times over the course of 5 years. Moreover, it appears McGoey' s

unqualified opinion that Shafer' s conduct was unusual enough to warrant action by the District

was dependent on Shafer riding a particular bus at least 20 times. In my opinion, the improper

admission of N.L.' s statements through McGoey, Whitehill, and Gutierrez affected the verdict by

providing improper support for Gutierrez' s tenuous position the Shafer abused the ride along

policy to the extent the District should have known that he posed a risk of harm to children.

Similarly, Stines' testimony regarding V.V.'s statements and Shafer' s other convictions

was not harmless. 19 V.V.' s feelings toward Shafer, the conduct V.V. stated occurred on the bus,

and Shafer' s other crimes were not known to anyone, let alone the District, at the time Shafer

molested N.L. Allowing Gutierrez to present this evidence to the jury implies that Shafer' s

unknown conduct could support a finding that the District should have known Shafer posed a risk

of harming children.

In my opinion, the improperly admitted evidence in this case affected the jury' s verdict.

Therefore, I would reverse and remand for a new trial or other proceedings. I respectfully dissent.

19 The majority did not address the effect of V.V.' s statements because the majority determined that V.V.' s statements were admissible hearsay. However, the majority did state that the improper admission of Shafer' s conviction for child pornography was harmless because of the other extensive evidence that cast Shafer in a negative light. The issue is not whether the evidence casts Shafer in a negative light because Shafer was not a defendant. Rather the issue is whether the improperly admitted evidence prejudiced the District by allowing or encouraging the jury to reach a verdict on improper or unsupported grounds. Although the light in which Shafer is cast may have some effect, the more prejudicial effect of the evidence results from the implication that Shafer' s possession of child pornography, conduct which did not come to light until after N.L. was molested, could put the District on notice that Shafer posed a risk of harm to children.